[Cite as State v. Kraus, 2016-Ohio-8003.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

 OTTAWA COUNTY 

State of Ohio Court of Appeals No. OT-15-034 

 

 Appellee Trial Court No. 14 CR 150 

v. 

Steven W. Kraus DECISION AND JUDGMENT

Appellant Decided: December 2, 2016 

* * * * * 

 Frank Spryszak, Special Prosecuting Attorney, for appellee. 

 Geoffrey L. Oglesby and Danielle Rancour, for appellant. 

* * * * * 

YARBROUGH, J. 

{¶ 1} Appellant, Steven Kraus, appeals the judgment of the Ottawa County Court 

of Common Pleas, convicting him following a jury trial of one count of theft from an 

elderly person in violation of R.C. 2913.02, a felony of the fifth degree. For the reasons 

that follow, we affirm. 

I. Facts and Procedural Background
2.

{¶ 2} The testimony from the trial reveals that Helen Stines was the owner of real 

property located at 653 South Lightner Road in Danbury Township, Ottawa County, 

Ohio. The property consisted of an old farmhouse and several outbuildings. The 

farmhouse had not been lived in for approximately eight years, and by all accounts was 

filled with clutter, junk, and garbage to such an extent that it was difficult to walk through 

the house. 

{¶ 3} In early 2014, Stines experienced some financial difficulty, and contacted a 

local real estate agent, Jenine Porter, to sell the property. On April 2, 2014, Stines agreed 

to list the property for approximately $50,000, which they determined was the value of 

the land. Stines and Porter also had a conversation about what to do with the contents of 

the house. Stines testified that she authorized Porter to have someone come and give a 

value for a 1932 Chevy that was located in one of the outbuildings, but she did not 

authorize Porter to sell the car, or any of the other contents of the house. 

{¶ 4} The next day, April 3, 2014, Porter encountered appellant at a continuing 

education seminar. Porter, aware that appellant was an auctioneer and a realtor, asked 

appellant if he knew anyone that could help her determine the value of Stines’ car. 

According to Porter, appellant responded that he, in fact, auctioned “chattels,” which are 

flatware, dishes, and other things of that nature. Porter testified that she replied that she 

knew Stines was interested in selling the car, but as to anything else she would have to 

see if Stines was willing to talk to appellant. Porter testified that the next morning, April 

4, 2014, appellant contacted her and told her that he would go look at the car, which 
3.

Porter found agreeable. Porter expressly testified that she only authorized appellant to go 

into the garage to look at the car; she did not give him permission to go into the house or 

to appraise other property. 

{¶ 5} Appellant remembers his exchange with Porter differently. Appellant 

testified that on April 3, 2014, Porter approached him and asked if he could help her with 

a client that needed to sell her property quickly, adding that there were antiques in the 

house. Appellant testified that he and Porter agreed that he would go to the property that 

afternoon to evaluate the personal belongings for a possible auction. Notably, the house 

was unsecured; there was no lockbox on the house, and the doors were unlocked.1

 

Appellant testified that he went to the property around 1:30 p.m. on April 3, 2014, in his 

dress clothes, and found the house in complete disarray. Appellant looked around the 

house and outbuildings for a little while, and then left the property. 

{¶ 6} Appellant testified that he contacted Porter later that day and had a 

conversation with her about the options of auctioning the items. He stated that there were 

some valuable things at the house, but he would need 45 to 60 days to clean up the 

property and prepare it for an auction. He also explained that having an offsite auction 

was not a viable option because most of Stines’ proceeds would go to pay for the labor to 

move the items. Appellant then inquired why Stines was not auctioning the real property, 

and conveyed his belief that she could get $80,000 or $90,000 for it. Porter responded 

that she had three offers on the property already, and Stines wanted to sell the property 

 

1

 Porter testified that she could not put a lockbox on the house because Stines did not 

have a key for the house. 
4.

fast, so an auction was not going to be an option. Appellant testified that, knowing Stines 

needed money and “being the good Samaritan,” he would be interested in buying some 

things, and would be happy to talk to Stines about that. 

{¶ 7} The next morning, April 4, 2014, appellant contacted Porter and offered to 

go back over to the house because he was unable to look at the car the previous day. He 

also inquired whether Porter had asked Stines if she wanted to sell any of her personal 

property. Appellant testified that, later that morning, he spoke with Porter again, and she 

conveyed that Stines did agree to sell him some things from the house, and that he could 

go back into the house to “look for anything that you want to maybe purchase and take 

pictures of the car.” 

{¶ 8} Appellant testified that he returned to the house around 1:00 p.m. on April 4, 

2014. He looked through the house and put items that he was interested in into cardboard 

boxes. After he had collected a couple boxes and taken them to the dining room—which 

was the only space in the house where the floor was visible—appellant noticed that guns 

that were in a gun cabinet the day before were now missing. This led appellant to believe 

that someone was stealing from the house. Knowing that the house was unsecure, and 

acting under the belief that he had an oral contract with Porter and a fiduciary duty to 

protect the assets, appellant loaded the boxes he collected and put them into his van. 

Appellant explained that he also took the items because the house had no electricity and 

he needed better lighting to be able to examine the property to determine a fair value for 
5.

it. Appellant testified that he took a record player, a few boxes with “guy things,” a lamp 

shade, and a saxophone. 

{¶ 9} Unbeknownst to appellant, Stines’ neighbor, Roger Pean, saw appellant 

taking the items, including the record player, from Stines’ house on April 4, 2014. Pean 

took several pictures of appellant with his phone. Pean forwarded the pictures by text 

message to Stines’ son, Clay Stines, who also lives next door to Stines’ property. 

{¶ 10} When Clay received the pictures from Pean, he knew that an auctioneer 

was supposed to be at the property to look at some antiques in the house and an antique 

car, but he did not think the auctioneer was supposed to take any property. Clay then 

contacted his girlfriend, Tabitha Loroff, who was friends with Porter, to relay the 

information. Clay testified that after work that evening, April 4, 2014, he went to Stines’ 

house and removed guns that were left in the gun cabinet—“a .410 and a .22 Magnum” 

and “a Daisy BB gun pistol.” Missing, however, was a double barrel 12 gauge shotgun. 

Notably, an unrelated party, Kevin Francis, testified that he was interested in purchasing 

the house and went through the property with his realtor on the morning of Thursday, 

April 3, 2014. Francis testified that, at that time, there was not a double barrel 12 gauge 

shotgun in the gun cabinet. 

{¶ 11} Appellant testified that when he returned home on April 4, 2014, around 

3:00 p.m., he contacted Porter to tell her about the missing guns. According to appellant, 

she sounded agitated, and stated that she did not want to have anything more to do with 

appellant buying items from Stines. Further, she conveyed that she knew the guns were 
6.

not at the house because Clay had taken them. Appellant testified that he then realized 

that another person was involved, and it was not just Stines’ property, so he returned the 

“guy stuff” and the record player to the house around 5:00 p.m. Appellant still had one 

box of items that contained a lamp shade, a mirror, and several other miscellaneous 

things, which he later examined to determine their value. 

{¶ 12} The next morning, Saturday, April 5, 2014, appellant unsuccessfully 

attempted to contact Porter to get Stines’ phone number to find out what was going on 

and to complete the sale. When he did not hear back from Porter, appellant contacted his 

employer, Jeff Berquist—who was alerted to the situation by Loroff, a former employee 

of Berquist—and Berquist gave appellant Loroff’s phone number. Appellant contacted 

Loroff and she agreed to meet him so that he could drop off the rest of the items. 

Appellant testified that he returned the box of items to Loroff, explained to her the value 

of the items, and gave her his business card. 

{¶ 13} On Monday, April 7, 2014, Stines went to the Danbury Township police 

department to file a complaint. She ultimately gave the detective two lists of missing 

items, which included an all glass hurricane lamp, a magnifier, several porcelain dolls, a 

wicker baby buggy, and several other miscellaneous items. Stines indicated that she 

believed appellant stole the items. 

{¶ 14} On November 19, 2014, appellant was indicted by the Ottawa County 

Grand Jury on one count of burglary in violation of R.C. 2911.12(A)(3), a felony of the 

third degree, one count of breaking and entering in violation of R.C. 2911.13(A), a felony 
7.

of the fifth degree, and one count of theft from an elderly person in violation of R.C. 

2913.02(A)(1) and (B)(3), a felony of the fifth degree. The matter proceeded to a threeday jury trial commencing on July 22, 2015. Following the state’s presentation of its 

case-in-chief, the trial court granted appellant’s Crim.R. 29 motion to dismiss as to the 

count of burglary. Thereafter, upon hearing all of the evidence, the jury returned a 

verdict of not guilty as to the count of breaking and entering, and guilty as to the count of 

theft from an elderly person. Appellant subsequently filed motions for a new trial and for 

acquittal, which the trial court denied. At sentencing, the court imposed two years of 

community control, and ordered appellant to pay a $2,500 fine.2

II. Assignments of Error

{¶ 15} Appellant has timely appealed his conviction, and now asserts four 

assignments of error for our review: 

I. The trial court committed structural error, and it was also plain 

error, when the trial court identified to the jury, while reading the jury 

instructions, who the owner of the property was and identified that person 

as the elderly victim when the indictment failed to do so. 

II. The trial court erred by not granting the defendant’s request for a 

new trial based on insufficient evidence and committed plain error by not 

giving a proper jury instruction on the element or enhancement of a theft 

offense against an elderly person. 

 

2

 On September 14, 2015, the trial court stayed appellant’s sentence pending appeal. 
8.

III. The verdict was against the manifest weight of the evidence and 

was insufficient as a matter of law. 

IV. Trial counsel was ineffective. 

III. Analysis

{¶ 16} In his first assignment of error, appellant contends that the trial court erred 

when it instructed the jury that Stines was the victim in this case. Specifically, the court 

stated, 

The Defendant is charged with theft. Before you can find him 

guilty, you must find beyond a reasonable doubt that on or about the 4th 

day of April, 2014, and in Ottawa County, Ohio, that the Defendant, with 

purpose to deprive the owner of property knowingly obtained or exerted 

control over that property without the consent of the owner, Ms. Stines, or a 

person authorized to give consent. 

Appellant argues that by naming Stines as the victim the court interfered with the role of 

the jury to find every element of the crime proven beyond a reasonable doubt; 

particularly where the victim was not identified in the indictment and the evidence 

showed that some of the property belonged to Clay, thus Clay could have been the 

victim. 

{¶ 17} Because appellant did not object to the jury instructions at the time of trial, 

we review his assignment for plain error. See Crim.R. 30(A); State v. Underwood, 3 

Ohio St.3d 12, 444 N.E.2d 1332 (1983), syllabus (“The failure to object to a jury 
9.

instruction constitutes a waiver of any claim of error relative thereto, unless, but for the 

error, the outcome of the trial clearly would have been otherwise.”). Plain error consists 

of a deviation from a legal rule, which is an obvious defect in the trial proceedings, and 

which affected the outcome of the trial. Crim.R. 52(B); State v. Barnes, 94 Ohio St.3d 

21, 27, 759 N.E.2d 1240 (2002). “Notice of plain error under Crim.R. 52(B) is to be 

taken with the utmost caution, under exceptional circumstances and only to prevent a 

manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 

(1978), paragraph three of the syllabus. 

{¶ 18} Alternatively, appellant argues that the jury instruction constituted 

structural error. “At its heart, the concept behind structural error is that certain errors are 

so fundamental that they obviate the necessity for a reviewing court to do a harmlesserror analysis.” State v. Hill, 92 Ohio St.3d 191, 199, 749 N.E.2d 274 (2001). A 

structural error is a “defect affecting the framework within which the trial proceeds, 

rather than simply an error in the trial process itself.” Id. at 197, quoting Neder v. United 

States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). 

{¶ 19} Here, we find that neither doctrine provides appellant relief because the 

trial court’s instruction was not in error. Contrary to appellant’s argument, the specific 

victim of the theft is not an element of R.C. 2913.02 to be found by the jury.3

 Rather, the 

naming of a specific victim informs a defendant of what part of his conduct constituted 

 

3

 R.C. 2913.02(A)(1) provides, “No person, with purpose to deprive the owner of 

property or services, shall knowingly obtain or exert control over either the property or 

services in any of the following ways: (1) Without the consent of the owner or person 

authorized to give consent.” 
10.

the offense for which he is being tried. To that end, “A defendant is entitled to a bill of 

particulars that sets out the ultimate facts upon which the state expects to rely in 

establishing its case, and the state should be restricted in its proof to the indictment and to 

the particulars as set forth in the bill.” State v. Kersey, 124 Ohio App.3d 513, 518, 706 

N.E.2d 818 (1st Dist.1997). 

{¶ 20} Appellant, exercising his right under R.C. 2941.07, requested a bill of 

particulars. In the bill of particulars, the state indicated that 

Steven Kraus knowingly obtain[ed] or exerted control over property 

belonging to Helen Stines without the consent of Helen Stines or the 

consent of anyone authorized to give consent. * * * The property that was 

stolen and not returned includes but is not limited to: unknown number of 

antique wooden marbles, antique 12 gauge double barreled shotgun by an 

unknown maker, two antique die cast toy cars, two sets of silver flatware, 

carpet beater, brass lamp, large doll, collector’s porcelain doll, three 

Strawberry Shortcake figurines, antique Penguin perfume bottle, set of four 

commemorative railroad plates, brass drum with calfskin drum head, 

wicker baby carriage with wire wheels, doll with wooden head, three metal 

cans, line magnifier, handmade twin size quilt. The following property was 

taken but returned after the victim complained: silver hand mirror, two 

decorative combs, cigar box, small cloth change purse, small depression 
11.

glass dish, saxophone, acoustic guitar, several bracelets, one photo album, 

Tiffany lamp shade, bud vase, and an antique pin cushion. 

{¶ 21} Thus, pursuant to the bill of particulars, appellant was on trial for the theft 

of Stines’ property. He was not on trial for the theft of Clay’s property. As such, the trial 

court did not err in instructing the jury that the owner of the property was Stines, since 

the instruction comported with the description in the bill of particulars. 

{¶ 22} Accordingly, appellant’s first assignment of error is not well-taken. 

{¶ 23} In his second assignment of error, appellant argues that the trial court 

committed plain error by failing to properly instruct the jury that appellant had to have 

knowledge that the victim was elderly or was reckless in that regard, thus incorporating 

either a “knowingly” or “reckless” mens rea to that portion of R.C. 2913.02. 

{¶ 24} Likewise, appellant argues that the trial court erred in denying his motion 

for a new trial, which was based upon the same reasoning. We review the denial of a 

motion for a new trial pursuant to Crim.R. 33 for an abuse of discretion. State v. 

Schiebel, 55 Ohio St.3d 71, 564 N.E.2d 54 (1990), paragraph one of the syllabus. 

{¶ 25} Relevant here, R.C. 2913.02(B) provides, 

(1) Whoever violates this section is guilty of theft. 

* * * 

(3) Except as otherwise provided * * *, if the victim of the offense 

is an elderly person, disabled adult, active duty service member, or spouse 

of an active duty service member, a violation of this section is theft from a 
12.

person in a protected class, and division (B)(3) of this section applies. 

Except as otherwise provided in this division, theft from a person in a 

protected class is a felony of the fifth degree. 

{¶ 26} Appellant relies on former R.C. 2901.21(B) to read an element of 

recklessness into the elderly person element. That statute provided, 

When the section 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. When the section neither 

specifies culpability nor plainly indicates a purpose to impose strict 

liability, recklessness is sufficient culpability to commit the offense. R.C. 

2901.21(B).4

{¶ 27} However, the Ohio Supreme Court has clarified, 

 

4

 R.C. 2901.21 has since been amended to now provide, 

 (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. The fact that one 

division of a section plainly indicates a purpose to impose strict liability for 

an offense defined in that division does not by itself plainly indicate a 

purpose to impose strict criminal liability for an offense defined in other 

divisions of the section that do not specify a degree of culpability. 

 (C)(1) When language defining an element of an offense that is 

related to knowledge or intent or to which mens rea could fairly be applied 

neither specifies culpability nor plainly indicates a purpose to impose strict 

liability, the element of the offense is established only if a person acts 

recklessly.
13.

R.C. 2901.21(B), the statute for determining whether an offense 

imposes strict liability or requires proof of recklessness, applies only if “the 

section defining an offense does not specify any degree of culpability.” If 

the section already requires proof of a culpable mental state for any element 

of the offense in any division or subdivision, R.C. 2901.21(B) does not 

apply, and the state need prove culpability only as specified in the section. 

State v. Tolliver, 140 Ohio St.3d 420, 2014-Ohio-3744, 19 N.E.3d 870, 

paragraph one of the syllabus. 

{¶ 28} Here, the criminal theft statute already requires proof of the culpable 

mental state of “knowingly” in division (A). R.C. 2913.02(A) (“No person, with purpose 

to deprive the owner of property or services, shall knowingly obtain or exert control over 

either the property or services in any of the following ways * * *.”) (Emphasis added.)). 

Thus, R.C. 2901.21(B) does not apply, and the state need not prove culpability as to the 

age of the victim. Therefore, the trial court did not err when it failed to instruct the jury 

that appellant was required to have knowledge of Stines’ age. 

{¶ 29} Accordingly, appellant’s second assignment of error is not well-taken. 

{¶ 30} In his third assignment of error, appellant challenges his conviction as 

being based on insufficient evidence and against the manifest weight of the evidence. 

{¶ 31} Insufficiency and manifest weight are distinct legal theories. “In essence, 

sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain a 

verdict is a question of law.” State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 
14.

541 (1997). “The relevant inquiry is whether, after viewing the evidence in a light most 

favorable to the prosecution, any rational trier of fact could have found the essential 

elements of the crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 

259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. 

{¶ 32} In contrast, when reviewing a manifest weight claim, 

The court, reviewing the entire record, weighs the evidence and all 

reasonable inferences, considers the credibility of witnesses and determines 

whether in resolving conflicts in the evidence, the jury clearly lost its way 

and created such a manifest miscarriage of justice that the conviction must 

be reversed and a new trial ordered. The discretionary power to grant a 

new trial should be exercised only in the exceptional case in which the 

evidence weighs heavily against the conviction. State v. Lang, 129 Ohio 

St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220, quoting Thompkins at 

387. 

{¶ 33} In his brief, appellant argues that his conviction should not stand because 

there is no evidence to prove that the items that Stines claimed were missing were even in 

the house on April 3, 2014, and there is no evidence to prove that appellant took those 

items. We do not find appellant’s argument persuasive. 

{¶ 34} The theft statute states, “No person, with purpose to deprive the owner of 

property or services, shall knowingly obtain or exert control over either the property or 
15.

services in any of the following ways: (1) Without the consent of the owner or person 

authorized to give consent.” R.C. 2913.02(A)(1). 

{¶ 35} Here, irrespective of the list of items Stines claimed were missing, the 

uncontroverted testimony was that appellant boxed up several pieces of Stines’ property, 

loaded them in his van, left the premises, and only later returned at least some of the 

items when people complained. Furthermore, although disputed by appellant, Stines and 

Porter both testified that appellant removed the property without their consent. Thus, we 

hold that there was sufficient evidence to allow a rational trier of fact to find the elements 

of theft proven beyond a reasonable doubt. Therefore, appellant’s conviction is not based 

on insufficient evidence. 

{¶ 36} As to appellant’s manifest weight argument, we do not find that this is the 

exceptional case where the evidence weighed heavily against the conviction. Upon our 

review of the record, this is a close case. In addition to the conflicting testimony 

regarding whether appellant had permission to enter the house, there is also a discrepancy 

regarding the timing of the guns being removed from the gun safe. Appellant testified 

that he took the items out of the house on April 4, 2014, because he noticed the gun safe 

had been emptied from the day before. Clay testified, however, that he did not remove 

the guns until after he learned that appellant was taking items out of the house. While the 

removal of Clay’s guns is not direct proof that appellant committed theft since appellant 

was not on trial for taking Clay’s property, the timing of the removal is material to 

appellant’s explanation as to why he removed the other property. The jury was presented 
16.

with this testimony, and through its verdict made a determination that appellant’s 

testimony was not credible. Notably, under a manifest weight review, we must extend 

“special deference to the jury’s credibility determinations given that it is the jury who has 

the benefit of seeing the witnesses testify, observing their facial expressions and body 

language, hearing their voice inflections, and discerning qualities such as hesitancy, 

equivocation, and candor.” State v. Moffitt, 6th Dist. Erie No. E-15-034, 2016-Ohio5861, ¶ 49, citing State v. Fell, 6th Dist. Lucas No. L-10-1162, 2012-Ohio-616, ¶ 14. 

“An appellate court ‘will not substitute its judgment for that of the trier of facts on the 

issue of witness credibility unless it is patently apparent that the trier of facts lost its way 

in arriving at its verdict.’” Id., quoting State v. Cunningham, 2d Dist. Clark No. 10-CA57, 2012-Ohio-2794, ¶ 102. In this case, we do not find the evidence supporting 

appellant’s version of the events to be so overwhelming that the jury clearly lost its way 

and created a manifest miscarriage of justice in finding him guilty. Therefore, we hold 

that appellant’s conviction is not against the manifest weight of the evidence. 

{¶ 37} Accordingly, appellant’s third assignment of error is not well-taken. 

{¶ 38} Finally, in his fourth assignment of error, appellant argues that he received 

ineffective assistance of counsel. To prevail on a claim of ineffective assistance, 

appellant must satisfy the two-prong test developed in Strickland v. Washington, 466 U.S. 

668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). That is, appellant must demonstrate 

that counsel’s performance fell below an objective standard of reasonableness, and a 

reasonable probability exists that, but for counsel’s error, the result of the proceedings 
17.

would have been different. Id. at 687-688, 694. “The object of an ineffectiveness claim 

is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness 

claim on the ground of lack of sufficient prejudice, which we expect will often be so, that 

course should be followed.” Id. at 697. Further, in evaluating an ineffective assistance 

claim, courts “must indulge a strong presumption that counsel’s conduct falls within the 

wide range of reasonable professional assistance.” State v. Bradley, 42 Ohio St.3d 136, 

142, 538 N.E.2d 373 (1989), quoting Strickland at 689. 

{¶ 39} Specifically, appellant contends that counsel was ineffective for failing to 

object to the trial court’s instruction to the jury that Stines was the owner of the property, 

and for failing to object to “other acts” testimony from Clay. We hold that appellant has 

failed to demonstrate sufficient prejudice to support his claim of ineffective assistance. 

As to the former, as discussed in appellant’s first assignment of error, the trial court did 

not err in instructing the jury that Stines was the owner of the property. As to the latter, 

even assuming that Clay’s testimony that appellant took the 12 gauge shotgun was 

inadmissible other acts evidence under Evid.R. 404(B), appellant has not demonstrated 

that the result of the proceeding would have been different had that testimony been 

excluded. First, Clay’s testimony relative to the shotgun was undermined by the 

testimony of Francis that the shotgun was not in the gun case on April 3, 2014, prior to 

appellant arriving at the house. Second, it is not contested that appellant did in fact take 

some of Stines’ property out of the house, thus testimony regarding whether appellant 

also took Clay’s shotgun is immaterial. Therefore, because appellant has failed to 
18.

establish the second prong of the Strickland test, we hold that his claim of ineffective 

assistance is without merit. 

{¶ 40} Accordingly, appellant’s fourth assignment of error is not well-taken. 

IV. Conclusion

{¶ 41} For the foregoing reasons, the judgment of the Ottawa County Court of 

Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant 

to App.R. 24. 

Judgment affirmed. 

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4. 

Mark L. Pietrykowski, J. _______________________________ 

JUDGE 

Thomas J. Osowik, J. 

_______________________________ 

Stephen A. Yarbrough, J. JUDGE 

CONCUR. 

_______________________________ 

JUDGE