[Cite as State v. Hamilton , 2017-Ohio-230.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

STATE OF OHIO Appellee

v. LARRY E. HAMILTON Appellant C.A. No. 15CA010830

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 14CR090425

DECISION AND JOURNAL ENTRY Dated: January 23, 2017

CARR, Presiding Judge. {¶1} Appellant Larry Hamilton appeals his convi ction in the Lorain County Court of

Common Pleas. This Court affirms in part, reverses in part, and remands.

I. {¶2} Hamilton was indicted on two counts of tra fficking in drugs (cocaine), both of which included major drug offender and forfeiture specifications; one felony count of possession of drugs (cocaine), which included a major drug offender specification; one count of possessing criminal tools; one count of dr ug paraphernalia offenses; and one minor misdemeanor count of possession of drugs (marijuana). He filed a motion to suppress all evidence seized from his

residence and as a result of tras h pulls. After a hearing on the mo tion, the trial court denied the motion. The court reasoned, first, that Fourth Amendment protections do not extend to trash voluntarily left beyond the curtilage of a home. Hamilton conceded as much in his motion to suppress. Second, the trial court found that, even were it to strike all averments in the affidavit2

that Hamilton alleged were fals e, there was still probable cause to search Hamilton’s home under the totality of the circumstances. Finally, the trial court noted that there was no requirement that

the detective-affiant indicate that the confidential informant on whom the detective relied was reliable, given the existence of corroborating information. {¶3} The matter proceeded to trial. The Stat e dismissed one count of trafficking in cocaine. At the conclusion of trial, the jury found Hamilton guilty of the remaining five counts, additionally finding that the am ount of cocaine relative to the trafficking and possession counts was equal to or exceeded 100 grams. Hamilton waived his right to a jury determination regarding the forfeiture specification appended to the trafficking charge and instead stipulated to forfeiture of $19,135.00 in U.S. currency. At sent encing, the trial court found Hamilton to be a major drug offender. It further merged the po ssession of cocaine charge into the trafficking charge and sentenced Hamilton to 11 years in prison and ordered him to pay a fine of $10,000 for trafficking. After imposing periods of inca rceration on the remaining three counts, ranging from “no time” to 11 months, the court ordered that all sentences would run concurrently. The trial court further suspended Hamilton’s payment of the mandatory fine due to his indigency. Hamilton timely appealed and raises four assignments of error for review. This Court rearranges some assignments of error and consolidates others to facilitate review.

II.

ASSIGNMENT OF ERROR IV

THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO SUPPRESS THE EVIDENCE WHEN IT WAS CLEARLY DEMONSTRATED THAT THE LORAIN POLICE DEPARTMENT RELIED ON FALSE AND UNRELIABLE INFORMATION TO SECURE A SEARCH WARRANT OF 1485 F STREET, LORAIN, OHIO.3

{¶4} In his fourth assignment of error, Hamilton argues that the trial court erred by denying his motion to suppress because the poli ce department relied on false and unreliable information when seeking a search warrant of Hamilton’s residence. This Court disagrees. {¶5} Hamilton does not argue that the affidavit underlying the search warrant was deficient on its face. Instead, he argues from two perspectives that the detective-affiant made false statements to support a findi ng of probable cause to issue the search warrant. First, he argues that the detective-affiant must have relied on information provided by an unreliable

confidential informant because he did not aver as to the informant’s reliability. This Court has held, however, that “‘[t]here is no need for a declaration of the reliability of an informant when

the informant’s information is corr oborated by other information.’” State v. Norris , 9th Dist. Wayne No. 05CA0081, 2006-Ohio-4022, ¶ 10, quoting State v. Fisher , 9th Dist. Summit No. 22481, 2005-Ohio-5104, ¶ 7. Accordingly, “where an affidavit sufficiently details some of the underlying circumstances, where the reason fo r crediting the informant is given, and where probable cause is or has been found, this Court should not rely on a hyper-technicality to invalidate a warrant. Instead, the affidavit shoul d be interpreted in a common sense manner.” (Internal citations omitted.) Norris at ¶ 10. Probable cause exists when the totality of the circumstances indicates a mere probability of criminal activity. Id. at ¶ 11. {¶6} In this case, Detective Howard Heathcoat of the Lorain Police Department

averred that an unnamed confidential informan t reported that Hamilton was engaged in drug trafficking activities involving cocaine at the reside nce he shared with his live-in girlfriend. The confidential informant provided information regarding Hamilton’s manner of transporting the cocaine, how frequently he obtained the drug, and that he brought it into the residence. The

detective further averred that he was aware of Hamilton’s significant drug trafficking history in4

both the City of Lorain and Lorain County. Su rveillance on the residence indicated the comings and goings of several known drug dealers. A seri es of ten trash pulls ove r a six-and-a-half month period from garbage discarded from the residence produced evidence of (1) Hamilton’s use of the address as his residence (m ail addressed to him), (2) cocai ne residue on various items at various times, and (3) multiple em pty bottles of a non-controlled s ubstance known to be used as a cutting agent for illegal drugs. {¶7} Given the affidavit’s sufficient detail as to the underlying circumstances; the confidential informant’s report that corresponde d with Hamilton’s known history; and evidence demonstrating the probability of criminal activ ity, coupled with our precedent eschewing a requirement that the affiant aver that a confidential informant is reliable, this Court concludes that the trial court did not err by refusing to find that the detective-affiant relied on unreliable information in his affidavit in support of the search warrant. {¶8} Second, Hamilton argues that Detective H eathcoat included false or misleading information in his affidavit to secure a search warrant. Hamilton does not argue that any specific information in the affidavit is false; rather, he argues that some of the information is misleading

because the detective omitted certain informati on. Specifically, Hamilton argues that, although field tests on some substances found during th e ten trash pulls produced positive results for cocaine, some of the subsequent lab results did not validate the field tests. The reasonable inference we glean from Hamilton’s argument, therefore, is that some information regarding the presence of cocaine in the trash obtained from Hamilton’s residence was false. Although Hamilton did not expressly request that the trial court strike any reference in the affidavit to field tests that were not ultimately corr oborated by lab test results, the appropriate remedy would be to5

strike the false or misleading information. See State v. Dibble , 133 Ohio St.3d 451, 2012-Ohio4630, ¶ 17, quoting Franks v. Delaware , 438 U.S. 154, 155-156 (1978). {¶9} As this Court has written: To successfully attack the veracity of a facially sufficient search warrant affidavit, a defendant must show by a preponderance of the evidence that the affiant made a false statement, either intentionally, or with reckless disregard for the truth. State v. Waddy , 63 Ohio St.3d 424, 441 (1992), quoting Franks , 438 U.S. at 155-156. Reckless disregard means that the affiant had serious doubts about the truth of an allegation. State v. McKnight , 107 Ohio St.3d 101, 2005-Ohio-6046, ¶ 31, quoting United States v. Williams , 737 F.2d 594, 602 (7th Cir.1984). Omissions count as a false statement if designed to mislead, or * * * made in reckless disregard of whether they would mislead, the magistrate. McKnight at ¶ 31, quoting United States v. Colkley , 899 F.2d 297, 301 (4th Cir.1990). (Internal quotations omitted.) State v. Jackson , 9th Dist. Lorain No. 14CA010593, 2015-Ohio3520, ¶ 22. {¶10} Hamilton argues that the tria l court erred by denying hi s motion to suppress based on an application of th e test enunciated in Franks , supra , and summarized as follows: [A] court considering whether to suppress evidence based on an allegation that the underlying affidavit contained false statem ents must apply a two-part test: (1) whether the defendant has proven by a preponderance of the evidence that the affidavit contains deliberately or recklessly false statements and (2) whether the affidavit, without the false statements, provides the requisite probable cause to sustain the warrant. United States v. Charles , 138 F.3d 257, 263 (6th Cir.1998). {¶11} At the suppression hearing, Detective He athcoat admitted that he had some lab results from the many pieces of trash collected and suspected to contain controlled substances. He admitted that he did not include any lab results in his affidavit and, mo reover, that many of the samples which tested presumptively positive for cocaine during field tests ultimately tested negative in the lab. The detective testified that he was not surprised that lab results contradicted some field test results because the field tests are not always accurate.6

{¶12} The trial court emphasized that it did not find that Hamilton had met his burden of proving by a preponderance of the evidence that Detective Heathcoat provided false information or that he was reckless or deliberate in that regard. However, the trial court assumed for the sake of argument that Hamilton met the first prong of the Franks test and went on to consider whether the affidavit provided the requisite probable ca use in support of the warrant even after the redaction of the detective’s statements regarding positive field tests that later proved to be negative for controlled substances. This Court, too, assumes without deciding that Hamilton met his burden of proof to show that the affida vit contained deliberately or recklessly false

statements. {¶13} Hamilton, however, makes no argument on appeal regarding the information

which he believes must be stricken from the affidavit or how such a redacted affidavit fails to demonstrate probable cause to support the issuan ce of the search warrant. Although Hamilton cites law for the proposition that a search warrant must be voided and the fruits of the search excluded if the affidavit’s remaining content after the false or misleading portions have been stricken does not support probable cause, he makes no argument as to why the remaining content does not support probable cause. This Court has frequently written that we will not create an argument for an appellant who is responsible for providing a roadmap to guide our review. Princess Kim, L.L.C. v. U.S. Bank, N.A. , 9th Dist. Summit No. 27401, 2015-Ohio-4472, ¶ 12. Nevertheless, even disregarding all references in the affidavit to positive field tests which ultimately were not verified by laboratory re sults, the remaining averments supported a finding of probable cause to sustain the search warrant. The first, fifth, eighth, ninth, and tenth trash pulls yielded numerous pieces of evidence that tested both presumptively positive after a field7

test and definitively positive after laboratory testing. Accordingly, the trial court did not err by denying Hamilton’s motion to suppress. The f ourth assignment of error is overruled.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED IN LETTING THIS CASE GO TO THE JURY WHEN THERE WAS NOT SUFFICIENT, COMPETENT EVIDENCE IDENTIFYING THE DISPUTED SUBSTANCE AS “COCAINE” AS DEFINED BY R.C. 2925.01(X). {¶14} Hamilton’s assertion that there was insufficient evidence to identify the alleged controlled substance as “cocaine” to support hi s convictions for trafficking and possession is premised on the argument that only the weight of the pure cocaine, and not the additional weight of any cutting or diluting agents, may be consid ered for purposes of determining the penalty

level of the offenses of tr afficking and possession of cocai ne. Although Hamilton frames his argument in terms of sufficiency, we recognize that the substance of his argument is that the State failed to present evidence to support an enha nced penalty for possession and trafficking in cocaine because it must have presented evidence of the actual weight of the cocaine exclusive of any filler materials or cutting agents. As the Supreme Court of Ohio has recently determined this issue, we find Hamilton’s arguments well taken. {¶15} Hamilton was convicted of trafficking in cocaine in violation of R.C. 2925.03(A)(2), and possession of cocaine in viol ation of R.C. 2925.11(A). The penalties for both offenses increase as the weight of th e cocaine increases. R.C. 2925.03(C)(4); R.C. 2925.11(C)(4). The relevant penalty sections contained in R.C. 2925.03(C)(4)(g) and R.C. 2925.11(C)(4)(f) are identical in rele vant part as it relates to th is discussion. Both provisions provide: “If the amount of the drug involved eq uals or exceeds one hundred grams of cocaine, [possession of and trafficking in] cocaine [are] fel on[ies] of the first degree, the offender is a major drug offender, and the court shall impose as a mandatory prison term the maximum prison8

term prescribed for a felony of the firs t degree.” R.C. 2925.03(C)(4)(g) and R.C. 2925.11(C)(4)(f). Where the amount of cocaine does not meet certain threshold amounts, however, possession of cocaine and trafficking in cocaine constitute felonies of the fifth degree. R.C. 2925.11(C)(4)(a); R.C. 2925.03(C)(4)(a). In othe r words, where cocaine is involved in the commission of these offenses, yet the State fails to prove that the amount was equal to or exceeded five grams, the offenses cons titute felonies of the fifth degree. {¶16} In State v. Gonzales , Slip Opinion No. 2016-Ohio-8319, the Supreme Court of Ohio certified a conflict question regarding whethe r the State, “in prosecuting cocaine offenses involving mixed substances under R.C. 2925.11(C)(4 )[(b)] through (f), [must] prove that the weight of the cocaine meets the statutory threshold, excluding the weight of any filler materials used in the mixture?” (Emphasis added.) Gonzales at ¶ 1. In a split decision, the high court concluded that the provisions of the possession stat ute addressing the penalty hierarchy based on

the amount of cocaine invol ved were not ambiguous. Id . at ¶ 20. Moreover, based on what it concluded to be the plain lang uage of those provisions, the Gonzales court held that the State must prove the weight of the “actual cocaine” involved in cocaine possession offenses, exclusive of the weight of any filler material or cutting agents. Id. at ¶ 22. Immediately thereafter, the Supreme Court of Ohio expanded its holding in Gonzales regarding the possession of cocaine to the offense of trafficking in cocaine. State v. Sanchez , Slip Opinion No. 2016-Ohio-8470. Accordingly, to substantiate an enhanced pena lty for convictions for possession and trafficking in cocaine pursuant to R.C. 2925.11(C)(4) and R.C. 2925.03(C)(4), the State must prove the weight of the actual cocaine, excluding any fille r or cutting agents, involved in the offenses. {¶17} In State v. Jackson , 9th Dist. Lorain No. 15CA010828, 2016-Ohio-7637, this Court came to the opposite conclusion. The defe ndant there argued that his trafficking and9

possession of cocaine convictions were based on insufficient evidence and were against the manifest weight of the evidence because the St ate failed to present evidence of the amount of “pure cocaine” involved in the offenses. Jackson at ¶ 6. This Court considered the language of R.C. 2925.03(C)(4) and R.C. 2925.11(C)(4) regarding “the amount of the drug involved” for penalty purposes, found it to be ambiguous, app lied the relevant canon s of construction, and concluded that “it is the total aggregate weight of the drug involved whic h is determinative. Whether the substance is pure cocaine or diluted is inconsequential.” Id . at ¶ 7-15. In addition, we concluded that our interp retation of the penalty provisi ons was supported by both the legislative history and historical treatment of the statutes. Id. at ¶ 16. As a result, this Court held that “the proper standard for de termining the weight of the drug involved in a trafficking or possession of cocaine offense is the total weight of the drug involved, including the pure cocaine and any cutting agents * * *.” Id. at ¶ 19. As we are constrained by the binding authority of the Supreme Court’s holdings in Gonzales and Sanchez , however, this Court overrules our precedent

in Jackson . We accordingly hold that the State must prove the weight of the actual cocaine involved in the crimes of possession of cocaine an d trafficking in cocaine, excluding any cutting agents or filler materials to support an enhanced penalty. Hamilton’s first assignment of error is

sustained.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED WHEN IT INSTRUCTED THE JURY THAT THE AMOUNT OF CONTROLLED SUBSTANCE INCLUDES THE WEIGHT OF ANY MIXTURE THAT INCLUDES SOME DETECTIBLE AMOUNT OF A CONTROLLED SUBSTANCE. {¶18} Hamilton argues that the trial court erred by failing to instruct the jury that the amount of cocaine involved with respect to th e possession and trafficking offenses must be determined by the weight of the actual cocaine exclusive of any filler or cutting agents. Based10

on our resolution of the first assi gnment of error, this Court declines to address the second assignment of error as it has been rendered moot. See App.R. 12(A)(1)(c).

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED BECAUSE THE GUILTY VERDICTS IN THIS CASE ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND SHOULD BE REVERSED BECAUSE THE[Y] VIOLATE THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION, AND ARTICLE I, SECTION 10 OF THE CONSTITUTION OF THE STATE OF OHIO. {¶19} Hamilton argues that his convictions are against the manifest weight of the evidence. Specifically, Hamilton argues that the jury’s finding that he possessed any of the contraband underlying the offenses was against the manifest weight of the evidence. This Court disagrees. In 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 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). Weight of the evidence concerns the te ndency of a greater amount of credible evidence to support one side of the issue more than the other. State v. Thompkins , 78 Ohio St.3d 380, 387 (1997). Further when reversing a conviction on the basis that it was against the manifest weight of the evidence, an appellate court sits as a “thirteenth juror,” and disagrees with the factfinder’s resolution of the conflicting testimony. Id

. State v. Tucker , 9th Dist. Medina No. 06CA0035-M, 2006-Ohio-6914, ¶ 5. {¶20} This discretionary power should be exer cised only in exceptional cases where the evidence presented weighs heavily in favor of the defendant and against conviction. Thompkins , 78 Ohio St.3d at 387.11

{¶21} As Hamilton limits his argument to the i ssue of possession, i.e., whether he had control over the drugs, criminal tools, or para phernalia found at 1485 F Street, Lorain, Ohio, so do we. Moreover, we further limit our discussion to the issue of whether Hamilton’s convictions as to the underlying offenses, exclusive of the issue of any penalty enhancements, were against the manifest weight of the evidence. {¶22} Hamilton was convicted of possession of drugs (cocaine and marijuana), possession of criminal tools, a nd possession of drug parapherna lia. “No person shall knowingly * * * possess * * * a controlled substance * * *.” R.C. 2925.11(A). “No person shall possess or have under the person’s control any substance, devi ce, instrument, or article, with purpose to use it criminally.” R.C. 2923.24(A). “[N]o person sh all knowingly use, or possess with purpose to use, drug paraphernalia.” R.C. 2925.14(C)(1). R.C. 2901.22(B) states that “[a] person acts knowingly, regardless of purpose, when the pe rson is aware that the person’s conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist.” {¶23} “Possess” or “possessi on” is defined as “having control over a thing or substance, but may not be inferred solely from mere access to the thing or substance through ownership or occupation of the premises upon which the thing or substance is found.” R.C. 2925.01(K). R.C. 2901.21(D)(1) states that “[p]ossession is a voluntary act if the possessor knowingly procured or received the thing possessed, or was aware of the possessor’s control of the thing possessed for a

sufficient time to have ended possession.” It is well settle d that “a person may knowingly possess a substance or object through eith er actual or constructive possession.” State v. See , 9th Dist. Lorain No. 08CA009511, 2009-Ohio-2787, ¶ 10, quoting State v. Hilton , 9th Dist. Summit No. 21624, 2004-Ohio-1418, ¶ 16. “‘Constructive possession exists when an individual12

knowingly exercises dominion and control over an object, even though that object may not be within his immediate physical possession.’” State v. Reis , 9th Dist. Summit No. 26237, 2012- Ohio-2482, ¶ 7, quoting State v. Hankerson , 70 Ohio St.2d 87 (1982), syllabus. As this Court recognizes, “[t]he crucial issue is not whether the accused had actual physical contact with the article concerned, but whether the accused was capable of exercising dominion [and] control over it.” (Internal quotations omitted.) Reis at ¶ 7, quoting State v. Graves , 9th Dist. Lorain No. 08CA009397, 2011-Ohio-5997, ¶ 15, quoting State v. Ruby , 149 Ohio App.3d 541, 2002-Ohio5381, ¶ 30 (2d Dist.). Inherent in the notions of dominion and control is some authority over the object, not merely the ability to have access to it. See R.C. 2925.01(K). Nevertheless, “constructive possession may be inferred from the dr ugs’ presence in a usable form and in close proximity to the defendant.” State v. Figueroa , 9th Dist. Summit No. 22208, 2005-Ohio-1132, ¶ 8, citing State v. Thomas , 9th Dist. Summit No. 21251, 2003-Ohio-1479, ¶ 11. In addition, “[c]ircumstantial evidence is itself sufficient to establish dominion and control over the

controlled substance.” Hilton , 2004-Ohio-1418, at ¶ 16. Moreover, “[p]ossession of a drug includes possessing individually, or jointly with another person. Joint possession exists when two or more persons together have the ability to control an object, exclusive of others.” Figueroa at ¶ 8, quoting State v. Alicea , 8th Dist. Cuyahoga No. 78940, 2001 WL 1243944, *6 (Oct. 18, 2001). {¶24} The Lorain Police Department initiated an investigation relating to 1485 F Street, in Lorain, after receiving complaints that Hamilton was selling drugs out of that residence. Various police detectives conducted surveilla nce and saw Hamilton come and go from the residence. The police conducted ten trash pulls from garbage discarded at the residence and found various pieces of mail addr essed to Hamilton. After obtaining a search warrant for the13

residence based in part on evidence of cocaine and marijuana residue on certain items discarded in the trash, the police searched the home. They first conducted surveillance for over an hour at

the residence and saw three cars arrive and leave in quick succession, a common occurrence at drug houses. Hamilton did not arrive or depart in those vehicles. Upon executing a knock, announce, and enter protocol, the police found a na ked Hamilton in the upstairs master bedroom with his girlfriend. More mail and documents be longing to Hamilton were found in the home. The police found both Hamilton’s and his girlfriend’ s state identification cards in a dresser drawer, along with a large sum of cash. In add ition, men’s hats and clot hing and men’s cologne

were found in the master bedr oom, along with some amount of powder cocaine and crack cocaine. Chemical testing verified these substa nces as cocaine. Baggies, a scale, hammer, strainer, and a known drug cutting agent, along w ith small pieces of cocaine which speckled the kitchen counter, and over $19,000.00 in various places throughout the house, indicated that the residence was “being run” as a drug house. Based on their experience, the police detectives involved in this case testified that anyone inside such a house is trafficking in drugs and turning a large profit, rather than merely making personal, recreational use of drugs. {¶25} The police admitted that they did not attempt to determine whose name was on the lease to the residence, who paid the utilities in the home, or to whom a vehicle parked in the driveway was registered. Although some mail addressed to Hamilton, as well as his state identification card (which had expired two years ear lier), noted addresses other than the F Street address, the police detectives testified that people engaged in illegal activities like drug trafficking tend not to update thei r addresses or maintain current forms of identification, register vehicles, or execute leases, so as to “fly under the radar” and avoid tracki ng by police. Based on14

the collective experience of the police detectives, moreover, it is common that male drug traffickers engage in those activities in their girlfriends’ homes. {¶26} A thorough review of the record indicates that this is not the exceptional case where the evidence weighs heavily in favor of Hamilton. The weight of the evidence supports the conclusion that Hamilton possessed the drugs and other contraband found during the search of 1485 F Street, in Lorain. There was indicia of his residence in the home, including mail, personal belongings, an identification card, and his repeated presence. The evidence indicated that he lived there with his girlfriend. Given his proximity to the drugs and other contraband, there was a reasonable inference that Hamilton constructively possessed those items. The large sums of money found throughout the residence, along with the locations and prevalence of drugrelated and trafficking-related items throughout the residence indicated that Hamilton had the ability to exercise dominion and control over t hose items. Accordingly, Hamilton’s convictions for possession of cocaine, possession of marijuana, possession of criminal tools, and possession of drug paraphernalia are not against the manifest weight of the evidence. The third assignment

of error is overruled.

III. {¶27} Hamilton’s first assignment of error is sustained. We decline to address the second assignment of error. The third and f ourth assignments of error are overruled. The judgment of the Lorain County Court of Common Pleas is affirmed in part, reversed in part, and the cause is remanded for further procee dings consistent with this opinion. Judgment affirmed in part, reversed in part,

and remanded.15

There were reasonable grounds for this appeal. 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 th is 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 docum ent 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.

DONNA J. CARR FOR THE COURT

WHITMORE, J. SCHAFER, J. CONCUR.

APPEARANCES: JACK W. BRADLEY, Attorney at Law, for Appellant. DENNIS P. WILL, Prosecuting Attorney, and ELIZABETH LINDBERG, Assistant Prosecuting Attorney, for Appellee.