State of Ohio v. Aaron Ludwick
Case No. 21CA17
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HIGHLAND COUNTY
RELEASED 7/26/2022
[Cite as State v. Ludwick, 2022-Ohio-2609.]
Hess, J.
Max Hersch, Assistant State Public Defender, Office of the Ohio Public Defender, Columbus, Ohio for appellant.
Anneka P. Collins, Highland County Prosecutor, Hillsboro, Ohio, for appellee.
Hess, J.
{¶1} Aaron Ludwick appeals his four convictions for rape of a minor less than ten years of age and one conviction of rape by force or threat of force. He contends that: (1) the trial court erred when it allowed the prosecution to ask him questions about his sexual history; (2) he had ineffective assistance of counsel for (a) failing to object to other-acts testimony about Ludwick’s behavior at certain social events, (b) failing to request a redaction of a portion of a forensic interview that contained hearsay alleging other crimes, and (c) failing to request a waiver of court costs; and (3) multiple errors cumulatively deprived him of his constitutional right to a fair trial.
{¶2} We find that the trial court erred when it allowed prior-acts evidence of Ludwick’s sexual history to be admitted. It was not relevant to show plan, motive, or intent and was inadmissible propensity evidence under
{¶3} We overrule Ludwick’s assignments of error and affirm the judgment.
I. PROCEDURAL HISTORY
{¶4} In March 2021, the Highland County Grand Jury indicted Ludwick on four counts of rape of his daughter, N.L., a minor being less than ten years of age, in violation of
{¶5} N.L. testified that when she was six years old, in first grade, and living in an apartment with her father, Aaron Ludwick, her mother, M.G., and a younger sister,
{¶6} N.L. testified that when she was in the fourth grade, she went to a sleepover at a friend’s house with several other girls. She said she and another girl were touching each other under their pants and humping. The other girls asked about their actions and N.L. told them, “that’s what my dad made me do and that I would lay with him until white stuff came out and then we’d be done.” She said the discussion came up again at the school lunch table a few days later and she again told them that her dad “would make me lay with him until white stuff came out.” Two of the girls present at the sleepover and the lunch table discussion testified that they recalled the incident and lunch discussion and N.L. told them, “She has to lay naked with him [her dad] until white stuff comes out and then she’s done.” And, “[N.L.] mentioned that her dad made her lay in bed with her naked. * * * she didn’t know if that was something we all had to do with our dads or um if that was unnormal.” One of the girls testified that she went home after school that afternoon and told her mother about N.L.’s comments. That mother testified that after her daughter told
{¶7} N.L. testified that the sexual abuse continued when she was 10 and 11 years old and in the fifth and sixth grades and that most often her father forced vaginal sex on her. She testified that her father had a bag that contained a corset and skirt and she was required to wear that during sex. She also testified that her father took her to purchase thong underwear for her 14th birthday, which he forced her to wear during sex. N.L. testified that her father had a video camera that he used to record their anal sex when she was approximately 12 years old.
{¶8} N.L. testified that the sexual assaults stopped in 2018 when she was 14 and started menstruating. However, there was one additional final time when she was 14, during which Ludwick wore a condom and forced anal sex on her.
{¶9} N.L. testified that in January 2021, several years after the abuse stopped, she told her boyfriend about it, he told his mother, and his mother talked to N.L. and convinced her to tell her mother, M.G. N.L. testified that when she told her mother about the abuse, her mother took her to the sheriff’s office and then they went to Children’s Hospital for an interview.
{¶10} N.L.’s mother, M.G., testified that she had been in a relationship and lived with Ludwick for 18 years, and they had two children together, including N.L. During the relevant time period, M.G. worked the night shift from 10:30 p.m. to 6:30 a.m. M.G. testified that they used to own a blue recliner and a gray console television set. M.G. testified that Ludwick told her to take N.L. and get her on birth control when she started
{¶11} N.L.’s boyfriend and his mother testified about their discussions with N.L. concerning the sexual abuse. The social worker/forensic interviewer at Children’s Hospital testified about her interview with N.L. and played the recorded interview session she had with N.L. in which N.L. discussed the sexual abuse in a manner consistent with her trial testimony. Last, the detective at the Highland County Sheriff’s Office testified about the interviews he conducted with M.G. and N.L. and his subsequent search of Ludwick’s house and cellphone contents.
{¶12} The defense theory was that N.L. had learned that Ludwick was leaving her mother, so N.L. decided to make up rape allegations to get back at him for hurting her mother. The defense had a secondary theory that N.L. wanted to free herself of Ludwick’s strict, yet responsible parenting by falsely accusing him of rape. Ludwick testified that he never raped N.L. in any manner.
II. ASSIGNMENTS OF ERROR
{¶14} Ludwick assigns the following errors for our review:
1. The trial court erred by permitting the prosecution to ask Mr. Ludwick about his sexual history.
2. Trial counsel for Mr. Ludwick rendered ineffective assistance by failing to object to testimony concerning Mr. Ludwick’s other acts.
3. Counsel for Mr. Ludwick rendered ineffective assistance by failing to object or to move to redact a portion of the forensic interview that contained hearsay alleging other crimes.
4. The multiple errors cumulatively deprived Mr. Ludwick of his constitutional right to a fair trial. State v. Froman, 162 Ohio St.3d 435, 2020-Ohio-4523, 165 N.E.3d 1198. (Aug. 12, 2021 and Aug. 13, 2021 Trs., passim.)
5. Trial counsel for Mr. Ludwick rendered ineffective assistance by failing to request a waiver of court costs.
III. LAW AND ANALYSIS
A. Testimony Regarding “Other Acts” under
{¶16} He also contends that his trial counsel should have objected to “other acts” testimony on at least four occasions including his behavior at a school dance, during a sleepover hosted at his house, during a birthday party, and at a pool party hosted at his house. He argues that this testimony also allowed other-acts evidence to be placed before the jury in violation of
1. Standard of Review
{¶17} Courts use a three-step analysis to determine whether evidence of other crimes, wrongs, or acts of an accused may be admissible. State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 19.
The first step is to consider whether the other acts evidence is relevant to making any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.
Id. at ¶ 20.
2. Other Acts Evidence - Anal Sex
{¶19}
The threshold question is whether the evidence is relevant. * * * [T]he problem with other-acts evidence is rarely that it is irrelevant; often, it is too relevant. In the
State v. Smith, 162 Ohio St.3d 353, 2020-Ohio-4441, 165 N.E.3d 1123, ¶ 37.
{¶20} The court should evaluate whether the evidence is relevant to a non-character based issue material to the case. “If the evidence is not premised on improper character inferences and is probative of an issue in the case, the court must then consider whether the evidence’s value ‘is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.’ ” Id. at ¶ 37.
{¶21} The state argues that the question about whether Ludwick enjoys anal sex is not a question about prior acts but was intrinsic to the offense. “
{¶22} We disagree. The question about anal sex inquired into other prior acts of anal sex. During Ludwick’s cross-examination, the state asked Ludwick about his daughter’s testimony:
A. That’s what she testified.
Q. And you liked having anal sex, isn’t that correct?
Defense Counsel: Objection.
At this point, the trial court held a sidebar with defense counsel and the prosecutor, the substance of which was not transcribed for the trial transcript and no statement of it was prepared pursuant to
{¶23} The court overruled the objection and the state’s cross-examination continued. The state asked Ludwick again whether he enjoys anal sex:
Q. Do you need me to repeat it?
Q. And you like anal sex, isn’t that correct?
A. From time to time, yes.
Q. You complained to [M.G.] because she wouldn’t do that kind of thing with you, didn’t you?
A. I wouldn’t say I complained. I asked her to a few times.
Q. [N.L.] testified that you put your penis in her anus, didn’t she?
A. She did testify to that.
{¶24} The question, “And you like anal sex, isn’t that correct?” presupposes prior acts of anal sex. The question is compound in the sense that it implicitly assumes that Ludwick has engaged in anal sex before and therefore has a prior experience upon which to assess whether he enjoys it. In full the question asks: You have engaged in prior acts of anal sex and you like anal sex, isn’t that correct? Therefore, we find that the question implicitly asks about prior acts of anal sex.
{¶25} The state also argues that, even if the question raises prior acts, it was proper under
Q. I’m going to ask you a few personal questions, how was your sexual relationship with the Defendant when you were together?
A. Well, he always complained that I’m too big, I need to lose weight. Um and he always have me do stuff that sometimes I don’t do. I don’t want to do.
Q. Why would you do things you didn’t want to do?
A. Because um, I’m his partner and I should do it.
Q. Is that your culture, is that how you were raised?
A. Yeah.
M.G. did not testify specifically about anal sex. Ludwick did not testify that M.G. refused to have anal sex with him. He testified that he asked her to have anal sex a few times but he was not asked and did not testify about her response, “I asked her to a few times.”
{¶27} The threshold question of whether Ludwick’s history of anal sex is relevant under
a. Plan
{¶29} “[P]lan evidence need not share any common characteristics with the current crime; rather, the other acts are linked to the present crime because they are carried out in furtherance of the same overall plan. Evidence of a plan or common design ‘refers to a larger criminal scheme of which the crime charged is only a portion.’ ” Hartman at ¶ 40.
Common-plan evidence generally concerns events that are “inextricably related” to the crime charged. The other acts form the “immediate background” of the present crime: they are typically either part of the “same transaction” as the crime for which the defendant is on trial or they are part of “a sequence of events” leading up to the commission of the crime in question. As one authority has explained, this type of other-acts evidence is admitted
[t]o prove the existence of a larger, continuing plan, scheme, or conspiracy, of which the present crime on trial is a part. This will be relevant as showing motive, and hence the doing of the criminal act, the identity of the actor, and his intention, where any of these is in dispute.
Hartman at ¶ 41.
{¶30} The state’s argument is that “[M.G.] was no longer what [Ludwick] wanted and she complained about that which he liked, this goes directly to [Ludwick’s] motive, plan, and intent to perform anal sex on N.L.” However, the evidence that Ludwick engaged in anal sex in the past and enjoyed it does not fit into the common understanding of “plan” evidence. Ludwick’s prior acts of anal sex with other consensual partners was not part of a larger scheme involving the anal rape of his daughter. As the Court explained in Hartman, there could be instances where seemingly unrelated but highly similar prior acts could be evidence of a common scheme to commit the crime charged, nevertheless those prior acts must be part of the same grand design:
We stress, however, that plan evidence should show that the crime being charged and the other acts are part of the same grand design by the defendant. Otherwise, proof that the accused has committed similar crimes is no different than proof that the accused has a propensity for committing that type of crime. The takeaway for the jury becomes, “The accused did it once recently; therefore, the accused did it again.”
Hartman at ¶ 46; State v. O‘Connell, 2020-Ohio-1369, 153 N.E.3d 771, ¶ 19 (1st Dist.) (to show furtherance of a “plan,” other acts must typically form part of the “immediate background of the crime charged,” where the evidence plays an integral part in explaining “the sequence of events and is necessary to give a complete picture of the alleged crime”). There is no connection between Ludwick’s prior acts of anal sex and the rape charges involving his daughter because they are not part of the same grand design. They were not properly admitted for the purpose of showing a plan.
{¶31} “Motive evidence establishes that the accused had a specific reason to commit a crime.” Hartman at ¶ 48. Here Ludwick’s prior anal sex acts do not establish a motive for the anal rape of his daughter. His motive was sexual gratification and was not a material issue in dispute at trial. Ludwick’s prior anal sex “does not provide evidence of any motive to commit rape beyond that which can be inferred from the commission of any rape.” Id. at ¶ 49. A person commits rape for “ ‘the obvious motive of sexual gratification.’ ” Id., quoting State v. Curry, 43 Ohio St.2d 66, 71, 330 N.E.2d 720 (1975); State v. Fannin, 12th Dist. Warren No. CA2020-03-022, 2021-Ohio-2462, ¶ 25 (defendant’s “motive in this case was not a material issue in dispute; he was undoubtedly pursuing sexual gratification” where defendant raped his step-daughter over a period of years when she was between the ages of five and seven). “[I]n most cases of this type [rape], there is no motive beyond that implicit in the commission of the offense itself.” Hartman at ¶ 50.
{¶32} The state’s argument that it showed Ludwick’s motive because he wanted to have anal sex with his partner M.G. and complained that M.G. would not do it with him is not factually supported by the record. M.G. testified she did things she did not want to do with Ludwick and when asked why, she testified that she believed she should do those things as his partner, that it was her culture, and it was how she was raised. There was no testimony to support the state’s argument that a lack of anal sex in Ludwick’s adult relationships motivated him to anally rape his daughter.
{¶33} Additionally, the state cites no case law to support its argument that a lack of consensual anal sex provides “motive evidence” for the crime of anal rape and our
c. Intent
{¶34} The Court in Hartman explained that other-acts evidence can be used to show intent where the defendant claims the act was accidental or otherwise committed with a lack of guilty knowledge, but intent is not an issue where the defense theory is – as it is here – that the criminal act never occurred:
Other-acts evidence is admissible to negate a defendant‘s claim of mistake or accident with respect to the commission of the alleged crime; such evidence tends “[t]o show, by similar acts or incidents, that the act in question was not performed inadvertently, accidentally, involuntarily, or without guilty knowledge.” In the criminal context, there are generally two ways in which the accused may raise a claim of accident. The first involves whether a criminal act occurred at all. * * *
The second scenario implicates the intent of the accused. The question here is not whether the act occurred but whether the defendant acted with a criminal intent. * * *
* * *
Intent is an element of most crimes, but it typically is not a material issue for other-acts purposes unless it is genuinely disputed—in most cases, “the act speaks for itself.” Thus, intent evidence is not admissible when “the requisite intent is presumed or inferred from proof of the criminal act itself,” or when intent is not in issue at all, such as when the defense theory is that the act never occurred. (Citations omitted.) (Emphasis added.)
Hartman at ¶ 52-53, 55.
{¶35} Here Ludwick never raised intent as a material issue in his defense. He did not claim that N.L. was an adult and the acts were consensual, nor did he contend he accidentally engaged in the acts or was asleep at the time they occurred. See Hartman, supra (defendant claimed adult victim consensually engaged in oral sex); State v. Smith,
{¶36} The evidence of Ludwick’s prior anal sex was improper propensity evidence and the trial court erred in admitting it. Because it was inadmissible, we need not reach the third question in the analysis: whether the probative value of the other acts evidence is substantially outweighed by the danger of unfair prejudice under
3. Evidence of Prior Acts/Anal Sex was Harmless Error
{¶37} Although we find that the trial court erred in allowing the other-acts evidence of Ludwick’s prior anal sex to be admitted,
{¶38} We use a three-part test to determine when a defendant’s substantial rights are affected (i.e., whether the error was harmless).
First, it must be determined whether the defendant was prejudiced by the error, i.e., whether the error had an impact on the verdict. Second, it must
State v. Harris, 142 Ohio St.3d 211, 2015-Ohio-166, 28 N.E.3d 1256, ¶ 37, citing Morris, supra. “[O]ur role upon review of this case is not to sit as the supreme trier of fact, but rather to assess the impact of this erroneously admitted testimony on the jury.” Morris at ¶ 29. “[A]n improper evidentiary admission under
{¶39} Here the prior-acts evidence was not “other crimes” or “wrongs,” such as prior criminal convictions or prior allegations of sexual molestation. Rather, it was simply evidence that Ludwick had previously engaged in anal sex and enjoyed it.1 It is likely that a jury surmised from the act itself that, if the defendant had repeated anal sex with his daughter, it was done for sexual gratification (i.e., he enjoyed anal sex). Moreover, even if Ludwick had not been asked about these prior acts and his enjoyment of them, there was other evidence in the record from which the jury could conclude that Ludwick enjoyed anal sex. N.L. testified that Ludwick raped her anally numerous times and that he
{¶40} Additionally, under the second and third prongs of the test, we are persuaded beyond a reasonable doubt that the error was harmless because the remaining evidence established Ludwick’s guilt beyond a reasonable doubt. State v. Williams, 874 P.2d 12 (N.M. 1994) (in defendant’s trial for anal rape and murder, defendant’s girlfriend’s testimony that he enjoyed anal sex was not relevant and did not fit any
{¶41} First, N.L. provided credible testimony about numerous instances of rape over an eight-year period, including digital penetration, oral, anal, and vaginal. N.L.’s mother corroborated N.L.’s testimony by confirming that a grey television console and a blue recliner were part of furniture they owned when N.L. was six years old. Both N.L.
{¶42} The admission of the other acts evidence was harmless because the remaining evidence established Ludwick’s guilt beyond a reasonable doubt. We overrule Ludwick’s first assignment of error.
4. Other Acts Evidence - Ludwick’s Behavior at Social Events
{¶43} In his second assignment of error, Ludwick contends that his trial counsel was ineffective for failing to object to a second type of other acts evidence – testimony of his behavior at social events. He argues that the testimony “painted an unflattering picture” of him as “an overbearing, unsavory parent who often made his child – and others – uncomfortable.” Specifically, he points to testimony about his behavior during a school dance that he attended as a chaperone, his behavior at a sleepover hosted at his house at which he became upset that the girls were not sleeping and he grabbed N.L. by the
{¶44} The testimony shows Ludwick’s threatening, controlling, and intimidating treatment of and behavior towards N.L. One of the rape counts required the state to prove force as an element of the crime. Ludwick’s behavior is admissible to show this element of force. The Twelfth District Court of Appeals recently explained that other acts evidence of a parent’s behavior towards family members is a legitimate way to prove force in parent-child relationships:
In a parent-child relationship, there exists a “filial obligation of obedience to a parent,” such that “the same degree of force and violence may not be required upon a person of tender years, as would be required were the parties more nearly equal in age, size and strength.” There is a coercive component inherent in parental authority and the demonstration of psychological, albeit subtle, force is sufficient to prove the force element. Evidence of other acts is admissible if it is used to prove a specific element of the offense. Here, the offenses were alleged to have been committed when the victim was in her tender years. Appellant‘s disparaging comments, threatening statements, and violence against the family pets demonstrated the coercive parental authority appellant had over the victim and the psychological forces he exerted on her to compel the sexual conduct. There was a high probative value to this evidence and it was not outweighed by the danger of unfair prejudice. Therefore, this evidence did not violate
State v. Ruggles, 2020-Ohio-2886, 154 N.E.3d 151, ¶ 64 (12th Dist.).
{¶45} A parent’s prior threatening or controlling behavior is also admissible to show the basis of the victim’s fear and to explain why there was a delayed disclosure of the sexual abuse. State v. Barnett, 2d Dist. Montgomery No. 27660, 2018-Ohio-4133, ¶ 40. This is particularly true here where Ludwick made N.L.’s credibility a central issue of
{¶46} Because Ludwick’s behavior at social events was admissible under
{¶47} We overrule his second assignment of error.
B. Counsel’s Failure to Move for Redaction of Statements from Forensic Interview
{¶48} In his third assignment of error, Ludwick contends that his trial counsel rendered ineffective assistance by failing to object to or move to redact a statement N.L. made during the forensic interview at Children’s Hospital. He argues that the statement constituted inadmissible hearsay and should have been redacted from the recording of the interview that was played for the jury.
{¶49} 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.
{¶50} During the interview, the following question and answer was exchanged between N.L. and her interviewer:
Q. And it’s a long time to have not said anything. How do you feel now that you’ve told your mom?
A. I feel like better now that he’s away from us. And I hope he gets put away in prison because he shouldn’t be allowed to be out. Because like people are saying that there’s, might be more kids but I don’t think he did anything to my sister but even if, because he travels to other countries by himself. So, they are saying that he might have done stuff there but I don’t know.
{¶51} The state argues that N.L.’s comments were admissible because they were not hearsay, i.e., they were not offered to prove the truth of the matter asserted. We agree. Under
{¶52} Because the statements N.L. made in the forensic interview were not hearsay, Ludwick’s counsel’s objections to them would have been futile. “The law does not require counsel to take a futile act.” Conant at ¶ 30. Ludwick’s counsel’s performance was not deficient for failing to ask for a redaction. We overrule Ludwick’s third assignment of error.
C. Cumulative Errors
{¶53} For his fourth assignment of error, Ludwick contends that his conviction should be reversed under the cumulative error doctrine.
{¶54} Under the cumulative-error doctrine, “a conviction will be reversed where the cumulative effect of errors in a trial deprives a defendant of the constitutional right to a fair trial even though each of numerous instances of trial court error does not individually constitute cause for reversal.” State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995), citing State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987), paragraph two of the syllabus; State v. Ruble, 2017-Ohio-7259, 96 N.E.3d 792, ¶ 75 (4th Dist.). “Before we consider whether ‘cumulative errors’ are present, we must first find that the trial court committed multiple errors.” State v. Smith, 2016-Ohio-5062, 70 N.E.3d 150, ¶ 106 (4th Dist.), citing State v. Harrington, 4th Dist. Scioto No. 05CA3038, 2006-Ohio-4388, ¶ 57.
{¶56} Ludwick argues that cumulative errors violated his constitutional right to a fair trial. However, because we found only one error, which was harmless, the cumulative error doctrine does not apply. State v. Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, ¶ 173; State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 253 (doctrine of cumulative error is not applicable where there are not numerous instances of trial-court error and defendant was not prejudiced by any error at the trial or penalty phase of the proceedings); State v. Spring, 2017-Ohio-768, 85 N.E.3d 1080, ¶ 59 (7th Dist.) (cumulative error doctrine does not apply to one or two minor errors).
{¶57} We overrule Ludwick’s fourth assignment of error.
D. Court Costs
{¶58} In his final assignment of error, Ludwick contends that his counsel rendered ineffective assistance because he failed to request a waiver of court costs. Ludwick argues that although he retained private counsel for his trial, “he is now indigent.” Ludwick references an affidavit of indigency that was executed on September 9, 2021 and filed with the court on September 17, 2021. He argues, “So at the time of his sentencing, if his
{¶59} Even though a defendant may move for a waiver of costs “at any time” after the sentencing hearing under
[W]hen trial counsel fails to request that the trial court waive court costs on behalf of a defendant who has previously been found to be indigent, a determination of prejudice for purposes of an ineffective-assistance-of-counsel analysis depends upon whether the facts and circumstances presented by the defendant establish that there is a reasonable probability that the trial court would have granted the request to waive costs had one been made.
State v. Davis, 159 Ohio St.3d 31, 2020-Ohio-309, 146 N.E.3d 560, ¶ 16.
{¶60} The record does not support Ludwick’s factual assertion that he was indigent at the time of the sentencing hearing. He had the financial ability to retain private counsel for his trial, which occurred on August 12 and 13, 2021, and for his sentencing hearing, which began at 1:30 p.m. on August 13, 2021, the same afternoon that his trial ended. Ludwick’s indigency affidavit was not obtained until September 9, 2021 and was not filed with the court until a month after the sentencing hearing. Therefore, the evidence of indigency Ludwick references in his brief was not in the record at the time of the sentencing hearing – to the contrary, he was financing his own private defense counsel at the sentencing hearing.
{¶61} The facts and circumstances in the record do not establish that a reasonable probability exists that the trial court would have granted Ludwick’s request to waive costs had one been made. As the state points out, Ludwick was gainfully employed
{¶62} Because there was not a reasonable probability that a motion to waive court costs would have been granted, trial counsel did not provide ineffective assistance when he did not seek a waiver of costs at the sentencing hearing. See State v. Hawkins, 4th Dist. Gallia No. 13CA3, 2014-Ohio-1224, ¶ 20. We overrule Ludwick’s fifth assignment of error.
IV. CONCLUSION
{¶63} We overrule Ludwick’s assignments of error and affirm the judgment.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay 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 HIGHLAND COUNTY COURT OF COMMON PLEAS, 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 60 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 entry, it will terminate at the earlier of the expiration of the 60-day period, or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-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 60 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. & Wilkin, 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.