118 Ohio St. 3d 446
Ohio
2008

{¶ 1} The discretionary appeal is accepted on Proposition of Law No. III.

{¶ 2} Because the court of appeals entered its judgment on appellant’s third assignment of error below prior to the release by this court of its opinion in State v. Smith, 117 Ohio St.3d 447, 2008-Ohio-1260, 884 N.E.2d 595, this cause is *447remanded to the court of appeals for consideration of whether the court of appeals’ judgment should be modified in view of our opinion in State v. Smith.

David A. Yost, Delaware County Prosecuting Attorney, and Elizabeth A. Matune, Assistant Prosecuting Attorney, for appellee. Timothy Young, State Public Defender, and Theresa G. Haire, Assistant State Public Defender, for appellant. Moyer, C.J., and Pfeifer, Lundberg Stratton, O’Connor, O’Donnell, and Lanzinger, JJ., concur. Cupp, J., dissents and would not accept the appeal.