[Cite as State v. Burwell, 2010-Ohio-1087.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT PUTNAM COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 12-09-06
v.
EDWARD L. BURWELL, OPINION
DEFENDANT-APPELLANT.
Appeal from Putnam County Court Trial Court No. 2009 TRC 0078
Judgment Affirmed
Date of Decision: March 22, 2010
APPEARANCES:
Matthew A. Cunningham for Appellant
Gary L. Lammers for Appellee Case No. 12-09-06
PRESTON, J.
{¶1} Defendant-appellant, Edward L. Burwell (“Burwell”), appeals the
Putnam County Court’s judgment overruling his motion to suppress evidence
seized as a result of a traffic stop. For the reasons that follow, we affirm.
{¶2} Around 1:52 a.m. on May 23, 2009, Burwell was traveling north on
State Route 65 in the village of Ottawa, Putnam County, Ohio. (Aug. 12, 2009 Tr.
at 7). Ohio State Highway Patrolman Kingsinger was following Burwell’s vehicle
in a marked State Highway Patrol cruiser about eight to ten (8-10) car lengths
behind when he observed Burwell’s vehicle “travel off the right side of the edge
line, right [white] edge line, * * * and turn left into Blackthorn Drive.” (Id. at 6-7,
10). Trooper Kingsinger testified that it appeared as though Burwell was making a
wide right turn but then turned left onto Blackthorn Drive. (Id. at 9). Trooper
Kingsinger then activated his patrol car’s overhead lights and initiated a traffic
stop. (Id. at 12).
{¶3} When Trooper Kingsinger approached Burwell’s vehicle, he
detected the smell of alcohol coming from the vehicle and noted that Burwell’s
eyes were “slightly glassy and bloodshot.” (Id.). Trooper Kingsinger asked
Burwell to exit his vehicle and asked him to sit in his patrol car. (Id. at 13). Once
Trooper Kingsinger was seated in his patrol car with Burwell, he discovered that
“the odor of alcoholic beverage became stronger on his breath,” so Trooper
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Kingsinger asked Burwell if he had been drinking, and Burwell said he had “a
couple.” (Id.). Burwell consented to a horizontal gaze nystagmus (HGN) test,
which revealed a maximum score of six indicators. (Id. at 13-14, 16). Burwell
then consented to some divided attention skills tests, including the walk and turn
and the one-leg stand. (Id. at 17). When Burwell attempted the walk and turn test,
Trooper Kingsinger found that he demonstrated signs of impairment, including
that Burwell: failed to follow instructions, taking eight steps instead of nine steps,
stepped off the line, and swayed. (Id. at 18-19). When Burwell attempted the
one-leg stand, Burwell swayed and put his foot down once. (Id. at 20). At that
point, Burwell was placed under arrest for operating a vehicle under the influence
of alcohol. (Id. at 21).
{¶4} Burwell was charged, in case no. 2009 TRC 00778, with operating a
vehicle under the influence of alcohol (OVI) in violation of R.C. 4511.19(A)(1), a
first violation within six (6) years; driving with a prohibited blood-alcohol-
concentration in violation of R.C. 4511.19(A)(1)(d), a first violation within six (6)
years; and, in case no. 2009 TRD 00779, with failure to drive within marked lanes
in violation of R.C. 4511.33. (Doc. No. 1).
{¶5} On May 27, 2009, Burwell entered a plea of not guilty to the
charges. (Doc. No. 2). On July 10, 2009, Burwell filed a motion to suppress
evidence seized as a result of the traffic stop. (Doc. No. 18). On August 12, 2009,
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the motion came on for hearing, and, on August 14, 2009, the trial court overruled
the motion. (Doc. No. 28).
{¶6} On September 1, 2009, Burwell withdrew his previously tendered
plea of not guilty and entered a plea of no contest to the charge of operating a
vehicle while under the influence in violation of R.C. 4511.19(A)(1). (Doc. No.
32). The two other charges of operating with a prohibited blood-alcohol-
concentration and marked lanes violation were both dismissed. (Doc. No. 32).
The trial court found Burwell guilty of operating a vehicle while under the
influence and sentenced him. (Id.).
{¶7} On September 30, 2009, Burwell filed a notice of appeal. (Doc. No.
34). Burwell now appeals raising two assignments of error for our review.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED WHEN IT OVERRULED BURWELL’S MOTION TO SUPPRESS EVIDENCE WHERE REASONABLE ARTICULABLE SUSPICION DID NOT EXIST FOR A TRAFFIC STOP OR TO DETAIN BURWELL.
{¶8} In his first assignment of error, Burwell argues that the trial court
erred by overruling his motion to suppress evidence obtained as a result of the
traffic stop. Specifically, Burwell argues that crossing the white edge line without
evidence of erratic driving or concerns for his safety does not provide reasonable
articulable suspicion for a traffic stop, citing State v. Phillips, 3d Dist. No. 8-04-
25, 2006-Ohio-6338. Burwell also maintains that this case is distinguishable from
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State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, because:
he only crossed the fog line once and the defendant in Mays crossed the line twice;
he was not weaving within his lane as was the defendant in Mays; and the officer
here, unlike in Mays, initiated the traffic stop based on a “hunch or gut feeling.”
We disagree.
{¶9} A review of the denial of a motion to suppress involves mixed
questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,
797 N.E.2d 71, ¶8. At a suppression hearing, the trial court assumes the role of
trier of fact and, as such, is in the best position to evaluate the evidence and the
credibility of witnesses. State v. Carter (1995), 72 Ohio St.3d 545, 552, 651
N.E.2d 965. When reviewing a ruling on a motion to suppress, deference is given
to the trial court’s findings of fact so long as they are supported by competent,
credible evidence. Burnside, 2003-Ohio-5327, at ¶8. With respect to the trial
court’s conclusions of law, however, our standard of review is de novo and we
must decide whether the facts satisfy the applicable legal standard. State v.
McNamara (1997), 124 Ohio App.3d 706, 710, 707 N.E.2d 539.
{¶10} As this Court has stated before, in order to constitutionally stop a
vehicle, an officer must, at a minimum, have either: (1) a reasonable suspicion,
supported by specific and articulable facts, that criminal behavior has occurred, is
occurring, or is imminent; or (2) a reasonable suspicion, supported by specific and
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articulable facts, that the vehicle should be stopped in the interests of public
safety. State v. Moore, 3d Dist. No. 9-07-60, 2008-Ohio-2407, ¶10, citing State v.
Andrews, 3d Dist. No. 2-07-30, 2008-Ohio-625, ¶8, citing State v. Chatton (1984),
11 Ohio St.3d 59, 61, 463 N.E.2d 1237, certiorari denied by 469 U.S. 856, 105
S.Ct. 182, 83 L.Ed.2d 116; State v. Purtee, 3d Dist. No. 8-04-10, 2006-Ohio-6337,
¶9, citing State v. Norman (1999), 136 Ohio App.3d 46, 53-54, 735 N.E.2d 453.
{¶11} An officer’s “reasonable suspicion” is determined based on the
totality of the circumstances. Moore, 2008-Ohio-2407, at ¶11, citing Andrews,
2008-Ohio-625, at ¶8, citing State v. Terry (1998), 130 Ohio App.3d 253, 257, 719
N.E.2d 1046, citing State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565 N.E.2d
1271. ‘“Specific and articulable facts’ that will justify an investigatory stop by
way of reasonable suspicion include: (1) location; (2) the officer’s experience,
training or knowledge; (3) the suspect’s conduct or appearance; and (4) the
surrounding circumstances.” Purtee, 2006-Ohio-6337, at ¶9, citing State v.
Gaylord, 9th Dist. No. 22406, 2005-Ohio-2138, ¶9, citing State v. Bobo (1988), 37
Ohio St.3d 177, 178-79, 524 N.E.2d 489; State v. Davison, 9th Dist. No. 21825,
2004-Ohio-3251, ¶6.
{¶12} This Court recently rejected arguments similar to those raised by
Burwell in State v. Anthony, 3d Dist. No. 13-09-26, 2009-Ohio-6717, ¶¶13-14.
Trooper Kingsinger testified that he initiated the traffic stop after Burwell drifted
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over the white edge [fog] line in violation of R.C. 4511.33. (Aug. 12, 2009 Tr. at
7-12, 24); (Joint Ex. 1). Trooper Kingsinger testified that both right tires of
Burwell’s vehicle drifted over the white edge (fog) line as he made a left-hand
turn. (Id. at 9). Trooper Kingsinger testified that it appeared as though Burwell
was making a wide right turn but then turned left onto Blackthorn Drive. (Id.).
Trooper Kingsinger further testified that he did not observe any debris or any
reason otherwise for the vehicle to have drifted over the white edge (fog) line, and
that he had a clear view of the incident. (Id. at 9-10). The Ohio Supreme Court
has held that “a traffic stop is constitutionally valid when a law-enforcement
officer witnesses a motorist drift over the lane markings in violation of R.C.
4511.33, even without further evidence of erratic or unsafe driving.” Mays, 2008-
Ohio-4539, at ¶25 (emphasis added) (abrogating State v. Phillips, 2006-Ohio-
6338). Based upon this observation, Trooper Kingsinger had probable cause, and
thus a reasonable articulable suspicion, to initiate the traffic stop; and therefore,
the traffic stop was constitutionally valid. Anthony, 2009-Ohio-6717, at ¶13, citing
Mays, 2008-Ohio-4539, at ¶¶16, 21, 24-25.
{¶13} We are also not persuaded by Burwell’s attempts to distinguish this
case from State v. Mays, 2008-Ohio-4539. To begin with, the record does not
support his assertion that Trooper Kingsinger initiated the traffic stop based on a
“hunch or gut feeling.” Although Trooper Kingsinger testified that he turned on
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his video recording device prior to the R.C. 4511.33 violation based on a “gut
feeling,” he testified that he initiated the traffic stop based upon the marked lanes
violation. (Aug. 12, 2009 Tr. at 7-12, 24). Furthermore, our determination of
whether the traffic stop was supported by a reasonable articulable suspicion
depends upon the objective facts, not the officer’s subjective intentions or
motivations. State v. Vlachos, 3d Dist. No. 17-08-24, 2009-Ohio-915, ¶11, citing
Dayton v. Erickson (1996), 76 Ohio St.3d 3, 11-12, 665 N.E.2d 1091. We are also
not persuaded by Burwell’s attempt to distinguish this case from Mays by arguing
that Trooper Kingsinger did not observe him weaving within his lane, and he only
crossed over the white edge line once. The holding in Mays clearly states
otherwise. 2008-Ohio-4539, at ¶25 (“a traffic stop is constitutionally valid when a
law-enforcement officer witnesses a motorist drift over the [solid white edge (fog)
line] in violation of R.C. 4511.33, even without further evidence of erratic or
unsafe driving.”) (emphasis added).
{¶14} Aside from Burwell’s violation of R.C. 4511.33, the evidence
presented at the suppression hearing demonstrated an additional, independent
reason justifying the stop. Officer Kingsinger testified that Burwell made what
appeared to be “a wide right turn, but he turned left.” (Aug. 12, 2009 Tr. at 9). A
review of the cruiser video tape, joint exhibit one (1), reveals that Burwell swung
his vehicle wide right over the white edge (fog) line to go left onto Blackthorn
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Drive. (Joint Ex. 1); (Aug. 12, 2009 Tr. at 7). Under these circumstances, Trooper
Kingsinger had a reasonable articulable suspicion to stop Burwell for violating
R.C. 4511.36(A)(2), for an improper left turn. See State v. Coles (June 7, 1996),
4th Dist. No. 95CA166; City of Brian v. Alwood (Sept. 14, 1979), 6th Dist. No.
WMS-79-4.1 Accordingly, even if the trial court’s reliance upon R.C. 4511.33, the
marked lanes statute, as a constitutional basis for the traffic stop was in error
(which we did not find), the trial court’s error would be harmless since Trooper
Kingsinger had an independent reason to initiate the traffic stop based upon
Burwell’s violation of R.C. 4511.36(A)(2). State v. Moore, 2008-Ohio-2407, at
¶17, citing State v. Haynes, 11th Dist. No. 2003-A-0055, 2004-Ohio-3514, ¶¶16-
17 (concluding that the trial court’s error was harmless because the officer had
testified to events, which he did not cite defendant for, that would have given him
probable cause to effectuate the traffic stop on defendant); State v. Molk, 11th
Dist. No. 2001-L-146, 2002-Ohio-6926 (concluding that even if appellant were
able to contradict the officer’s testimony regarding a speeding violation, the
officer would still have had a sufficient justification to initiate a stop due to
appellant’s smoking exhaust violation).
1 Both of these cases cite R.C. 4511.36(B) instead of R.C. 4511.36(A)(2) as we have cited herein because the statute was modified by S.B. 123 (eff. 1-1-04). The language of the former is, however, identical to the later.
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{¶15} Burwell’s first assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT ERRED WHEN IT OVERRULED BURWELL’S MOTION TO SUPPRESS ON THE BASIS THAT THE ARRESTING OFFICER DID NOT HAVE PROBABLE CAUSE TO ARREST BURWELL.
{¶16} In his second assignment of error, Burwell argues that the trial court
erred in overruling his motion to suppress evidence flowing from the officer’s
improper detention, which resulted in his arrest for OVI.2 Specifically, Burwell
argues that the fact that Trooper Kingsinger smelled an unquantifiable amount of
alcohol from the vehicle—as opposed to from him, observed that his eyes were
slightly red and glassy, and that he admitted to drinking was insufficient to justify
his continued detention for field sobriety tests. As such, Burwell argues that any
evidence seized as a result of his continued detention was inadmissible; and
therefore, the trial court erred by overruling his motion to suppress on this basis.
{¶17} “The scope and duration of an investigative stop must not exceed
what is necessary to complete the purpose for which the initial stop was made.”
State v. Lavender, 6th Dist. Nos. WD-06-020, WD-06-021, 2006-Ohio-6632, ¶14,
citing Florida v. Royer (1983), 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d
2 Although his assignment of error is worded as such, Burwell makes no argument with respect to a lack of probable cause for his arrest. We will, therefore, limit our review to the issue of continued detention.
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229, and State v. Robinette (1997), 80 Ohio St.3d 234, 685 N.E.2d 762, paragraph
one of the syllabus. “In conducting an investigative traffic stop, an officer may
detain a motorist for a period of time sufficient to run a computer check on his
license, registration, and vehicle plates and to issue him a warning or a citation.”
State v. Rusnak (1997), 120 Ohio App.3d 24, 27, 696 N.E.2d 633, citing Delaware
v. Prouse (1979), 440 U.S. 648, 659, 99 S.Ct. 1391, 59 L.Ed.2d 660. “An officer,
however, cannot use the lawfulness of an initial stop to conduct a fishing
expedition for evidence of another crime.” Lavender, 2006-Ohio-6632, at ¶14,
citing State v. Bevan (1992), 80 Ohio App.3d 126, 130, 608 N.E.2d 1099.
Whether or not a detention is ‘reasonable’ depends upon the totality of the facts
and circumstances of each case. Bobo, 37 Ohio St.3d at 178.
{¶18} Once an officer stops a vehicle for a traffic offense and begins the
process of obtaining the offender’s license and registration, the officer may then
proceed to investigate the detainee for operating a vehicle under the influence
(OVI) if the officer has a reasonable suspicion that the detainee may be intoxicated
based on specific and articulable facts, such as where there are clear symptoms
that the detainee is under the influence. State v. Evans (1998), 127 Ohio App.3d
56, 62-63, 711 N.E.2d 761, citing State v. Yemma (Aug. 9, 1996), 11th Dist. No.
95-P-0156.
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{¶19} An officer’s request to perform field sobriety tests must be
separately justified by specific, articulable facts showing a reasonable basis for the
request. Evans, 127 Ohio App.3d at 62-63, citing Yemma, 11th Dist. No. 95-P-
0156. “Although the facts that served as the impetus for the stop may also assist
in providing this separate justification, additional articulable facts are necessary.”
Id.
{¶20} Whether a law enforcement officer possessed reasonable suspicion
or probable cause to continue to detain an individual must also be examined in
light of the “totality of the circumstances.” State v. Cromes, 3d Dist. No. 17-06-07,
2006-Ohio-6924, ¶38, citing United States v. Arvizu (2002), 534 U.S. 266, 273,
122 S.Ct. 744, 151 L.Ed.2d 740. The totality of the circumstances test “allows
officers to draw on their own experience and specialized training to make
inferences from and deductions about the cumulative information available to
them that ‘might well elude an untrained person.’” Id., citing Arvizu, 534 U.S. at
273, quoting United States v. Cortez (1981), 449 U.S. 411, 418, 101 S.Ct. 690, 66
L.Ed.2d 621.
{¶21} Circumstances from which an officer may derive a reasonable,
articulable suspicion that the detained driver was operating the vehicle while under
the influence include, but are not limited to:
(1) the time and day of the stop (Friday or Saturday night as opposed to, e.g., Tuesday morning); (2) the location of the stop
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(e.g., 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.
Evans, 127 Ohio App.3d at 63, Fn. 2. “All of these factors, together with the
officer’s previous experience in dealing with [impaired] drivers, may be taken into
account by a reviewing court in determining whether the officer acted reasonably.
No single factor is determinative.” Id.
{¶22} In relevant part, the record indicates that Burwell was stopped
around 1:52 a.m. on May 23, 2009, which was the early hours of Saturday
morning, after Trooper Kingsinger observed Burwell drift over the right edge (fog)
line while swinging right to make a wide turn to the left from State Route 65 onto
Blackthorn Drive. (Aug. 12, 2009 Tr. at 7-9); (Joint Ex. 1). After Trooper
Kingsinger approached Burwell’s vehicle, he identified the smell of an alcoholic
beverage coming from inside the vehicle and noticed that Burwell’s eyes appeared
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to be “slightly glassy and bloodshot.” (Aug. 12, 2009 Tr. at 12). Burwell’s speech
was not noticeably slurred or overly deliberate, and Burwell cooperated with
Trooper Kingsinger when asked to provide his driver’s license and registration.
(Id. at 12-13); (Joint Ex. 1). Trooper Kingsinger testified that, after Burwell was
seated in his patrol cruiser, “the odor of alcoholic beverage became stronger upon
[Burwell’s] breath, and then [he] asked [Burwell] if he had consumed any
alcohol.” (Aug. 12, 2009 Tr. at 13); (Joint Ex. 1). Burwell admitted that he had “a
couple earlier,” and that he had just come back from playing for a band. (Aug. 12,
2009 Tr. at 13); (Joint Ex. 1). After Burwell made this admission, Trooper
Kingsinger asked Burwell if he could conduct an HGN test, and Burwell
consented to the test. (Aug. 12, 2009 Tr. at 13); (Joint Ex. 1).
{¶23} The facts here demonstrate that Burwell was stopped after driving
over the white edge (fog) line when turning wide right for a left-hand turn in the
early hours (1:52 a.m.) of Saturday morning after he had just returned from
playing in his band. (Aug. 12, 2009 Tr. at 7-13); (Joint Ex. 1). We also note,
although not mentioned during the hearing, that it appeared that Burwell’s vehicle
was slightly weaving within its lane of travel as well. (Joint Ex. 1). In addition to
that, Trooper Kingsinger noted that Burwell’s vehicle—and, more importantly,
Burwell himself—smelled of an alcoholic beverage, and that Burwell’s eyes were
“slightly bloodshot and glassy.” (Aug. 12, 2009 Tr. at 12-13). Finally, when asked
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if he had been drinking, Burwell admitted to drinking “a couple earlier,” after
playing with his band. (Id. at 13). After reviewing the entire record, including the
transcript of the suppression hearing and the jointly admitted video of the traffic
stop, as well as those factors outlined in Evans, supra, we cannot conclude that the
trial court erred in finding that Burwell’s continued detention was constitutionally
permissible.
{¶24} Burwell’s citation to various appellate court decisions fails to
persuade us otherwise. The Court in State v. Taylor, found that “[t]he act of
speeding at a nominal excess coupled with the arresting officers’ perception of the
odor of alcohol, and nothing more, did not furnish probable cause to arrest the
defendant for driving under the influence.” (1981), 3 Ohio App.3d 197, 197-98,
444 N.E.2d 481 (emphasis in original). The Court in Taylor also expressed the
fact that the officer in that case did not even specify whether the odor of alcohol
was “pervasive” or “strong,” which it indicated may have changed the outcome of
the case. 3 Ohio App.3d at 198. Here, there was more than Trooper Kingsinger’s
perception of the odor of alcohol so this case is clearly distinguishable from
Taylor. Likewise, this case is distinguishable from State v. Dixon and State v.
Reed, because Burwell, unlike the defendants in those cases, was initially stopped
when he drifted over the white edge (fog) line, which, as a moving violation, is
indicia of impaired driving ability. (Dec. 1, 2000), 2nd Dist. No. 2000-CA-30
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(suspected tinted window violation); 7th Dist. No. 05 BE 31, 2006-Ohio-7075, ¶2
(suspected tinted window and faulty exhaust violations). The Court in State v.
Spillers found that weaving within one’s lane, the “slight” odor of alcohol, and the
admission of consuming a couple beers was insufficient to justify the
administration of field sobriety tests. (Mar. 24, 2000), 2nd Dist. No. 1504.
Burwell, however, was more than weaving within his own lane; rather, he drove
over the marked lanes. Furthermore, Trooper Kingsinger noted that the odor of
alcohol was “stronger” when Burwell left his vehicle. Accordingly, this case is
also distinguishable from Spillers. Aside from that, as the Court in State v.
Downing noted, “the additional element of erratic driving or specifically a
“strong” odor of alcohol seem[s] to tip the scales in favor of allowing the tests.”
2nd Dist. No. 2001-CA-78, 2002-Ohio-1302. Here there was evidence of erratic
driving—crossing over the white edge (fog) line—and a “stronger” odor of
alcohol. Therefore, we find this case distinguishable from those Burwell cites.
{¶25} For all the foregoing reasons, we overrule Burwell’s second
assignment of error.
{¶26} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
ROGERS, J., concurs in Judgment Only. SHAW, J., concurs.
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