[Cite as State v. Wilson, 2017-Ohio-5484.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

ALLEN COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 1-16-57 

 v. 

BENNY WILSON, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Allen County Common Pleas Court 

Trial Court No. CR 2015 0498 

Judgment Affirmed 

Date of Decision: June 26, 2017 

 

APPEARANCES: 

 

Kenneth J. Rexford for Appellant 

 Jana E. Emerick for Appellee 
Case No. 1-16-57 

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PRESTON, P.J. 

{¶1} Defendant-appellant, Benny Wilson (“Wilson”), appeals the December 

2, 2016 judgment entry of sentence of the Allen County Court of Common Pleas. 

For the reasons that follow, we affirm. 

{¶2} This case stems from a controlled drug buy. In December of 2015, a 

confidential informant (“CI”) working for the West Central Ohio Crime Task Force 

(“Task Force”) went to a known address on West Wayne Street in Lima to meet 

with a person from whom he could purchase crack cocaine. Wilson was present at 

that address, and he offered to sell crack cocaine to the CI. Wilson was observed 

leaving the address on West Wayne Street and traveling to another residence at what 

appeared to be 402 North Collett Street. Wilson stayed at that location for a brief 

time and then exited and returned to the other residence on West Wayne Street from 

which he had come. After the CI met with police, the CI provided them with a 

substance that was confirmed to be cocaine. After the controlled-buy operation, 

police obtained a warrant to search the residence seemingly located at 402 North 

Collett Street, conducted that search, and found additional evidence of drug-related 

activity. 

{¶3} On February 11, 2016, the Allen County Grand Jury indicted Wilson 

on: Count One of trafficking in heroin in violation of R.C. 2925.03(A)(1), (C)(6)(a), 

a felony of the fifth degree; Count Two of trafficking in cocaine in violation of R.C. 
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2925.03(A)(1), (C)(4)(a), a felony of the fifth degree; Count Three of trafficking in 

cocaine in violation of R.C. 2925.03(A)(1), (C)(4)(a), a felony of the fifth degree; 

Count Four of trafficking in cocaine in violation of R.C. 2925.03(A)(1), (C)(4)(a), 

a felony of the fifth degree; Count Five of trafficking in cocaine in violation of R.C. 

2925.03(A)(1), (C)(4)(a), a felony of the fifth degree; Count Six of possession of 

cocaine in violation of R.C. 2925.11(A), (C)(4)(d), a felony of the second degree; 

Count Seven of aggravated possession of drugs in violation of R.C. 2925.11(A), 

(C)(1)(b), a felony of the third degree; and Count Eight of possession of marijuana 

in violation of R.C. 2925.11(A), (C)(3)(c), a felony of the fifth degree. (Doc. No. 

4). Count Six included a firearm specification under R.C. 2941.141(A) alleging that 

Wilson had a firearm on or about his person or under his control while he committed 

the offense. (Id.). Count Six also included a firearm forfeiture specification under 

R.C. 2941.1417(A) alleging that Wilson is the owner and/or possessor of a gun that 

is contraband or is derived from the commission or facilitation of the offense or was 

used or intended for use in the commission or facilitation of the offense. (Id.). 

Count Six also included the same firearm forfeiture specification as to another 

firearm. (Id.). Count Six further included a money forfeiture specification under 

R.C. 2941.1417(A) alleging that Wilson is the owner or possessor of $2,124 in U.S. 

currency that was contraband or was property that was derived through the 

commission of the offense or was an instrumentality that the offender used or 
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intended for use in the commission or facilitation of the offense. (Id.). Counts 

Seven and Eight included the same specifications that were included in Count Six. 

(Id.). 

{¶4} On February 18, 2016, Wilson entered written pleas of not guilty to 

Counts One through Seven of the indictment. (Doc. No. 8). The trial court accepted 

Wilson’s pleas. (Doc. No. 11). 

{¶5} Wilson filed a motion to suppress evidence on March 10, 2016, arguing 

that the affidavit in support of the warrant did not give rise to probable cause. In 

addition, he argued that the warrant’s description of the property was not 

constitutionally sufficient or, if it was sufficient, it was inaccurate. (Doc. No. 16). 

After a hearing on August 17, 2016, the trial court overruled Wilson’s motion to 

suppress evidence on August 30, 2016. (Doc. No. 45). 

{¶6} On May 18, 2016, Wilson filed a motion to exclude the oral testimony 

given in support of the warrant. (Doc. No. 32). In that motion, Wilson argues that 

the oral testimony of Deputy Sheriff Dana Sutherland (“Sutherland”) must be 

excluded because, under Criminal Rule 41(C)(2), if recorded testimony is to be used 

in support of a warrant, that testimony must be transcribed, and the transcript must 

be made a part of the affidavit prior to the issuance of the search warrant, or the 

testimony must be incorporated by reference into the affidavit to be transcribed later. 

(Doc. No. 32). As neither of those occurred in this case, Wilson argues that 
Case No. 1-16-57 

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Sutherland’s testimony must be suppressed. (Id.). Wilson supplemented that 

motion on May 24, 2016. (Doc. No. 36). The State filed a response to that motion 

on May 26, 2016. (Doc. No. 37). Wilson filed a reply to the State’s response on 

May 31, 2016. (Doc. No. 38). The trial court denied Wilson’s motion to exclude 

the oral testimony on June 7, 2016. (Doc. No. 39).1

{¶7} Wilson appeared for a pre-trial conference and pled no contest to Count 

Six with the attendant specifications, as well as to Count Seven with a firearm 

specification. (Doc. No. 52, 53). Counts One through Five and Count Eight were 

dismissed in accordance with the negotiated plea agreement. (Doc. No. 53). The 

trial court accepted Wilson’s no contest pleas and found him guilty of the offenses 

to which he pled no contest. (Id.). The trial court sentenced Wilson to five years as 

to Count Six and one year as to the firearm specification. (Doc. No. 57). The trial 

court further sentenced Wilson to two years in prison as to Count Seven, with each 

sentence to be served consecutively for a total of eight years of incarceration.2

 (Id.). 

The trial court further ordered that $2,124 and two firearms, all identified in 

specifications included in Count Six, be forfeited. (Id.). The trial court further 

 

1

 Wilson filed a motion to reconsider the trial court’s denial of his motion to exclude the oral testimony. 

(Doc. No. 40). The trial court overruled the motion to reconsider on June 22, 2016. (Doc. No. 41). 

2

 We are aware that both Counts Six and Seven included the same firearm specifications. (Doc. No. 57). 

Those two specifications merged, and the trial court’s sentencing entry accounted for the specification as part 

of Count 6. (Id.). 
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ordered that Wilson pay a total of $12,500 in fines as to Counts Six and Seven. (Id.). 

The trial court filed its judgement entry of sentence on December 2, 2016. (Id.). 

{¶8} Wilson filed his notice of appeal on December 2, 2016. (Doc. No. 59). 

He brings two assignments of error for our review. 

Assignment of Error No. I 

The Trial Court Erred In Denying the Defense[‘s] Motion To 

Exclude Oral Testimony From The Suppression Hearing. 

{¶9} In his first assignment of error, Wilson argues that the trial court erred 

in denying his motion to exclude oral testimony from the suppression hearing. 

Specifically, Wilson argues that, under Crim.R. 41(C)(2), the oral testimony is 

admissible if it is recorded either by a court reporter or by recording equipment, 

transcribed, and made a part of the affidavit in support of the warrant. Wilson 

concedes that the evidence in question was “taken down” via recording equipment 

and that it was transcribed by the time of the hearing on the motion to suppress 

evidence. However, he argues that such needed be done prior to the issuance of the 

warrant or, in the alternative, that the testimony needed to be incorporated by 

reference into the affidavit, perhaps to be transcribed at a later time. As neither of 

these occurred, Wilson argues that suppression was necessary. 

{¶10} Evidentiary rulings are within the broad discretion of the trial court, 

and a reviewing court will not overturn a trial court’s evidentiary ruling absent an 

abuse of that discretion. State v. Heft, 3d Dist. Logan No. 8-09-08, 2009-Ohio-
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5908, ¶ 62, citing State v. Issa, 93 Ohio St.3d 49, 64 (2001). An “abuse of 

discretion” connotes more than an error in judgment; it implies that a court’s attitude 

is unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 

157 (1980). 

{¶11} Crim.R. 41(C)(2), in pertinent part, states that testimony of the sort at 

issue here is admissible at a hearing if “taken down by a court reporter or recording 

equipment, transcribed, and made part of the affidavit.” Crim.R. 41(C)(2). 

{¶12} We begin by emphasizing that there is absolutely nothing in language 

of Crim.R. 41(C)(2) that requires that oral testimony be transcribed and made part 

of the affidavit prior to the execution the warrant. (See id.). 

{¶13} Crim.R. 41’s purpose is to allow review of the facts upon which the 

judge relied in order to issue a warrant. State v. Dreve, 10th Dist. Franklin No. 

77AP-383, 1977 WL 200660, *4 (Dec. 13, 1977). The rule does not require that the 

oral testimony be transcribed immediately and made a part of the affidavit prior to 

the issuance of the warrant. Id. Indeed, such a requirement would unduly delay the 

issuance of many warrants. Id. It is enough if the oral testimony is transcribed and 

made a part of the affidavit prior to the suppression hearing. Id. 

{¶14} In State v. Shingles, the Ninth District Court of Appeals addressed a 

situation in which the trial court suppressed evidence gathered via a search warrant 

that had been sworn to before a notary public rather than a judge. State v. Shingles, 
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46 Ohio App.2d 1, 2 (9th Dist.1974). Though the court in Shingles held the warrant 

to be invalid, it distinguished the fatal defect in that warrant from minor defects not 

large enough to require suppression. Id. at 3 (noting that a judge’s failure to affix 

his signature to a warrant is a “ministerial act” that would not cause the warrant to 

fail). In elaborating upon the sorts of defects considered “ministerial,” the court in 

Shingles specifically held that “If all that remained to be done would be the 

transcription of the recorded testimony, we would call it a ‘ministerial function,’ 

and permit it to be done.” Id. 

{¶15} Based on the principles above, we conclude that the trial court did not 

act arbitrarily, unreasonably, or unconscionably in denying Wilson’s motion to 

exclude the oral testimony at issue. Nothing in the language of the rule requires that 

transcription and attachment occur prior to the search, and Dreve dismisses the very 

interpretation that Wilson urges is the proper one specifically because that 

interpretation would be administratively unworkable and would delay the issuance 

of warrants. Wilson concedes in his brief that the “testimony was transcribed by the 

time of the hearing” on the motion to suppress evidence. (Appellant’s Brief at 6). 

That is sufficient. 

{¶16} For the reasons explained above, Wilson’s first assignment of error is 

overruled. 
Case No. 1-16-57 

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Assignment of Error No. II 

The Trial Court Erred In Denying The Defense[‘s] Motion To 

Suppress. 

{¶17} In his second assignment of error, Wilson argues that the trial court 

erred in denying his motion to suppress evidence. Specifically, Wilson argues that 

the warrant was defective because it did not accurately and specifically indicate 

which residence within the multi-unit building was to be searched. Wilson also 

argues that the facts upon which the warrant was issued do not give rise to probable 

cause. 

{¶18} A review of the denial of a motion to suppress involves mixed 

questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 

¶ 8. At a suppression hearing, the trial court assumes the role of trier of fact and, as 

such, is in the best position to evaluate the evidence and the credibility of witnesses. 

Id. See also State v. Carter, 72 Ohio St.3d 545, 552 (1995). When reviewing a 

ruling 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.” Burnside at 

¶ 8, citing State v. Fanning, 1 Ohio St.3d 19 (1982). With respect to the trial court’s 

conclusions of law, however, our standard of review is de novo, and we must 

independently determine whether the facts satisfy the applicable legal standard. Id., 

citing State v. McNamara, 124 Ohio App.3d 706 (4th Dist.1997). 
Case No. 1-16-57 

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{¶19} When reviewing the sufficiency of probable cause in an affidavit 

submitted in support of a search warrant, our duty is simply to “ensure that the 

magistrate had a substantial basis for concluding that probable cause existed.” State 

v. George, 45 Ohio St.3d 325 (1989), paragraph two of the syllabus, citing Illinois 

v. Gates, 462 U.S. 213, 103 S.Ct. 2317 (1983). We must not conduct “a de novo 

determination as to whether the affidavit contains sufficient probable cause upon 

which the court would issue the search warrant,” but rather accord great deference 

to the trial court’s determination of probable cause and resolve marginal cases in 

favor of upholding the warrant. George at paragraph two of the syllabus. We 

recognize that the duty of the issuing official is simply to make a “practical, 

common-sense decision whether, given all the circumstances set forth in the 

affidavit before him, including the ‘veracity’ and the ‘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.” Id. at 329, citing Gates at 

238-239. 

{¶20} The Fourth Amendment to the United States Constitution and Article 

I, Section 14 of the Ohio Constitution protect individuals against unreasonable 

searches and seizures by the government, and they protect privacy interests where 

an individual has a reasonable expectation of privacy. State v. Fielding, 10th Dist. 

Franklin Nos. 13AP-654 and 13AP-655, 2014-Ohio-3105, ¶ 15, quoting Smith v. 
Case No. 1-16-57 

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Maryland, 442 U.S. 735, 740, 99S.Ct. 2577 (1979). An expectation of privacy is 

protected where an individual has manifested a subjective expectation of privacy 

and that expectation is one that society recognizes as reasonable. Id., citing Smith 

at 740, citing Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., 

concurring). While the Fourth Amendment does not specifically provide that 

unlawful searches and seizures will result in the suppression of ill-gotten evidence, 

the United States Supreme Court has held that the exclusion of evidence is an 

essential part of the Fourth Amendment. State v. Jenkins, 3d Dist. Union No. 14-

10-10, 2010-Ohio-5943, ¶ 9, citing Mapp v. Ohio, 367 U.S. 643, 649, 81 S.Ct. 1684 

(1961) and Weeks v. United States, 232 U.S. 383, 394, 34 S.Ct. 341 (1914). 

{¶21} The exclusionary rule should not bar the use of evidence obtained by 

officers acting in objectively reasonable reliance on a search warrant issued by a 

detached and neutral magistrate even if that warrant is ultimately found to be 

unsupported by probable cause. Id. at 325, citing U.S. v. Leon, 468 U.S. 897, 104 

S.Ct. 3405 (1984). Exclusion remains proper, however, where the magistrate or 

judge who issued the warrant was misled by information in the affidavit that the 

affiant knew was false or would have known was false if not for reckless disregard 

of the truth, where the magistrate wholly abandoned his judicial function in issuing 

the warrant, where the affidavit is “so lacking in indicia of probable cause as to 

render belief in its existence entirely unreasonable,” or where the warrant is so 
Case No. 1-16-57 

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facially deficient that officers cannot reasonably presume its validity. George at 

331, citing Leon at 923. 

{¶22} The standard that must be applied in determining the sufficiency of a 

warrant’s identification of the place to be searched is that the description must be 

such that “the officer with a search warrant can with reasonable effort ascertain the 

identity of the place intended.” State v. Pruitt, 97 Ohio App.3d 258, 261 (11th 

Dist.1994) quoting Steele v. United States, 267 U.S. 498, 503, 45 S.Ct. 414 (1925). 

The determinative factor is not whether the description is technically accurate in 

every detail; rather, it is whether the description enables the executing officer to 

locate the premises with reasonable effort, as well as whether there is any reasonable 

probability that a premises other than the one intended might be searched by 

mistake. Id. at 261-262. 

{¶23} In this case, the hearing pertinent to Wilson’s motion to suppress 

evidence took place on August 17, 2016. (Aug. 17, 2016 Tr. at 1). At that hearing, 

the State called Sutherland to the stand. (Id. at 8). Sutherland testified that police 

began an investigation into the property at the corner of West Wayne Street and 

North Collett Street in December of 2015 because the Task Force carried out a 

controlled drug buy using a CI. (Id. at 10). During that controlled buy, the Task 

Force observed the CI as he traveled to a known address on West Wayne Street to 

meet with a person from whom he could purchase crack cocaine. (Id. at 10). 
Case No. 1-16-57 

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Sutherland testified that Wilson was at that known address and offered to make the 

sale. (Id.). Sutherland testified that police observed Wilson leaving the house and 

walking to 402 North Collett Street, entering the building through the door facing 

“directly into the intersection under a covered porch with cedar siding.” (Id.). 

Sutherland asserted that Wilson stayed at that location for a brief time before leaving 

and returning to the place from which he came. (Id. at 11). Sutherland testified 

that, when the CI met with police after the controlled buy, the CI provided them 

with a substance that was confirmed to be cocaine. (Id.). 

{¶24} Sutherland next testified that, after the controlled buy, he 

photographed the numbers “402” on the west side of the property and subsequently 

determined, after examining the Allen County Auditor’s records, that the property 

at the corner of Wayne Street and Collett Street is 402 North Collett Street—a multiunit structure. (Id. at 12). Sutherland then testified that he and Investigator Pugh 

(“Pugh”) drove to the house and photographed it from both Wayne Street and Collett 

Street. (Id. at 13). He testified that no addresses were marked on the cedar siding 

under the covered porch. (Id.). Sutherland identified State’s Exhibit 3 as a photo 

of the west side of the property. (Id. at 14); (State’s Ex. 3). He identified State’s 

Exhibit 4 as depicting the rear portion of the property. (Aug. 17, 2016 Tr. at 14); 

(State’s Ex 4). Sutherland further testified that State’s Exhibit 5 depicts the door 
Case No. 1-16-57 

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through which Wilson entered and later exited the residence. (Aug. 17, 2016 Tr. at 

16); (State’s Ex. 5). 

{¶25} Sutherland testified that he then prepared an affidavit and a search 

warrant for 402 North Collett Street, both of which he presented to a judge. (Aug. 

17, 2016 Tr. at 19). Sutherland identified State’s Exhibit 1 as the affidavit for the 

search warrant. (Id. at 20); (State’s Ex. 1). That affidavit generally contains the 

following information: 

{¶26} The affiant, a Deputy Sheriff with the Allen County Sheriff’s Office, 

had been so employed since 2003. (State’s Ex. 1). He was assigned to the Task 

Force and had training related to drug trafficking and manufacturing, in addition to 

which he had participated in controlled drug buys. A CI indicated that he could 

purchase cocaine from persons in Lima and agreed to assist the Task Force by 

participating in controlled drug buys. The same CI had participated in previous 

controlled drug buys and had provided police with reliable information. During the 

week of December 14, 2015, the Task Force carried out a controlled drug buy 

according to its standard procedure. The CI traveled to a known address on West 

Wayne Street to purchase cocaine. Though the original suspect was not present, a 

then-unknown African-American male was present and offered to sell cocaine to 

the CI. This individual then exited the address on West Wayne Street and walked 

to another property at 402 North Collet Street, which he entered. The individual 
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stayed at that location briefly and then exited before returning to the address from 

which he had come and then providing the CI with cocaine. (Id.). 

{¶27} Sutherland further testified that, in addition to the information in 

State’s Exhibit 1, he also presented the issuing judge with recorded testimony to 

support the warrant. (Aug. 17, 2016 Tr. at 20). He identified State’s Exhibit 2 as 

an audio recording of the hearing at which he provided the judge with additional 

information. (Id. at 21); (State’s Ex. 2). That recording was then played for the trial 

court. (Aug. 17, 2016 Tr. at 24). Sutherland identified State’s Exhibit 9 as a 

transcript accurately reflecting the hearing recorded on State’s Exhibit 2. (Id. at 24-

25).3

 After hearing Sutherland’s testimony, the judge found probable cause. (Id.). 

{¶28} Sutherland, at the August 17, 2016 hearing, went on to testify that the 

warrant identified the property to be searched as “the property located at 402 N. 

Collett Street, Lima” and that the warrant later indicated that “the property is more 

specifically described as a yellow two (2) story multifamily dwelling with white 

trim,” as well as a “black asphalt roof located in the northeast corner of W. Wayne 

Street and N. Collett Street.” The warrant also described the property door as 

“located on a covered porch with cedar siding facing directly into the intersection.” 

(Aug. 17, 2016 Tr. at 25); (State’s Ex. 1). 

 

3

 The testimony taken during that hearing is duplicative of other testimony we discuss. (See State’s Ex. 9). 
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{¶29} Sutherland asserted that, once he obtained a warrant but prior to 

conducting the search, he met with the SWAT team and showed SWAT team 

members pictures of the door through which they should enter the property—a door 

on a covered porch with cedar siding. (Aug. 17, 2016 Tr. at 27). Sutherland then 

accompanied the SWAT team to execute the warrant. (Id. at 30). He testified that 

he observed the police go on to the front porch area and enter through the door that 

was described to them. (Id. at 30). Sutherland averred that police were able to 

properly execute the warrant based on the property description in the warrant. (Id. 

at 31). He asserted that they did not enter any residence other than the one intended. 

(Id.). 

{¶30} Sutherland testified that, after the SWAT team had entered the 

residence, he photographed the entry door and, in doing so, he saw the number 

“864” above a mailbox. (Id.). This was the first indication that the address of the 

property was anything other than 402 North Collett Street, as police believed. (Id.

at 32). Sutherland testified that further investigation revealed that the address of the 

location was, in fact, 864 West Wayne Street rather than 402 North Collett Street. 

(Id. at 32). Sutherland testified that he never believed that there was any probability 

that the wrong residence would be searched, and he emphasized again that the 

correct residence was the only one searched. (Id. at 33). 
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{¶31} Wilson argues that the property description in the warrant was 

insufficient. We disagree. In State v. Pruitt, the Eleventh District Court of Appeals 

addressed a situation in which police had a search warrant permitting them to search 

a premises described as: 

2101 Westlawn S.W., a multi-unit apartment, single level yellow in 

color. The unit is the second apartment from a large parking lot 

located on the east side of Delaware S.W. The unit is marked 2101 

on the front of the building. Also the unit is North of the large parking 

lot. 

Pruitt at 258. The defendant argued that this description was insufficient because it 

named the wrong street. Id. at 260. The court ultimately found that the description 

of the property was adequate, noting that the house number was correct even though 

the street name was not and that the architectural description of the premises was 

accurate. Id. at 262. The court also found it significant that, because the same 

officer who applied for the warrant also executed it, the chance of a mistaken search 

was unlikely. Id.

{¶32} Facts similar to those in Pruitt exist here. The address in this case was 

incorrect; however, the architectural description of the premises was accurate, as 

was the description of their physical location. Further, because the same officer 

who applied for the warrant was present for the execution of it, and he showed the 
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SWAT team a photo of the entrance and specifically advised them how to enter the 

residence to conduct the search, a search of the wrong location was rendered highly 

unlikely. Police searched only the location they intended to search. 

{¶33} Wilson argues that the affidavit in support of the warrant does not give 

rise to probable cause. We disagree. In State v. Metzger, we were presented with a 

set of facts in which controlled buys were conducted at a home on South Canal 

Street in Delphos, Ohio. State v. Metzger, 3d Dist. Van Wert Nos. 15-05-15 and 

15-05-17, 2006-Ohio-5161, ¶ 1-3. The CI located a suspected drug dealer and gave 

him money with the understanding that the dealer would leave the residence, 

procure the drugs, and return with them. Id. at ¶ 3. The individual left his residence 

and traveled to the defendant’s home on South Canal Street, remained there for 

approximately five minutes, and then returned with the drugs. Id. When Metzger 

attacked the affidavit in support of the warrant to search his home, we upheld the 

warrant, noting that the record indicated that confidential informants had conducted 

controlled buys from a man who had traveled to the Canal Street address to obtain 

drugs. Id. at ¶ 29. We also noted that the drug seller was seen entering the residence 

for which the warrant was issued. Id. 

{¶34} Similar facts are now before us. The CI met Wilson, and Wilson 

traveled to a house on the corner of West Wayne Street and North Collett Street, 

stayed there for a brief time, and returned with drugs. The record establishes that 
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Wilson entered the very place police searched. Based on Metzger, we conclude that 

the warrant at issue here was supported by probable cause. 

{¶35} For the reasons explained above, Wilson’s second assignment of error 

is overruled. 

{¶36} Having found no error prejudicial to the appellant herein in the 

particulars assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

ZIMMERMAN and SHAW, J.J., concur. 

/jlr