State of Ohio v. Brian Jury
Court of Appeals No. E-22-005
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY
December 9, 2022
[Cite as State v. Jury, 2022-Ohio-4419.]
Trial Court No. 2013-CR-0472
State of Ohio Appellee v. Brian Jury Appellant
DECISION AND JUDGMENT
Decided: December 9, 2022
* * * * *
Kеvin J. Baxter, Erie County Prosecuting Attorney, and Kristin R. Palmer, Assistant Prosecuting Attorney, for appellee.
Brian Jury, Pro se.
* * * *
MAYLE, J.
{¶ 1} Appellant, Brian Jury, appeals the January 20, 2022 judgment of the Erie County Court of Common Pleas construing seven filings that Jury made over the course of three and one-half years as successive petitions for postconviction relief and summarily denying them. We affirm.
I. Background
{¶ 2} In 2014, a jury found Jury guilty of two counts of rape, one count of felonious assault, two counts of abduction, and three gun specifications. State v. Jury, 6th Dist. Erie No. E-14-100, 2016-Ohio-2663, ¶ 1. We affirmed Jury‘s convictions and sentences on direct appeal. Id. at ¶ 77.
{¶ 3} In 2015, while his direct appeal was pending, Jury filed a petition for postconviction relief. In his petition, he asserted seven claims that boiled down to: (1) the trial court lacked subject matter jurisdiction; (2) his conviction was based on illegally obtained evidence; (3) his trial counsel was ineffective for a variety of reasons, both before and during trial; (4) the state violated Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to turn over emails and witnesses that could have provided Jury with an alibi; (5) the trial court relied on inaccurate information to justify imposing consecutive sentences; and (6) he was prejudiced by the trial court‘s failure to sua sponte change the trial‘s venue due to pretrial publicity. The trial court denied Jury‘s petition, and Jury did not appeal that decision.
{¶ 4} Beginning in July 2018, Jury filed the seven documents underlying this appeal. Primarily at issue are his “MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO CIV. R. 60(B)” and “MOTION FOR LEAVE TO FILE A ‘DELAYED MOTION FOR A NEW TRIAL’ UNDER CRIMINAL RULE 33(B).” He also filed (1) a document that he styled a
{¶ 5} In his Civ.R. 60(B) motion for relief from judgment, Jury argued that he was entitled to relief under
{¶ 6} In his Crim.R. 33(B) motion for leave to file a delayed motion for new trial, Jury argued that he was unavoidably prevented from discovering CSLI from his phone and the victim‘s phone on the date of the incidents underlying this case and from discovering the contents of more than 150 text messages between him and the victim (as opposed to the fact of text-message contact between them), despite his counsel‘s requests before trial for all cellphone records from Jury‘s and the victim‘s phone numbers. He argued that the state should have subpoenaed this information from the wireless carriers because the defense had requested “all” cellphone records, but that it failed to do so. He explained the reasons for the delay in filing his
{¶ 7} Jury also argued that the result of his trial would have been different if he had access to the CSLI and the text messages. He claimed that the location information would have corroborated his version of events and discredited the victim‘s version of events. He also alleged that the content of the text messages “would have shown a sex-for-hire relationship—mostly instigated by the alleged victim.” Ultimately, Jury believed that “[s]uch physical, undisputable, exculpatory material evidence would have obviated [Jury‘s] testimony—the only link to the jury‘s finding [Jury] guilty on (2) two counts of rape [sic].”
{¶ 8} On January 20, 2022, the trial court issued a single judgment entry resolving all of the pending motions. The court found that Jury‘s filings were “in effect, ‘successive petitions for Post Relief Conviction[.]’ [sic]” (Footnote omitted.) The court ”thoroughly reviewed the stated filings and the record of this case, including the appellate record * * *“—which apparently consisted of our decision in Jury‘s direct appeal and the Ohio Supreme
{¶ 9} Jury now appeals, raising three assignments of error:
1) The Trial Court erred when it denied Defendant/Appellant‘s Civil Rule 60(B) Motion for Relief from Judgment without holding a hearing.
2) The Trial court abused its discretion, and violated Appellant‘s Due Process rights when it denied Defendant/Appellant‘s Criminal Rule 33(B) [motion] for leave to File a Delayed Motion for a New Trial based on Newly Discovered Evidence (Crim. R. 33(A)(6)) without a hearing; and, when it denied Appellant a fair mechanism to develop facts to support the motion for leave.
3) Appellant‘s conviction and sentence is voidable because Appellant was denied his U.S. Constitutional Right(s) of Due Process and a Fair Trial because of prosecutorial misconduct resulting in “Fraud on the Court.”
II. Law and Analysis
A. The state did not commit Brady violations.
{¶ 10} For ease of discussion, before turning to Jury‘s assignments of error, we will address the overarching theme in Jury‘s brief: whether the state committed Brady violations by failing to subpoena CSLI data and text messages from the cellular providers for Jury‘s and the victim‘s cellphones. We find that it did not.
{¶ 11} Brady imposes on the government “an obligation to turn over evidence that is both fаvorable to the defendant and material to guilt or punishment.” State v. Osie, 140 Ohio St.3d 131, 2014-Ohio-2966, 16 N.E.3d 588, ¶ 154. In Brady, the U.S. Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87, 83 S.Ct. 1194, 10 L.Ed.2d 215. The rule applies to both exculpatory and impeachment evidence. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). The court has also explained that evidence is material under Brady “‘if there is a reasonable probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different.‘” Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), quoting Bagley at 682. “A ‘reasonable probability’ is a рrobability sufficient to undermine confidence in the outcome.” Bagley at 682; State v. Johnston, 39 Ohio St.3d 48, 529 N.E.2d 898 (1988), paragraph five of the syllabus.
{¶ 12} A Brady violation has three elements: (1) the state suppressed evidence, either willfully or inadvertently; (2) the evidence is favorable to the defendant as either exculpatory or impeachment evidence; and (3) prejudice results to the defendant—i.e., the evidence was material. Strickler v. Greene, 527 U.S. 263, 281-282, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). Determining whether the evidence was material “is not just a matter of determining whether, after discounting the inculpatory evidence in light of the undisclosed evidence, the remaining evidence is sufficient to support the jury‘s conclusions.” Id. at 290. Rather, the relevant question is whether, in the absence of the
review of the materiality of evidence de novo. State v. Carroll, 6th Dist. Lucas No. L-05-1362, 2007-Ohio-5313, ¶ 57.
{¶ 13} In this case, the basis for Jury‘s motion for relief from judgment, motion for leave to file a motion for a new trial, and several of the other motions underlying this appeal is his claim that the prosecution suppressed CSLI data and text messages by refusing to obtain them from the wireless cаrriers. To be clear: Jury does not allege that the prosecutors or another state agent (e.g., the police or a crime lab) actually possess CSLI from his and the victim‘s phones or the full text messages that Jury and the victim sent to each other. Rather, he claims that the prosecutor knew that CSLI existed, and knew that CSLI and full text messages could be obtained from wireless carriers, yet the state refused to subpoena this information, despite requests from defense counsel for “all” cellphone records of Jury and the victim. Jury has not provided any proof that any of this information exists or was available to the state, however, and a Brady violation cannot be based wholly on speculation.
{¶ 14} Jury‘s Brady claim falls apart from the beginning. Regarding CSLI, Jury did not actually present the trial court (or this court) with any new facts or evidence relating to his case. Although he speculates that CSLI data for his phone and the victim‘s phone exists—and that this data would support his version of the facts while simultaneously discrediting the victim and her version of the facts—he does not offer any proof of this beyond a U.S. Supreme Court case that describes, generally and in dicta,
what CSLI is. See Carpenter, 138 S.Ct. at 2211-2212, 201 L.Ed.2d 507. But Carpenter does not specifically link CSLI to Jury‘s case or in any substantive way call into question the jury‘s guilty verdicts on the two counts of rape.2 Jury does not provide any further information about CSLI that is specific to his case, which could help takе his claim beyond pure speculation.
{¶ 15} Mere speculation, without more, is insufficient to support a claimed Brady violation. State v. Sullivan, 10th Dist. Franklin No. 13AP-861, 2014-Ohio-1260, ¶ 20, citing State v. Moore, 10th Dist. Franklin Nos. 11AP-1116 and 11AP-1117, 2013-Ohio-3365, ¶ 43; and State v. Hanna, 95 Ohio St.3d 285, 2002-Ohio-2221, 767 N.E.2d 678, ¶ 60; see also State v. Bulls, 9th Dist. Summit No. 27713, 2015-Ohio-5094, ¶ 14 (Trial court properly denied appellant‘s postconviction relief petition because his affidavit “lists no exculpatory or otherwise favorable evidence
knowledgе of CSLI, to the usefulness of the information for Jury‘s case—is based on varying degrees of speculation. Without some evidence—beyond Jury‘s hypotheses—that CSLI exists for the phone numbers Jury wants to track and the state did, in fact, know about and suppress the CSLI and text messages, or failed to obtain the information from a state agent who knew about the evidence, Jury cannot prove that the state violated Brady by choosing to not subpoena the information.
{¶ 16} Second, regarding the text messages, it appears from the record (and Jury has not provided any evidence to the contrary) that the state provided the defense with all of the information that the prosecutor and his agents had. The record shows that the state disclosed multiple cellphone-related records to the defense, including: (1) “Verizon Wireless phone records from search warrant“; (2) “T-Mobile records“; (3) “Verizon Wireless records“; (4) “DVD of Verizon Wireless phone records“; (5) “CD of search warrant for I-Phone [sic] 4“; (6) “Instructions from Verizon Wireless to view their CD“; and (7) “DVD of search warrant for Motorola phone by Erie County Sheriff‘s Office.” This is all that Brady requires. Unless Jury can produce some evidence showing that the state possessed other cellphone records, including, perhaps, the text messages he is seeking, he cannot support his Brady claim on this point.
{¶ 17} We do not see any evidence in the record to suggest that another agent of the state had the phone records that Jury sоught before trial, but that the state failed to obtain them from the agent and provide them to the defense. If that were the case, the
state would be suppressing records in violation of Brady, but the state cannot suppress records that it does not have—and that have never been in the possession of a state agent. State v. McGuire, 8th Dist. Cuyahoga No. 105732, 2018-Ohio-1390, ¶ 32; State v. McClurkin, 10th Dist. Franklin No. 08AP-781, 2009-Ohio-4545, ¶ 57. “The fact that a defendant wishes to have materials that may or may not exist, and may or may not be in the prosecutor‘s custody or control, does not demonstrate that such materials are Brady materials that the prosecutor has a duty to disclose.” McClurkin at ¶ 57.
{¶ 18} Moreover, Jury‘s contention that the state should be responsible for obtaining evidence that is potentially useful to the defense and that the state does not otherwise have or need does nоt square with Ohio law. As the Twelfth District recently explained:
“Ohio law generally recognizes that the state need not gather evidence on the defendant‘s behalf.” State v. Fornshell, 1st Dist. Hamilton No. C-180267, 2021-Ohio-674, 2019 WL 11816608, ¶ 10, citing Kettering v. Baker, 42 Ohio St.2d 351, 354-355, 328 N.E.2d 805 (1975). While the Due Process Clause of the Fourteenth Amendment to the United States Constitution requires that a state disclose material evidence favorable to the defendant and prohibits the state from failing to preserve such evidence or destroying such evidence in bad faith; see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Arizona v. Youngblood, 488 U.S. 51,
109 S.Ct. 333, 102 L.Ed.2d 281 (1988); the state has no duty to gather exculpatory evidence. State v. Brown, 3d Dist. Hancock No. 5-17-19, 2018-Ohio-899, 2018 WL 1256540, ¶ 32; State v. Farris, 2d Dist. Clark No. 2003 CA 77, 2004-Ohio-5980, 2004 WL 2538830, ¶ 20. The state does not have an obligation “to engage in affirmative action in gathering evidence which an accused might feel necessary to his defense. The accused must protect his own interests.” Baker at 354, 328 N.E.2d 805. With that in mind, “when the state has failed to gather exculpatory evidence or to fully investigate the allegations, the defendant may either investigate the charge and collect the evidence himself, if such evidence is available, or he may point out the deficiencies in the state‘s investigation at trial.” Farris at ¶ 20.
(Emphasis added.) State v. Young, 2021-Ohio-2541, 176 N.E.3d 1074, ¶ 103 (12th Dist.). To the extent that the state does have a duty to affirmatively gather exculpatory evidence, that duty only extends to “‘any favorable evidence known to the others acting on the government‘s behalf in the case.‘” (Emphasis added.) State v. McNeal, Slip Opinion No. 2022-Ohio-2703, -- N.E.3d --, ¶ 22, quoting Kyles, 514 U.S. at 437, 115 S.Ct. 1555, 131 L.Ed.2d 490.
{¶ 19} In short, we disagree with Jury‘s position that the state should have obtained evidence supporting his case for him. Due process does not require it, and we
will not find that the state violated Brady by failing to obtain—on Jury‘s behalf—evidence held by a third party that was not “‘acting on the government‘s behalf in the case.‘” Id.
{¶ 20} Finally, a Brady violation only occurs when the defendant does not have access to the information that the state suppresses before or during trial. If the defendant knows of essential facts that allow him to take advantage of the information, or has access to the information through another source, the state‘s failure to disclose does not amount to a constitutional violation under Brady. State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 36. Assuming that the state‘s disclosure of cellular data was defective in some respect, Jury still could not show a Brady violation.
{¶ 21} The record contains a subpoena issued by the defense to Jury‘s wireless carrier for “any and all text messages sent and received by * * *” Jury‘s phone number for a one-year period beginning the date that the crimes underlying this case occurred. The record does not contain any indication that the wireless carrier failed to honor that subpoena (i.e., by filing a motion to quash or failing to respond). This indicates that defense counsel had Jury‘s text messages—which would include any messages he sent to and received from the victim—in some form before trial.3 So, assuming that the state
did, in fact, fail to turn over messages, its violation of Brady did not rise to the level of violating Jury‘s due process rights.
{¶ 22} In sum, we find that Jury has not shown that the state violated Brady by failing to obtain CSLI data and text messages from the wireless carriers. Jury failеd to offer any evidence that the prosecutor or a state agent had this information
B. The trial court properly denied Jury‘s motion for relief from judgment.
{¶ 23} Turning to Jury‘s first assignment of error, he argues that the trial court erred by denying his
{¶ 24} The state responds that the trial court properly construed Jury‘s Civ.R. 60(B) motion as a postconviction relief petition, and then denied the motion as a successive petition for postconviction relief because Jury did not demonstrate that one of the exceptions in
{¶ 25} As a preliminary matter, we find that the trial court correctly recast Jury‘s motion for relief from judgment as a petition for postconviction relief. Filing a petition for postconviction relief under
{¶ 26} Jury‘s motion for relief from judgment meets the criteria for a postconviction rеlief petition outlined in Schlee: it was filed after Jury‘s direct appeal, he claimed a denial of his constitutional rights in the form of a Brady violation, and he sought “relief from his conviction * * *.” Thus, the trial court properly construed it as a
successive petition for postconviction relief. We also note that Jury acknowledged in his motion that “[t]he Ohio Supreme Court has allowed Civ. R. 60(B) Motions to be reconstructed as a post-conviction relief” petition, so he was aware of the possibility that the trial court could treat his motion for relief from judgment as something else.
{¶ 28} Showing that a defendant was unavoidably prevented from discovering a fact requires “more than simply showing he was unaware of a fact. ‘Unavoidably prevented from discovering’ typically means the defendant was unaware of the facts upon which the petition was based and he was unable to discover them through reasonable
diligence.” (Emphasis added.) State v. Clay, 2018-Ohio-985, 108 N.E.3d 642, ¶ 33 (7th Dist.).
{¶ 29} When the defendant claims that the state committed a Brady violation and suppressed the evidence he is relying on, he is not required to show that he was unable to discover the evidence with reasonable diligence; the prosecution‘s suppression of the evidence is sufficient to satisfy the “unavoidably prevented” requirement in
{¶ 30} Jury first argues that he was, and continues to be, unavoidably prevented from discovering the CSLI from his and his victim‘s cellphones because of the state‘s failure to subpoena the CSLI, despite the prosecutor ostensibly knowing about the existence of CSLI, in general, at the time of Jury‘s trial, and that Jury only “discovered” the existence of CSLI, in general, аpproximately two weeks before he filed his motion for relief from judgment. There are several problems with Jury‘s argument.
{¶ 31} First, as discussed above, Jury did not provide any new facts or evidence relating to his case. Instead, he only speculates about CSLI that may or may not exist.
{¶ 32} Further, although Jury contends that he could obtain the CSLI with the court‘s assistance, a defendant who is not sentenced to death is not entitled to discovery when he files a successive postconviction relief petition. E.g., State v. Gapen, 2d Dist. Montgomery No. 28808, 2021-Ohio-3252, ¶ 55 (”
{¶ 33} Nor does Jury‘s ignorance of the existence of CSLI, in general, support his argument that he was unavoidably prevеnted from discovering the CSLI specific to his case. The crux of Jury‘s argument is that the state knew that CSLI existed because the prosecutor used CSLI to convict a defendant in an earlier Erie County case, the state
deliberately chose not to subpoena CSLI data because it knew that the data would be damaging to its case, and the state‘s willful failure to obtain the CSLI from his and the victim‘s wireless carriers prevented him from “discovering” CSLI until he saw a news story about Carpenter in June 2018. Jury‘s theories are nothing but speculation; he has not presented any actual evidence to support his conjecture aside from a 2012 decision from this court that discusses the Erie County prоsecutor‘s office using CSLI. See State v. Gipson, 6th Dist. Erie No. E-10-038, 2012-Ohio-515.
{¶ 34} Similarly, Jury argues that he was, and continues to be, unavoidably prevented from discovering every text between him and the victim because the records that the state had in its possession—which it turned over to the defense—were incomplete. He claims that the state continues to withhold the actual text messages between him and the victim, despite Jury making several discovery requests for all cellphone records from his and the victim‘s phone numbers. He contends that the state could have requested the messages (and their corresponding CSLI) through subpoenas to the wireless carriers, but failed to do so.
{¶ 35} Again, Jury fails to present any new facts or evidence relating to the text messages. Nor does he offer proof that the state could obtain all of the text messages between him and the victim from the wireless carriers. His primary argument regarding the text messages seems to be that the texts would show that Jury and the victim were involved in a sex-for-hire relationship, which, he claims, the victim primarily initiated.
Jury seems to imply that their sexual interactions the day of the crimes were consensual because of their prior transactional relationship. But, when considered with the other testimony at trial—which included sources other than the victim, who had a host of credibility issues—this is insufficient to exoneratе Jury. See, generally, Jury, 6th Dist. Erie No. E-14-100, 2016-Ohio-2663.
{¶ 36} Again, it does not appear from Jury‘s filings or the record that the state, at any point in time, subpoenaed or possessed any text messages beyond those that it turned over to the defense in discovery. Jury has not presented any other evidence to suggest that the state had or has other cellphone records—including text messages—that it did not turn over. And, again, the state is not obligated to gather evidence on Jury‘s behalf from third parties who are not state agents. Young, 2021-Ohio-2541, 176 N.E.3d 1074, at ¶ 103; see also McClurkin, 10th Dist. Franklin No. 08AP-781, 2009-Ohio-4545, at ¶ 57.
{¶ 37} Taken together, this all shows that Jury was not unavoidably prevented
clearly unaware of what CSLI was until June 2018, his filings show that he was aware that some of the text messages between him and the victim were not in the records turned over by the state, and nothing indicates that the defense could not have discovered this information through some simple investigation—i.e., reasonable diligence.
{¶ 38} Because Jury has failed to show that the state violated Brady or that he could not have discovered the CSLI and texts through reasonable diligence, he cannot show that he was unavoidably prevented from discovering the facts underlying his postconviction relief petition. Bethel, 167 Ohio St.3d 362, 2022-Ohio-783, 192 N.E.3d 470, at ¶ 25; Clay, 2018-Ohio-985, 108 N.E.3d 642, at ¶ 33. Thus, the trial court was not able to entertain his successive postconviction relief petition and properly dismissed it.
{¶ 39} Jury‘s first assignment of error is not well-taken.
C. The trial court properly denied Jury‘s motion for leave to file for a new trial.
{¶ 40} In his second assignment of error, Jury argues that the trial court erred by classifying his motion fоr leave to file a motion for a new trial as a successive petition for postconviction relief and summarily denying it along with the other six motions that Jury filed from July 2018 to January 2022. He contends that, unlike some other motions, a motion under
{¶ 41} The state again responds that the trial court properly construed Jury‘s Crim.R. 33(B) motion as an unjustified successive petition for postconviction relief.
{¶ 42} We agree with Jury that the trial court erroneously considered his motion under
{¶ 43} Under
fails to file a motion within the 120-day period must seek leave from the trial court to file a delayed motion. State v. Montgomery, 6th Dist. Lucas No. L-15-1282, 2016-Ohio-7527, ¶ 43. To be entitled to leave to file a delayed motion for a new trial the defendant must provide “clear and convincing proof” that he was “unavoidably prevented” from discovering the evidence on which his motion is based.
{¶ 44} Clear and convincing proof 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.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
{¶ 45} The “unavoidably prevented” requirement in
defendant satisfies the “unavoidably prevented” requirement by establishing that the prosecution suppressed the evidence the defendant intends to rely on in seeking a new trial. McNeal, Slip Opinion No. 2022-Ohio-2703, -- N.E.3d --, at ¶ 25, 59, citing Bethel at ¶ 17.
{¶ 46} Generally, we review a trial court‘s decision on a
{¶ 47} We have already determined that the state did not commit a Brady violation relative to the cellphone records in this case, and, consequently, that Jury was not unavoidably prevented from discovering the CSLI data and text messages for purposes of his postconviction relief petition. Those findings have equal weight for his motion for leave to file a motion for a new trial. See Bethel at ¶ 59. Thus, because Jury was not unavoidably prevented from discovering the CSLI data and text messages for purposes of his
D. Jury has not shown that the state violated his due process rights.
{¶ 48} In his third assignment of error, Jury largely regurgitates his arguments from his first two assignments of error. He contends that his convictions are voidable because the state failed to obtain
{¶ 49} In response, the state reiterates that Jury failed to comply with the postconviction relief requirements in
{¶ 50} Without belaboring the point, we again stress that the information that Jury wants—if it actually exists—is held by wireless carriers that are not “‘acting on the government‘s behalf‘” in this case. McNeal, Slip Opinion No. 2022-Ohio-2703, -- N.E.3d --, at ¶ 22, quoting Kyles, 514 U.S. at 437, 115 S.Ct. 1555, 131 L.Ed.2d 490. The state‘s responsibility to obtain and share Brady evidence is not triggered unless the evidence is held by the prosecutors themselves or by a person or entity that is working on the state‘s behalf to help prosecute the case. Jury does not argue that the wireless carriers fall into that category, so there is no evidence before us that the state was responsible for оbtaining evidence from the carriers on Jury‘s behalf.
{¶ 51} Because the state did not have a duty to obtain information from the wireless carriers for Jury, its failure to do so did not violate his due process rights. Accordingly, Jury‘s third assignment of error is not well-taken.
III. Conclusion
{¶ 52} For the foregoing reasons, the January 20, 2022 judgment of the Erie County Court of Common Pleas is affirmed. Jury is ordered to pay the costs of this appeal pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Thomas J. Osowik, J. ___________________________ JUDGE
Christine E. Mayle, J. ___________________________ JUDGE
Myron C. Duhart, P.J. ___________________________ CONCUR. JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.