STATE OF OHIO, Plаintiff-Appellee, v. ROBERT JAMES CONANT, Defendant-Appellant.
Case No. 20CA1108
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ADAMS COUNTY
RELEASED 8/27/2020
2020-Ohio-4319
APPEARANCES:
Brian T. Goldberg, Cincinnati, Ohio, for appellant.
David Kelley, Adams County Prosecutor, and Kris D. Blanton, Adams County Assistant Prosecutor, West Union, Ohio, for appellee.
Hess, J.
{¶1} Robert Conant appeals his conviction, following a jury trial, for felonious assault. Conant contends that the trial court erred when it refused to instruct the jury on assault as a lesser included offense of felonious assault. However, after viewing the evidence in a light most favorable to Conant, we conclude the jury could not reasonably find him not guilty of felonious assault but guilty of assault. Therefore, the trial court did not abuse its discretion when it refused to give the requested instruction.
{¶2} Conant also asserts his conviction is not supported by sufficient evidence and is against the manifest weight of the evidence. However, after viewing the evidence in a light most favorable to the prosecution, we conclude that any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt, and after weighing the evidence and all reasonable inferences,
{¶3} Next, Conant claims that he received ineffectivе assistance of counsel because trial counsel did not request dismissal or further questioning of a juror who felt Conant should have to testify and because counsel allowed improper testimony about his prior bad acts. However, the juror did not express a belief that conflicted with Conant‘s Fifth Amendment right against self-incrimination, and the complained of testimony did not violate Evid.R. 404(B). Therefore, counsel‘s performance regarding those matters was not deficient.
{¶4} Conant also contends that the trial court erred when it sentenced him under the Reagan Tokes Law because it is unconstitutional. However, Conant did not challenge the constitutionality of the Reagan Tokes Law at the trial level, so he has forfeited аll but plain error review as to this issue. Conant does not argue plain error, and we decline to sua sponte conduct a plain error analysis.
{¶5} Finally, Conant asserts that the trial court erred when it imposed both a prison term and a no-contact order, which is a community-control sanction. Because a trial court generally lacks authority to impose a prison term and community-control sanction for the same felony offense and no express exception applies in this case, we agree. Accordingly, we vacate the no-contact order and remand for the trial court to issue a corrected sentencing entry that removes reference to that order. We affirm the triаl court‘s judgment in all other respects.
{¶6} The Adams County grand jury indicted Conant on one count of felonious assault in violation of
{¶7} Ashley McAfee testified that she and Conant had been engaged and had lived together for several years in a two-bedroom apartment. For a couple of weeks prior to October 29, 2019, the couple had been sleeping in different bedrooms because Conant had accused McAfee of cheating on him, and they had been arguing. On October 29, 2019, she went into the bedroom Conant had been sleeping in to get some clothes to get ready for an appointment. Conant accused her of getting ready to cheat on him, followed her into the other bedroom, accused her of cheating on him with “everybody in Adams County,” told her he wanted oral sex, exposed his penis, and started to come towards her. McAfee threatened to cut his penis off, and Conant grabbed her by the hair, pulled her off the bed, grabbed her throat, and started to choke her, “pushing downwards with his body weight and squeezing.” McAfee testified that this “wasn‘t painful,” but “it was scary.” She could not breathe and “ended up blacking out losing consciousness.” When she started to “come to,” “light, color, and objects were becoming visible again,” her head “felt weird” as if it had been hanging “upside down for very long,” and her arms and legs were shaking, which reminded her of а seizure. Conant was no longer “over top” of her and choking her; he was standing near her shins, staring at her. She grabbed her phone but Conant jerked it out of her hand. She screamed for help and for someone to call 9-1-1. Conant got behind her and squeezed her throat with one hand and used his other hand to cover her mouth and at
{¶8} McAfee testified that Chief William Newland came to the scene, photographed injuries on her neck, and “called for a squad.” McAfee testified that she had a small cut on her hand from the incident but wаs not sure how she got it and did not recall trying to fight Conant off. Paramedics took her blood pressure and pulse and recommended that she go to the hospital to get checked out, but she refused because she “just wanted to be alone” at home. She did go a few days later. McAfee admitted that she had prior convictions for falsification in 2014 and theft in 2008.
{¶9} Chief Newland of the Peebles Police Department testified that when he arrived on the scene, McAfee was crying, shaking, and seemed to “grasp for breath to be able to talk to” him. His body camera recorded McAfee telling him that Conant had “choked [her] out” and that she “blacked out.” Chief Newland testified that he photographed injuries to McAfee‘s neck and called paramedics to assess her. Later that day, he photographed a red mark on Conant‘s right forearm and scratch marks on the left side of his neck. Chief Newland testified that the neck injuries appeared to be fresh, and McAfee testified that Conant did not have any marks on his neck or arms before the altercation.
{¶10} Dr. Maura Manning testified that McAfee came to the Adams County Regional Medical Center on October 31, 2019, to have injuries from an assault evaluated. McAfee “had significant neck pain” and “some markings on her neck * * * that she wanted addressed.” McAfee had a linear bruise on the right side of her neck
{¶11} Jason Hayslip, jail administrator for the Adams County Sheriff‘s Office, testified that jail inmates have a personal pin number for making phone calls, and оn November 1, 2019, the jail communications system recorded a call associated with Conant‘s pin number that was between a male and a female. On the recording, the male asks whether anyone has talked to “Ashley.” The female responds, “Not that I know of, I haven‘t talk to anybody.” The male says, “Well fucking ask them, tell, tell
{¶12} The trial court denied Conant‘s request for a jury instruction on assault as a lesser included offense of felonious assault, and the jury found Conant guilty as charged. The trial court sentenced him to a minimum prison term of five years and a maximum prison term of seven and a half years. The court also ordered Conant to have no contact with McAfee.
II. ASSIGNMENTS OF ERROR
{¶13} Conant assigns the following errors for our review:
FIRST ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. CONANT BY OVERRULING THE REQUEST FOR AN INSTRUCTION ON THE LESSER INCLUDED OFFENSE OF ASSAULT
SECOND ASSIGNMENT OF ERROR
THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW AND/OR AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE TO SUSTAIN APPELLANT‘S CONVICTIONS
THIRD ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT‘S SIXTH AMENDMENT RIGHTS BY ENTERING JUDGEMENT [sic] OF CONVICTION AFTER A TRIAL AT WHICH APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL FOR HER [sic] DEFENSE
FOURTH ASSIGNMENT OF ERROR
THE REAGAN TOKES ACT, AS ENACTED BY THE OHIO LEGISLATOR [sic] IS UNCONSTITIONAL, AND THE TRIAL COURT ERRED BY SENTENCING MR. CONANT UNDER THAT ACT
THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. CONANT BY SENTENCING HIM TO PRISON FOR A TERM OF INCARCERATION, AND ISSUING A NO-CONTACT ORDER.
III. JURY INSTRUCTIONS
{¶14} In the first assignment of error, Conant contends that the trial court erred when it refused to instruct the jury on assault under
{¶15} “When the indictment * * * charges an offense, including different degrees, or if other offenses are included within the offense charged, the jury may find the defendant not guilty of the degree charged but guilty of an inferior degree thereof or lesser included offense.”
a court shall consider whether one offense carries a greater penalty than the other, whether some element of the greater offense is not required to prove commission of the lesser offense, and whether the greater offense as statutorily defined cannot be committed without the lesser offense as statutorily defined also being committed.
State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889, paragraph two of the syllabus, clarifying State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d 294 (1988).
{¶17} “The second tier looks to the evidence in a particular case and determines whether ’ “a jury could reasonably find the defendant not guilty of the charged offense, but could convict the defendant of the lesser included offense.” ’ ” Deanda at ¶ 6, quoting Evans at ¶ 13, quoting Shaker Hts. v. Mosely, 113 Ohio St.3d 329, 2007-Ohio-2072, 865 N.E.2d 859, ¶ 11. “The trial court has discretion in determining whether the record contains sufficient evidentiary support to warrant a jury instruction on the lesser included offense, and we will not reverse that determination absent an abuse of discretion.” State v. Blanton, 4th Dist. Adams No. 16CA1035, 2018-Ohio-1278, ¶ 64. “An abuse of discretion * * * implies that the court‘s attitude is arbitrary, unreasonable, or unconscionable.” Id. Although “the discretion of the trial judge play[s] a role in whether lesser-included-offense instructions are appropriate * * * the evidence is crucial[.]” State v. Wine, 140 Ohio St.3d 409, 2014-Ohio-3948, 18 N.E.3d 1207, ¶ 21. ” ‘[T]he trial court must view the evidence in the light most favorable to the defendant.’ ” Id., quoting State v. Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282, 827 N.E.2d 285, ¶ 37.
{¶18}
{¶19} We agree with the parties that assault under
{¶20} However, viewing the evidence in a light most favorable to Conant, the jury could not reasonably find him not guilty of felonious assault but guilty of assault.
{¶21} We decline to adopt the position of the dissent in Mushrush. In that case, the defendant set off a mace canister in a schoоl auditorium during a talent show, and a woman had a seizure and “went into convulsions.” Mushrush, 135 Ohio App.3d at 104 (lead opinion). The defendant pleaded guilty to felonious assault of the woman, assault of another individual, and three counts of inducing panic. Id. at 104-105. For purposes of sentencing, the trial court found that the defendant‘s conduct was more serious than conduct normally constituting the offense of inducing panic, in part because he caused serious physical harm to the woman. Id. at 108. One member of the appellate court panel agreed because the woman “suffered choking and unconsciousness as a direct result of the defendant‘s actions,” and “[b]eing choked ‘to the point of unconsciousness constitutes serious physical harm * * * as it cause[s] [the victim] to be in a state of temporary, substantial incapacity.’ ” (Second and third
{¶22} McAfee‘s testimony that Conant choked her to the point that she lost consciousness is consistent with her statement to Chief Newland immediately after the incident and is supported by photographic evidence of the bruises on her neck and Dr. Manning‘s testimony thаt the injuries were consistent with strangulation, which could have caused a loss of consciousness with very little visible injury. Although Dr. Manning‘s notes provide some evidence that McAfee experienced a change in consciousness short of a loss of consciousness when she was being strangled, Dr. Manning testified that McAfee reported “an altered mental status and altered level of consciousness” and explained that McAfee could have been incapacitated even if she did not lose consciousness. In describing the effects of the strangulation, McAfee could not account for a period of time during which Conant stopped choking her and changed positions and testified that she suffered temporary vision loss, that her head felt weird, and that her arms and legs were shaking. Given this evidence, the jury could not reasonably find that the harm McAfee suffered was not serious. The trial court did not abuse its discretion when it refused to instruct the jury on assault. Accordingly, we overrule the first assignment of error.
{¶23} In the second assignment of error, Conant contends that his conviction is not supported by sufficient evidence and is against the manifest weight of the evidence. He asserts that the “only evidence” that he committed the offense is McAfee‘s testimony because he “did not make any admissions and no independent witnesses testified.” Conant also asserts that the evidence does not show McAfee suffered serious physical harm because “[t]hе most significant harm that [she] suffered was the temporary loss of consciousness.”
{¶24} “When a court reviews a record for sufficiency, ‘[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.’ ” (Alteration in Maxwell.) State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 146, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “A sufficiency assignment of error challenges the legal adequacy of the state‘s prima facie case, not its rational persuasiveness.” State v. Anderson, 4th Dist. Highland No. 18CA14, 2019-Ohio-395, ¶ 13. “That limited review does not intrude on the jury‘s role ‘to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.’ ” Musacchio v. United States, ___ U.S. ___, 136 S.Ct. 709, 715, 193 L.Ed.2d 639 (2016), quoting Jackson at 319.
{¶25} In determining whеther a conviction is against the manifest weight of the evidence, an appellate court
Although a court of appeals may determine that a judgment of a trial court is sustained by sufficient evidence, that court may nevertheless conclude that the judgment is against the weight of the evidence. However, we are reminded that generally, it is the role of the jury to determine the weight and credibility of evidence. ” ‘A jury, sitting as the trier of fact, is free to believe all, part or none of the testimony of any witness who appears before it.’ ” State v. Reyes-Rosales, 4th Dist. Adams No. 15CA1010, 2016-Ohio-3338, ¶ 17, quoting State v. West, 4th Dist. Scioto No. 12CA3507, 2014-Ohio-1941, ¶ 23. We defer to the trier of fact on these evidentiary weight and credibility issues because it is in the best position to gauge the witnesses’ demeanor, gestures, and voice inflections, and to use these observations to weigh their credibility.
(Citations omitted.) Anderson at ¶ 14-15.
{¶26} The state introduced evidence from which any rational trier of fact could have found the essential elements of felonious assault proven beyond a reasonable doubt, and in resolving conflicts in the evidence, the jury did not clearly lose its way and create such a manifest miscarriage of justice that reversal of the conviction is necessary. The state introduced evidence that Conant strangled McAfee to the point that she suffered temporary, substantial incapacity. The jury was free to believe McAfee‘s testimony even though no one else witnessed the attack and Conant did not confess. Conant‘s effort to influence McAfee‘s testimony provides some evidence of his guilt, and again, McAfee‘s testimony is supported by photographic evidence of the bruises on her neck and Dr. Manning‘s testimony that the injuries were consistent with strangulation, which could have caused a loss of consciousness with very little visible injury and could have caused incapacity without a loss of consciousness. Because
V. INEFFECTIVE ASSISTANCE OF COUNSEL
{¶27} In the third assignment of error, Conant contends that the trial court violated his Sixth Amendment rights when it entered a judgment of conviction after a trial at which he received ineffective assistance of counsel.
{¶28} To prevail on an ineffective assistance claim, a defendant must show: “(1) deficient performance by counsel, i.e., performance falling below an objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that, but for counsel‘s errors, the proceeding‘s result would have been different.” State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113, citing Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Failure to satisfy either part of the test is fatal to the claim. See Strickland at 697. The defendant “has the burden of proof because in Ohio, a properly licensed attorney is presumed competent.” State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62. We “must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Strickland at 689, quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.E. 83 (1955).
A. Juror Issue
{¶29} Conant contends that trial counsel was ineffective for not asking the court to dismiss a juror who felt that he should have to testify in violation of his Fifth
UNKNOWN FEMALE: Is there any way, I mean, I don‘t think I‘m allowed for a while [sic], but could James say something? He‘s not said anything the whole time we‘ve been here, and I didn‘t know that‘s the reason I‘m asking.
COURT: Well um, certainly he‘s consulted with his counsel, but I return you, uh, to the fact that [sic].
UNKNOWN FEMALE: [inaudible]
COURT: Um, yeah, it is not necessary that the defendant take the witness stand in his own defense.
UNKNOWN FEMALE: Okay.
COURT: Uh, the defendant has a constitutional right. What most of us know as the Fifth Amendment right not to testify. The fact that he did not testify must not, I repeat, must not be considered for any purpose.
UNKNOWN FEMALE: Okay. Well it wasn‘t I was just trying to figure voices out [sic].
COURT: Okay. I see what you‘re saying.
UNKNOWN FEMALE: Okay.
COURT: You‘ll have to rely upon the testimony and the weight that you may give that testimony good or bad.
UNKNOWN FEMALE: Okay.
{¶30} Although the unknown female does appear to be a juror, counsel‘s failure to move for further questioning of or dismissal of her was not ineffective assistance. The juror explained that she had asked whether Conant could “say something,”
B. Other Acts Evidence
{¶31} Conant contends that trial counsel rendered ineffective assistance by allowing testimony about his prior bad acts in violation of Evid.R. 404(B). Conant asserts that trial counsel did not object when McAfee testified that she was sleeping in a different bedroom than Conant “[b]ecause the abuse kept getting worse, the fighting, arguing,” and counsel did not move to strike this testimony. Conant also asserts that on cross-examination, trial counsel asked McAfee about fighting with him in the days leading up to the incident, asked whether the relationship had been violent in the past, and was cautioned during a sidebar that “he was close to opening doors that might
{¶32} “The trial court has broad discretion in the admission or exclusion of evidence[.]” State v. Fannon, 2018-Ohio-5242, 117 N.E.3d 10, ¶ 65 (4th Dist.). “Generally, all relevant evidence is admissible.” State v. Clay, 4th Dist. Lawrence No. 11CA23, 2013-Ohio-4649, ¶ 34, citing Evid.R. 402. However, Evid.R. 404(B) states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. * * *
“The listed exceptions within Evid.R. 404(B) are not exclusive, and ‘other acts’ evidence not fitting within the enumerated categories may be admissible so long as the evidеnce is admitted for any proper purpose other than proving the defendant‘s propensity to act in * * * conformity with a particular trait of his [or her] character.” State v. Wilkins, 10th Dist. Franklin No. 18AP-797 & 18AP-798, 2020-Ohio-3428, ¶ 24.
{¶33} McAfee‘s testimony did not violate Evid.R. 404(B). On direct examination, when McAfee testified that she was sleeping in a different bedroom “[b]ecause the abuse kept getting worse, the fighting, arguing,” she did not testify that Conant had physically attacked her. On cross-examination, McAfee testified that a couple of weeks before the incident in question, she and Conant had an argument about him going to see his sister get taken off of life support. She also testified that they were sleeping in different bedrooms “[b]ecause of the arguing and him accusing me of cheating оn him.” Again, she did not testify that Conant had physically attacked her. Although defense
{¶34} McAfee did not testify about other acts of violence Conant committed which might have led the jury to improperly conclude that he had a violent character which he acted in conformity with on October 29, 2019. Evidence that in the weeks leading up to the felonious assault, the couple had argued about family matters and alleged infidelity and had stopped sharing a bedroom does not show that Conant had a violent character but rather was background information that explained the status of the relationship between Conant and McAfee and circumstances leading up to the felonious assault. “Background information is admissible to give the jury the setting of the case.” State v. Zadar, 8th Dist. Cuyahoga No. 94698, 2011-Ohio-1060, ¶ 32. Because McAfee‘s testimony did not violate Evid.R. 404(B), defense counsel‘s performance was not deficient, and we overrule the third assignment of error.
VI. REAGAN TOKES LAW
{¶35} In the fourth assignment of error, Conant contends that the trial court erred when it sentenced him pursuant to the Reagan Tokes Law because it is unconstitutional.
{¶36} The Reagan Tokes Law requires that a court imposing a prison term under
{¶37} Conant maintains that the Reagan Tokes Law violates the separation of powers doctrine and due process because
{¶38} The state maintains that Conant lacks standing to challenge the constitutionality of the Reagan Tokes Law because he has not been injured by its allegedly unconstitutional provision as DRC has not maintained his incarceration beyond his minimum prison term. Alternatively, the state argues that the law is distinguishable from former
{¶39} The constitutionality of a statute presents a question of law we review de novo. Hayslip v. Hanshaw, 2016-Ohio-3339, 54 N.E.3d 1272, ¶ 27 (4th Dist.). However, ” ‘the question of the constitutionality of a statute must generally be raised at the first opportunity and, in a criminal prosecution, this means in the trial court.’ ” State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15, quoting State v. Awan, 22 Ohio St.3d 120, 122, 489 N.E.2d 277 (1986). “We may review the trial court decision for plain error, but we require a showing that but for a plain or obvious error, the outcome of the рroceeding would have been otherwise, and reversal must be necessary to correct a manifest miscarriage of justice.” (Citation omitted.) Id. at ¶ 16. “The burden of demonstrating plain error is on the party asserting it.” Id. The
{¶40} Conant did not assert a constitutional challenge to the Reagan Tokes Law at the trial level and has therefore forfeited all but plain error. Conant has not argued plain error on appeal, and we decline to construct a plain error argument on his behalf, particularly when
VII. NO-CONTACT ORDER
{¶41} In the fifth assignment of error, Conant contends that the trial court erred by imposing a prison term and a no-contact order, which is a community-control sanction, for the same offense, relying on State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512. The trial court acknowledged that the no-contact order conflicted with Supreme Court of Ohio precedent and created an “appealable issue” but imposed the order anyway because DRC had started to give inmates tablets with communication abilities. The state urges us to affirm the no-contact оrder because DRC has “blurred the lines between prison sentences and community control sanctions.”
{¶42} When reviewing felony sentences appellate courts must apply the standard of review set forth in
(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of section
2929.13 , division (B)(2)(e) or (C)(4) of section2929.14 , or division (I) of section2929.20 of the Revised Code , whichever, if any, is relevant;(b) That the sentence is otherwise contrary to law.
“The defendant bears the burden of establishing by clear and convincing evidence that the sentence is either cоntrary to law or not supported by the record.” State v. Culbreth, 4th Dist. Highland No. 18CA8, 2019-Ohio-138, ¶ 19. Clear and convincing evidence is
that measure or degree of proof which is more than a mere “preponderance of the evidence,” but not to the extent of such certainty as is required “beyond a reasonable doubt” in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.
Marcum at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
{¶43} In Anderson, the Supreme Court of Ohio considered whether a trial court has the authority to impose a prison term and a no-contact order with the victim for the same felony offense. Anderson at ¶ 1. The Supreme Court explained that a trial court may only impose a sentence that is provided for by statute, that “Ohio courts have recognizеd that a no-contact order is a community-control sanction,” and that the felony sentencing statutes “reflect that the General Assembly intended prison terms and community-control sanctions to be alternative sanctions” for a felony offense. Id. at ¶ 12, 17, 28. The Supreme Court held that “as a general rule, when a prison term and
{¶44} The trial court‘s decision to imposе a no-contact order in addition to Conant‘s prison term was contrary to law. “Trial courts and intermediate courts of appeals are bound by and must follow decisions of the Ohio Supreme Court.” State v. Cox, 4th Dist. Adams No. 02CA751, 2003-Ohio-1935, ¶ 12. Pursuant to Anderson, trial courts lack authority to impose a prison term and community-control sanction for the same felony offense unless an express exception applies. No exception has been identified in this case. Accordingly, we sustain the fifth assignment of error, vacate the no-contact order, and remand for the trial court to issue a corrected sentencing entry that removes reference to that order.
VIII. CONCLUSION
{¶45} We overrule the first, second, third, and fourth assignments of error and sustain the fifth assignment of error. Aсcordingly, we affirm the trial court‘s judgment in part, vacate it in part, and remand for further proceedings consistent with this opinion.
JUDGMENT AFFIRMED IN PART AND VACATED IN PART. CAUSE REMANDED.
It is ordered that the JUDGMENT IS AFFIRMED IN PART AND VACATED IN PART and that the CAUSE IS REMANDED. Appellant and Appellee shall split the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Adams County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this еntry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Abele, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.