State v. KochState v. Koch
DONOVAN, J.
{¶ 1} Defendant-appellant
{¶ 2} The record establishes that the victim, Aydin Akhmdov, emigrated from Russia to the United States in 2006, eventually settling in Dayton, Ohio. Aydin was initially self-employed as a truck driver. During this time, Aydin stored his truck and had it serviced at Ameripro Logistics, a local trucking company owned and managed by Mustafa Shakhmanov, Izmir‘s cousin. At some point thereafter, Mustafa hired Aydin as a driver for Ameripro. Aydin testified that, in 2015, he broke his leg and was unable to maintain his employment with Ameripro. Aydin testified that when he stopped working fоr Ameripro, he was still owed approximately $1,800 in back pay.
{¶ 3} Aydin testified that for several months, he contacted Mustafa many times in an effort to recover his back pay. Thereafter, on June 7, 2016, Aydin made multiple attempts to contact Mustafa regarding his back pay, but his calls went unanswered. Eventually, Aydin called Ameripro‘s truck dispatcher, Sevil Shakhmanov, Mustafa‘s brother. Aydin testified that Sevil told him to come to the Ameripro office and speak directly to Mustafa in order to get his back pay. Aydin testified that he traveled to Ameripro later that day, but the doors were locked and he was unable to locate anyone. Aydin testified that it was only after he left Ameripro that he noticed that Sevil had called him several times. Aydin called Sevil back and was told to return to Ameripro if he wanted to be paid.
{¶ 4}
{¶ 5} As depicted in the video, while the three men were talking to Aydin, Izmir and his brother, Murad Koch pulled up in a white BMW sedan behind where all of the men were talking. At that point, the men surrounded Aydin. As Aydin attempted to walk away from the men, Murad ran toward him and repeatedly hit him with a collapsible metal baton. As Aydin ran between some vehicles parked nearby, all five men followed him and began beating him. Aydin testified that, during the assault, Sevil struck him in the head with a tire iron. Eventually, Aydin was able to return to his vehicle and leave the scene of the assault. However, as Aydin was driving away, the video depicts Mustafa picking up a rock and throwing it at Aydin‘s vehicle.
{¶ 6} Shortly thereafter, Aydin returned to Ameripro, parking his vehicle across the street from the business. Aydin testified that he shouted at Sevil from across the street regarding the back pay he was owed. The video depicts Sevil responding by making a profane gesture directed at Aydin. In the video, the Shakhmanov brothers can also be seen in the Ameripro lobby placing metal poles and rebar just inside the door of the business.
{¶ 7}
{¶ 8} Upon reaching the parking lot in front of Ameripro, however, Aydin was struck in the head from behind with a metal pole by Murad. When Aydin fell to the ground, Murad, Mustafa, and Kamil Abbasov began hitting him with metal poles. Izmir, who did not have a weapon, can be seen in the video kicking Aydin in the head. Thereafter, Sobir Shakhmanov pulled his brothers and cousins away from Aydin, who was clearly injured. Eventually, Aydin was able to stand up and walk back across the street toward his vehicle.
{¶ 9} Izmir followed Aydin across the street and continued assaulting him. Izmir‘s brother, Baris Koch, joined in the assault, kicking Aydin in the head and knocking him to the ground. Mustafa, Murad, and Kamil also ran across the street to continue attacking Aydin. The video depicts the men chasing Aydin behind a wooden fence where the assault continued, according to Aydin. Eventually, Aydin walked out from behind the fence without his shirt and wearing only one shoe. Aydin walked to his vehicle and got
{¶ 10} During the initial assault, Aydin suffered a cut to his head when Sevil struck him with a tire iron. Aydin required stitches and staples to close wounds on his head. Furthermore, as a result of the assaults, Aydin was diagnosed with post-concussive syndrome, anxiety, and post-traumatic stress disorder. Aydin testified that as a result of the assault, he continues to suffer from headaches, knee pain, and back pain.
{¶ 11} On July 5, 2016, Izmir and five co-defendants were indiсted for one count of felonious assault (deadly weapon), and one count of felonious assault (serious physical harm).1 On August 10, 2016, Izmir filed a motion to suppress his statements to the police. On December 2, 2016, Izmir filed an amended motion to suppress in which he argued that Mustafa, the manager of Ameripro, did not give valid consent for the police to seize the surveillance video without a search warrant. On February 14, 2018, the trial court overruled Izmir‘s motion to suppress on the following grounds: Izmir lacked standing to challenge the video‘s seizure because he failed to adduce evidence establishing that he had a reasonable expectation of privacy in Ameripro‘s business property and/or the particular office where the surveillance video was maintained; and 2) even if Izmir had standing, the record established that Mustafa voluntarily provided the police with both oral and written consent to seize the surveillance video.
{¶ 12} The trial court initially intended to give each co-defendant a separate trial.
{¶ 13} It is from this judgment that Izmir now appeals.
{¶ 14} Izmir‘s first assignment of error is as follows:
THE TRIAL COURT ERRED BY HOLDING THAT APPELLANT COULD NOT MOVE TO SUPPRESS EVIDENCE IN THIS MATTER BECAUSE HE DID NOT HAVE A PERSONAL EXPECTATION OF PRIVACY AT THE BUSINESS FROM WHICH THE SURVEILLANCE VIDEO WAS OBTAINED, IN VIOLATION OF HIS RIGHTS UNDER THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE, SECTION 14 OF THE CONSTITUTION OF OHIO.
{¶ 15} In his first assignment of error, Izmir contends that the trial court erred when it overruled his motion to suppress the surveillance video seized by police from Mustafa‘s office at Ameripro. Specifically, Izmir argues that the trial court erred when it found that he lacked standing to challenge the video‘s seizure because he failed to establish that he had a reasonable expectation of privacy in Ameripro‘s business property and/or the particular office where the surveillance video was maintained.
{¶ 16}
{¶ 17} The Fourth Amendment to the United States Constitution protects individuals from unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Fourth Amendment rights are personal in nature, and they may not be asserted vicariously by third parties. Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). “A person aggrieved by the introduction of evidence secured by an illegal search of a third person‘s premises or property has not suffered any infringement upon his [or her] Fourth Amendment rights.” State v. Henderson, 2d Dist. Montgomery No. 22062, 2008-Ohio-1160, ¶ 9, citing Rakas at 134.
{¶ 18} A reasonable expectation of privacy under the Fourth Amendment may extend to businesses and commercial premises as well as to private homes. See v. City of Seattle, 387 U.S. 541, 543, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967). Employees may have some expectation of privacy in their workspace, and therefore, often have standing to assert a Fourth Amendment violation. Mancusi v. DeForte, 392 U.S. 364, 369, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968). Whether an employee had a reasonable expectation of
{¶ 19} The record establishes that Ameripro was a limited liability company incorporated in Ohio by Mustafa; Mustafa was listed as Ameripro‘s registered agent. At the hearing on the motion to suppress, Mustafa testified that he was in charge of the day-to-day operation of Ameripro, and that his brothers, Sobir and Sevil, helped him manage the company. Conversely, Izmir was employed by a separate company, USA Freight, which was owned by Izmir‘s father and operated by the Koch family. Mustafa testified that, although he provided Izmir and the other Koch brothers with swipe cards which allowed them to gain entrance to Ameripro grounds and keys to the side and back doors of the office, neither Izmir nor any of his brothers was involved in the day-to-day operation of Ameripro. Additionally, while Izmir had general access to parts of the Ameripro grounds and office, no evidence was adduced that Izmir had any access to Mustafa‘s office, where the video surveillance system was maintained.
{¶ 20} In his brief, Izmir asserts that “the [Koch] brothers, including [Izmir], had access to the room in which the video surveillance equipment for [Ameripro] was maintained and operated.” Appellant‘s Amended Brief, p.12. In support of his argument in this regard, Izmir cites to pages 304 and 321-322 of the transcript of the suppression hearing. Upon review, however, none of the pages to which Izmir directs us support his
{¶ 21} Izmir also argues that Mustafa and the Shakhmanov brothers have an extremely close familial bond with all of the Koch brothers. Izmir argues that, while they are technically cousins, the Kоchs and Shakhmanovs are more akin to brothers. Izmir argues that this is highlighted by the fact that Mustafa provided all of the Koch brothers with a card and keys allowing them access to the Ameripro office and grounds. However, although Izmir argues that his possession of a swipe card and keys to the office demonstrated he had a privacy expectation in the room containing the video surveillance equipment, possession of such equipment, in and of itself, did not establish a reasonable expectation of privacy in the video room. See State v. Logel, 2d Dist. Montgomery No. 21912, 2008-Ohio-17, ¶ 28 (“although the defendant had a key to the apartment, he demonstrated no other indicia that would suggest he had a reasonable expectation of privacy in the apartment“).
{¶ 22} Simply put, notwithstanding the fact that Izmir had a swipe card and keys which granted him access to portions of the Ameripro office and grounds, we agree with the trial court that Izmir failed to adduce any evidence that he had an expectation of
{¶ 23} Izmir‘s first assignment of error is overruled.
{¶ 24} Izmir‘s second assignment of error is as follows:
THE TRIAL COURT ERRED BY HOLDING THAT MUSTAFA GAVE CONSTITUTIONALLY VALID CONSENT FOR THE COLLECTION OF THE SURVEILLANCE VIDEO.
{¶ 25} In his second assignment, Izmir argues that the trial court erred when it held that Mustafa voluntarily provided the police with both oral and written consent to seize the surveillance video. However, in our analysis of the prior assignment, we found that the trial court reasonably concluded that Izmir lacked standing to challenge the video‘s seizure, because he failed to establish that he had reasonable expectation of privacy in Ameripro‘s business property and/or the particular office where the surveillance video was maintained. Because he lacked standing to challenge the seizure of the surveillance video, Izmir‘s second assignment is overruled as moot.
{¶ 26}
THE TRIAL COURT ERRED BY NOT DECLARING A MISTRIAL WHEN NEWS ACCOUNTS RELATING TO THE ARREST OF APPELLANT IN A SEPARATE MATTER WERE PUBLISHED DURING THE TRIAL, THEREBY VIOLATING HIS RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE, SECTION 10, OF THE CONSTITUTION OF OHIO.
{¶ 27} During the night after the second day of trial, on March 20, 2018, Izmir was arrested by the FBI and taken into custody in Cincinnati, Ohio. Therefore, Izmir was not present when the trial was set to resume the next day, March 21, 2018. When the trial court informed the parties that it was considering resuming the trial without Izmir, his counsel and counsel for each co-defendant objected. The trial court re-set the trial to the next day and sent everyone home.
{¶ 28} Izmir was present for trial on March 22, 2018. Izmir‘s counsel moved for a mistrial after it was discovered that the U.S. Attorney‘s Office had issued a press release regarding Izmir‘s arrest in Cincinnati, which had been reported on by several local media outlets.
{¶ 29} In overruling Izmir‘s motion for a mistrial, the trial court stated the following outside the hearing of the jury:
TRIAL COURT: [The record] is clear, that this is not press interest being generated by the Montgomery County Prosecutor‘s Office nor by the Dayton Police Department. We have a co-defendant who is attracting media interest through the Cincinnati market, and the Cincinnati
Department of Justice U.S. Attorney‘s Office, and/or their FBI offices. So everybody in this room is harmless as to the situаtion that is arising. That is absolutely clear. And so we have third party players who are engaging in media activity that happens to have an impact on this. But nobody associated with this case is the cause – [of] the situation that we‘re talking about.
So I want the record and the Court of Appeals to be very clear on that, that this is not a circumstance that is being generated by the prosecutor‘s office in this case, nor by any local law enforcement agency. So that just – we can just put that to rest right now.
* * *
So the Court is going to deny the request for mistrials, and the rationale for doing so is that from [the] point of empanelment through all of our various recesses, including the recess that was given because of Izmir Koch‘s incarceration down in Cincinnati, the jury has been told consistently and repeatedly to obey the Court‘s orders on recess, to have no media contact, and to not allow anybody to relate to them any reports concerning the case that might arise in the media.
They have also been instructed that if they would come into contact with any information regarding the case, any aspect of it, or anybody involved in it, to immediately bring that to the Court‘s attention.
The jury is presumed to be following the Court‘s orders. At this point no juror has indicated that to the Court‘s bailiff that they‘ve had an issue
with that. Nobody has asked to speak with the Court. So given the instructions that the jury has received and the content and breadth of those instructions, at this point I am not going to grant the request for mistrial.
So as until now having contact with the jury about whether or not they‘ve been able to abide by the Court‘s instructions, in lieu of doing a one-by-one inquiry in chambers with the jury, my suggestion would be that we have the jurors go into the jury box and I ask them amass as opposed to one-on-one, have any of you had any contact with any information outside of the courtroom involving this case, any aspect of it, or anybody involved in it?
And if so, I want you to raise your hand, and I‘m going to have to talk with you further about that. Don‘t obviously blurt out anything that you‘ve heard. And that way I do not subscribe to the view that there‘s a chilling effect by asking the jurors that when they‘re all together.
* * *
And then we can follow up and follow that trail where it may lead, but certainly at this point there is not enough to grant a mistrial.
(Emphasis added.) Tr. 858-860.
{¶ 30} At this point, the jury was brought back into the courtroom, and the following exchange occurred:
TRIAL COURT: [Addressing the jury] So we‘re getting ready to resume our proceedings, and before we do that I just need to take care of
a housekeeping issue. And so as you know, on all of our recesses, and especially on our overnight recesses I‘ve given you those instructions about don‘t talk about the case, don‘t have contact with anybody involved in the case, and don‘t come into contact with any media reports that concern the case.
And I also told you that if you happen to come into contact with any information that pertains to the case or the people involved in it, you need to bring that to the Court‘s attention. And so it is the case that unexpectedly there has been some media coverage pertaining to the case that we‘re dealing with.
So that sometimes happens. We didn‘t anticipate that would occur, but it did occur. And so the question that I have to ask to you is whether or not any of you have happened to have any contact with any of those media reports.
And if so I‘m going to need you to raise your hand. I don‘t want you to say anything that you heard in any such media reports, but I need to find out whether or not any of you did in fact have contact directly or indirectly with any media reports concerning the case, any aspect of it or anybody involved with it. If so, will you please raise your hand?
Okay. And the reсord will reflect not a single juror is raising their hand. And they looked very perplexed as to what it is that I‘m referring to, which is a great sign. That‘s exactly how we wanted you to react to that question, quite frankly.
{¶ 31} “A mistrial should not be ordered in a criminal case merely because some error or irregularity has intervened, unless the substantial rights of the accused or the prosecution are adversely affected; this determination is made at the discretion of the trial court.” State v. Reynolds, 49 Ohio App.3d 27, 33, 550 N.E.2d 490 (2d Dist.1988). The granting of a mistrial is necessary only when a fair trial is no longer possible. State v. Franklin, 62 Ohio St.3d 118, 127, 580 N.E.2d 1 (1991), citing Illinois v. Somerville, 410 U.S. 458, 462-463, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973).
{¶ 32} Whether “to grant a mistrial is a question left [to] the discretion of the trial court, and the court‘s decision will not be disturbed on appeal absent a finding that the decision constitutes an abuse of discretion.” (Citation omitted.) State v. Wilkins, 183 Ohio App.3d 824, 2009-Ohio-4575, 919 N.E.2d 241, ¶ 51 (2d Dist.). A decision satisfies this standard if it evinces “an arbitrary, unreasonable [or] unconscionable attitude on the part of the court.” (Citation omitted.) Id.
{¶ 33} Upon review, we find that the record establishes that Izmir did not demonstrаte that he was prejudiced by the media reports of his arrest in Cincinnati on the night after his second day of trial in the instant case. The trial judge addressed the jury panel together regarding potential exposure to the reports and determined that the media reports had not affected the jurors’ ability to decide the case fairly and impartially. The trial court‘s thorough voir dire dispelled any notion that the jurors had been exposed to
{¶ 34} Izmir also argues that he was entitled to a mistrial because the jurors may have thought the following: 1) that he “had been involved in some newsworthy, negative activity” since he had not been present in the courtroom on March 22, 2018; 2) that the trial court postponed the trial because of “unexpected delay;” and 3) that Izmir was present the next day when the trial court questioned the jurors regarding the media reports.
{¶ 35} Izmir‘s argument in this regard is undermined by the fact that the record establishes that, when the trial court informed the jury that the trial was being delayed until the next day, the only individuals present in the courtroom were the judge, her staff, and the jury. In an effort to avoid the jurors doing a “head count” and reаlizing that Izmir was not present, the trial court had all of the defendants and their counsel step outside the courtroom while she informed the jury about the one-day delay. Tr. 840-843. Accordingly, based upon the actions taken by the trial court, the jury had no way to connect Izmir to the one-day trial delay and/or the trial court‘s subsequent inquiry regarding the media reports.
Juror Number Seven
{¶ 36} On the morning of the final day of trial, March 26, 2018, Juror Number Seven (hereinafter “No. 7“) informed the bailiff that she had been “browsing” past editions of the Dayton Daily News over the weekend and inadvertently read a portion of an article involving Izmir being charged in another case for an offense arising out of a fight. Tr. 1354. The following exchange then occurred out of the hearing of any other jurors:
NO. 7: And so I thought, oh, no, I‘ve got to tell you guys in the
morning. TRIAL COURT: Yeah, absolutely.
NO. 7: So [the article] was rather uneventful, but it was one of our co-defendants –
TRIAL COURT: Uh-huh.
NO. 7: -- and it was a fight, and we already knew he was a fighter. We‘ve been watching it all week.
* * *
TRIAL COURT: Okay. And, of course, the question that we have for you about that circumstance is whether or not that is going to impact your ability to be a fair, neutral, and impartial juror on this particular case. And so the law goes to great lengths to make sure that individuals charged with a criminal offensе are evaluated on the basis of that specific instance –
NO. 7: Uh-huh.
TRIAL COURT: -- right? And we don‘t look at past or future for that particular individual. We are just trying to zero in with laser-like focus as to this particular instance.
NO. 7: Uh-huh.
TRIAL COURT: And so having heard that Izmir is alleged to have been involved in another altercation, does that impact your view of this case either as to him or any other individual involved in this case?
NO. 7: No.
TRIAL COURT: Okay. And is that something that you could totally and completely put aside and not consider, and decide this case exclusively on the basis of the evidence in this case? NO. 7: Yes.
TRIAL COURT: Okay. And in following up with that, one of the most powerful forms of evidence in a case * * * is to suggest that somebody – has a particular character trait, right? A character trait for being a hothead, or a character trait for not being truthful * * * or something like that?
NO. 7: Uh-huh.
TRIAL COURT: Because it is the human mind that we tend to say, well, if you had that character on Tuesday, then you would have acted in conformity with that on Thursday for example, right?
NO. 7: Uh-huh. Uh-huh.
TRIAL COURT: And so the law doesn‘t allow that to happen. We again take great strides to try to say that that doesn‘t matter, right? What he did on Tuesday doesn‘t matter because we are only interested in what happened on June the 7th of 2016 in this particular casе.
So are you able to not use that information that appeared in the newspaper about an allegation against someone that they were involved in a fight to [sic], quite frankly, hold that against Mr. Izmir Koch, and believe that it‘s more likely that he did something wrong in this particular instance? Are you able to just ignore that?
NO. 7: Yes, Your Honor.
{¶ 37} At that point, the trial court spoke with counsel for the defendants at sidebar, specifically Izmir‘s counsel, inquiring as to whether the parties were satisfied with the trial court‘s voir dire of No. 7, as well as the juror‘s responses. None of the parties requested a mistrial, and no one requested that No. 7 be discharged and replaced with an alternate juror. Lastly, we note that there is no indication from the record that No. 7 told any of the other jurors about the newspaper article she read about Izmir. Nevertheless, Izmir argues on appeal that the trial court should have ordered a mistrial sua sponte.
{¶ 38} Izmir failed to request a mistrial in the trial court, so he waived the issue, absent plain error. State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 152; see also State v. Garrett, 2d Dist. Montgomery No. 27264, 2017-Ohio-8492, ¶ 16 (failure to object limited appellate review to plain error analysis).
{¶ 39} For plain error to exist, the defect in the trial proceedings must be obvious and must have affected the outсome of the trial. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 16. “Notice of plain error ‘is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.’ ” State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 108, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.
{¶ 40} Upon review, we conclude that the trial court did not err, plainly or otherwise, when it failed to sua sponte order a mistrial based upon No. 7‘s admission that she had accidentally read part of an article discussing a separate charge involving Izmir‘s fight in another jurisdiction. The record establishes that the trial court engaged No. 7 in a
{¶ 41} Izmir‘s third assignment of error is overruled.
{¶ 42} Izmir‘s fourth assignment of error is as follows:
THE VERDICT OF THE COURT FINDING APPELLANT GUILTY OF FELONIOUS ASSAULT WITH A DEADLY WEAPON WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN APPELLANT DID NOT HAVE OR USE A DEADLY WEAPON.
{¶ 43} In his fourth assignment, Izmir argues that his conviction for felonious assault with a deadly weapon was against the manifest of the evidence because the surveillance video of the assault on Aydin established that he (Izmir) never possessed a weapon.
{¶ 44} “The manifest-weight-of-the-evidence standard of appellate review set forth in State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997), applies in both criminal and civil cases. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 17-23.” Mathews v. Mathews, 2d Dist. Clark No. 2012-CA-79, 2013-Ohio-2471, ¶ 9.
{¶ 46} Because the trier of fact sees and hears the witnesses at trial, we must defer to the factfinder‘s decisions whether, and to what extent, to credit the testimony of particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997). However, we extend less deference in weighing competing inferences suggested by the evidence. Id. The fact that the evidence is subject to differing interpretations does not render a judgment against the manifest weight of the evidence. State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 14. A judgment should be reversed as being against the manifest weight of the evidence only in exceptional circumstances. State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 47} In the instant case, one of the offenses of which Izmir was convicted was felonious assault in violation of
(A) No person shall knowingly do either of the following:
* * *
(2) Cause or attempt to cause physical harm to another or to another‘s unborn by means of a deadly weapon or dangerous ordnance.
{¶ 48} The evidence adduced at trial established that while Izmir did not possess a deadly weapon during the assault on Aydin, several of his co-defendants did possess deadly weapons and repeatedly used those weapons to attack Aydin. Therefore, while Izmir did not use a deadly weapon in the commission of felonious assault, he was charged under that Revised Code section on a theory of complicity.
{¶ 49} “Under
{¶ 50} ” ‘To aid or abet’ means to support, assist, encourage, cooperate with, advise, or incite the principal in the commission of the crime.” Id., citing State v. Johnson, 93 Ohio St.3d 240, 245, 754 N.E.2d 796 (2001). “Consequently, to support a conviction for complicity by aiding and abetting pursuant to
{¶ 51} Upon review, the record clearly establishes that Izmir aided and abetted his co-defendants with respect to the felonious assault of Aydin with a deadly weapon. The surveillance video depicts one instance where Aydin attempted to run away after stabbing Murad, and was chased down by Izmir, Murad, Sevil, and Mustafa. After Aydin fell down in the parking lot, Mustafa began striking him with a metal pole, and Izmir can be seen kicking him in the head and upper body. Aydin then ran across the street toward the Ameripro office in an effort to escape from his attackers. Upon reaching the parking lot in front of Ameripro, however, Aydin was struck in the head from behind with a metal pole by Murad. When Aydin fell to the ground, Murad, Mustafa, and Kamil began hitting him with metal poles. Izmir, who was unarmed, can be seen kicking Aydin in the head while the other men were hitting Aydin with the metal poles. In addition to the foregoing examples depicted in the video, Izmir can be seen kicking and hitting Aydin while the other men attack Aydin with weapons in other portions of the video.
{¶ 52} Thus, having reviewed the record, we find no merit in Izmir‘s manifest weight challenge. It is well settled that evaluating witness credibility is primarily for the trier of fact. State v. Brown, 2d Dist. Montgomery No. 27571, 2018-Ohio-3294, ¶ 11; see also State v. Benton, 2d Dist. Miami No. 2010-CA-27, 2012-Ohio-4080, ¶ 7. A trier of fact
{¶ 53} Izmir‘s fourth assignment of error is overruled.
{¶ 54} Izmir‘s fifth assignment of error is as follows:
APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF HIS RIGHTS UNDER THE FIFTH AND SIXTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE, SECTION 10 OF THE CONSTITUTION OF OHIO WHEN HIS TRIAL COUNSEL ACQUIESCED IN THE ELIMINATION OF A JURY INSTRUCTION ON THE LESSER INCLUDED OFFENSE OF ASSAULT, DID NOT REQUEST A JURY INSTRUCTION ON NON-DEADLY FORCE SELF DEFENSE, AND DID NOT MAINTAIN SEVERANCE OF APPELLANT‘S CASE, INSTEAD MOVING FOR JOINDER.
{¶ 55} In his fifth assignment, Izmir contends that he was denied the effective assistance of counsel based upon the following conduct of his trial counsel: 1) stipulating that Aydin suffered “serious physical harm,” thereby preventing a jury instruction on the lesser included offense of misdemeanor assault; 2) failing to request a jury instruction on non-deadly force self-defense; and 3) opting for joinder instead of keeping Izmir‘s case severed from those of his co-defendants.
{¶ 57} An appellant is not deprived of effective assistance of counsel when counsel chooses, for strategic reasons, not to pursue every possible trial tactic. State v. Brown, 38 Ohio St.3d 305, 319, 528 N.E.2d 523 (1988). The test for a claim of ineffective assistance of counsel is not whether counsel pursued every possible defense; the test is whether the defense chosen was objectively reasonable. Strickland at 689. A reviewing court may not second-guess decisions of counsel which can be considered matters of trial strategy. State v. Smith, 17 Ohio St.3d 98, 477 N.E.2d 1128 (1985). Debatable strategic and tactical decisions may not form the basis of a claim for ineffectivе assistance of counsel, even if, in hindsight, it looks as if a better strategy had been available. State v. Cook, 65 Ohio St.3d 516, 524, 605 N.E.2d 70 (1992).
Stipulation to Serious Physical Harm
{¶ 58} As previously stated, Aydin testified that, as a result of being assaulted by Izmir and the other co-defendants, he suffered a cut to his head when Sevil struck him with a tire iron. Aydin required stitches and staples to close wounds on his head. Furthermore, as a result of the assaults, Aydin was diagnosed with post-concussive syndrome, anxiety, and PTSD. Aydin testified that he continues to suffer from headaches, knee pain, and back pain as a result of the assaults.
{¶ 59} When Aydin finished testifying, the parties and the trial court discussed whether it was necessary for the doctors who treated Aydin to testify regarding the injuries he suffered during the attack. Counsel for each of the defendants and the trial court agreed that, based upon Aydin‘s testimony and his medical records, it was undisputed that he suffered serious physical harm as a result of being assaulted by Izmir and the other co-defendants. We note that during the same discussion, the parties and the trial court also agreed to stipulate that Murad suffered serious physical harm when he was stabbed by Aydin, and Mustafa suffered serious physical harm when he broke his hand during the assault. We also note that the trial court stated that, from its “perspective, * * * therе is no doubt that the element of serious physical harm is established in connection with” the injuries Aydin suffered during the assault.
{¶ 60} Upon review, we find no fault with Izmir‘s counsel‘s decision to stipulate that Aydin‘s injuries constituted serious physical harm within the meaning of
Non-Deadly Force Self-Defense Instruction
{¶ 61} Izmir also argues that his counsel was ineffective for failing to request a jury instruction on self-defense through the use of non-deadly force. At trial, Izmir‘s defense was that he attacked Aydin in an attempt to defend his brother, Murad, after Murad had been stabbed in the arm by Aydin.
{¶ 62} ” ‘To establish self-defense for the use of less than deadly force in defense of one‘s person, the defendant must prove: (1) he was not at fault in creating the situation which gave rise to the event in which the use of non-deadly force occurred; (2) he had honest and reasonable grounds to believe that such conduct was necessary to defend himself against the imminent use of unlawful force; and (3) the force used was not likely to cause death or great bodily harm.’ ” State v. Belcher, 2d Dist. Montgomery No. 24968, 2013-Ohio-1234, ¶ 34, quoting State v. Tanner, 9th Dist. Medina No. 3258-M, 2002-Ohio-2662, ¶ 21.
{¶ 63} “Defense of another is a variation of self-defense. Under certain circumstances, one may employ appropriate force to defend another individual against an assault. However, ‘one who intervenes to help [another] stands in the shoes of the person whom he is aiding, and if the person aided is the one at fault, then the intervenor is not justified in his use of force and is guilty of an assault.’ * * * Therefore, one who claims the lawful right to act in defense of another must meet the criteria for the affirmative defense of self-defense.” State v. Wenger, 58 Ohio St.2d 336, 340, 390 N.E.2d 801 (1979). Accord State v. Turner, 2d Dist. Montgomery No. 24322, 2011-Ohio-5417, ¶ 13.
{¶ 64} In the instant case, Murad was the initial aggressor in the assault on Aydin. Furthermore, Murad used a deadly weapon when he initially ran up to Aydin and struck him in the head with a collapsible metal baton. During the second part of the assault, Murad again initiated the attack on Aydin when he grabbed the metal baton out of Izmir‘s car and ran across the street, yelling at Aydin that he was going to “tear him to pieces.”
{¶ 65} Accordingly, the record establishes that Murad was clearly at fault by initiating the attack that ultimately resulted in Aydin‘s acting in self-defense by stabbing Murad. Therefore, Izmir cannot establish that he was prejudiced by his counsel‘s decision not to request a non-deadly force self-defense jury instruction, since Izmir claimed he was coming to the defense of Murad, who was clearly using deadly force against Aydin. The evidence adduced at trial supported the trial court‘s decision to instruct the jury on the defense of others through the use of deadly force. Tr. 1455-1456. Izmir‘s trial counsel was therefore not ineffective for failing to request a jury instruction on
Failure to Request Severance of Izmir‘s Case
{¶ 66} Lastly, Izmir contends that his trial counsel was ineffective for failing to request that his case be severed and tried separately from his co-defendants’ cases. Specifically, Izmir argues that joinder was inappropriate because he did not have a weapon, but all of his co-defеndants used weapons in the attack on Aydin.
{¶ 67} Initially, we note that the co-defendants, including Izmir, were originally scheduled to be tried separately. Several months before Izmir‘s trial was scheduled to begin, however, his counsel, along with Murad‘s counsel, filed a joint motion requesting that their cases be tried together. The trial court granted the motion, and ultimately, Izmir, Murad, Sevil, and Kamil were tried together.
{¶ 68} Joinder is governed by
When two or more persons are jointly indicted for a felony, except a capital offense, they shall be tried jointly unless the court, for good cause shown on application therefor by the prosecuting attorney or one or more of said defendants, orders one or more of said defendants to be tried separately.
{¶ 69} The law favors joinder because a single trial conserves time and expense and may minimize the potentially disparate outcomes that can result from successive trials before different juries. State v. Schiebel, 55 Ohio St.3d 71, 86-87, 564 N.E.2d 54 (1990); State v. Torres, 66 Ohio St.2d 340, 343, 421 N.E.2d 1288 (1981). However, the preference for joint trials is not unrestricted. A defendant requesting severance “has the burden of furnishing the trial court with sufficient information so that it can weigh the considerations favoring joinder against the defendant‘s right to a fair trial.” Torres at 343.
If it appears that a defendant or the state is prejudiced by a joinder of * * * defendants in an indictment, * * * or by such joinder for trial together of indictments, * * *, the court shall order an election or separate trial of counts, grant a severance of defendants, or provide such other relief as justice requires.
{¶ 70} Upon review, Izmir has failed to establish that his counsel‘s failure to file a motion to sever would have changed the outcome of the trial. The charges in all of the indictments involved Izmir and his co-defendants acting in concert with each other. It was undisputed that each of Izmir‘s co-defendants used weapons while Izmir only kicked Aydin in the head and body. However, that fact standing alone did not prejudice Izmir or deny him a fair trial pursuant to
{¶ 71} Izmir‘s fifth assignment of error is overruled.
{¶ 72} Izmir‘s sixth assignment of error is as follows:
THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY ON NON-DEADLY USE OF FORCE SELF DEFENSE, AND ASSAULT AND/OR AGGRAVATED ASSAULT.
{¶ 73} In his sixth assignment, Izmir argues that the trial court should have instructed the jury sua sponte on non-deadly use of force self-defense. Izmir also argues that the trial court should have instructed the jury on assault and/or aggravated assault, as lesser included offenses of felonious assault.
Non-Deadly Use of Force Self-Defense
{¶ 74} We note that Izmir did not request an instruction on non-deadly use of force self-defense at trial, so he waived thus issue, absent plain error. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, at ¶ 152.
{¶ 75} For plain error to exist, the defect in the trial proceedings must be obvious and must have affected the outcome of the trial. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, at ¶ 16. “Notice of plain error ‘is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.’ ” Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, at ¶ 108.
{¶ 76} A trial court need only give those instructions that are relevant and necessary for the jury to weigh all of the evidence. State v. Comen, 50 Ohio St.3d 206, 553 N.E.2d 640 (1990). A defendant is only entitled to have proposed jury instructions given when they are correct statements of the law, pertinent to the evidence in the record or to material issues, and are timely presented and not already included in the substance of the jury charge. State v. Guster, 66 Ohio St.2d 266, 269, 421 N.E.2d 157 (1981).
{¶ 77} As previously stated, ” ‘[t]o establish self-defense for the use of less than deadly force in defense of one‘s person, the defendant must prove: (1) he was not at fault in creating the situation which gave rise to the event in which the use of non-deadly force occurred; (2) he had honest and reasonable grounds to believe that such conduct was necessary to defend himself against the imminent use of unlawful force; and (3) the force used was not likely to cause death or great bodily harm.’ ” Belcher, 2d Dist. Montgomery No. 24968, 2013-Ohio-1234, at ¶ 34.
{¶ 78} Furthermore, “[d]efense of another is a variation of self-defense. Under certain circumstances, one may employ appropriate force to defend another individual against an assault. However, ‘one who intervenes to help a stranger stands in the shoes of the person whom he is aiding, and if the person aided is the one at fault, then the intervenor is not justified in his use of force and is guilty of an assault.’ * * * Therefore, one who claims the lawful right to act in defense of another must meet the criteria for the affirmative defense of self-defense.” Wenger, 58 Ohio St.2d 336, 340, 390 N.E.2d 801.
{¶ 79} As stated in our analysis in the previous assignment of error, Murad was the initial aggressor in the assault on Aydin. Murad also used a deadly weapon when he initially ran up to Aydin and struck him in the head with a metal baton. During the second part of the assault, Murad again initiated the attack on Aydin when he grabbed the metal baton out of Izmir‘s car and ran across the street, yelling at Aydin that he was going to
{¶ 80} Izmir claims that he was entitled to a jury instruction on non-deadly force defense of another because he was merely protecting/defending Murad who had just been stabbed by Aydin. The evidence adduced at trial, however, establishes that Izmir and his co-defendants were the initial aggressors who started the fight with Aydin and attacked him using deadly force. Although Izmir did not possess a weapon during the assault, he acted in concert with his co-defendants, who were armed with metal poles, rebar, and collapsible metal batons. Therefore, we conclude that the trial court did not err, plainly or otherwise, when it did not sua sponte instruct the jury on non-deadly force defense of another.
Assault Instruction
{¶ 81} We also note that Izmir did not request a jury instruction on the lesser included offense of misdemeanor assault or object to the jury instructions that were given by the trial court. Therefore, our review of his argument that an assault instruction should have been given is limited to a plain error analysis.
{¶ 82} An instruction on a lesser-included offense should only be given where the evidence warrants it, and where “the evidence does not support a conviction on a lesser included offense, it would be erroneous to instruct the jury thereon, as to do so would confront the jury with the choice of reaching an unreasonable conclusion.” State v. Dover, 2d Dist. Clark No. 2013-CA-58, 2014-Ohio-2303, ¶ 3, citing State v. Johnson, 36 Ohio St.3d 224, 228, 522 N.E.2d 1082 (1988). In deciding whether to instruct the jury on a lesser-included offense, the trial court must view the evidence in a light most favorable to
{¶ 83} We recently addressed this issue as follows:
“The question of whether a particular offense should be submitted to the finder of fact as a lesser included offense involves a two-tiered analysis.” (Citation omitted) State v. Deanda, 136 Ohio St.3d 18, 2013-Ohio-1722, 989 N.E.2d 986, ¶ 6. “The first tier, also called the ‘statutory-elements step,’ is a purely legal question, wherein we determine whether one offense is generally a lesser included offense of the charged offense.” Id., citing State v. Kidder, 32 Ohio St.3d 279, 281, 513 N.E.2d 311 (1987). “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.” ’ ” Id., quoting State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889, ¶ 13. “[A] charge on the lesser offense is required ‘only where the evidence presented at trial would reasonably support both an acquittal of the crime charged and a conviction upon the lessеr included offense.” ’ State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242,
¶ 192, quoting State v. Thomas, 40 Ohio St.3d 213, 533 N.E.2d 286 (1988), paragraph two of the syllabus.
State v. Pullen, 2d Dist. Montgomery No. 25829, 2015-Ohio-552, ¶ 21.
{¶ 84} We have recognized that misdemeanor assault under
{¶ 85} Izmir was indicted for felonious assault, under
(A) knowingly caused or attempted to cause physical harm to another or to another‘s unborn, or
(B) recklessly caused serious physical harm to another or to another‘s unborn.
{¶ 86} The only difference between felonious assault under
{¶ 87} We conclude that the evidence presented at trial did not reasonably support a conviction for assault under
{¶ 88} Significantly, even without the stipulation, the video recording admitted into evidence depicted Izmir swinging his arm toward Aydin‘s head and kicking him repeatedly in the head and body after he fell to the ground. Furthermore, while Izmir was attacking Aydin, the other co-defendants were striking him with metal poles and metal batons. Thus, we conclude that under these facts no reasonable trier of fact could have found that Izmir did not knowingly cause serious physical harm. See State v. Underwood, 2d Dist. Montgomery No. 26711, 2016-Ohio-1101, ¶ 17, 18.
{¶ 89} Even if Izmir had requested an instruction on misdemeanor assault under
Aggravated Assault
{¶ 90} “In State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d 294 (1988), the Ohio Supreme Cоurt held that aggravated assault is not a lesser-included offense of felonious assault. Rather, aggravated assault is an “inferior-degree offense,” as it contains elements which are identical to the elements defining felonious assault, except for the additional mitigating element of serious provocation. Id. at 201-211. Thus, “in a trial for felonious assault, where the defendant presents sufficient evidence of serious provocation, an instruction on aggravated assault must be given to the jury.’ * * * ” State v. Morrow, 2d Dist. Clark No. 2002-CA-37, 2002-Ohio-6527, ¶ 7, fn. 2, citing Deem.
{¶ 91} In a felonious assault case, the trier of fact must consider an aggravated assault charge when sufficient evidence of serious provocation by the victim (or victims) exists. State v. Mack, 82 Ohio St.3d 198, 200, 694 N.E.2d 1328 (1998); see also Deem at paragraph four of the syllabus. “Provocation, to be serious, must be reasonably sufficient to bring on extreme stress and the provocation must be reasonable sufficient to incite or arouse the defendant into using deadly force.” Deem at paragraph five of the syllabus. In the context of aggravated assault, the evaluation of whether provocation is reasonably sufficient to constitute serious provocation is a two-part analysis. Mack at 201. First, an objective standard must be applied to determine whether the аlleged provocation is reasonably sufficient to “arouse the passions of an ordinary person beyond the power of his or her control,” and “to bring on a sudden passion or fit of rage.” Id., quoting State v. Shane, 63 Ohio St.3d 630, 634-635, 590 N.E.2d 272 (1992). If the objective standard
{¶ 92} At trial, the focus of Izmir‘s defense was that he was only defending himself and his brother, Murad, when he attacked Aydin. Of the four co-defendants, only Murad testified during trial. Murad‘s only explanation for why he and the other co-defendants continued to attack Aydin was that they wanted to disarm him, keep him from picking up another weapon, and keep him from hurting anyone else. Simply put, the evidence adduced at trial established, at best, that Izmir attacked Aydin in order to defend himself and/or defend his co-defendants.
{¶ 93} In State v. Harding, 2d Dist. Montgomery No. 24062, 2011-Ohio-2823, we stated the following:
When analyzing the subjective prong of the test, “[e]vidence supporting the privilege of self-defense, i.e., that the defendant feared for his own personal safety, does not constitute sudden passion or fit of rage.” State v. Stewart, Franklin App. No. 10AP-526, 2010-Ohio-466, at ¶ 13, citing State v. Tantarelli (May 23, 1995), 10th Dist. No. 94APA11-1618. See, also, Mack at 201; State v. McClendon, Montgomery App. No. 23558, 2010-Ohio-4757, at ¶ 23, [vacated, in part, on other grounds by State v. McClendon, 128 Ohio St.3d 354, 2011-Ohio-954, 994 N.E.2d 235] (“[T]here was insufficient subjective evidence that Defendant was actually acting under the influence of sudden passion or in a sudden fit of rage.
Rather, Defendant shot Driscoll out of fear because he was afraid Driscoll might be retrieving a weapon out of his coat. Fear alone is insufficient to demonstrate the kind of emotional state necessary to constitute sudden passion or a sudden fit of rage.“) * * *
{¶ 94} Upon review, we conclude that the trial court was not required to instruct the jury on aggravated assault. See State v. Hancock, 2d Dist. Montgomery No. 19434, 2005-Ohio-127, ¶ 25. The defendant‘s actions in Harding were motivated by fear and self-defense. We stressed that under such circumstances, even if the defendant had satisfied the objective prong, he failed to fulfill the subjective prong of the test. Id. at ¶ 44 and 47. Furthermore, the evidence adduced by the State was inconsistent with an aggravated assault. There was no evidence that Izmir, subjectively, was actually under the influence of sudden passion or a fit of rage. Thus, the trial court did not err, plainly or otherwise, when it failed to give an instruction on the inferior-degree offense of aggravated assault.
{¶ 95} Izmir‘s sixth assignment of error is overruled.
{¶ 96} Izmir‘s seventh and final assignment of error is as follows:
THE FAILURE TO APPLY IN THE INSTANT CASE THE RULE SET FORTH BY THE UNITED STATES SUPREME COURT IN GRIFFITH V. KY., 479 U.S. 314 (1987) AND ITS PROGENY THAT NEW RULES OF CRIMINAL PROCEDURE MUST BE APPLIED RETROACTIVELY FOR ALL CASES UNDER DIRECT REVIEW AS IT APPLIES TO OHIO‘S SHIFTING OF THE BURDEN OF PROOF FROM THE DEFENDANT TO
THE STATE FOR THE AFFIRMATIVE DEFENSE OF SELF-DEFENSE WOULD VIOLATE THE DUE PROCESS CLAUSES OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 10 OF THE CONSTITUTION FOR THE STATE OF OHIO.
{¶ 97} In his final assignment, Izmir contends that he is entitled to retroactive application of the changes made by the legislature to Ohio‘s self-defense statute,
(B)(1) A person is allowed to act in self-defense, defense of another, or defense of that person‘s residence. If, at the trial of a person who is accused of an offense that involved the person‘s use of force against another, there is evidence presented that tends to support that the accused person used the force in self-defense, defense of another, or defense of that person‘s residence, the prosecution must prove beyond a reasonable doubt that the accused person did not use the force in self-defense, defense of another, or defense of that person‘s residence, as the case may be.
{¶ 98} It is undisputed that H.B. 228 did not become effective until more than year after Izmir‘s trial was completed. Nevertheless, Izmir argues that he is entitled to retroactive application of the benefit in the switch in burden of proof for claims of self-defense resulting from H.B. 228. In support of his argument, Izmir relies on three cases
{¶ 99} The first case cited by Izmir is Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). Griffith held that new rules for the conduct of criminal prosecutions must be “applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” Id. at 328. Griffith reasoned that “failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication,” and further that “selective application of new rules violates the principle of treating similarly situated defendants the same.” Id. at 322-323. In Griffith, the court applied Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), retroactively in order to expand the rights of the defendant by prohibiting the use of peremptory challenges based on race.
{¶ 100} The second case relied upon by Izmir is State v. Elmore, 122 Ohio St.3d 472, 2009-Ohio-3478, 912 N.E.2d 582, in which the Ohio Supreme Court held that the retroactive application of State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470 (2006) to cases pending on direct appeal did not violate the ex post facto clauses of the United States or Ohio Constitutions.
{¶ 101} The instant case, however, does not involve the recognition of a nеw constitutional rule, as in Griffith and Elmore. Rather, H.B. 228 effected a statutory change regarding the manner in which the burden of proof in a self-defense claim is regulated at trial. Simply put, the instant case does not involve a constitutional issue. “Simply because the General Assembly has shifted the burden of proof going forward
{¶ 102} The last case cited by Izmir is Isaac v. Engle, 646 F.2d 1129, 1135 (6th Cir.1980), wherein the Sixth Circuit held that the defendant was not precluded from seeking federal habeas corpus relief in order to challenge the fact that the jury was not properly instructed on who had the burden of proof in regard to proving or disproving a claim of self-defense, based upon the law that existed at the time of the defendant‘s original trial. Id. at 1131-1133. Isaac did not address the issue in the instant case, namely the application of statutory amendments retroactively. We also note that the court‘s decision in Isaac was reversed by the United States Supreme Court and is no longer good law. Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982).
{¶ 103} Other than relying on cases that are inapplicable to the instant case, Izmir provides no additional supрort for his argument that H.B. 228, which was not in effect until a year after his trial, should be applied retroactively. “A statute is presumed to be prospective in its operation unless expressly made retrospective.”
{¶ 104} Izmir‘s seventh and final assignment of error is overruled.
{¶ 105} All of Izmir‘s assignments of error having been overruled, the judgment of the trial court is affirmed.
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FROELICH, J. and TUCKER, J., concur.
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