[Cite as State v. Holt , 2020-Ohio-6649.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals No. L-19-1226 Appellee Trial Court No. CR0201901424

v. Arron D. Holt DECISION AND JUDGMENT Appellant Decided: December 11, 2020

* * * * * Julia R. Bates, Lucas County Prosecuting Attorney, and Padraic A. McClure, Assistant Prosecuting Attorney, for appell ee. Laurel A. Kendall, for appellant.

* * * * * MAYLE, J. {¶ 1} Defendant-appellant, Arron D. Holt, appeals the September 26, 2 019 judgment of the Lucas County Court of Common Pleas, convicting him of trafficking in cocaine and receiving stolen property and sentencing him to pri son terms of six years and 17 months, respectively. For the following reasons, we affirm the trial court judgment.2. I. Background {¶ 2} Arron Holt was indicted on March 8, 2019 on one count of posses sion of cocaine, a violation of R.C. 2925.11(A) and (C)(4)(e), a first- degree felony (Count 1); trafficking in cocaine, a violation of R.C. 2925.03(A)(2) and ( C)(4)(f), a first-degree felony (Count 2); receiving stolen property, a violation of R.C . 2913.51(A) and (C), a fourth-degree felony, along with a firearm specification under R.C. 2941.141(A), (B), (C), and (F) (Count 3); and having weapons while under disabili ty, a violation of R.C. 2923.13(A)(3) and (B), a third-degree felony (Count 4). {¶ 3} After filing unsuccessful motions to suppress evidence and to r eveal the identities of confidential informants, Holt entered a plea of n o contest to the lesserincluded offense of Count 2, trafficking in cocaine, a violatio n of R.C. 2925.03(A)(2) and (C)(4)(e), a second-degree felony, and Count 3. The court foun d Holt guilty and imposed a term of six years in prison on Count 2 and 17 months on Count 3, to be served consecutively. Holt was also sentenced to a mandatory three-ye ar period of postrelease control on Count 2 and up to three years’ discretionary postrel ease control on Count 3, and the court imposed the costs of supervision, confinement, as signed counsel, prosecution, and costs assessed under R.C. 9.92(C), 2929.18, an d 2951.021. Holt’s sentence was memorialized in a judgment entry journalized on Se ptember 26, 2019. {¶ 4} Holt appealed. He assigns the following errors for our review: I. The trial court erred to the prejudice of Appellant when it denied his Motion to Suppress without a hearing.3. II. The trial court erred to the prejudice of Appellant when i t denied his Motion to Reveal confidential Informant’s Identity and Disc lose Criminal Records and any Agreement Entered Into With the State without a hearing. II. Law and Analysis {¶ 5} Holt’s assignments of error challenge the trial court’s decisio ns denying— without a hearing—his motions to suppress evidence and to revea l confidential informants’ identities. The evidence Holt sought to suppress w as seized pursuant to a search warrant. Before addressing Holt’s assignments of error, we summarize the information contained in the affidavit submitted in support of the search warrant.

A. The Search Warrant Affidavit {¶ 6} According to the affidavit for search warrant, Detective Kennet h Heban, of the Toledo Police Department, began receiving information from a confidential informant on March 30, 2018, that Holt had been trafficking in cocaine an d heroin for over ten years and had engaged in multiple drug transactions in the info rmant’s presence throughout the past six months. The confidential informant, So urce One, witnessed drugrelated activity on several occasions:

 April 2, 2018: Source One observed Holt negotiate a drug trans action via telephone from Holt’s home on Locust Street;

 April 3, 2018: Source One observed Holt with cocaine while dri ving his Toyota truck;4.  April 5, 2018: Source One stated that Holt was acquiring large amounts of black tar heroin from his drug supplier every two weeks, which he then processed out of his home, using cutting agents;

 April 12, 2018: Source One observed heroin and a pistol inside Holt’s residence;

 April 17, 2018: Source One observed Holt sell cocaine to an un known white male at the Sunoco gas station at Buckeye and Manhattan S treets, which he had carried to the transaction in a baggie in his mout h. Holt was driving his Toyota truck. {¶ 7} Beginning on April 7, 2018, Heban began to receive information from a second confidential informant, Source Two. Source Two told Heb an that he had observed heroin and cocaine on Holt’s person and in his residen ce over the past six

months. He warned Heban that Holt had a firearm in his home. Source Two reported having witnessed the following drug-related activity:

 April 19, 2018: Source Two observed Holt remove cocaine from h is residence, which he then transported to 115th Street, where he sold a portion of it to an unknown white male on the street. He was d riving a Dodge truck;

 April 28, 2018: Source Two observed heroin and cocaine inside Holt’s residence and saw Holt leave in his Dodge truck with some of th e cocaine;5.  May 4, 2018: Source Two observed Holt arrive on 115th Street, where he sold cocaine to an unknown white male on the street while opera ting his Dodge truck. {¶ 8} As a result of the information that Sources One and Two were pr oviding,

Heban conducted a records check and confirmed that Holt and his wife owned and resided at the Locust Street address provided to him. He then began conducting

surveillance and observed conduct that was consistent with what Sources One and Two had reported:

 April 9, 2018: Holt was seen leaving his residence in his Toyo ta truck, making a hand-to-hand transaction with an unknown white male at Manhattan and Hoffman Roads, driving to the Sunoco gas station at Manhattan and Buckeye Streets, and making a hand-to-hand transa ction with another unknown white male;

 April 18, 2018: The “listed vehicles” 1 were parked on the street. Several individuals arrived at Holt’s home, knocked on the back door, w ent inside for a short time, then left—activity that Heban described as co nsistent with drug trafficking;

 April 21, 2018: Holt arrived at his Locust Street home in a Do dge truck;

1 The search warrant affidavit lists a Toyota truck and a four-d oor Buick. The search warrant lists the Toyota truck, Dodge truck, and the four-door Buick.6.  April 22, 2018: The “listed vehicles” were parked on the stree t. Again, several individuals arrived at Holt’s home, knocked on the back door, went inside for a short time, then left;

 April 30, 2018: The Toyota and Dodge trucks were parked on the street;

 May 1, 2018: Holt left his home in the Dodge truck. He met wi th an unknown white male in a parking lot and conducted a hand-to-han d transaction;

 May 2, 2018: Holt left his residence in the Dodge truck. He m et an unknown white male at a parking lot located at Bancroft and Fra nklin streets. A hand-to-hand transaction took place;

 May 7, 2018: Holt left his house in the Dodge truck. He met w ith an

unknown white male on 115th Street and conducted a hand-to-hand

transaction. {¶ 9} Detectives conducted a trash pull on May 8, 2018. They recover ed several torn baggies, one large torn baggie, and a marijuana pipe from the trash. Heban then applied for a search warrant. {¶ 10} In addition to describing the information received from Sources One and Two, the observations made during surveillance of Holt, and the items discovered during the trash pull, the affidavit for search warrant details Heban’ s training and experience and his relationship with the confidential informants. He averred that both Source One and Source Two have provided information for over two years, leadin g to the seizure of7. cocaine, heroin, marijuana, firearms, U.S. currency associated with drug trafficking, and materials utilized in drug trafficking. He indicated that the informants have “provided information that has proven to be independently verified as cre dible and accurate by other confidential source [sic], other law enforcement officers, and law enforcement and open source databases,” and have assisted in the arrest and convicti on of numerous drug

traffickers. {¶ 11} The magistrate concluded that probable cause existed to believe that drug trafficking was occurring on the premises. The search warrant was issued May 8, 2018, and was executed on May 10, 2018. B. Denial of Motion to Suppress {¶ 12} Holt moved to suppress the evidence seized pursuant to the sear ch warrant. He argued in the trial court that the affidavit for search warr ant did not provide probable cause to issue the warrant because (1) there had been no contro lled drug buy; (2) the only basis for the credibility or veracity of the confidential sourc es was boilerplate language indicating that the informants had assisted Heban in previous c ases for two years; (3) the affidavit is not specific about how many people were let into H olt’s home and for how long, and in any event, there are other possible explanations f or those visits that do not include drug trafficking; (4) there was only one trash pull con ducted, and the items recovered during the trash pull were not tested for the presenc e of drugs or tied to Holt; and (5) the good faith exception does not preclude exclusion of the evidence seized here.8. {¶ 13} Holt requested a hearing on his motion to suppress. The trial court denied Holt’s motion without a hearing. In his first assignment of er ror, Holt claims that this

was error. {¶ 14} To begin with, Holt argues that he was entitled to a hearing. He argues that under Crim.R. 47, a court must hold a hearing on a motion to su ppress where the motion states with particularity the legal and factual grounds upon wh ich it is made. He maintains that his motion stated such grounds, therefore, he sh ould have been afforded a hearing. {¶ 15} The state maintains that absent an allegation that the search w arrant was procured by means of a deliberate or reckless falsehood in the search warrant affidavit— accompanied by an offer of proof of such allegation—the trial c ourt was limited to a

four-corners review of the search warrant affidavit and no hear ing was required. {¶ 16} We begin by acknowledging the well-established principle that a ffidavits supporting search warrants carry a presumption of validity that is not easily overcome

. State v. Jordan , 1st Dist. Hamilton No. C-060336, 2007-Ohio-3449, ¶ 9. We rec ently recognized in State v. Long , 6th Dist. Wood No. WD-19-021, 2020-Ohio-4090, that where a search warrant is based only on information provided by affidavit, “review of the issuing judge’s probable cause determination—both at the trial and appellate court

levels—is limited to the information found within the four corn ers of the affidavit.” Id. at ¶ 22, citing State v. Castagnola , 145 Ohio St.3d 1, 2015-Ohio-1565, 46 N.E.3d 638, ¶ 399. (“[T]he reviewing court is concerned exclusively with the state ments contained within the affidavit itself.” (Internal quotations omitted.)). {¶ 17} A reviewing court may look outside of the four corners of the a ffidavit and conduct an evidentiary hearing only if the defendant makes a “s ubstantial preliminary showing” that (1) the affidavit contains false statements that were necessary to the finding of probable cause, and (2) the affiant made the stateme nts knowingly and intentionally or with reckless disregard for the truth. Id. at fn. 1, citing Franks v.

Delaware , 438 U.S. 154, 155-156, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). See also

Jordan at ¶ 9 (“A defendant who attempts to challenge the presumptive validity of a warrant affidavit is not entitled to an evidentiary hearing unl ess he first makes ‘a substantial preliminary showing of a knowing, intentional, or r eckless falsity.’”); State v. Rosengarten , 3d Dist. Putnam No. 12-80-13, 1981 WL 6715, *2 (Nov. 6, 1981) (“To mandate an evidentiary hearing * * *, [t]here must be allegatio ns of deliberate falsehood or of reckless disregard for the truth, and those allegations m ust be accompanied by an offer of proof.”). {¶ 18} The standard cited by Holt—that a defendant is entitled to a he aring where his or her motion states with particularity the legal and factu al grounds upon which it is made—applies where a defendant seeks to suppress evidence obtai ned pursuant to a

warrantless search or seizure. See State v. Shindler , 70 Ohio St.3d 54, 636 N.E.2d 319 (1994), citing Xenia v. Wallace , 37 Ohio St.3d 216, 524 N.E.2d 889 (1988) (“To suppress evidence obtained pursuant to a warrantless search or seizure, the defendant must10. (1) demonstrate the lack of a warrant, and (2) raise the ground s upon which the validity of the search or seizure is challenged in such a manner as to g ive the prosecutor notice of the basis for the challenge.” (Emphasis added.)); State v. Codeluppi , 139 Ohio St.3d 165, 2014-Ohio-1574, 10 N.E.3d 691, ¶ 13 (involving motion to suppre ss evidence based on officer’s alleged failure to conduct field sobriety tests in ac cordance with NHTSA guidelines). Because the evidence here was seized pursuant to a warrant, this standard is inapplicable. {¶ 19} In reviewing defendants’ challenges to a trial court’s decision not to hold an evidentiary hearing on a motion to suppress evidence seized pursuant to a search warrant, Ohio courts have grappled with whether to apply a clea r error standard of review or to review the challenge de novo. See State v. Corwin , 2d Dist. Montgomery No. 26690, 2016-Ohio-4718, ¶ 24 (observing that standard of review is unsettled, but concluding that defendant’s challenge failed under either stand ard); State v. Smith , 4th Dist. Highland No. 09CA29, 2010-Ohio-4507, ¶ 102 (recognizing t he unsettled nature of the standard of review and applying the standard more favorable to defendant—de novo);

State v. Marcellino , 2019-Ohio-4837, 149 N.E.3d 927, ¶ 9 (11th Dist.), appeal not

allowed , 158 Ohio St.3d 1450, 2020-Ohio-1090 (acknowledging lack of co nsistency in federal appellate circuits). At least two Ohio appellate distr icts have concluded that a decision not to hold an evidentiary hearing should be reviewed for clear error. See id. at ¶ 10; State v. A.P. , 2018-Ohio-3423, 117 N.E.3d 840, ¶ 60 (12th Dist.).11. {¶ 20} We conclude that under either standard, Holt’s claim fails. Ho lt’s motion does not suggest that Detective Heban made any false statement in the search warrant affidavit; he argues merely that the affidavit did not support the issuing judge’s determination that probable cause existed to issue the warrant. Because he did not allege that Heban knowingly or recklessly made false statements in the search warrant affidavit, the trial court was not obligated to hold a hearing. See Jordan , 1st Dist. Hamilton No. C-060336, 2007-Ohio-3449, at ¶ 13 (concluding that “[w]ithout a n allegation of falsity in the warrant affidavit supported by a proper offer of proof by w ay of affidavit or otherwise, [appellant] was not entitled to a hearing on his mot ion to suppress.”); State v.

Abrams , 12th Dist. Preble No. 315, 1983 WL 4357, *2 (May 4, 1983) (co ncluding that even if defendant’s motion met Crim.R. 47’s particularity requi rement, hearing should not have been allowed because motion did not allege a deliberat e falsehood or reckless disregard for the truth). We, therefore, conclude that the tri al court properly denied Holt’s request for an evidentiary hearing. {¶ 21} Turning to the merits of the trial court judgment denying Holt’ s motion to suppress, the Fourth Amendment to the U.S. Constitution protect s against unreasonable searches and seizures and provides that search warrants may be issued only upon probable cause. State v. Jones , 143 Ohio St.3d 266, 2015-Ohio-483, 37 N.E.3d 123, ¶ 11. An affidavit for search warrant “must provide the magistrate wi th a substantial basis for determining the existence of probable cause * * *.” Illinois v. Gates , 462 U.S. 213, 239, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). Whether probable cause for a warrant12. exists is assessed under a totality-of-the-circumstances approa ch. Id. at 230. That is, the magistrate must make a “practical, common-sense decision whethe r, given all of the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” (Internal citations and quotations omitted.) State v. Myers , 143 Ohio App.3d 342, 350, 757 N.E.2d 1258 (2d Dist.2001). {¶ 22} “‘In reviewing the sufficiency of probable cause in an affidavi t submitted in support of a search warrant issued by a magistrate, neither a trial court nor an appellate court should substitute its judgment for that of the magistrate by conducting a de

novo determination as to whether the affidavit contains sufficient probable cause upon

which that court would issue the search warrant.’” Id. , quoting State v. George , 45 Ohio St.3d 325, 544 N.E.2d 640 (1989), paragraph two of the syllabus . “‘Rather, the duty of a reviewing court is simply to ensure that the magistrate had a s ubstantial basis for concluding that probable cause existed.’” Id. Great deference must be accorded to the magistrate’s determination of probable cause, “‘and doubtful or marginal cases in this area should be resolved in favor of upholding the warrant.’” Id. {¶ 23} Here, the trial court found that based upon the information con tained in the search warrant affidavit, “the magistrate had a substantial bas is for concluding that probable cause existed to issue the search warrant,” and it den ied Holt’s motion to suppress. Appellate review of a motion to suppress presents a mixed question of law and13. fact. State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. The trial court acts as the trier of fact. We must accept any find ings of fact that are supported by competent, credible evidence, however, we conduct a de novo review to determine whether the facts satisfy the applicable legal standard. State v. Codeluppi , 139 Ohio St.3d 165, 2014-Ohio-1574, 10 N.E.3d 691, ¶ 7, citing Burnside at ¶ 8; State v.

Jones-Bateman , 6th Dist. Wood Nos. WD-11-074 and WD-11-075, 2013-Ohio-4739, ¶ 9. {¶ 24} As previously discussed, no evidentiary hearing was conducted h ere, thus the trial court made no findings of fact; rather, it concluded as a matter of law that the search warrant affidavit provided a substantial basis for concl uding that probable cause existed. We must determine, therefore, whether the facts here satisfy the applicable legal

standard. {¶ 25} Heban’s affidavit outlined information provided by two confiden tial informants who claimed to have personally observed Holt engage in drug transactions. The informants provided specific dates and locations of the act ivity they witnessed.

Surveillance was conducted based on this information and law en forcement documented activity consistent with what the informants reported. Items r ecovered during a trash pull provided further corroboration. Heban detailed his experience in investigating drug trafficking operations and described behaviors that he has lear ned are indicative of participation in such operations. He also attested to past exp eriences with Sources One and Two—who in the past provided accurate information that assi sted in the arrest and14. conviction of drug traffickers—providing a basis for his belief that the information they

offered was credible and reliable. {¶ 26} In State v. Pillar , 8th Dist. Cuyahoga No. 84566, 2005-Ohio-630, ¶ 7-8, the defendant challenged a search warrant that was issued based on the following information contained within the detective’s affidavit: (1) detectives con ducted surveillance for six weeks following various citizen complaints that defendant was t rafficking drugs out of his residence; (2) one of the complaints mentioned defendant by name and provided his cell phone and home phone numbers; (3) during the course of the surveillance, the affiant noticed moderate vehicle and pedestrian traffic entering the re sidence and staying for only short periods of time, which, in his training and experien ce was indicative of drug trafficking; (4) the affiant conducted a trash pull of the garb age at the residence and found miscellaneous plastic bags with suspected cocaine residue , a piece of a cigarette containing what appeared to be marijuana, and plastic bags with the corners torn out. The court upheld the search warrant. {¶ 27} In State v. Wade , 6th Dist. Lucas No. L-04-1217, 2006-Ohio-5104, the

search warrant affidavit stated that the confidential source ob served on a number of days that marijuana and powder and crack cocaine were being stored a t and sold from the premises by Wade and others. We upheld the warrant, concluding that “under all the circumstances set forth in the affidavit, the issuing judge had a substantial basis for concluding that probable cause existed to issue the search warr ants.” Id. at ¶ 15. See also State v. Taylor , 82 Ohio App.3d 434, 441, 612 N.E.2d 728 (2d Dist.1992) (uphol ding15. warrant based on information from informant who had personally seen the cocaine in the house in the preceding 24 hours and who had provided reliable i nformation in the past that led to felony arrests); State v. Brown , 8th Dist. Cuyahoga No. 105202, 2017-Ohio8315, ¶ 3 (upholding search warrant that was secured based on i nformation from “confidential informant with previous record of providing corro borated information” and two trash pulls in which plastic bag “tear offs” and burnt mari juana cigarettes and “debris” were found). {¶ 28} “An affidavit which contains detailed information from informan ts (permitting an inference that illegal activity was personally o bserved by the informants), police corroboration of an informant’s intelligence through its own independent investigation, or additional testimony by the affiant helps to bolster and substantiate

the facts contained within the affidavit.” State v. Harry , 12th Dist. Butler No. CA2008-01-0013, 2008-Ohio-6380, ¶ 20. Here, two confidential i nformants provided information detailing their personal observations of drug activ ity, and the surveillance and trash pull conducted by Toledo Police corroborated that inf ormation. We find that the search warrant affidavit provided a substantial basis for d etermining the existence of probable cause. {¶ 29} We find Holt’s first assignment of error not well-taken.

C. Denial of Motion to Reveal Identities of Confidential Infor mants {¶ 30} Holt filed a motion to reveal confidential informants’ identiti es and to disclose their criminal records and any agreements entered into with the state. The court16. denied Holt’s motion without holding a hearing. In his second assignment of error, Holt argues that this was error. {¶ 31} The Ohio Supreme Court in State v. Williams , 4 Ohio St.3d 74, 446 N.E.2d 779 (1983), syllabus, established the standard for determining when the identity of a

confidential informant must be revealed to the defense: “The i dentity of an informant must be revealed to a criminal defendant when the testimony of the informant is vital to establishing an element of the crime or would be helpful or ben eficial to the accused in preparing or making a defense to criminal charges.” This stand ard involves the balancing of competing interests. Id. at 75. “Generally, when the degree of participation of the informant is such that the informant virtually becomes a state’ s witness, the balance swings in favor of requiring disclosure of the informant’s iden tity. Conversely, where disclosure would not be helpful or beneficial to the accused, t he identity of the informant

need not be revealed.” Id. at 76. See also State v. Williams , 73 Ohio St.3d 153, 172, 652 N.E.2d 721 (1995). We review a trial court’s denial of a motio n to reveal the identity of

a confidential informant under an abuse-of-discretion standard. See State v. Burcell , 6th Dist. Lucas No. L-97-1420, 1999 WL 76060, *3 (Feb. 19, 1999). {¶ 32} Holt argues that the informants’ identities must be disclosed b ecause “law enforcement was not present, instead they were merely told by t he informants of particular acts.” The state responds that the detective utiliz ed the information provided by the informants to conduct his own investigation, the informa nts’ testimony is not vital17. to establishing an element of the crimes, and the informants we re not active participants in the criminal activity—they acted more like tipsters. {¶ 33} The trial court explained its rationale for denying Holt’s moti on. It relied heavily on the fact that the detective performed his own survei llance and personally

witnessed two hand-to-hand transactions based on information su pplied by the informants; the informants themselves were not involved in thos e transactions. Moreover, Holt failed to specify how the confidential informant s would be helpful to his case and never claimed that the informants were critical to pro ving his innocence. {¶ 34} We agree with the trial court’s conclusions. While the informa tion obtained from Sources One and Two was helpful in establishing p robable cause to obtain the search warrant, it was not necessary to establish the eleme nts of the offenses. See Jordan, 1st Dist. Hamilton No. C-060336, 2007-Ohio-3449, at ¶ 21 (“Whi le the informant’s testimony was helpful in establishing probable caus e for the issuance of the search warrant, the testimony was not necessary to establish an y of the elements of [the] offenses.”). We also agree with the state that where—as here—t he confidential informant’s role is more akin to the role of a mere tipster, di sclosure of his or her identity is generally not required. See State v. Feltner , 87 Ohio App.3d 279, 282, 622 N.E.2d 15 (12th Dist.1993) (“Generally, disclosure is not required where the informant’s role is that of a mere tipster.”). {¶ 35} As for Holt’s argument that the trial court erred in denying hi s motion without a hearing, he cites no authority entitling him to a hea ring. The standard he cites18. applies to the circumstances under which a hearing should be he ld on a motion to suppress evidence seized pursuant to a warrantless search. It is, therefore, inapplicable. {¶ 36} We find Holt’s second assignment of error not well-taken.

III. Conclusion {¶ 37} The trial court properly denied Holt’s motion to suppress evide nce without a hearing. Holt was not entitled to a hearing on his motion be cause he did not allege that

the search warrant affidavit contained false information. The search warrant affidavit provided a substantial basis for determining the existence of p robable cause where two confidential informants personally observed Holt engage in drug transactions, they provided specific dates and locations of the activity they witn essed, police conducted surveillance based on this information and documented activity consistent with what the informants reported, items recovered during a trash pull provid ed further corroboration, and the detective who completed the search warrant affidavit at tested to past experiences with the informants, providing a basis for his belief that the information they offered was credible and reliable. We find Holt’s first assignment of erro r not well-taken. {¶ 38} The trial court also properly denied Holt’s motion to reveal th e identities of the confidential informants without a hearing. Holt cited no a uthority requiring a hearing on his motion and failed to specify how the confidential inform ants would be helpful to his case. Furthermore, the confidential informants were not in volved in the criminal activity, their testimony was not necessary to establish the el ements of the offenses, they were not personally involved in the hand-to-hand transactions w itnessed during19. surveillance, and they acted more as tipsters. We find Holt’s second assignment of error

not well-taken. {¶ 39} We affirm the September 26, 2019 judgment of the Lucas County C ourt of Common Pleas. Holt is ordered to pay the costs of this appeal under App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pur suant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Arlene Singer, J. _________________

______________ JUDGE Thomas J. Osowik, J.

_______________________________ Christine E. Mayle, J. JUDGE CONCUR.

_______________________________ JUDGE

This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.