[Cite as State v. Adkins, 2020-Ohio-535.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

FAYETTE COUNTY 

STATE OF OHIO, 

 

 Appellee, 

 - vs - 

ANTHONY B. ADKINS, 

 

 Appellant. 

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: 

: 

: 

: 

: 

CASE NO. CA2019-03-004 

O P I N I O N 

2/18/2020 

 

CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS 

Case No. CRI 20180280 

Jess C. Weade, Fayette County Prosecuting Attorney, Fayette County Courthouse, 110 

East Court Street, Washington, Court House, Ohio 43160, for appellee 

Steven H. Eckstein, 1208 Bramble Avenue, Washington Court House, Ohio 43160, for 

appellant 

 M. POWELL, J.

{¶ 1} Appellant, Anthony B. Adkins, appeals his convictions in the Fayette County 

Court of Common Pleas for engaging in a pattern of corrupt activity, in violation of R.C. 

2923.32 and multiple cocaine trafficking offenses, in violation of R.C. 2925.03. For the 

reasons set forth below, we affirm appellant's convictions. 
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{¶ 2} In July 2018, the Fayette County Grand Jury indicted appellant on 27 felony 

drug-related offenses. These charges arose out of an investigation from January to June 

2018 concerning crack cocaine sales appellant made to a confidential informant. The 

investigation culminated in a traffic stop and arrest by members of the Fayette County 

Sheriff's Office in Clinton County, Ohio. On the day of the traffic stop, the confidential 

informant had made a large purchase of crack cocaine from appellant. Undercover officers 

then tracked appellant as he travelled from his home to a suspected drug supplier in Dayton, 

Ohio. As part of this operation, marked patrol units had been staged to intercept appellant 

as he returned to Fayette County. However, en route back, appellant changed course and 

headed into Clinton County. Believing that appellant was heading to a friend's house, the 

lead officer ordered the marked patrol units to immediately effect a traffic stop. When 

deputies sought to stop appellant a car chase ensued. Pursuing deputies apprehended 

appellant after he tried to escape off-road. At no point during this pursuit was appellant in 

Fayette County. 

{¶ 3} Appellant entered a not guilty plea and the case proceeded to a jury trial in 

February 2019. At trial, the state called nine witnesses, including the confidential informant, 

the various law enforcement officers involved, and an Ohio Bureau of Criminal Investigation 

("BCI") forensic scientist. In addition to the witnesses, the state presented BCI laboratory 

reports to identify the substances as containing cocaine and video recordings of the drug 

buys. 

{¶ 4} At the close of the state's case-in-chief, appellant objected to the admission 

of several laboratory reports because the documents lacked the notarized statement 

required by statute. The trial court sustained the objection. As a result, the trial court 

granted appellant's Crim.R. 29 motion for the 12 offenses (Counts 2-7 and 10-15) involving 

the inadmissible laboratory reports. The jury found appellant guilty on the remaining 15 
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counts, alleging engaging in a pattern of corrupt activity, possession of cocaine, and 

trafficking in cocaine. 

{¶ 5} At the sentencing hearing in March 2019, the trial court determined that the 

possession offenses were allied offenses of similar import to the trafficking offenses and 

merged the possession offenses into their corresponding trafficking offenses. Accordingly, 

the trial court sentenced appellant to an aggregate 20-year prison term for conviction of the 

following eight offenses: 

 Count 1, engaging in a pattern of corrupt activity, a firstdegree felony in violation of R.C. 2923.32(A)(1); 

 Counts 8, 16, 18, and 22, trafficking in cocaine, fifth-degree

felonies in violation of R.C. 2925.03(A)(1) and (C)(4)(a); 

 Count 20, trafficking in cocaine, a fourth-degree felony in 

violation of R.C. 2925.03(A)(1) and (C)(4)(c); 

 Count 24, trafficking in cocaine, a first-degree felony in 

violation of R.C. 2925.03(A)(1) and (C)(4)(f);1 and 

 Count 26, trafficking in cocaine, a first-degree felony with a

major drug offender specification in violation of R.C. 

2925.03(A)(2) and (C)(4)(g) 

{¶ 6} Appellant now appeals, raising four assignments of error for review. For ease 

of analysis, the first and second assignments will be considered together and the third and 

fourth assignments will be considered together. 

{¶ 7} Assignment of Error No. 1: 

{¶ 8} TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE BY FAILING 

TO FILE A MOTION TO SUPPRESS IN VIOLATION OF DEFENDANT-APPELLANT'S 

RIGHTS THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION, AND SECTIONS 10 AND 16, ARTICLE I OF THE OHIO 

 

1. The sentencing entry incorrectly cites R.C. 2925.03(C)(4)(g) as the controlling subsection regarding the 

quantity of cocaine involved in the offense. However, whether the quantity of cocaine involved is the amount 

specified in R.C. 2925.03(C)(4)(f) or (g), the offense remains a first-degree felony with a mandatory prison 

term. 
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CONSTITUTION. ARTICLE I, SECTION 14 OF THE OHIO CONSTITUTION 

{¶ 9} Assignment of Error No. 2: 

{¶ 10} TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE BY FAILING 

TO FILE A PRETRIAL MOTION TO DISMISS COUNTS 2, 3, 4, 5, 6, 7, 10, 11, 12, 13, 14, 

& 15 OF THE INDICTMENT THEREBY DENYING DEFENDANT-APPELLANT A FAIR 

TRIAL UNDER THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED 

STATES CONSTITUTION, AND SECTIONS 10 AND 16, ARTICLE I OF THE OHIO 

CONSTITUTION. ARTICLE I, SECTION 14 OF THE OHIO CONSTITUTION. 

{¶ 11} In his first two assignments of error, appellant argues that his trial counsel 

was constitutionally infirm for two reasons. First, he contends that his trial counsel provided 

ineffective assistance when he did not move to suppress the evidence seized by Fayette 

County deputies during an extra-territorial arrest in Clinton County. In support, appellant 

argues that the Fayette County Sheriff's Office violated R.C. 2935.03 by stopping and 

arresting him outside Fayette County and thus the evidence seized from that stop should 

have been excluded. Second, appellant argues that his trial counsel provided ineffective 

assistance by not moving to dismiss the charges involving the defective laboratory reports 

before trial because this allowed the jury to hear impermissible character evidence 

regarding other drug transactions. 

{¶ 12} In a criminal proceeding, a defendant has the right to effective assistance of 

counsel under both the United States and Ohio Constitutions. Sixth Amendment to the U.S. 

Constitution and Article I, Section 10, Ohio Constitution; Strickland v. Washington, 466 U.S. 

668, 686, 104 S.Ct. 2052 (1984); State v. Hester, 45 Ohio St.2d 71 (1976). On review, 

"[c]ounsel is strongly presumed to have rendered adequate assistance and made all 

significant decisions in the exercise of reasonable professional judgment." State v. Burns, 

12th Dist. Clinton No. CA2013-10-019, 2014-Ohio-4625, ¶ 7. Accordingly, appellant bears 
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the burden of proving that his trial counsel was constitutionally infirm. State v. Johnson, 

112 Ohio St.3d 210, 2006-Ohio-6404, ¶ 142. To prevail on an ineffective assistance of 

counsel claim, appellant must demonstrate that (1) his counsel's performance was deficient, 

that is, it fell below an objective standard of reasonable representation, and (2) he suffered 

prejudice, that is, there is a reasonable probability the outcome of the proceeding would 

have been different but for trial counsel's errors. State v. Taylor, 12th Dist. Fayette No. 

CA2018-11-021, 2019-Ohio-3437, ¶ 16, citing Strickland at 687-688 and State v. Mundt, 

115 Ohio St.3d 22, 2007-Ohio-4836, ¶ 62. A failure to satisfy either prong of this test is 

fatal to the ineffective assistance claim. State v. Manning, 12th Dist. Butler No. CA2017-

08-113, 2018-Ohio-3334, ¶ 20. 

{¶ 13} Regarding the first assignment, the "failure to file a motion to suppress 

constitutes ineffective assistance of counsel only when the record establishes that the 

motion would have been successful if made." State v. Brown, 12th Dist. Warren No. 

CA2002-03-026, 2002-Ohio-5455, ¶ 11. Relevant for our purposes, R.C. 2935.03(A)(1) 

provides that a 

sheriff [or] deputy sheriff * * * shall arrest and detain, until a 

warrant can be obtained, a person found violating, within the 

limits of the political subdivision, * * * in which the peace officer 

is appointed, employed, or elected, a law of this state, an 

ordinance of a municipal corporation, or a resolution of a 

township. 

{¶ 14} It is with the limited "hot pursuit" exception provided in R.C. 2935.03(D) that 

these peace officers may conduct a warrantless arrest and detention of an individual outside 

their territorial jurisdiction. Appellant suggests that the "hot pursuit" exception is 

inapplicable because the Fayette County deputies' pursuit was not initiated within Fayette 

County. Nevertheless, R.C. 2935.03 does not provide a remedy for instances when peace 

officers violate the statute by effecting a warrantless arrest outside their territorial jurisdiction 
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and the Ohio Supreme Court has refused to adopt its own remedy for a violation of this 

statute. State v. Jones, 121 Ohio St.3d 103, 2009-Ohio-316, ¶ 21. Therefore, appellant's 

reliance on R.C. 2935.03 is misplaced. A violation of R.C. 2935.03 does not require the 

exclusion of evidence. Id.; State v. Weideman, 94 Ohio St.3d 501, 2002-Ohio-1484, 

paragraph one of the syllabus; State v. Dallman, 12th Dist. Clermont Nos. CA2017-11-056 

and CA2017-11-057, 2018-Ohio-2670, ¶ 32. Any motion to suppress based on this 

statutory violation alone would not have been successful. 

{¶ 15} To invoke the exclusionary rule, the sole issue for a court to consider is 

whether the stop was constitutionally valid pursuant to the Fourth Amendment to the United 

States Constitution.2 Jones, 2009-Ohio-316 at ¶ 20, citing Virginia v. Moore, 553 U.S. 164, 

128 S.Ct. 1598 (2008). A traffic stop is constitutionally valid if an officer has a reasonable 

and articulable suspicion that a motorist has committed, is committing, or is about to commit 

a crime. State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, ¶ 7, citing Delaware v. 

Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391 (1979) and Berkemer v. McCarty, 468 U.S. 420, 

439, 104 S.Ct. 3138 (1984). Further, peace officers may make a warrantless arrest of an 

individual if they have probable cause to do so. State v. Timson, 38 Ohio St.2d 122 (1974), 

paragraph one of the syllabus. Probable cause is based on objective facts and exists when 

a reasonably prudent person would believe the arrestee has committed a crime. State v. 

Abrams, 12th Dist. Clermont No. CA2007-03-040, 2008-Ohio-94, ¶ 12. The reasonable 

suspicion standard, while still requiring specific facts from the totality of circumstances, is 

less demanding than the probable cause standard. State v. Hairston, 156 Ohio St.3d 363, 

 

2. In felony cases, Article I, Section 14 of the Ohio Constitution affords the same protection as the Fourth 

Amendment against searches and seizures. State v. Jones, 143 Ohio St.3d 266, 2015-Ohio-483, ¶ 12. On 

the other hand, the Ohio Supreme Court has held that Article I, Section 14 of the Ohio Constitution provides 

greater protection than the federal constitution involving minor misdemeanor offenses and therefore, in those 

instances, the exclusionary rule applies. State v. Brown, 143 Ohio St.3d 444, 2015-Ohio-2438, ¶ 26; See 

also State v. Brown, 99 Ohio St.3d 323, 2003-Ohio-3931, paragraph one of the syllabus. 
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2019-Ohio-1622, ¶ 10. 

{¶ 16} Here, we find that the sheriff's deputies involved had the requisite reasonable 

and articulable suspicion to stop the vehicle and had probable cause to arrest appellant. 

Appellant had made several crack cocaine sales to a confidential informant who was under 

the supervision and surveillance of Fayette County law enforcement officers. On the day 

he was arrested, appellant had made one of his largest sales of crack cocaine to the 

confidential informant. Following that sale, deputies maintained close surveillance of 

appellant in the belief that that he would contact his supplier to procure more cocaine. The 

lead officer – who ordered the traffic stop – knew about the crack cocaine purchase the 

informant had made earlier in the day and was part of the surveillance operation tracking 

appellant from Dayton. Therefore, based on the totality of the circumstances, the deputies 

had sufficient information to believe that appellant's trip to Dayton was a supply run to obtain 

more cocaine. Moreover, based on the prior crack cocaine purchases, the deputies had 

probable cause to arrest appellant for the possession and trafficking of cocaine. 

{¶ 17} Consequently, appellant cannot demonstrate that the stop and arrest violated 

his constitutional rights. A motion to suppress on constitutional grounds would have also 

failed. Therefore, appellant cannot show that his trial counsel's performance was deficient. 

Appellant's ineffective assistance claim on the first assignment of error lacks merit. 

{¶ 18} Turning to appellant's second assignment, it was not deficient for his trial 

counsel to raise the issue of inadmissible evidence at trial instead of a pretrial motion to 

dismiss. Appellant's counsel discovered that several of the laboratory reports relied upon 

by the prosecution did not conform to R.C. 2925.51(A).3 Rather than apprise the 

prosecution in a pretrial motion, appellant's counsel waited to raise the issue at trial. This 

 

3. R.C. 2925.51 requires a notarized statement by the report "signer" to be attached to the report. 
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strategy benefited appellant because the prosecution was unable to correct the defect or 

present additional evidence to prove that several of the purchased substances contained 

cocaine. By pursuing this strategy, appellant's counsel secured an acquittal on several 

offenses, notwithstanding the fact that this strategy afforded the prosecution an opportunity 

to present testimony regarding additional cocaine sales. 

{¶ 19} On the other hand, a pretrial motion would have alerted the prosecution to the 

deficiency in the laboratory reports and provided an opportunity to correct the defect in time 

for trial. Even if appellant's counsel had successfully obtained pretrial dismissal of the 

charges, appellant remained exposed to re-indictment for these charges. While the 

success of a trial strategy is not the operative factor for an ineffective assistance claim, 

Strickland, 466 U.S. at 689, given the alternatives in this case, this court cannot find 

appellant's trial counsel performed deficiently when he pursued the strategy he chose and 

ultimately succeeded. It is not an appellate court's role to second-guess trial strategy 

decisions. State v. Cepec, 149 Ohio St.3d 438, 2016-Ohio-8076, ¶ 52. Appellant's 

ineffective assistance claim on the second assignment of error likewise lacks merit. 

{¶ 20} In light of the foregoing, appellant's first and second assignments of error are 

overruled. 

{¶ 21} Assignment of Error No. 3: 

{¶ 22} THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT'S 

CRIM.R 29 MOTION FOR ACQUITTAL AS THE EVIDENCE PRESENTED WAS 

INSUFFICIENT TO CONCLUDE THAT GUILT HAD BEEN PROVEN BEYOND A 

REASONABLE DOUBT IN VIOLATION OF HIS RIGHTS TO DUE PROCESS AND A FAIR 

TRIAL UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE 

UNITED STATES CONSTITUTION, AND ARTICLE I, SECTIONS 10 AND 16 OF THE 

OHIO CONSTITUTION. 
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{¶ 23} Assignment of Error No. 4: 

{¶ 24} THE TRIAL COURT ERRED IN ENTERING A FINDING OF GUILTY 

BECAUSE SUCH VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE 

EVIDENCE. FIFTH AND FOURTEENTH AMENDMENTS, UNITED STATES 

CONSTITUTION, AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION. 

{¶ 25} In his third and fourth assignments of error, appellant argues that there was 

insufficient evidence to find him guilty of engaging in a pattern of corrupt activity and the 

multiple drug offenses, therefore the trial court erred in denying his Crim.R. 29 motion for 

acquittal. Appellant further argues that the guilty verdicts were against the manifest weight 

of the evidence. In support of these claims, appellant argues that it was improper for the 

jury to believe the confidential informant's testimony. 

{¶ 26} The standard of review for a denial of a Crim.R. 29 motion is the same 

standard used for reviewing a sufficiency of the evidence challenge. State v. Robinson, 

12th Dist. Butler No. CA2015-01-013, 2015-Ohio-4533, ¶ 37. On a sufficiency challenge, 

the reviewing court must determine whether the prosecution has met its burden of 

production. State v. Boles, 12th Dist. Brown No. CA2012-06-012, 2013-Ohio-5202, ¶ 34. 

Therefore, the reviewing court must examine the evidence to determine whether any 

rational trier of fact, viewing the evidence in a light most favorable to the prosecution, could 

have found the essential elements of the crime proven beyond a reasonable doubt. State 

v. Smith, 12th Dist. Warren Nos. CA2012-02-017 and CA2012-02-018, 2012-Ohio-4644, ¶ 

25. 

{¶ 27} On the other hand, a manifest weight of the evidence challenge requires the 

reviewing court to examine the "inclination of the greater amount of credible evidence, 

offered at a trial, to support one side of the issue rather than the other." State v. Barnett, 

12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶ 14. In conducting this 
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examination, a reviewing court must look at the entire record, weigh the evidence and all 

reasonable inferences, consider the credibility of the witnesses, and determine whether in 

resolving the conflicts in the evidence, the trier of fact clearly lost its way and created such 

a manifest miscarriage of justice that the conviction must be reversed and a new trial 

ordered. State v. Sizemore, 12th Dist. Warren No. CA2019-01-006, 2019-Ohio-4400, ¶ 21. 

While a manifest weight of the evidence review requires this court to evaluate credibility, 

the determination of witness credibility is primarily for the trier of fact to decide. State v. 

DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. A reviewing court will 

overturn a conviction based on a manifest weight challenge only in the exceptional instance, 

to correct a manifest miscarriage of justice, where the evidence weighs heavily in favor of 

acquittal. State v. Wilson, 12th Dist. Warren No. CA2006-01-007, 2007-Ohio-2298, ¶ 34. 

The determination that a conviction is supported by the manifest weight of the evidence will 

be dispositive of the sufficiency of the evidence challenge. State v. Jones, 12th Dist. Butler 

No. CA2012-03-049, 2013-Ohio-150, ¶ 19. 

{¶ 28} The jury found appellant guilty of both trafficking in cocaine and possession 

of cocaine. Appellant was charged with two different types of trafficking offenses. For six 

of the trafficking offenses, the prosecution had to prove that appellant knowingly sold or 

offered to sell a controlled substance or a controlled substance analog. R.C. 2925.03(A)(1). 

For the remaining trafficking offense, the prosecution had to prove that appellant knowingly 

prepared for shipment, shipped, transported, delivered, prepared for distribution, or 

distributed a controlled substance or a controlled substance analog, when the offender 

knew or had reasonable cause to believe that the controlled substance or a controlled 

substance analog was intended for sale or resale by the offender or another person. R.C. 

2925.03(A)(2). For each of the possession offenses, the prosecution had to prove that 

appellant knowingly obtained, possessed, or used a controlled substance or a controlled 
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substance analog. R.C. 2925.11(A). In order for these offenses to constitute more serious 

felonies the prosecution had to prove a certain mass, i.e. to constitute a fourth-degree felony 

the cocaine had to be at least 5 grams but less than 10 grams and to constitute a firstdegree felony the substance containing cocaine had to be at least 27 grams but less than 

100 grams. R.C. 2925.03(C)(4)(c) and (f).4 Finally, appellant was charged with a major 

drug offender specification on count 26, therefore the prosecution had to prove that the 

transaction involved a substance containing cocaine of more than 100 grams. R.C. 

2925.03(C)(4)(g). 

{¶ 29} After review of the record, we find that the guilty verdicts were not against the 

manifest weight of the evidence. The jury heard the confidential informant testify that on 

each occasion he met appellant at either his home or a nearby hotel and exchanged money 

for crack cocaine. The informant testified that he only received the crack cocaine from 

appellant in these transactions. In addition to the confidential informant, the jury heard from 

three detectives involved in the investigation. These detectives testified that on each 

occasion the confidential informant was physically searched by one of the detectives and 

then driven by a detective to the sale location. During the operation, the informant was 

under law enforcement supervision except for the short time he would leave the vehicle to 

conduct the purchases. Upon coming back to the vehicle, all the witnesses involved in the 

operation testified that the informant would give the crack cocaine to the detective escorting 

him. These detectives, together with the detective assigned to evidence room supervision, 

testified as to the chain of custody for the substances received from these transactions. 

Moreover, the prosecution presented video recordings taken from a device the informant 

carried into several of his "buys." In these videos, appellant can be identified as the person 

 

4. The degree of felony for cocaine possession pursuant to R.C. 2925.11(C)(4) uses the same mass/weight 

standards as the trafficking offenses in R.C. 2925.03(C)(4). 
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meeting with the informant. Finally, the state presented laboratory reports from the BCI 

identifying the purchased substances as containing cocaine and their various weights. 

Altogether, this evidence demonstrated that appellant knowingly possessed and sold crack 

cocaine to the informant in six transactions, two of which involved substances with a mass 

of 5.5 grams and 35.44 grams. Appellant's convictions are not against the manifest weight 

of the evidence because the jury believed the testimony of the prosecution's witnesses. 

State v. Burrell, 12th Dist. Fayette No. CA2016-04-005, 2016-Ohio-8454, ¶ 22. 

{¶ 30} For the R.C. 2925.03(A)(2) trafficking offense and major drug offender 

specification, the prosecution presented testimony from the deputies involved in the traffic 

stop. One deputy testified that during the pursuit, he saw appellant dumping objects out of 

his window. In searching the field, deputies discovered two bags of suspected cocaine on 

the ground near the tire tracks created by appellant's vehicle. The prosecution presented 

photographs taken of the two bags at the scene. To identify the substances, the prosecution 

called the BCI forensic scientist to testify, in addition to submitting her laboratory report. 

The scientist testified that through her testing she determined the substances contained 

cocaine and the substance from one bag weighed around 53.78 grams and the other 

weighed around 52.93 grams. Therefore, this evidence again demonstrated that appellant 

knowingly trafficked cocaine in an amount of more than 100 grams. 

{¶ 31} Finally, to find appellant guilty of engaging in a pattern of corrupt activity, the 

prosecution had to prove that he conducted or participated in, directly or indirectly, the 

affairs of an enterprise through a pattern of corrupt activity, or the collection of an unlawful 

debt, as part of his employment or association with that enterprise. R.C. 2923.32(A)(1). An 

enterprise includes an individual. R.C. 2923.31(C). Corrupt activity is defined, inter alia, as 

engaging in conduct constituting a violation of R.C. 2925.03 and the proceeds from one of 

the violations or a combination of the violations exceeds $1,000. R.C. 2923.31(I)(2)(c). A 
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pattern of corrupt activity means two or more instances of corrupt activity, whether or not 

there is a prior conviction, related to the affairs of the same enterprise. R.C. 2923.31(E). 

Here, the jury heard evidence as to the various amounts of money the confidential informant 

paid for the separate transactions of crack cocaine. In his final transaction alone, the 

informant paid around $1,800 for crack cocaine, altogether the informant paid over $2,000 

for the combination of transactions. Moreover, a detective testified that appellant admitted 

during an interview to paying his supplier $4,400 on the day of his arrest. Therefore, based 

on the testimony of the amounts paid and the guilty verdicts for the multiple possession and 

trafficking offenses, it was not a manifest injustice for the jury to find appellant guilty of 

engaging in a pattern of corrupt activity. 

{¶ 32} Accordingly, the jury did not clearly lose its way and create a manifest 

miscarriage of justice. Given our determination that appellant's convictions were supported 

by the manifest weight of the evidence, we conclude that the there was sufficient evidence 

to support the jury's findings of guilt. State v. Bates, 12th Dist. Butler No. CA2009-06-174, 

2010-Ohio-1723, ¶ 11. Appellant's third and fourth assignments of error are overruled. 

{¶ 33} Judgment affirmed. 

 S. POWELL, P.J., and PIPER, J., concur.