[Cite as State v. Balmert, 2024-Ohio-1207.]

STATE OF OHIO ) IN THE COURT OF APPEALS

)ss: NINTH JUDICIAL DISTRICT

COUNTY OF LORAIN )

STATE OF OHIO

Appellee

v.

EDWARD BALMERT

Appellant

C.A. No. 22CA011908

APPEAL FROM JUDGMENT

ENTERED IN THE

COURT OF COMMON PLEAS

COUNTY OF SUMMIT, OHIO

CASE No. 20CR103223

DECISION AND JOURNAL ENTRY

Dated: March 29, 2024

SUTTON, Judge. 

{¶1} Defendant-Appellant Edward Balmert appeals the judgment of the Lorain County 

Court of Common Pleas. For the reasons that follow, this Court affirms, in part, and reverses, in 

part. 

I.

Relevant Background Information

{¶2} On June 9, 2020, Mr. Balmert struck C.G., a trooper with the Ohio State Highway 

Patrol, with his vehicle while she was directing traffic at the intersection of Middle Ridge Road 

and State Rt. 2. The accident occurred in daylight hours with dry weather conditions, and C.G. 

was wearing a reflective vest. As a result of the accident, C.G. sustained life altering injuries 

which ended her career as an Ohio State Highway Patrol trooper. Mr. Balmert voluntarily 

submitted to providing a urine sample, performing field sobriety tests, and undergoing two drug 

evaluations. 
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{¶3} Mr. Balmert was indicted for: (1) aggravated vehicular assault, in violation of R.C. 

2903.08(A)(1)(a), a felony of the third degree; (2) vehicular assault, in violation of R.C. 

2903.08(A)(2)(b), a felony of the fourth degree; (3) operating a vehicle while under the influence 

of alcohol, drugs, or a combination thereof in violation of R.C. 4511.19(A)(1)(a), a misdemeanor

of the first degree; and (4) operating a vehicle while under the influence of a listed controlled 

substance or listed metabolite of a controlled substance, in violation of R.C. 

4511.19(A)(1)(j)(viii)(II), a misdemeanor of the first degree. 

{¶4} Mr. Balmert pleaded not guilty and waived his right to a jury trial. After a bench 

trial, the trial court found Mr. Balmert guilty of aggravated vehicular assault and operating a 

vehicle while under the influence of a listed controlled substance or listed metabolite of a 

controlled substance. The trial court sentenced Mr. Balmert to two years mandatory imprisonment 

for aggravated vehicular assault and three-days at the Lorain County Correctional Facility for 

operating a vehicle while under the influence of a listed controlled substance or listed metabolite 

of a controlled substance. The trial court also sentenced Mr. Balmert to mandatory post-release 

control. 

{¶5} Mr. Balmert now appeals raising three assignments of error for our review. 

II.

ASSIGNMENT OF ERROR I 

THE TRIAL COURT ERRED BY NOT DISMISSING THE AGGRAVATED 

VEHICULAR ASSAULT CHARGE UNDER CRIM.R. 29 BECAUSE OF 

INSUFFICIENT EVIDENCE TO SUPPORT PROXIMATE CAUSE. 

{¶6} In his first assignment of error, Mr. Balmert argues his conviction for aggravated 

vehicular assault was not supported by sufficient evidence. Specifically, Mr. Balmert argues the 
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State failed to prove the accident was the proximate result of having prohibited marijuana 

metabolite levels in his urine. We limit our discussion likewise. 

{¶7} “Whether a conviction is supported by sufficient evidence is a question of law that 

this Court reviews de novo.” State v. Williams, 9th Dist. Summit No. 24731, 2009-Ohio-6955, ¶ 

18, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). The relevant inquiry is whether the 

prosecution has met its burden of production by presenting sufficient evidence to sustain a 

conviction. Thompkins at 390 (Cook, J., concurring). For purposes of a sufficiency analysis, this 

Court must view the evidence in the light most favorable to the State. Jackson v. Virginia, 443 

U.S. 307, 319 (1979). We do not evaluate credibility, and we make all reasonable inferences in 

favor of the State. State v. Jenks, 61 Ohio St.3d 259, 273 (1991). The evidence is sufficient if it 

allows the trier of fact to reasonably conclude that the essential elements of the crime were proven 

beyond a reasonable doubt. Id.

{¶8} Pursuant to R.C. 2903.08: 

(A) No person, while operating or participating in the operation of a motor vehicle, 

motorcycle, snowmobile, locomotive, watercraft, or aircraft, shall cause serious 

physical harm to another person or another's unborn in any of the following ways:

(1)(a) As the proximate result of committing a violation of division (A) of section 

4511.19 of the Revised Code or of a substantially equivalent municipal ordinance[.] 

Further, R.C. 4511.19(A)(j)(viii)(II) states: 

No person shall operate any vehicle, streetcar, or trackless trolley within this state, 

if, at the time of the operation, any of the following apply: * * * The person has a 

concentration of marihuana metabolite in the person’s urine of at least thirty-five

nanograms of marihuana metabolite per milliliter of the person’s urine or has a 

concentration of marihuana metabolite in the person’s whole blood or blood serum 

or plasma of at least fifty nanograms of marihuana metabolite per milliliter of the 

person's whole blood or blood serum or plasma.

{¶9} Mr. Balmert, in arguing the State failed to prove the accident was the proximate 

result of having prohibited marijuana metabolite levels in his urine, relies upon State v. Moore, 
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6th Dist. Wood No. WD-18-030, 2019-Ohio-3705. In Moore at ¶ 27, the Sixth District Court of 

Appeals reversed the appellant’s conviction for aggravated vehicular homicide, explaining: 

a review of the record shows there is no evidence that appellant’s act of driving 

with a prohibited concentration of cocaine in her blood was the direct cause of 

Etzinger’s death, and without which, his death would not have occurred. The state 

furnished no evidence regarding the potential effects that a prohibited 

concentration of cocaine in a person’s blood would have on a person, or on a 

person's ability to operate a vehicle. Without such evidence, the state failed to 

prove that as the proximate result of appellant driving with a prohibited 

concentration of cocaine in her blood, appellant caused Etzinger’s death. 

(Emphasis added.) 

{¶10} In opposing Mr. Balmert’s argument, the State points to State v. Massucci, 6th Dist. 

Lucas No. G-4801-CL-201901302-000, 2021-Ohio-88, a more recent Sixth District Court of 

Appeals decision. In Massucci, a road worker was struck and killed by an individual driving with 

a prohibited concentration of marijuana metabolite in his blood. In determining the State produced 

sufficient evidence the accident was the proximate result of the appellant’s impairment from 

marijuana, the Massucci Court stated: 

the instant case is replete with evidence supporting impairment and causation. As 

to impairment, appellee presented evidence that appellant had marijuana and 

paraphernalia in the vehicle; the OSHP investigation concluded that appellant was 

impaired by marijuana at the time of the crash due to observations by Clay and the 

[Drug Recognition Expert], including appellant’s performance on field sobriety 

tests, a greenish cast to his oral cavity, and plant matter between his teeth; and the 

blood draw and urine test results were admitted into evidence.

As to causation, appellant presented indicators of impairment on divided-attention 

skills tests; told officers he never saw the warning signs, construction vehicles, or 

the workers; and the law enforcement witnesses testified marked-lanes violations 

are most common among impaired drivers. The crash reconstruction [showed] 

appellant braked less than a second before impact, and the lack of evasive action is 

often explained by distraction or impairment. The urine and blood samples were 

taken about five hours after the crash; Forney explained that although THC might 

not be detectable in the blood after this amount of time, it can still affect the brain.

Id. at ¶ 73-74. 
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{¶11} Here, like Massucci, Sergeant David Francway of the Ohio State Highway Patrol 

testified Mr. Balmert, after being Mirandized, voluntarily submitted to a urine sample and admitted 

to using hemp. Based upon Mr. Balmert’s admission, Sergeant Francway, a certified Drug 

Recognition Expert, performed Standardized Field Sobriety Tests on Mr. Balmert. Additionally, 

Sergeant Francway performed secondary Advanced Roadside Impaired Driving Evaluations. The 

secondary testing included the Lack of Convergence Test and the Modified Romberg Balance Test. 

Sergeant Francway saw a lack of convergence in Mr. Balmert’s left eye, which is a clue noted in 

cannabis use, and he also saw Mr. Balmert rocking back and forth during the Modified Romberg 

Balance Test. Sergeant Francway noticed tremoring throughout Mr. Balmert’s body and eyes, 

which is consistent with cannabis use. Sergeant Francway also performed an oral and nasal cavity 

check to look for “recent indicators of marijuana use[.]” Sergeant Francway explained, “smoking 

anything is going to cause dryness to the mouth, discoloration, depending on what it is. So 

cannabis, obviously, enhances that.” Upon performing the cavity search, Sergeant Francway 

noticed Mr. Balmert had a “very dry mouth,” and “[t]here was a film on the tongue, most likely a 

pasty film, which is conducive to marijuana use. “ Mr. Balmert also had raised taste buds which 

is “[a] body’s natural reaction to cannabis use[.]” 

{¶12} As to how marijuana affects a person’s ability to operate a motor vehicle, Sergeant 

Francway explained: 

With marijuana or cannabis use, it slows the body’s reaction time. That’s our 

concern as motor vehicle enforcement officers, that when somebody uses that 

particular drug, as well as other drugs, is that it depresses the reflexes so your 

reaction time is slowed very much. 

So a good example is if a person not under the influence were to play catch and 

throw a baseball, they’re able to react and grab it and not get hit in the face with the 

ball. Where somebody under the influence may miss it because their reaction is too 

slow and they don’t react in time.
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Obviously, operating a motor vehicle requires reaction time. Studies have been 

found that the body’s normal reaction time is 1.47 seconds for them to react to 

something that they see. So that doesn’t necessarily account for braking, speed, 

and travel. It takes me one and a half seconds to realize and do something. 

So when I take a particular drug like marijuana, it slows that, which then slows my 

ability to stop my car, move my car, take evasive actions. 

After arresting Mr. Balmert for driving under the influence, Sergeant Francway had an independent 

third-party Drug Recognition Expert evaluate Mr. Balmert at the highway patrol post. 

{¶13} Lieutenant Scott Schmoll, of the Medina County Sheriff’s Office, testified he is a 

Drug Recognition Expert and he was contacted to do a drug influence evaluation in this matter. 

Lieutenant Schmoll explained a drug influence evaluation is a 12-step standardized process. 

During Mr. Balmert’s evaluation, Lieutenant Schmoll indicated he admitted to smoking hemp 

every day and to using marijuana a week prior to the accident. As to indicators Mr. Balmert was 

impaired during the evaluation, Lieutenant Schmoll observed: (1) a lack of convergence in his left 

eye; (2) pronounced eyelid tremors; (3) a two-inch sway both front to back and side to side during 

the Modified Romberg Balance Test; (4) clues on both the Walk and Turn and One Leg Stand 

Tests; and (5) clues on the Finger to Nose Test such as moving his head forward, holding his finger 

below the tip of his nose for a prolonged time, commenting “I don’t know why I keep holding it 

up there[,]” and missing his nose completely. Based on this testing, Lieutenant Schmoll opined, 

“Mr. Balmert was under the influence of [c]annabis and unable to operate a vehicle safely.” 

{¶14} Further, as to the effects cannabis has on a person’s ability to safely operate a motor 

vehicle, Lieutenant Schmoll stated: 

So some of the indicators that we look for, some of the things that the [cannabis] 

will do is it will impair the ability of a person’s time and depth perception or time 

and space perception. Lack of concentration, the alteration of formation of 

thoughts, you know. Sometimes it’s difficult to [do] things that we do when we 

drive, we have to concentrate on what we’re doing. If you have a drug that is [] 

impairing your ability or your lack of concentration, the fact that time and space 
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deficit there, you think you’ve got 50 feet to stop and you’ve only got ten feet to 

stop because your depth perception is off because of how it is impairing your ability 

to see things and react to things. Slowed reaction time is another one. 

 

{¶15} Emily McAnulty, a criminalist with the Ohio State Highway Patrol Crime Lab, 

testified Mr. Balmert’s urine sample contained a prohibited level of marijuana metabolite of 316 

nanograms per milliliter over the per se amount of 35 nanograms. Ms. McAnulty explained, “[t]his 

particular metabolite * * * is a breakdown product specific from what is Delta-9 THC or 

Tetrahydrocannabinol THC, like the parent drug THC.” Further, Ms. McAnulty testified a CBD 

product that does not contain THC would not produce this particular THC metabolite. 

{¶16} In viewing this evidence in a light most favorable to the State, the trier of fact could 

reasonably conclude that proximate causation was proven beyond a reasonable doubt and Mr. 

Balmert’s conviction for aggravated vehicular assault is supported by sufficient evidence. 

{¶17} Accordingly, Mr. Balmert’s first assignment of error is overruled.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED BY FINDING [MR. BALMERT] GUILTY OF 

AGGRAVATED VEHICULAR ASSAULT BECAUSE IT WAS AGAINST 

THE MANIFEST WEIGHT OF THE EVIDENCE THAT [MR. 

BALMERT’S] MARIJUANA METABOLITE LEVELS WERE A 

PROXIMATE CAUSE OF THE CRASH. 

{¶18} In his second assignment of error, Mr. Balmert argues his conviction for aggravated 

vehicular assault is against the manifest weight of the evidence. Specifically, Mr. Balmert argues 

the trial court clearly lost its way in determining his metabolite levels were a proximate cause of 

the crash. We are not persuaded by Mr. Balmert’s arguments. 

{¶19} As this Court has previously stated: 

[i]n determining whether a criminal conviction is against the manifest weight of the 

evidence an appellate court must review the entire record, weigh the evidence and 

all reasonable inferences, consider the credibility of witnesses and determine 

whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way 
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and created such a manifest miscarriage of justice that the conviction must be 

reversed and a new trial ordered.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “When a court of appeals reverses a 

judgment of a trial court on the basis that the verdict is against the weight of the evidence, the 

appellate court sits as a ‘thirteenth juror’ and disagrees with the fact[-]finder’s resolution of the 

conflicting testimony.” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting Tibbs v. 

Florida, 457 U.S. 31, 42 (1982).

{¶20} Moreover, an appellate court should exercise the power to reverse a judgment as 

against the manifest weight of the evidence only in exceptional cases. Otten at 340. “[W]e are 

mindful that the [trier of fact] is free to believe all, part, or none of the testimony of each witness.” 

(Internal quotations and citations omitted.) State v. Gannon, 9th Dist. Medina No. 19CA0053-M, 

2020-Ohio-3075, ¶ 20. “This Court will not overturn a conviction on a manifest weight challenge 

only because the [trier of fact] found the testimony of certain witnesses to be credible.” Id.

{¶21} In his brief, Mr. Balmert attempts to incorporate his legal arguments and caselaw 

from his first assignment of error, which challenges the sufficiency of the evidence regarding 

proximate cause, into his second assignment of error, which challenges the manifest weight of the 

evidence regarding the same. As this Court has previously stated: 

Appellate Rules 12(A)(2) and 16(A)(7) require an appellant to set forth a separate 

argument in support of each assigned error. State v. Calhoun, 9th Dist. Summit No. 

29604, 2021-Ohio-1713, ¶ 24. For this reason, an appellant “cannot ‘incorporate 

the arguments contained in the other assignments of error to support a different 

assignment of error.’” Id., quoting State ex rel. Midview Local School Dist. Bd. of 

Edn. v. Ohio School Facilities Comm., 9th Dist. Lorain No. 16CA010991, 2017-

Ohio-6928, ¶ 29. In doing so, Mr. McKnight “improperly asks this Court to 

extrapolate and apply [his] argument in a prior assignment of error.” State v. Gales, 

9th Dist. Summit No. 29316, 2022-Ohio-776, ¶ 35, quoting State ex rel. Midview 

Local School Dist. Bd. of Edn. at ¶ 29. This Court declines to do so.

State v. McKnight, 9th Dist. Medina No. 22CA0027-M, 2023-Ohio-1933, ¶ 10. 
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{¶22} To the extent, however, Mr. Balmert argues weight of the evidence, based upon the 

trial court’s comments before pronouncing Mr. Balmert guilty of aggravated vehicular assault, “[a] 

trial judge in a bench trial is presumed to know the law and to consider only the relevant, material, 

and competent evidence in arriving at a decision.” State v. Adkins, 9th Dist. Wayne No. 22AP0022, 

2023-Ohio-3000, ¶ 30, quoting State v. Diaz, 9th Dist. Lorain No. 02CA008069, 2003-Ohio-1132, 

¶ 39. See also State v. Coombs, 18 Ohio St.3d 123, 125(1985) (“A reviewing court must presume 

that the trial court applied the law correctly. This requirement is violated when the reviewing court 

isolates two brief extracts from a lengthy transcript and infers therefrom that the trial judge did not 

understand the law.”) 

{¶23} Here, the trial court stated in relevant part: 

* * *

Aggravated vehicular assault. It’s the most serious charge in this case. And that 

[charge] says if you’re operating a vehicle and cause serious physical harm while 

you are violating 4511.19 Subsection (A), which you were violating, the lab result 

shows that, and you did cause serious physical harm while operating a vehicle while 

having that level of a metabolite in your system. Therefore, I must find you guilty 

of Count 1, aggravated vehicular assault, a third degree felony. 

* * *

I think [Mr. Balmert’s] probably a person with some very serious medical 

problems, he’s made some choices that increased the risk of having the inability to 

respond like a normal driver would when the conditions are more serious, they’re 

more complicated and complex, I don’t think he was able to handle it. The proof 

is in [] the result. 

* * *

This wasn’t at night. This was in broad daylight. She could be seen. She had 

sufficient safety equipment on to be observed, and drivers had a responsibility to 

look at that scene and be extra, extra careful, and that didn’t happen. 

* * * 
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Indeed, there is nothing in the record that would overcome the presumption the trial court 

understood the law in this matter. See State v. Olah, 9th Dist. Lorain No. 01CA007826, 2001-

Ohio-1641, ¶ 26.

{¶24} Based upon the foregoing, this is not an exceptional case that warrants reversal. 

The trial court did not clearly lose its way and create such a manifest miscarriage of justice that 

Mr. Balmert’s conviction must be reversed and a new trial ordered.

{¶25} Accordingly, Mr. Balmert’s second assignment of error is overruled.

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED BY SENTENCING [MR. BALMERT] TO 

MANDATORY POST-RELEASE CONTROL BECAUSE [AGGRAVATED] 

VEHICULAR ASSAULT IS NOT AN OFFENSE OF VIOLENCE. 

{¶26} In his third assignment of error, Mr. Balmert argues the trial court erred in 

sentencing him to mandatory post-release control for a felony of the third degree which is not an 

offense of violence. We agree. 

{¶27} Pursuant to R.C. 2967.28: 

(B) Each sentence to a prison term, other than a term of life imprisonment, for a 

felony of the first degree, for a felony of the second degree, for a felony sex offense, 

or for a felony of the third degree that is an offense of violence and is not a felony 

sex offense shall include a requirement that the offender be subject to a period of 

post-release control imposed by the parole board after the offender's release from 

imprisonment.

* * *

(C) Any sentence to a prison term for a felony of the third, fourth, or fifth degree 

that is not subject to division (B)(1) or (4) of this section shall include a requirement 

that the offender be subject to a period of post-release control of up to two years 

after the offender's release from imprisonment, if the parole board, in accordance 

with division (D) of this section, determines that a period of post-release control is 

necessary for that offender.

(Emphasis added.) Further, pursuant to R.C. 2901.01(A)(9), an offense of violence is defined as: 
11

 

(a) A violation of section 2903.01, 2903.02, 2903.03, 2903.04, 2903.11, 2903.12, 

2903.13, 2903.15, 2903.18, 2903.21, 2903.211, 2903.22, 2905.01, 2905.02, 

2905.11, 2905.32, 2907.02, 2907.03, 2907.05, 2909.02, 2909.03, 2909.24, 2911.01, 

2911.02, 2911.11, 2917.01, 2917.02, 2917.03, 2917.31, 2917.321, 2919.25, 

2921.03, 2921.04, 2921.34, or 2923.161, of division (A)(1) of section 2903.34, of 

division (A)(1), (2), or (3) of section 2911.12, or of division (B)(1), (2), (3), or (4) 

of section 2919.22 of the Revised Code or felonious sexual penetration in violation 

of former section 2907.12 of the Revised Code;

(b) A violation of an existing or former municipal ordinance or law of this or any 

other state or the United States, substantially equivalent to any section, division, or 

offense listed in division (A)(9)(a) of this section;

(c) An offense, other than a traffic offense, under an existing or former municipal 

ordinance or law of this or any other state or the United States, committed purposely 

or knowingly, and involving physical harm to persons or a risk of serious physical 

harm to persons;

(d) A conspiracy or attempt to commit, or complicity in committing, any offense 

under division (A)(9)(a), (b), or (c) of this section;

(e) A violation of division (C) of section 959.131 of the Revised Code.

{¶28} In determining aggravated vehicular assault is not an offense of violence, the First 

District Court of Appeals explained: 

While this [C]ourt has not addressed whether aggravated vehicular assault meets 

the definition of an offense of violence, two other appellate districts have 

determined that it does not. In State v. Moore, 4th Dist. Adams No. 18CA1070, 

2019-Ohio-1467, ¶ 15, the Fourth Appellate District held that aggravated vehicular 

assault under R.C. 2903.08(A)(1)(a) is not an offense of violence, reasoning that 

R.C. 2903.08(A)(1)(a) is not one of the enumerated statutes in R.C. 

2901.01(A)(9)(a) nor is it “substantially equivalent” to any of those enumerated 

statutes. Id. As to R.C. 2901.01(A)(9)(c), the [C]ourt explained that one does not 

violate R.C. 2903.08(A)(1)(a) purposely or knowingly because violations of the 

OVI statute, upon which the aggravated-vehicular-assault conviction is predicated, 

are strict-liability violations. Id. Thus, the [C]ourt held that the trial court erred in 

imposing a mandatory term of postrelease control. Id. at ¶ 16. The Twelfth 

Appellate District applied the same reasoning when it held that vehicular assault 

under R.C. 2903.08(A)(2)(b) also was not an offense of violence. State v. Johnson, 

12th Dist. Madison No. CA2018-06-020, 2020-Ohio-2676, ¶ 35-36.

We agree with the reasoning of the Fourth and Twelfth Appellate Districts and hold 

that aggravated vehicular assault under R.C. 2903.08(A)(1)(a) is not an offense of 

violence under R.C. 2901.01(A)(9). The violation is not one of those enumerated 
12

 

in division (a), nor is it substantially equivalent to any of those enumerated offenses. 

Moreover, under division (c), while there is no question that the offense caused 

physical harm, aggravated vehicular assault is a strict-liability offense. See R.C. 

2901.21(B) (“When the language defining an offense does not specify any degree 

of culpability, and plainly indicates a purpose to impose strict criminal liability for 

the conduct described in the section, then culpability is not required for a person to 

be guilty of the offense.”) * * * Finally, divisions (d) and (e) are clearly not 

applicable. 

State v. Kamara, 1st Dist. Hamilton No. C-220614, 2023-Ohio-2146, ¶ 9-10. 

{¶29} Here, we agree with our Sister Districts’ analysis regarding whether aggravated 

vehicular assault, pursuant to R.C. 2903.08(A)(1)(a), is an offense of violence for purposes of 

imposing mandatory post-release control. We conclude, similar to our Sister Districts, that 

aggravated vehicular assault, pursuant to R.C. 2903.08(A)(1)(a), for purposes of imposing postrelease control, is not an offense of violence. 

{¶30} Accordingly, Mr. Balmert’s third assignment of error is sustained. The post-release 

control portion of Mr. Balmert’s sentence is reversed and the case is remanded fur further 

proceedings consistent with this decision. 

III.

{¶31} For the foregoing reasons, Mr. Balmert’s first and second assignments of error are 

overruled. Mr. Balmert’s third assignment of error is sustained. The judgment of the Lorain 

County Court of Common Pleas is affirmed, in part, reversed, in part, and remanded for 

proceedings consistent with this decision. 

Judgment affirmed, in part,

reversed, in part, and

remanded. 

There were reasonable grounds for this appeal.
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We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of 

this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period 

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to 

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the 

docket, pursuant to App.R. 30.

Costs taxed equally to both parties.

BETTY SUTTON

FOR THE COURT

STEVENSON, P. J.

HENSAL, J.

CONCUR.

APPEARANCES:

STEPHEN HANUDEL, Attorney at Law, for Appellant.

J.D. TOMLINSON, Prosecuting Attorney, and MARK ANTHONY KOZA, Assistant Prosecuting 

Attorney, for Appellee.