[Cite as State v. Waters, 2022-Ohio-2667.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

No. 110821

v. :

JAMES WATERS, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: August 4, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-20-652560-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Daniel T. Van, Assistant Prosecuting 

Attorney, for appellee. 

Cullen Sweeney, Cuyahoga County Public Defender, and 

Noelle A. Powell, Assistant Public Defender, for appellant. 

KATHLEEN ANN KEOUGH, J.:

Defendant-appellant, James Waters, appeals the trial court’s decision 

denying his motion to suppress and the court’s imposition of a sentence pursuant to 

the Reagan Tokes Law. For the reasons that follow, we affirm.
I. Procedural History and Background

In August 2020, Waters was named in a four-count indictment 

charging him with one count of aggravated vehicular homicide, a first-degree felony 

violation of R.C. 2903.06(A)(1)(a) (Count 1); aggravated vehicular homicide, a 

second-degree felony violation of R.C. 2903.06(A)(2)(a) (Count 2); driving while 

under the influence of alcohol, a first-degree misdemeanor violation of R.C. 

4511.19(A)(1)(a) (Count 3); and driving while under the influence of alcohol, a firstdegree misdemeanor violation of R.C. 4511.19(A)(1)(d) (Count 4). Counts 1 and 2 

contained furthermore specifications that at the time of the offense, he did not have 

a valid driver’s license. 

The charges stemmed from a motor vehicle accident where Waters

was alleged to have sped through a red light at the intersection of West 130th Street 

and Lorain Avenue. A truck turning left onto Lorain Avenue struck the backside of 

Waters’s vehicle causing it to spin out of control and collide with a pole on the side 

of the road. Waters’s aunt, Carmen Stewart, was seated in the backseat of his

vehicle, sustained life-threatening injuries, and died as a result of the accident. 

Following field sobriety tests, Waters was arrested for driving under the influence of 

alcohol. It was later discovered that Waters did not have a valid driver’s license, and 

a subsequent breath test yielded a blood alcohol content (“BAC”) of .172.

Waters filed a motion to suppress, contending that (1) there was no 

reasonable suspicion or probable cause to stop and detain him; (2) the officer 

administered the field sobriety tests in an inappropriate manner and location; (3) 
the police obtained statements from him in violation of Miranda; and (4) the 

procedures used by police in collecting and testing his breath sample did not 

conform to the Ohio Administrative Code. 

II. Suppression Hearing

Cleveland Patrol Officer Arthur Fessler testified that he responded to 

an accident at West 130th Street and Lorain Avenue. His interactions with Waters

and witnesses were captured on his body camera, and portions of those interactions 

were played for the court. 

Officer Fessler identified Waters in the video as the man who was on 

the ground screaming. His body-cam video showed Waters then pounding on the 

ambulance door and attempting to open it. Officer Fessler can be seen trying to calm 

Waters down, but Waters cursed at him and pulled away. The body-cam video also 

showed Waters getting into an altercation with one of the eyewitnesses, accusing the 

witness of causing the accident. Waters can be heard stating that as he drove 

through the yellow light, his vehicle was struck, causing it to spin and crash into a 

pole. 

Officer Fessler testified that he decided to place Waters into the back 

seat of the police vehicle because of the altercation with the witness. He stated that 

he also held Waters because after Waters admitted that he was the driver of the 

vehicle, the strong odor of alcohol coming from him indicated that Waters may have 

been driving while under the influence. Officer Fessler testified that he did not 
Mirandize Waters, but did not ask him any additional questions. According to 

Officer Fessler, Waters started yelling statements from the police vehicle. 

As part of his on-site investigation, Officer Fessler obtained 

statements from both independent eyewitnesses, who stated that their vehicle was 

stopped behind the pickup truck at a red light on Lorain Avenue. They stated that 

when the light turned green, the truck in front of them started turning left onto West 

130th Street, and that a silver Toyota Camry “came out of nowhere” speeding 

through the light. According to the witnesses, the driver of the truck applied the 

brake, but struck the back end of the Toyota, causing it to spin out of control and 

crash into a pole. The female witness testified that she performed CPR on a female 

passenger of the Toyota. Video of the accident captured from a nearby surveillance 

camera was played for the court corroborating the statements.

Detective Charles Moten of the Cleveland Police Department 

Accident Investigation Unit (“AIU”) testified that AIU covers all major crashes and 

occasionally conducts field sobriety tests. He stated that he is a 21-year veteran of 

the police department, and worked in AIU for the past 12 years. He stated that he 

holds two certifications to conduct field sobriety tests and is an instructor on

standardized field sobriety tests. According to Detective Moten, the National 

Highway of Traffic Safety Administration (“NHTSA”) manual is 648 pages long and 

only substantial compliance with those guidelines was necessary. 

Detective Moten stated that he has conducted hundreds of field 

sobriety tests and made arrests in investigations involving vehicular accidents. He
provided a thorough explanation regarding the tests he conducts, including 

Horizontal Gaze Nystagmus (“HGN”), walk and turn, and single leg stand. Detective

Moten explained that if there are clues of impairment the person is arrested, 

Mirandized, and then taken to the county jail where a breathalyzer test may be

conducted. 

Detective Moten testified about his encounter with Waters, which was 

captured and recorded by his body camera. He stated Waters was seated in the back 

of the police cruiser, and as he was opening the cruiser door, he asked Waters about 

the accident and whether he had been drinking. Waters responded that someone 

hit him and that he had four beers about “two hours ago.” Detective Moten testified 

that he could smell alcohol from Waters’s person. He stated that he asked Waters 

to perform the HGN, walk and turn, and one leg stand tests. 

Regarding the HGN test, Detective Moten explained that he observed 

that Waters exhibited five out of the six indicators of impairment during the HGN

— a lack of smooth pursuit in the left and right eyes; distinct and sustained 

nystagmus at maximum deviation in the left and right eyes; and the onset of 

nystagmus prior to 45 degrees in the right eye. Regarding the walk and turn test, 

Detective Moten testified that during the instruction phase of the test, Waters failed 

to maintain his standing position and attempted to start the test before being 

instructed to start. Additionally, Detective Moten stated that he observed Waters 

failing to touch heel to toe, and making an improper turn for a total of four clues of 

impairment during this test. Detective Moten testified that during the one-leg stand 
test, he observed that Waters exhibited one clue of impairment by putting his foot 

down before being instructed. Detective Moten testified that based on his training 

and experience with alcohol-impaired drivers, he believed Waters operated his 

vehicle while under the influence of an alcoholic beverage due to his observations 

and Waters’s performance of the standardized field sobriety tests. Accordingly, he 

placed Waters under arrest. 

On cross-examination, defense counsel questioned Detective Moten

about how flashing or strobing lights may affect the eyes or results of the HGN test. 

He testified that in order for flashing lights to affect the eyes for purposes of the test, 

the lights have to be in close proximity and come straight into the eyes. Detective 

Moten testified, and the video showed, that the flashing lights from the zone cars 

were coming from behind Waters. Accordingly, he opined that the lights would not 

have affected Waters’s test.

Defense counsel also questioned Detective Moten on the 

comprehensive nature of his field report, specifically whether his report contained 

any information about the pretests he conducted prior to administering the HGN 

test. Detective Moten stated that he conducted pretests, including a medical 

impairment examination and whether he checked for contact lenses, but did not 

include this information in his report. He further admitted that he did not ask 

Waters about his eye health or general health conditions prior to administering the 

HGN, which is a requirement under the NHTSA guidelines. 
Officer Thomas Smith testified that he administered Waters’s 

breathalyzer test. His interactions with other officers and Waters were captured on 

his body camera, and the video was played for the court.1 Officer Smith stated that 

he is certified to use both the Data Master and Intoxilyzer 8000. He testified that

he noticed an odor of alcohol coming from Waters. Officer Smith stated that he and 

his partner transported Waters to the county jail where the breath test was 

performed using the Intoxilyzer 8000. The test yielded a BAC level of .172. Officer 

Smith testified that during the testing process, Waters told him that he had two 24-

ounce cans of beer earlier that evening. The body-cam video corroborated this 

testimony.

The trial court admitted the following exhibits into evidence: bodycam video from Fessler, Moten, Smith, and Smith’s partner; surveillance video of 

the accident; a copy of Officer Smith’s Intoxilyzer 8000 certification card; the 

printed copy of Waters’s BAC results; Moten’s field report; and a copy of Session 8, 

Concepts and Principles of the Standardized Field Sobriety Tests published by the 

NHTSA, revised October 2015. 

On May 10, 2021, the trial court announced its decision in open court, 

denying the motion to suppress. The court focused its decision on Waters’s 

argument that the HGN results were affected by the zone cars’ flashing and strobing 

lights. The trial court explained:

1 Video from Officer Smith’s partner’s body camera was also played during Officer 

Smith’s testimony. 
[T]he Court did have the opportunity to review the evidence, and one 

of the things in particular that it looked at was Defense Exhibit B, the 

Section 8, [we are] talking about the optokinetic nystagmus issues. 

The Court, having read this and looked at all the evidence, is going to 

find as follows: That the defense suppression motion is not well-taken 

and it will be denied. We will proceed to trial. The issue of the 

optokinetics, if administered properly, which basically mandates the 

driver to look at the object, basically to the exclusion of everything else, 

will not be affected by, the way I read it, by flashing lights. 

So it appears that nystagmus can be induced through strobe lights, but 

only when [they are] being observed directly; not when the attention 

and the focus is on the point of fixation that is being used in this case. 

So with that having been said, the Court is going to deny the motion.

(Tr. 136-137.)

In July 2021, Waters pleaded no contest to the indictment. Following 

a sentencing hearing, the trial court ordered Waters to serve an aggregate minimum 

prison term of six years; but up to the maximum term under the Reagan Tokes Law

of nine years.

Waters now appeals, raising four assignments of error. The first two 

assignments of error relate to the Reagan Tokes Law; and assignments of error three 

and four pertain to Waters’s motion to suppress. This court will address these 

assignments of error out of order and together where appropriate. 

III. Motion to Suppress

In his third assignment of error, Waters contends that the trial court 

erred in denying his motion to suppress. He contends in his fourth assignment of 

error that his trial counsel rendered ineffective assistance of counsel by failing to 

request the trial court to issue findings of fact and conclusions of law. 
“Appellate review of a motion to suppress presents a mixed question 

of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 

71, ¶ 8. With regard to factual determinations, “[a]n appellate court must accept the 

trial court’s findings of fact if they are supported by competent, credible evidence.” 

State v. Hawkins, 158 Ohio St.3d 94, 2019-Ohio-4210, 140 N.E.3d 577, ¶ 16, citing 

State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). “But the appellate 

court must decide the legal questions independently, without deference to the trial 

court’s decision.” Id., citing Burnside at id. 

Waters moved to suppress all evidence against him, contending that 

(1) the arresting officer did not have reasonable suspicion to believe that he was 

driving under the influence; (2) the field sobriety tests were not conducted in 

substantial compliance with the NHTSA standards; (3) his Miranda rights were 

violated; and (4) the test results from the Intoxlyzer 8000 were unreliable.2

A. Reasonable Suspicion

In his suppression motion, Waters generally asserted that officers 

lacked reasonable articulable suspicion to believe that he was driving under the 

influence. On appeal, he specifically contends that the mere odor of an alcoholic 

beverage was an insufficient reason to detain him to perform field sobriety tests

because his “trauma-driven behaviors” should be taken out of consideration. 

2 Although Waters raised four arguments in his motion to suppress, he has not 

raised any argument on appeal regarding the procedures used by police in collecting and 

testing his breath sample. Accordingly, we will not address that issue on appeal.
Reasonable suspicion requires that the officer “point to specific and 

articulable facts which, taken together with rational inferences from those facts, 

reasonably warrant the intrusion.” Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 

L.Ed.2d 889 (1968). An officer may not request a motorist to perform field sobriety 

tests unless the request is separately justified by a reasonable suspicion based upon 

articulable facts that the motorist is intoxicated. Cleveland v. Kalish, 8th Dist. 

Cuyahoga No. 105557, 2018-Ohio-682, ¶ 19, citing Parma Hts. v. Dedejczyk, 8th 

Dist. Cuyahoga No. 97664, 2012-Ohio-3458, ¶ 29, citing State v. Evans, 127 Ohio 

App.3d 56, 62, 711 N.E.2d 761 (11th Dist.1998). “‘A court analyzes the 

reasonableness of the request based on the totality of the circumstances, viewed 

through the eyes of a reasonable and prudent police officer on the scene who must 

react to events as they unfold.’” Id., quoting Dedejczyk at id., citing State v. Dye, 

11th Dist. Geauga No. 2001-P-0140, 2002-Ohio-7158.

A court may consider various factors when determining whether an 

officer had reasonable suspicion to administer field sobriety tests:

(1) the time of day of the stop (Friday or Saturday night as opposed to, 

e.g., Tuesday morning); (2) the location of the stop (whether near 

establishments selling alcohol); (3) any indicia of erratic driving before 

the stop that may indicate a lack of coordination (speeding, weaving, 

unusual braking, etc.); (4) whether there is a cognizable report that the 

driver may be intoxicated; (5) the condition of the suspect’s eyes 

(bloodshot, glassy, glazed, etc.); (6) impairments of the suspect's ability 

to speak (slurred speech, overly deliberate speech, etc.); (7) the odor of 

alcohol coming from the interior of the car, or, more significantly, on 

the suspect’s person or breath; (8) the intensity of that odor, as 

described by the officer (“very strong,[”] “strong,” “moderate,” “slight,”

etc.); (9) the suspect’s demeanor (belligerent, uncooperative, etc.); (10) 

any actions by the suspect after the stop that might indicate a lack of 
coordination (dropping keys, falling over, fumbling for a wallet, etc.); 

and (11) the suspect’s admission of alcohol consumption, the number 

of drinks had, and the amount of time in which they were consumed, if 

given. All of these factors, together with the officer’s previous 

experience in dealing with drunken drivers, may be taken into account 

by a reviewing court in determining whether the officer acted 

reasonably.

Dedejczyk at ¶ 30, quoting Evans at 63, fn. 2.

This court has explained that these factors are merely assistive guides 

in the determination of reasonable suspicion because no one factor is dispositive 

and the list does not represent an exhaustive account of factors that can or should 

be considered. Dedejczyk at ¶ 31, citing State v. Boczar, 11th Dist. Ashtabula No. 

2004-A-0063, 2005-Ohio-6910, ¶ 14. Generally, courts approve a request to submit 

to field sobriety testing only where the officer based his or her decision on a number 

of these factors. Evans at 63.

In this case, Officer Fessler testified that when he arrived on the scene 

of a fatal accident that occurred during the early morning hours, he witnessed 

Waters yelling and screaming, while trying to open the ambulance door where his 

aunt was being treated. He stated that during this interaction, he observed that 

Waters’s eyes were bloodshot, he could smell a strong odor of alcohol coming from 

Waters, and when officers attempted to guide him away from the ambulance, Waters

cursed at them and shrugged them away. Officer Fessler stated that during his 

investigation, he learned from the eyewitnesses, who assisted the occupants of 

Waters’s vehicle, that Waters smelled of alcohol. 
Additionally, Officer Fessler testified about Waters confronting and 

threatening one of the eyewitnesses claiming that the witness caused the accident. 

During this altercation, Waters admitted to operating the vehicle — a fact that was 

unknown to Officer Fessler at the time — while speeding through a yellow light. 

According to Officer Fessler, Waters was slurring his words, pacing, acting 

belligerently, and threatening the eyewitness. Based on his observations and belief 

that Waters could be intoxicated, and for the safety of all persons, Officer Fessler 

decided to detain Waters in the back of his zone car for further investigation. He 

then contacted Detective Moten to initiate field sobriety tests. 

Detective Moten testified that when he arrived on scene, he conferred 

with Officer Fessler about his investigation and impressions. He stated that he then 

approached the zone car where Waters was seated and opened the door. According 

to Detective Moten, he could smell an odor of alcohol coming from Waters. He 

stated that Waters admitted to consuming four beers around midnight, and agreed 

to perform the field sobriety tests. 

Based on the foregoing, we conclude that Officer Fessler and 

Detective Moten’s request to perform field sobriety tests was reasonable based on 

the totality of the circumstances.

B. Field Sobriety Tests

Waters contends that the trial court should have suppressed the

results of the field sobriety tests because Detective Moten did not substantially 

comply with NHTSA standards and guidelines. Although Waters generally raised in 
the trial court that Detective Moten did not substantially comply with the guidelines 

in his administration of all the field sobriety tests, he focuses his appeal on Detective

Moten’s testimony that he did not include in his report that he conducted any 

medical impairment examination or pretests. Accordingly, Waters contends that 

Detective Moten did not substantially comply with the NHTSA standards and 

guidelines. 

In order for the results of field sobriety tests to be admissible, the state 

must demonstrate that the officer substantially complied with NHTSA standards. 

R.C. 4511.19(D)(4)(b); State v. Clark, 12th Dist. No. CA2009-10-039, 2010-Ohio4567, ¶ 11. “A determination of whether the facts satisfy the substantial compliance 

standard is made on a case-by-case basis.” State v. Fink, 12th Dist. Warren Nos. 

CA2008-10-118 and CA2008-10-119, 2009-Ohio-3538, ¶ 26. The state may 

demonstrate what the NHTSA standards are through competent testimony and/or 

by introducing the applicable portions of the NHTSA manual. Boczar, 113 Ohio 

St.3d 148, 2007-Ohio-1251, 863 N.E.2d 155, at ¶ 28. Even if a court finds that the 

officer did not substantially comply with the NHTSA standards (which would 

require the results of the tests to be excluded), the officer’s testimony regarding the 

defendant’s performance on nonscientific field sobriety tests is admissible under 

Evid.R. 701. Dedejczyk, 8th Dist. Cuyahoga No. 97664, 2012-Ohio-3458, at 43, 

citing State v. Schmitt, 101 Ohio St.3d 79, 2004-Ohio-37, 801 N.E.2d 446, ¶ 14-15.

In this case, Detective Moten testified as to his qualifications as a 

police officer and to his training in conducting field sobriety testing. He further 
testified about how he conducted each test and Water’s performance on each test. 

Additionally, the state introduced the relevant portion of the NHTSA manual during 

Detective Moten’s testimony. 

Specific to the argument raised on appeal, Detective Moten testified 

that he checked for medical impairments prior to administering the tests, but 

admitted that he did not include this information in his field report. Additionally, 

he admitted that he did not ask Waters about his eye health or general health 

conditions, which he agreed is contrary to the NHTSA manual’s guidelines when 

conducting the HGN test. 

At the suppression hearing, the state played Detective Moten’s bodycam video taken during the field sobriety tests. As the video played, he testified how 

he conducted each test and how Water’s performed on each test. Additionally, the 

evidence showed that Detective Moten conferred with other officers prior to 

administering the tests, knew that Waters was involved in a traffic accident, and

observed Waters exiting the zone car and walking to the testing location. The minor 

deviations or deficiencies of not asking Waters about his general health condition 

and failing to include in the report his assessment and impressions from the 

medical-impairment examination or pretests do not warrant suppression of the

evidence obtained from the field sobriety tests. Accordingly, after reviewing the 

entirety of Detective Moten’s testimony, body-cam video, and field report, we find 

that the state demonstrated that Detective Moten substantially complied with the 

NHTSA standards when conducting the field sobriety tests. 
Even if the court suppressed the results of the HGN test because 

Detective Moten did not ask Waters about his eye health or general health, probable 

cause remained to arrest Waters for OVI. According to Detective Moten’s report and 

testimony, he observed four clues of impairment during the walk and turn test, and 

one clue of impairment during the one-leg stand test. Waters has not challenged 

these results on appeal. Accordingly, even excluding the HGN test results, sufficient 

evidence existed to establish probable cause to arrest Waters for OVI. 

C. Miranda Violation

Waters contends that he was subjected to a custodial interrogation 

requiring Miranda warnings when he was seated in the police cruiser for 30-40 

minutes and not free to leave. Accordingly, he maintains that the court should have 

suppressed his responses to Detective Moten’s questions about the accident and 

whether he had been drinking.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 

(1966), the United States Supreme Court held that custodial interrogations have the 

potential to undermine the Fifth Amendment privilege against self-incrimination by 

possibly exposing a suspect to physical or psychological coercion. Id. at 436. To 

guard against such coercion, the court established a prophylactic procedural 

mechanism that requires that a suspect receive a warning before custodial 

interrogation commences. Id. at 444. Individuals in custody must be warned, 

among other things, that they have a right to remain silent and that their statements 

may be used against them at trial.
The Supreme Court has defined the term “custody” as the deprivation 

of “freedom of action in any significant way.” Id. A person is in custody if, under 

the totality of the circumstances, a reasonable person would not feel free to end the 

encounter and leave. Yarborough v. Alvarado, 541 U.S. 652, 663-665, 124 S.Ct. 

2140, 158 L.Ed.2d 938 (2004); State v. Martinez, 8th Dist. Cuyahoga Nos. 103572 

and 103575, 2016-Ohio-5515, ¶ 20. “The ‘ultimate inquiry when determining 

whether an individual is in ‘custody’ for Miranda purposes is ‘whether there [was] a 

formal arrest or restraint on freedom of movement of the degree associated with a 

formal arrest.’” Id. at ¶ 24, citing State v. Duhamel, 8th Dist. Cuyahoga No. 102346, 

2015-Ohio-3145, ¶ 22, quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 

3517, 77 L.Ed.2d 1275 (1983). 

In this case, officers placed Waters into the back of the police cruiser 

after he became combative with an eyewitness after accusing the witness of causing 

accident and then threatening the witness. Additionally, officers detained him for 

further investigation because they believed Waters was intoxicated due to the strong 

odor of alcohol emanating from him. Officer Fessler testified, however, that Waters 

was not free to leave once placed in the cruiser. 

Even if the statements Waters made to Detective Moten should have 

been suppressed, probable cause existed to justify arresting Waters. Based on 

Officer Fessler’s and Detective Moten’s observations and detection of an odor of 

alcohol emanating from Waters, they had reasonable suspicion to conduct field 

sobriety tests, which yielded clues that Waters was impaired. Accordingly, even 
without Waters’s statements that he drank four beers earlier that evening, there was 

probable cause to arrest Waters for operating a vehicle while intoxicated. 

D. Conclusion

Based on the foregoing, the trial court did not err in denying Waters’s 

motion to suppress. Having found no error, Waters was therefore not deprived of 

effective assistance of counsel when counsel did not request the trial court to issue 

separate findings of fact and conclusions of law. 

Waters’s third and fourth assignments of error are overruled. 

IV. Reagan Tokes Law

In his first and second assignments of error, Waters contends that he 

received ineffective assistance of counsel when counsel failed to object to the trial 

court imposing a sentence under the Reagan Tokes Law because the law is 

unconstitutional. He asserts the Reagan Tokes Law is unconstitutional because it 

violates the separation-of-powers doctrine, and his rights to a trial by jury and due 

process. 

Based on the authority established by this district’s en banc holding 

in State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.), the challenges 

Waters advances against the constitutional validity of the Reagan Tokes Act have 

been overruled. Id. at ¶ 17-54. Therefore, even if counsel objected or challenged the 

constitutional validity of the Reagan Tokes Law, Waters’s sentence pursuant to the 

Reagan Tokes Law is not a violation of his constitutional rights, and thus, Waters 
has failed to demonstrate any prejudice to warrant a finding that his counsel was 

ineffective. Accordingly, his first and second assignments of error are overruled.

Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the 

common pleas court to carry this judgment into execution. The defendant’s 

conviction having been affirmed, any bail pending appeal is terminated. Case 

remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, JUDGE

ANITA LASTER MAYS, P.J., and

CORNELIUS J. O’SULLIVAN, JR., J., CONCUR

N.B. Judge Anita Laster Mays is constrained to apply Delvallie’s en banc 

decision. For a full explanation of her analysis, see State v. Delvallie, 2022-

Ohio-470, 185 N.E.3d 536 (8th Dist.). (Laster Mays, J., concurring in part and 

dissenting in part).