[Cite as State v. Young , 2011-Ohio-4875.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO STATE OF OHIO : Plaintiff-Appellant : C.A. CASE NO. 24537

v. : T.C. NO. 09CR4113 TERRY M. YOUNG, III : (Cr iminal appeal from Common Pleas Court) Defendant-Appellee :

:

. . . . . . . . . . O P I N I O N

Rendered on the 23 rd day of September , 2011.

. . . . . . . . . . TIMOTHY J. COLE, Atty. Reg. No. 0084117, Assistant Prosecuting Attorney, 301 W. Third Street, 5 th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellant MICHAEL H. HOLZ, Atty. Reg. No. 0031902, 507 Wilmington Avenue, Dayton, Ohio 45420 Attorney for Defendant-Appellee

. . . . . . . . . . CELEBREZZE, J. (by assignment) {¶ 1} Plaintiff-appellant, the state of Ohio, appeals from the trial court order that granted the motion to suppress evidence file d by defendant-appellee, Terry M. Young, III. After careful review of the record and relevant case law, we reverse the trial court’s2 judgment and remand the matter for further proceedings. {¶ 2} Appellee was indicted on February 2, 2010 for possession of crack cocaine in an amount less than one gram, in violation of R.C. 2925.11(A), a felony of the fifth degree. On January 4, 2011, appellee filed a motion to s uppress evidence seized by the police during

a warrantless search of his residence. {¶ 3} At an evidentiary hearing held on Febr uary 8, 2011, a single witness testified, Officer Theodore Trupp of the Dayton Poli ce Department. Based on Officer Trupp’s testimony, the trial court made the following findings of fact: {¶ 4} Officer Trupp is a city of Dayton police officer with nine years of experience in a high crime area. Officer Trupp testifie d that the residence located at 262 Harbine Avenue has been the source of multiple drug complaints. On December 7, 2009, the police

were called to a residence at 261 Harbine Av enue on a family trouble complaint. The call was against an individual named Chris Fontecchio. When the police arrived, the complainant, Fontecchio’s mother, advised that her son had left home and was at the neighbor’s residence at 262 Harbaine Avenue. The officers went to 262 Harbine Avenue because they had knowledge that Fontecchio had an outstanding traffic warrant against him. {¶ 5} The house at 262 Harbine was described by Officer Trupp as being a two-story, single-family dwelling with front and back porches . To the left of the front door was a single large window covered by blinds ; to the right were several smaller windows covered by sheer curtains. The officers went to the door, knocked, and announced that they were police officers. No one answered the door, however, Officer Tr upp testified that he heard the sound of people moving around inside. The officers moved to the front and back3 doors and continued to knock. {¶ 6} Officer Trupp testified that, as he looke d in the front window, he saw a white male wearing a black hooded sweatshirt open a dr esser drawer and grab a black or silver handgun. The male put the handgun in the wais tband of his pants and ran into the living room. Several minutes later, the male w ho was observed grabbing the handgun answered

the back door. The officer drew his wea pon and ordered this individual to the ground. {¶ 7} A search of the male in the black hooded sweatshirt failed to reveal the handgun that Officer Trupp testified he obser ved the male put in his waistband. The officers searched for the gun in the areas where people were found, including the living room. No gun was found at that time. {¶ 8} Although the officers heard no sounds co ming from the upstairs or downstairs

and had seen no one run in eith er direction, they decided to search the basement and the second floor. Before the officers headed upstair s, appellee told one of the officers that no one was upstairs. The officer admitted that he went upstairs without th e consent of anyone. Once upstairs, he observed a wallet containing Young’s iden tification and a clear plastic baggie of suspected crack cocaine on a night stand next to a bed. The suspected crack cocaine was confiscated, and Young was charged with drug possession. {¶ 9} Subsequent to the protective swee p, the officers located the handgun observed by Officer Trupp in the residence, and several individuals, incl uding appellee, were

arrested. {¶ 10} On March 10, 2011, the trial court sustai ned appellee’s motion to suppress. The state filed this timely appeal raising one assignment of error:4 {¶ 11} “The trial court erred wh en it found that Young’s Fourth Amendment rights were violated when police conducted a protectiv e sweep of the upstairs of the residence.” Law and Analysis Standard of Review {¶ 12} In considering a motion to suppress, the tr ial court assumes the role of trier of fact and is in the best position to resolve factual questions and evaluate the credibility of the

witnesses. State v. Mills (1992), 62 Ohio St.3d 357. Conseque ntly, in reviewing a trial court’s decision on a motion to suppress, an appellate court must accept the trial court’s findings of fact if they are supported by competent, credible evidence. State v. Curry (1994), 95 Ohio App.3d 93, 96, citing State v. Schiebel (1990), 55 Ohio St.3d 71. An appellate court, however, determines as a matter of law, wit hout deferring to the trial court’s conclusions, whether the law ha s been appropriately applied to those facts. Id., citing State v. Claytor (1993), 85 Ohio App.3d 623. {¶ 13} Here, the trial court’s findi ngs of fact are supported by competent, credible evidence; consequently, we focus on the appli cation of the relevant law to those facts. Protective Sweep {¶ 14} The state argues that the trial court erred in granting appellee’s motion to suppress because the protective sweep of his home was constitutional. A warrantless search of a home is presumptively unreasonable. Brigham City, Utah v. Stuart (2006), 547 U.S. 398, 126 S.Ct. 1943, 164 L.Ed.2d 650. “Nevertheless, because the ultimate touchstone of the Fourth Amendment is ‘reasonableness,’ the warrant requirement is subject to certain exceptions.” Id. One such exception is a protective sweep. Maryland v. Buie (1990), 4945 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276. “A ‘protective sweep’ is a quick and limited search of premises, incident to an arrest and conducted to prot ect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding.” Id. {¶ 15} In Buie, the United States Supreme Court set forth the standard for a warrantless “protective sweep” of a residence. The Court reasoned: {¶ 16} “In Terry [ v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889,] and [ Michigan v. ] Long [(1983), 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201,] we were concerned with the immediate interest of the police officers in taking steps to assure themselves that the persons with whom they were dealing were not armed with, or able to gain immediate control of, a weapon that coul d unexpectedly and fatally be used against them. In the instant case, there is an analogous interest of the officers in taking steps to assure themselves that the house in which a suspect is being, or has just been, arrested is not harboring other persons who are dangerous a nd who could unexpectedly launch an attack. The risk of danger in the context of an arrest in the home is as great as, if not greater than, it is in an on-the-street or roadside investigat ory encounter. * * * [U]nlike an encounter on the street or along a highway, an in-home arrest puts the officer at the disadvantage of being on his adversary’s ‘turf.’ An ambush in a confined setting of unknow n configuration is more to be feared than it is in ope n, more familiar surroundings.” Id. at 333. {¶ 17} A protective sweep, however, is not a full s earch of the premises. It is only a cursory inspection of those areas where a pers on who possesses a threat of danger to the police may be found. The S upreme Court further held:6 {¶ 18} “[A]s incident to the arrest, the officers could, as a precautionary matter and without probable cause or reasonable susp icion, look in closets and other spaces immediately adjoining the place of arrest from which an a ttack could be immediately launched. Beyond that, however, we hold that th ere must be articulab le facts which, taken together with the rational inferences from t hose facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those

arrested on the scene.” Id. at 334. {¶ 19} “By adopting the ‘reasonable and artic ulable suspicion’ standard of Terry and Long , the Supreme Court in Buie imposed a circumstantial predicate on the authority

conferred on law enforcement officers to c onduct a protective sweep of a defendant’s residence following his arrest. There must be articulable facts from which police reasonably suspect that the premises in which de fendant is arrested ha rbors another person or persons who may launch an attack on the officers who are there. Absent that basis to act, a protective sweep is an unreasonable search for purposes of the Fourth Amendment, and any incriminating evidence it produ ces must be suppressed.” State v. Sharpe , 174 Ohio App.3d 498, 2008-Ohio-267, ¶37. {¶ 20} Thus, in the case sub judice, this court must determine whether the state met its burden and proved that the officers had “speci fic and articulable facts” that warranted the protective sweep. {¶ 21} In granting appellee’s motion to suppre ss, the trial court noted that the officers conducted the search of appellee’s residence before any person was placed under arrest. By doing so, the tria l court found that the officers “act ed outside the parameters set7 by the Fourth Amendment to the United States Constitution and also the Ohio Constitution.” Further, the trial court stated that, “[s]ince the record does not show any evidence of sounds coming from the attic and because the record does state that the de fendant specifically refused to give the officers permission to s earch the upstairs, this Court cannot find an acceptable reason for the officer to have entered the upstairs bedroom.” {¶ 22} Initially, we disagree with the trial court’s position that a protective sweep is only justified subsequent to an arrest. Upon review of the record, we find that Officer Trupp had a reasonable belief that criminal ac tivity had occurred or was about to occur inside the residence, and the officers were cl early justified in deta ining the individuals upon entering the house. Therefore, under the fact s of this case, any distinction between a

“detention” and a formal arrest of appellee is negligible. {¶ 23} The concern for the safety of officers, which justifies allowing officers to conduct warrantless prot ective sweeps following the arrest of a suspect, is just as applicable where the suspect has been detained while the o fficers attempt to ascertain the extent of the situation. In either case, the arresting o fficers would still have to have a reasonable, articulable suspicion that someone might be in the residence w ho could pose a threat in order to conduct even a limited protective sweep. Ther efore, we hold that the protective sweep exception to the warrant requirement is not rendered inapplicable to this case simply because appellee was detained rather than formally arrested at the time the protective sweep

occurred. 1

1 A majority of courts throughout the country have perceived no difficulty in extending the concept of a protective sw eep to situations not involving an arrest, such as a detention or warrant search. (E.g., State v. Revenaugh (Idaho 1999),8 {¶ 24} Further, we find that Officer Tr upp’s testimony included specific and articulable facts to justify the extent of the protective sweep of the appellee’s residence.

This court addressed this issue in State v. Spradlin , 187 Ohio App.3d 767, 2010-Ohio-2140. There, the defendant claimed that the protective sweep violated her Fourth Amendment rights and filed a motion to suppress. O fficers received a tip that a man wanted in connection with a shooting was in a basement apartment. Officers went to the apartment, knocked, and announced their presence for appr oximately 25 minutes. While standing outside, the officers heard “scurrying around, things moving inside the door.” Further, one officer testified that he heard “people with in the house, and I believe you could hear conversation, whispering.” The suspect fina lly opened the door, was ordered to the ground, handcuffed, and arrested in the doorway. When the defendant was asked if there were other people in the home, she said “no.” Regardless, officers assumed there were other people in the house because of the voices they heard thr ough the door, but they could not see into the kitchen, the two bedrooms, or the bathroom. Therefore, officers conducted a protective sweep of the house to ensure their safety. Th e officers found a large bag of marijuana in the bedroom, under the bed, and in a shopping bag. {¶ 25} This court affirmed the trial court’s decision overruling the motion to suppress and held that the protective sweep wa s warranted given the circumstances. In its

133 Idaho 774, 992 P.2d 769, 772-773; Cotton v. State (Md.2005), 386 Md. 249, 872 A.2d 87, 90-93; Nolin v. State (Fla.Dist.Ct.App.2006), 946 So.2d.52, 55-58, fn. 2; U.S. v. Maddox (C.A.10, 2004), 388 F.3d 1356, 1361-1363; see United States v. Torres-Castro (C.A.10, 2006), 470 F.3d 992, 996-997; United States v. Meza-Corrales (C.A.9, 1999), 183 F.3d 1116; United States v. Garcia (C.A.9, 1993), 997 F.2d 1273, 1282.9 decision, this court cited to Buie and explained, “[t]he fact that the officers had a legitimate reason to believe that other pe rsons were present in the apartment * * * is significant.” Further, “the officers expressed their concerns for their safety.” As a result, this court found

that the officers had a reasonable and articulab le suspicion that people “who pose a risk to the safety of the officers, remained in the apartment.” {¶ 26} In the case at bar, officers went to 262 Harbine believing that Fontecchio was in the house. Officer Trupp, an officer with ni ne years of experience, stated that he had personally responded to drug comp laints at 262 Harbine and knew the area to be a high-drug, high crime area. Similar to the circumstances in Spradlin , as the officers knocked and announced themselves as Dayton police, they heard shuffling around inside the house and sounds of people running. When no one an swered the door, Officer Trupp looked in a window and observed a male inside the house gr ab a firearm and put it in his waistband. Officer Trupp knew this to be a common area to place a firearm based on his training and experience. {¶ 27} When the officers finally gained access to the house through the back door, Officer Trupp discovered that th e male he saw with the gun no longer had it on his person. Likewise, the other individuals in the kitchen and living room also did not have the gun. Creating further concern, there we re upstairs and downstairs areas of the house that were not

visible to the officers. The officers believed that the gun wa s still in the house and possibly with another person. Officer Trupp explained that he went upstairs “[j]us t to make sure that there were no other individuals up there. We still had not located the gun. We didn’t know if somebody was up there and armed w ith a weapon. Just for our safety.”10 {¶ 28} Based on Officer Trupp’s testimony, we find that the officers had a reasonable and articulable suspicion that the ups tairs bedroom of the re sidence harbored an individual who could have posed a risk to the safety of the officers. The officers were placed in a situation where they knew that one or more firearms were located in the residence, but were unable to know, with certa inty, how many individuals remained in the residence. Upon detaining the individuals f ound in the downstairs portion of the residence, the firearm observed by Officer Trupp was not found. Therefore, it was reasonable for the officers to suspect that there was another indi vidual in the residence who could have been a potential threat to their safety. {¶ 29} Finally, the crack cocaine confiscated by Officer Trupp was la wfully retrieved under the plain view exception to the Fourth Am endment warrant requirement. In order for evidence to be seized under the plain view ex ception to the search warrant requirement, it must be shown that (1) the initial intrusion that afforded the authorities the plain view was lawful; (2) the discovery of the evidence was inadvertent; and (3) the incriminating nature of the evidence was immediately apparent to the seizing authorities. State v. Williams (1978), 55 Ohio St.2d 82, paragra ph one of the syllabus. {¶ 30} We find that the state established that the officers were lawfully in a position to view the crack cocaine, which was readily identifiable and in plain view on appellee’s

bedroom dresser. {¶ 31} Based on the foregoing, we find that the trial court incorrectly granted appellee’s motion to suppress. The officers were lawfully in a position to observe the crack cocaine, which was in plain view in appellee’ s room during a protectiv e sweep. Appellant’s11 sole assignment of erro r is therefore well-taken. {¶ 32} This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion.

. . . . . . . . . . HALL, J., concurs.

FROELICH, J., dissenting: {¶ 33} The police responded to a call regardin g “some issues [Fontecchio’s] mother was having” with him; there wa s no allegation of any violence or of any weapon, but rather that “they had been fighting and causing problem s, keeping her up late at night.” She said

she “believed he was at the house” across the st reet, an address concerning which there had been previous “drug complaints.” Although the record is not clear, it appears that the police, before going across the street, determined that there was a traffic capias for

Fontecchio’s arrest. {¶ 34} No one answered their knocking and a nnouncing that they were police; they could “hear shuffling around.” One officer looked in the window and saw an unknown individual (not Fontecchio) take a handgun from a dresser and put it in his waistband. The officer informed his colleagues who all drew th eir weapons and one “went to his cruiser and

retrieved his rifle fo r our safety.” {¶ 35} The officer stated he “didn’t know wh at was going on. . .I don’t know what type of criminal activity’s going on. . .I need to find out if everybody is okay inside the house.” The police knocked at the back door fo r another minute and i ndicated they wanted12 to be sure everything was okay and that no one was being held hostage. Someone from inside asked, “who is it?” And the police ag ain advised who they were and that the residents “need to open the door” and further i ndicated that they (the police) “wanted to come in and check that everyone’s okay.” {¶ 36} The kitchen door was opened by the pe rson whom they had seen with a weapon; there were two other subjects standi ng in the kitchen area. The police ordered everyone to the floor and went into the livin g room where two to three other people were also ordered to the gr ound; all were patted down. {¶ 37} Although they did not hear anyone else in the home and one of the people on the floor said no one else was there, the poli ce “went upstairs to make sure nobody else was up there” as well as into the basement. The officers had not located a gun at that point and “didn’t know if somebody was up there armed w ith a weapon.” While upstairs, one of the officers saw what he believed to be crack cocaine in plain view; Fontecchio was not in the

home. {¶ 38} The prosecutor argued at the conclusion of the motion that, given the capias, the officers had a valid reason to approach th e house, that no one answered despite their announcing their presence, and that they saw one individual obtain a weapon and put it in his waistband; when they made entry and did not find the gun, they “need to ensure their own safety and make a sweep of the upstairs area.” “They have not created that emergency merely by being there with a valid reason and knocking on the door and then observing something that causes them to believe that there is someone inside that may be in immediate

need of aid.”13 {¶ 39} “[P]hysical entry of the home is the chief evil against which the wording of

the Fourth Amendment was directed.” Payton v. New York (1980), 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639. It is a basic principl e of Fourth Amendment law that searches

and seizures inside a home without a warrant are presumptively unreasonable. Id. at 586. Absent exigent circumstances, the threshol d may not reasonably be crossed without a

warrant. Id. at 590. {¶ 40} A warrantless seizure of incriminating evidence such as the crack cocaine is permissible under the plain view exception where (1) the officer s are lawfully positioned in a place from which the object can be plainly viewed, (2) the in criminating character of the object is immediately apparent, a nd (3) the officer has a lawful right of access to the object

itself. Boone v. Spurgess (CA 6, 2004), 385 F.3d 923, 928. It is incumbent upon the State to establish that this exception to the warrant requirement applies. United States v. Oliver (CA 6, 1982), 686 F.2d 356, 371. {¶ 41} Although the officer did not have to m ove anything to see the crack and the incriminating nature of the drugs was immediately apparent, the question is whether the officer had a lawful right to be in th e position from which he observed the drugs. {¶ 42} The fact that someone inside the hous e had a firearm does not create probable cause or an articulable suspicion that a law was being violated; for example, possessing a

concealed firearm is not unlawful in such a situation. R.C. 2923.12(C)(1)(d). Issues surrounding articulable suspicion, let alone probable cause, have not yet been fleshed out in Ohio since the passage of recent laws concerning the carrying of firearms. In Florida, where it is also not illegal to possess “a concealed gun in a crowd,” “stopping a person solely on the14 ground that the individual possesses a gun violates the Fourth Amendment.” Bryan v. State (Fla. App. 4 Dist, 2011), 62 So.3d 1244. {¶ 43} Even if it were illegal, “the ‘plain view’ doctrine does not authorize warrantless entries into a private home merely because an item of contraband has become visible to those outside. . .[p]lain view al one is never enough to justify the warrantless seizure of evidence. This is simply a corolla ry of the familiar principle. . .that no amount of probable cause can justify a warrantless search or seizure absent ‘exigent circumstances.’ Incontrovertible testimony of the senses that an incriminating object is on the premises belonging to a criminal suspect may establish the fullest measure of probable cause. But even where the object is contraband. . .the police may not enter a nd make a warrantless

seizure.” United States v. Morgan (CA 6 1984), 743 F.2d 1158, 1167, quoting Coolidge v. New Hampshire (1971), 403 U.S. 443 at 486, 91 S.Ct.2022, 29 L.Ed.2d 564. That is what happened here. {¶ 44} There was nothing unconstitutional about the police knocking on the door and if, when the door voluntarily swung open, contra band were in plain view, there may be no problem with the police entering. For exampl e, the Second Circuit has held that “what a person knowingly exposes to the public, even in his own house or office, is not subject of Fourth Amendment protection.” United States v. Gori (CA 2, 2000), 230 F.3d 44. But,

see, Hadley v. Williams (CA 7, 2004), 368 F.3d 747. {¶ 45} The police, at gunpoint, ordered every one to the floor and patted them all down. In order to justify such a protectiv e search, the surrounding circumstances must create a suspicion that an indivi dual may be armed and dangerous. Terry v. Ohio (1968),15 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. “[F]act s supporting a reasonable and articulable suspicion that a person is armed [do] not n ecessarily support a reas onable and articulable suspicion that the person is dangerous.” State v. Jordan , Montgomery App. No. 22271, 2008-Ohio-199, ¶17 (Wolff, P.J., concurring). {¶ 46} Here, the police initially approached a house thinking that a person with a traffic capias was there. After seeing a diffe rent person inside with a gun, they concluded that there was illegal activity occurring or that someone was being held hostage, drew their weapons, went to all the doors, and demanded the people insi de open the door. When the person who was observed with the gun opened the back door, the officers patted him and others down. Although, in their experience, the officers may have had a hunch or concern that something illegal was occurring, they had no probable cause of any criminal activity or any articulable suspicion that any of the individuals they patte d down was armed and dangerous. {¶ 47} Rather, the State argues that they were lawfully in the bedroom as a result of a protective sweep. 2 The United States Supreme Court has held that a protective sweep is permissible if the officer “possess[es] a reas onable belief based on sp ecific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant the officer in believing that the area swept ha rbored an individual posing a danger to the officer or others.” (Internal citations omitted ). Maryland v. Buie (1990), 494 U.S. 325,

2 As mentioned above, the prosecutor also argued at the motion to suppress hearing that they believed someone was in need of immediate aid and that someone might be held hostage.16 327

. Thus, officers must have “articulable facts, which, taken together with the reasonable inferences from those facts, would warrant the reasonably prudent officer believing that the area to be swept harbors an i ndividual imposing a danger to those on the arrest scene.”

Buie , 494 U.S. at 334. {¶ 48} Very recently, the Supreme Court addressed a situation where police officers had followed a suspected drug dealer to an apartment complex. Kentucky v. King (2011),

U.S. , 131 S.Ct. 1849, 179 L.Ed.2d 865. They smelled burnt marijuana outside an apartment door, knocke d loudly, and announced their presence. As soon as the officers began knocking, they heard noises co ming from the apartment which the officers, based on their experience, believe d were consistent with the de struction of evidence. The

officers announced their intent to enter the apartment, kicked in the door, and found the defendant and others. They saw drugs in plain view during a protective sweep of the apartment and found additional evidence during a subsequent search. The Supreme Court held that the exigent circumstances rule applies since the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment. {¶ 49} Justice Ginsburg dissented saying, “the court today arms the police with a way routinely to dishonor the Fourth Amendmen t warrant requirement in drug cases. In lieu of presenting their evidence to a neut ral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant [before arriving at suspect’s home]. . . Th e question presented: May police, who could pause to gain the approval of a neutral magistrate, dispense with the need to get a warrant by themselves creating exigent circumstances? I w ould answer no. . . .the urgency must exist, I17 would rule, when the police come on the scene, not subsequent to their arrival, prompted by

their own conduct.” Id. at U.S. , 131 S.Ct. 1864. {¶ 50} The case now before us does not involve an articulable suspicion of drugs, does not involve any sights or sounds indica ting the destruction of evidence, does not involve facts indicating that an y possible individual upstairs poses a danger to them, and, in brief, involves no exigent circumstances whatsoever. {¶ 51} The police saw an individual in the home with a concealed weapon; they knocked on the door announcing their presence and ordering the residents to open the door; when the individual opened the door, all the resi dents were ordered at gunpoint to the floor and patted down and a sweep of the entire resi dence was conducted durin g which drugs were

observed. {¶ 52} It is certainly understandable that once someone opened the door the police erred on the side of safety; however, such a legitimate cautiousness cannot evade Fourth Amendment scrutiny. There was no Terry justification to enter the home and pat down the individuals; there was no Buie justification to sweep the upstairs and there was no King justification to look for drugs or the destruction of evidence. In this case, a search (albeit designated as a sweep) has been bootstrappe d from a mother’s calling the police with a complaint that her son continues to argue with her and keeps her up all night. The trial court determined that there was no exigency or other justification for the officers’ presence

in the bedroom where the crack cocaine wa s found and I would affirm that decision.

. . . . . . . . . .18 (Hon. Frank D. Celebrezze, Jr., Eighth District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio). Copies mailed to: Timothy J. Cole Michael H. Holz Hon. Frances E. McGee