State v. PhillipsState v. Phillips
Keith L. O‘Korn, 440 Polaris Parkway, Suite 150, Westerville, Ohio 43082, for defendant-appellant
O P I N I O N
HENDRICKSON, J.
{¶1} Defendant-appellant, Richard Preston Phillips, appeals the juvenile court‘s decision to relinquish jurisdiction and transfer him to the adult division. In addition, appellant appeals his conviction for theft in the Clinton County Court of Common Pleas. We affirm in part, reverse in part, and remand.
{¶2} On February 27, 2008, the Clinton County Sheriff‘s Office filed a delinquency complaint against appellant with the Clinton County Juvenile Court. The
{¶3} Specifically, the following persons were deprived of the following property:
- Brandi FitzPatrick, of Clinton County, had a Yamaha Raptor ATV taken worth $8,794.00 to $9,567.62;
- Thomas F. Heywood, I, of Clinton County, had a Caterpillar Bulldozer taken worth $30,000.00;
- Charles Borton/Borton Farms, in Clinton County, had 100 gallons of diesel fuel taken worth $286 to $300;
- Daniel P. Oehler, of Clinton County, had a Bobcat 753 Skid Steer Loader taken worth $10,700 to $15,000;
- James Douglas Borton/Borton Signature Homes, in Clinton County, had a Bobcat S250 Skid Steer Loader taken worth $31,170 to $34,000;
- Barbara Mootz/Fayetteville Hardware, in Brown County, had a Pro Star Toughloader Trailer taken worth $2,979 to $2,900;
- Darryl Williams, of Highland County, had a Caterpillar 257 Skid Steer Loader taken worth $25,000 to $30,000;
- Ray Purdin/Purdin‘s Auto Parts, in Highland County, had a Caterpillar 262B Skid Steer Loader taken worth $25,000 to $30,000;
- Charles Lovett, of Highland County, had a Kаwasaki Mule Utility Vehicle taken worth $6,500 to $7,200;
- Tyler Reno/Reno‘s Auto Parts, in Highland County, had a Dodge
Ram Truck taken worth $13,000 to $15,000; - Jerry Liming/Custom Cabs and Trailers, in Greene County, had a Corn Pro 30-foot Gooseneck Trailer taken worth $8,000 and a Corn Pro 25-foot Gooseneck Trailer taken worth $7,600;
- Tom Smith/Smith‘s Customs, in Clermont County, had three Kubota RTVs taken worth $9,887.44 each ($29,662.32 total) and one John Deere Gator taken worth $9,343.40; and
- Ralph B Shannon/Ralph B. Shannon Excavating, in Clermont County had a Caterpillar 304C Mini-Excavator taken worth $56,000 to $60,000 and a Caterpillar 246 Skid Steer Loader taken worth $30,000.
{¶4} The state moved to transfer the case from the juvenile division to common pleas general division. After a probable cause hearing and an amenability hearing, the juvenile court transferred the case to the general division of the Clinton County Court of Common Pleas.
{¶5} Although there were multiple victims and many items of property takеn over the course of several months, the state charged appellant with a single violation of
{¶6} Assignment of Error No. 1:
{¶7} “THE JUVENILE COURT ERRED IN RELINQUISHING JURISDICTION TO THE GENERAL DIVISION.”
{¶8} In his first assignment of error, appellant presents three separate issues. Appellant first argues that the juvenile court erred in finding probable cause that he committed the acts he was charged with in the delinquency complaint. Next, appellant contends the juvenile court erred in determining he was not amenable to rehabilitation within the juvenile system. Finally, appellant maintains the juvenile court erred in failing to obtain an investigation by Dr. Bobbie G. Hopes, Ph.D., the court-appointed psychologist, regarding appellant‘s suitability for transfer to the adult system.
{¶9} “Juv.R. 30 and
{¶10} Because appellant was 17, the initial stеp in the transfer process is determining whether probable cause exists “to believe the child committed the act alleged and that the act would be an offense if committed by an adult.” Juv.R. 30(A). See, also,
{¶11} “Probable cause is a flexible concept, grounded in probabilities, requiring
{¶12} The complaint alleged appellant committed an act which would be a theft offense, in violation of
{¶13} Although the state also alleged the value of the items taken was $321,500, we do not believe that the value of the items taken is necessary to determine whether probable cause of a theft exists, at least for the purposes of a discretionary transfer hearing. This is because value is not an essential element of theft, and is only a determination related to the level of criminal punishment. See State v. Smith, 121 Ohio St. 3d. 409, 2009-Ohio-787, ¶13;
{¶14} Even though we defer to the juvenile court‘s determination of witness credibility, we must independently determine whether the state presented sufficient credible evidence to demonstrate there was probable cause to believe the juvenile
{¶15} Appellant argues the juvenile court erred in finding there was probable cause to believe he committed a theft offense of more than $100,000 in Clinton County. In particular, appellant asserts that the items stolen in Clinton County only totаled $81,152.62. In addition, appellant maintains the state failed to provide credible evidence appellant was involved in the theft of a bulldozer belonging to Thomas Heywood I. Also, appellant contends the state did not present physical evidence or eyewitness testimony regarding the appellant‘s involvement in any of the acts which constituted the theft offense. Lastly, appellant argues the state‘s witnesses, Timothy Cole and Larry Strong, did not provide credible evidence to prove appellant committed the theft.
{¶16} Appellant is correct in that the acts alleged in the delinquency complaint did not all occur in Clinton County. The delinquency complaint stated that the acts occurred both in Clinton County and in neighboring counties. In addition, the victims testified to their property being taken from Clinton, Brown, Highland, Greene and Clermont Countiеs. Essentially, appellant‘s argument is whether the Clinton County Juvenile Court was the appropriate venue for all of the acts which were committed, rather than just those acts which occurred in Clinton County.
{¶17} While
{¶18} Therefore, we find that with regard to juvenile transfer proceedings, the criminal venue statutes are controlling. See, generally, Kent v. United States (1966), 383 U.S. 541, 553, 86 S.Ct. 1045 (basic requirements of due process and fairness apply in a proceeding relinquishing jurisdiction over a juvenile).
{¶19} However, where a juvenile fails to object to venue, it is waived upon appeal. See Hackathorn at *2. See, also, State v. Loucks (1971), 28 Ohio App.2d 77, 82 (failure to object to venue waives the issue on appeal); In re C.W., Butler App. No. CA2004-12-312, 2005-Ohio-3905, ¶15, 16 (finding personal jurisdiction waived because juvenile failed to object pursuant to Juv.R. 22[D]). Because appellant failed to object to venue at either the probable cause hearing or the transfer hearing, he has waived
PROBABLE CAUSE ANALYSIS
{¶20} There was probable cause to believe appellant took Brandi Fitzpatrick‘s Yamaha Raptor from Clinton County without the owner‘s permission. Cole testified appellant and Tommy brought the Raptor to his garage to be repaired. Cole also stated he assumed it belonged to appellant, but later learned from Tommy that the Raptor was stolen.
{¶21} There was probable cause to believe appellant took Charles Borton/Borton Farms’ 100 gallons of diesel fuel from Clinton County without the owner‘s permission. Cole testified appellant and another boy offered to sell him diesel fuel. In addition, Strong testified that he bought 100 gallons of diesel fuel from appellant for $100.
{¶22} There was probable cause to believe appellant took Daniel P. Oehler‘s Bobcat 753 Skid Steer Loader from Clinton County without the owner‘s permission. Strong testified that even though he picked up the 753 from Tommy‘s house, and paid Tommy $1,000, Tommy told him appellant stole the vehicle.
{¶23} There was probable cause to believe appellant took James Douglas Borton/Borton Signature Homes’ Bobcat S250 Skid Steer Loader from Clinton County without the owner‘s permission. Strong testified that Tommy called him about an S250 that he sold to a guy who had not paid for the vehicle. Strong stated that he followed Tommy and appellant in order to “repossess” the vehicle. Strong testified that he paid either Tommy or appellant $1,700 for the vehicle, and appellant went into a United Dairy Farmer‘s in Blanchester to get change.
{¶24} There was probable cause to believe appellant took Barbara Mootz/Fayetteville Hardware‘s Pro Star Trailer from Brown County without the owner‘s permission. Strong testified that both Tommy and appellant brought the trailer to his home, and Strong bought it for $800.
{¶25} There was probable cause to believe appellant took Darryl Williams’ Caterpillar 257 Skid Steer Loader from Highland County without the owner‘s permission. Strong testified appellant and another boy brought it to his house, although Strong did not pay appellant any money for the vehicle.
{¶26} There was probable cause to believe appellant took Ray Purdin/Purdin‘s Auto Parts’ Caterpillar 262B Skid Steer Loader from Highland County without the owner‘s permission. Purdin testified that he found the 262B the next morning, after his neighbor called him and told him that two boys had tried to load it on a trailer. Cole testifiеd that while appellant was present, Tommy told him that appellant had tried to steal a skid steer, but as appellant was loading it he made a wrong turn and got it stuck in a yard.
{¶27} There was probable cause to believe appellant took Charles Lovett‘s Kawasaki Mule Utility Vehicle from Highland County without the owner‘s permission. Cole testified that Tommy and appellant had offered to sell him a used Kawasaki Mule, although he never saw the vehicle.
{¶28} There was probable cause to believe appellant took Tyler Reno/Reno‘s Auto Parts’ Dodge Ram Truck from Highland County without the owner‘s permission. Reno testified that the Dodge truck was later recovered, without its engine, at Stonelick Lake. Strong testified that Tommy and appellant brought him the Dodge truck. After Strong had removed the engine, both Tommy and appellant came to Strong‘s housе picked up the truck and Strong paid Tommy $1,500. Strong stated that Tommy later
{¶29} There was probable cause to believe appellant took Jerry Liming/Custom Cabs and Trailers’ Corn Pro 30-foot Gooseneck Trailer from Greene County without the owner‘s permission. Strong testified both Tommy and appellant brought him a trailer with Custom Cab stickers. Strong believed that he paid appellant $1,200 for the trailer.
{¶30} There was probable cause to believe appellant took Tom Smith/Smith‘s Customs’ three Kubotas from Clermont County without the owner‘s permission. Cole testified he saw appellant with a trailer with two new Kubotas on it, early one morning. Strong testified that Tommy and appellant offered to sell him two brand new Kubotas. Strong testified that he did purchase a used Kubota from Tommy and appellant, whiсh appellant drove to his house while Tommy followed in a truck. Lastly, Sergeant Douglas Eastes (Sergeant Eastes) testified that while conducting a search for the Kubotas, he found one approximately one quarter of a mile a way from appellant‘s home. Sergeant Eastes also stated that Tommy‘s mother told him she had seen appellant riding a Kubota on the Heywoods’ property.
{¶31} There was probable cause to believe appellant took Tom Smith/Smith‘s Customs’ John Deere Gator from Clermont County without the owner‘s permission. Strong testified that appellant drove the Gator to his home, while Tommy followed in a truck. Strong paid Tommy and appellant $1,300 for the Gator and the used Kubota which was also delivered the same night.
{¶32} Thus, there was probable cause to believe appellant committed some of the acts which сonstituted the theft offense that he was charged with in the delinquency complaint. A theft offense, which if committed by an adult, would be a violation of
{¶33} However, there was no probable cause to believe appellant took a
{¶34} In addition, there was also no probable cause to believe appellant took Jerry Liming/Custom Cabs and Trailers’ Corn Pro 25-foot Gooseneck Trailer without the owner‘s permission. Liming testified the trailer was stolen on January 26, 2008, and Sergeant Eastes admitted that appellant was in custody on that date.
{¶35} Finally, there was no probable cause to believe appellant took Ralph B. Shannon/Ralph B. Shannon Excavating‘s Caterpillar 304C Mini Excavator or the Caterpillar 246 without the owner‘s permission. Strong stated that Tommy and another boy brought him both vehicles. Strong also specifically testified the thefts did not involve appellant.
{¶36} In conclusion, we find there was probable cause to believe appellant did take a number of items of property from several different victims. However, there was not probable cause to believe appellant committed all of the acts for which he was charged. We do not believe this finding is fatal to the probable cause determination, as it is clear that the requirements of Juv.R. 30(A) and
{¶37} After the juvenile court determines there is probable cause, it must continue the proceedings for a full investigation, including a mental examination of the child. Juv.R. 30(C);
{¶38} Unlike a probable cause determination, a juvenile court has wide latitude in determining whether it should retain or relinquish jurisdiсtion over a juvenile, and its decision will not be reversed unless the court abuses its discretion. See State v. Watson (1989), 47 Ohio St.3d 93, 95; Allen, 2008-Ohio-1885 at ¶8. State v. Dunston (Apr. 2, 2001), Madison App. No. CA2000-05-026, at 3. The question is not whether we would have reached the same decision to relinquish jurisdiction over the juvenile, but whether the juvenile court abused its discretion in reaching that conclusion. State v. Hopfer (1996), 112 Ohio App.3d 521, 535.
{¶39} “As long as the court considers the appropriate statutory factors and there is some rational basis in the record to support the court‘s findings when applying those factors, we cannot conclude that the [juvenile] court abused its discretion in deciding whether to transfer jurisdiction.”5 State v. West, 167 Ohio App.3d 598, 2006-Ohio-3518, ¶10, citing
ANALYSIS OF THE TRANSFER FACTORS
{¶40} In rendering its decision to relinquish jurisdiction, the juvenile court found the factors in favor of transfer were: (1) the victims suffered serious economic harm; (2) at the time of the acts charged, the child was awaiting adjudication or disposition as a delinquent child and was under a community control sanction for a prior delinquent child adjudication; (3) the court was unable to assess whether previous sanctions and programs could indicate rehabilitation could not occur; (4) the child was physically and emotionally mature enough for transfer; (5) there was insufficient time to rehabilitate the child; (6) the juvenile‘s prior delinquent offense required calculation and participation of others; (7) the current offense required calculation and extensive planning and occurred while the juvenile was on probation; and (8) pursuant to Dr. Hopes’ written opinion, if appellant committed the alleged acts, “the juvenile ‘appeared to be escalating quickly intо more serious criminal behavior and the risk of future crimes is significant.‘” Applying the factors in
{¶41} Appellant argues that the factors against transfer outweigh the factors in favor of transfer. Among the factors cited by appellant is the fact that none of the victims suffered serious economic or physical harm. Appellant further argues that there were no “tangible results to show that appellant could not be rehabilitated,” because he had not completed his rehabilitation for his prior delinquency by the time the instant acts
{¶42} Appellant argues that the victims did not suffer serious economic harm because most of the property was returned to their owners, and there was no evidence as to the actual “economic harm” suffered by the owners, because they only testified to the items’ “value.”6 However, we also believe there is support fоr the juvenile court‘s determination that the victims did suffer economic harm. Heavy equipment and machinery were taken from active worksites worth thousands of dollars, there was damage sustained to at least three of the items of property, and a victim stated the thieves had cut a padlocked chain in order to take his property. See State v. Ankrom, Lake App. No. 2004-L-125, 2005-Ohio-6568, ¶4, 38-39 (judgment reversed by In re Ohio Criminal Sentencing Statutes Cases, 109 Ohio St.3d 313, 2006-Ohio-2109). The juvenile court had the discretion to determine that the economic harm suffered by the victims weighed in favor of relinquishing jurisdiction.
{¶43} In addition, appellant argues the juvenile court was mistaken in finding there was insufficient time to rehabilitate him within the juvenile system because (1) he
{¶44} Appellant is correct in that a juvenile court does retain jurisdiction over a juvenile until the age of 21. See
{¶45} Appellant maintains that the results of his previous juvenile sanctions showed that he was amenable to treatment, and in compliance with the requirements of his juvenile probation. In addition, appellant contends that other courts have cited to lengthy records and failures аt rehabilitation efforts to support transfer under this factor which is lacking in this case.
{¶46} In its entry relinquishing jurisdiction, the juvenile court stated as a factor in favor of transfer that “it was difficult to assess whether the results of any previous juvenile sanctions and programs indicate rehabilitation of the child will not occur in the juvenile system.” However, the juvenile court also acknowledged as a factor in favor of maintaining jurisdiction that it was aware appellant had not been subject to “extensive rehabilitation efforts” within the juvenile system. Therefore, the factor which the juvenile court weighed in favor of transfer was also used by the court to weigh in favor of maintaining jurisdiction. We also observe that the juvenile court was cognizant of the fact that appellant had been complying with the terms of his probation for his previous
{¶47} In conclusion, we cannot say that the juvenile court abused its discretion in relinquishing jurisdiction because the court clearly considered and weighed the statutory factors in
THE EXPERT OPINION
{¶48} Finally, appellant argues that the juvenile court should not have conductеd an amenability hearing without receiving an opinion from Dr. Hopes as to whether appellant should be transferred to the adult system. In support of this contention, appellant argues that
{¶49} We find the juvenile court fully complied with the requirements of both
{¶50} Juv.R. 30(C) sets forth the procedure by which a juvenile court may relinquish jurisdiction of a juvenile for the purposes of criminal prosecution.9 Juv.R. 30(C) requires the juvenile court to continue the proceeding for a full investigation after probable cause is found. The rule does not specify or define what constitutes a full investigation, it merely states the investigation contain a mental examination of the child. When the investigation is completed, Juv.R. 30(C) mandates the juvenile court hold an amenability hearing to determine whether to transfer jurisdiction. The juvenile court appointed Dr. Hopes to perform the mental examination of appellant. Dr. Hopes examined appellant and provided the juvenile court with her report and findings, which the court could consider as part of the investigation.
{¶51} Appellant asserts that because Dr. Hopes’ report did not provide an opinion on the ultimate issue of his transfer to the adult system, the investigation was not complete. As such, appellant maintains the amenability hearing should have been continued until Dr. Hopes provided the juvenile court with an opinion on transfer. We disagree. Neither
{¶52} Furthermore, Juv.R. 30(F) states that “[r]efusal by the child to submit to a
{¶53} We find that it does not matter that Dr. Hopes’ report did not contain an opinion on whether to transfer appellant to the general division. While Dr. Hopes may not have issued an “ultimate” opinion, Dr. Hopes did offer an opinion as to the “positive and negative aspects for retention within the juvenile system versus his bindover to the adult system.” For instance, Dr. Hopes’ report stated that appellant had only “received a very small sample of the rehabilitative services that could potentially benefit in his rehabilitation.” Dr. Hopes further suggested the “next most reasonable step” would be to place appellant in a juvenile rehabilitation center. However, Dr. Hopes also remarked that appellant has “demonstrated the willingness to engage in a pattern of serious criminal conduct” which is “beyond the typiсal criminal behavior that is exhibited by most juveniles.” In addition, as stated previously, Dr. Hopes opined that if appellant committed the acts he “appeared to be escalating quickly into more serious criminal behavior and the risk of future crimes [wa]s significant.” Therefore, even though Dr. Hopes’ examination may not have resulted in an opinion regarding transfer, we believe the juvenile court complied with all statutory requirements, and had sufficient information from the mental examination to render its own decision to transfer appellant to the adult system.
{¶54} In conclusion, we find there was probable cause to believe that appellant committed most of the acts for which he was charged. In addition, the juvenile court
{¶55} Assignment of Error No. 2:
{¶56} “INDIVIDUAL EVIDENTIARY RULINGS VIOLATED OHIO‘S EVIDENCE RULES AND THE COMBINED EFFECT OF MULTIPLE TRIAL COURT ERRORS VIOLATED APPELLANT‘S DUE PROCESS RIGHTS UNDER THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION, AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.”
{¶57} Assignment of Error No.3:
{¶58} “APPELLANT‘S CONVICTIONS WERE BOTH AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND WERE NOT SUPPORTED BY THE SUFFICIENCY OF THE EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, SECTIONS 1, 10 [AND] 16 OF THE OHIO CONSTITUTION.”
{¶59} Assignment of Error No. 4:
{¶60} “THE TRIAL COURT ERRED BY ORDERING RESTITUTION IN THE DELINEATED AMOUNTS IN VIOLATION OF
{¶61} Assignment of Error No. 5:
{¶62} “TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE 6TH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, SECTIONS 10 [AND] 16 OF THE OHIO CONSTITUTION.”
{¶63} In his second assignment of error, appellant maintains the trial court committed multiple evidentiary errors which violated both his due process rights and several of the Rules of Evidence. In his third assignment of error, appellant argues there was insufficient evidence of venue to support his conviction, and his conviction for theft is against the manifest weight of the evidence. In his fourth assignment of error, appellant contends the trial court erred in ordering restitution because the amount ordered was greater than the loss suffered by the victims and because the trial court failed to ascertain his present and future ability to pay restitution. In his fifth assignment of error, appellant argues he was denied effective assistance of trial counsel because his attorney failed to offer proper advice and failed to make several objections.
{¶64} Before addressing appellant‘s remaining assignments of error, we sua sponte consider the state‘s decision to try all of the alleged offenses as a single offense, and aggregate the value of all of the items taken. See State v. Slagle (1992), 65 Ohio St.3d 597, 604-05; State v. Long (1978), 53 Ohio St.2d 91, 94-95; State v. Sneed (1992), 63 Ohio St.3d 3, 10; State v. Scott, 174 Ohio App.3d 446, 2007-Ohio-7065, ¶8; State v. McClain, Cuyahoga App. No. 88217, 2007-Ohio-1604, ¶32; State v. Gooch, 162 Ohio App.3d 105, 2005-Ohio-3476, ¶24. Although appellant did not specifically raise this issue on appeal, he nevertheless indirectly presents it via his Fifth Assignment of Error in which he argues the insufficiency of the evidence relative to venue in an ineffective assistance of counsel claim. Generally, the failure to raise a particular error requires the application of a plain error standard of review. Within that context, a reviewing court must determine whether substantial prejudice may have been visited upon an appellant, thereby resulting in a manifest miscarriage of justice.
{¶65} In order to find plain error (1) “there must be an error * * * a deviation from a legal rule;” (2) “the error must be plain” that is “an obvious defect in the trial
{¶66} The Clinton County Grand Jury issued the following indictment in this matter:
{¶67} “Of the Term APRIL in the year two thousand eight[.] THE JURORS OF THE GRAND JURY of the State of Ohio, within and for the body of thе County aforesaid, on their oaths, in the name and by the authority of the State of Ohio, do find a present that on or about the period of August 19, 2007, through and including January 28, 2008 at Clinton County, Ohio, Richard Preston Phillips, did with purpose to deprive the owners, to wit: Tom Smith, Borton Farms, Signature Homes, Daniel Oehler; Purdin‘s Auto Parts; Brandi Fitzpatrick, Fayetteville Hardware; Custom Cabs and Trailers; Reno‘s Auto Parts; Ralph B. Shannon Excavating; Charles Lovett; Thomas F. Heywood of their property or services, did knowingly obtain and exert control over said property or services, to wit: Numerous Heavy Equipment machinery; the value of said property or services being One Hundred Thousand Dollars $100,000) or more in violation of Ohio Revised Code Title 29, Section 2913.02(A)(1) (Aggravated Theft, a felony of the third degree) and against the peace and dignity of the State of Ohio.”
{¶68} Therefore, although there were 13 separate victims and 18 various items taken at 14 different time periods, appellant was only indicted for a single third-degree
{¶69} According to the trial transcript, the trial court found that the state properly brought the case pursuant to
{¶70}
{¶72} The only other way all of the offenses could have been tried as a single offense is if the facts in this case conform to the requirements set forth in either
{¶73} Appellant was indicted in Clinton County for criminal conduct occurring in other counties, conduct which should have been prosecuted in those respective counties. Standing alone, none of the individual Clinton County charges would have been more serious than a fourth-degree felony.
{¶74} Under the facts specific to this particular case, the state acted without legal authority by trying the offenses as a single offense and aggregating the value of the items stolen, which in turn created an obvious defect in the proceedings. Because this error began at the inception of the criminal proceedings, we believe that this error affectеd appellant‘s substantial rights. Moreover, exceptional circumstances exist, in this case, which warrant preventing a manifest miscarriage of justice.
{¶75} In conclusion, we affirm the juvenile court‘s decision to transfer appellant to the adult division. However, we reverse appellant‘s criminal conviction, and remand
{¶76} Based on this decision, appellant‘s remaining assignments of error are rendered moot, and will not be addressed. See App.R. 12(A)(1)(c).
{¶77} Judgment affirmed in part, reversed in part, and remanded.
BRESSLER, P.J., and POWELL, J., concur.