[Cite as State v. Celli, 2017-Ohio-2746.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 28226
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE FRANK J. CELLI COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 2015 10 3257
DECISION AND JOURNAL ENTRY
Dated: May 10, 2017
CALLAHAN, Judge.
{¶1} Appellant, Frank Celli, appeals from his conviction for domestic violence in the
Summit County Court of Common Pleas. For the reasons set forth below, this Court affirms.
I.
{¶2} Mr. Celli was indicted for domestic violence involving his pregnant girlfriend,
N.H. He proceeded to trial and the jury found him guilty.
{¶3} Mr. Celli has timely appealed his conviction and raises three assignments of error.
II.
FIRST ASSIGNMENT OF ERROR
MR. CELLI’S CONVICTION IS IN VIOLATION OF THE EQUAL PROTECTION CLAUSE OF THE 14TH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE [I], SECTION 2 OF THE OHIO CONSTITUTION[.] 2
{¶4} In his first assignment of error Mr. Celli argues the mandatory prison provision of
R.C. 2919.25(D)(3)-(6) violates the Equal Protection Clause and thereby is unconstitutional both
facially and as applied to him. This Court disagrees.
{¶5} Mr. Celli asserts the mandatory prison provision in the domestic violence statute
is unconstitutional because it is based on gender discrimination. Specifically, Mr. Celli contends
the mandatory prison terms are only implicated when the victim is pregnant and since only
females can bear children, the enhanced penalty discriminates based on gender. Further, he
argues the mandatory prison provision applies regardless of any actual harm to the unborn child.
{¶6} An appellate court reviews a constitutional challenge de novo. State v. Honey, 9th
Dist. Medina No. 08CA0018-M, 2008-Ohio-4943, ¶ 4. The relevant portion of the Fourteenth
Amendment to the United States Constitution provides that “[n]o State shall * * * deny to any
person within its jurisdiction the equal protection of the laws.” The Ohio Constitution provides a
similar protection in Article I, Section 2: “All political power is inherent in the people.
Government is instituted for their equal protection and benefit * * *.” The federal and Ohio equal
protection clauses are “functionally equivalent,” State v. Williams, 126 Ohio St.3d 65, 2010-
Ohio-2453, ¶ 38, and “are to be construed and analyzed identically,” Am. Assn. of Univ.
Professors, Cent. State Univ. Chapter v. Cent. State Univ., 87 Ohio St.3d 55, 60 (1999).
{¶7} When assessing an equal protection challenge, a court must “apply varying levels
of scrutiny * * * depending on the rights at issue and the purportedly discriminatory
classifications created by the law.” Pickaway Cty. Skilled Gaming, L.L.C. v. Cordray, 127 Ohio
St.3d 104, 2010-Ohio-4908, ¶ 18. If the challenged statute does not implicate a suspect
classification or a fundamental interest, then the court applies rational basis review. State v.
Klembus, 146 Ohio St.3d 84, 2016-Ohio-1092, ¶ 9. A statute implicating a classification based 3
on gender or illegitimacy is subject to intermediate scrutiny and must bear a substantial relation
to an important government interest. Clark v. Joseph, 95 Ohio App.3d 207, 211-212 (9th
Dist.1994). The parties presented their arguments solely under the intermediate scrutiny test.
{¶8} Mr. Celli was convicted of domestic violence in violation of R.C. 2919.25(A),
which provides that “[n]o person shall knowingly cause or attempt to cause physical harm to a
family or household member.” Additionally, he was convicted of the pregnancy specification,
which enhances the degree of the offense from a first degree misdemeanor to a fifth degree
felony when the “offender knew that the victim of the [domestic violence] was pregnant at the
time of the violation.” (Emphasis added.) R.C. 2919.25(D)(2), (5). In addition to the degree
enhancement, the pregnancy specification includes a mandatory prison term. R.C.
2919.25(D)(5). In this case, Mr. Celli was subject to a six-month mandatory prison term. See
R.C. 2919.25(D)(6)(a).
{¶9} “‘Only when it is shown that the legislation has a substantial disparate impact on
classes defined in a different fashion may analysis continue on the impact of those classes.’”
Beagle v. Walden, 78 Ohio St.3d 59, 63 (1997), quoting Califano v. Boles, 443 U.S. 282, 294
(1979). When analyzing the pregnancy specification in the domestic violence statute as it
applies to the offender, the statute makes no distinction between the punishment it imposes on
male or female offenders. The mandatory prison time applies equally to a male or a female
offender who “knowingly cause[ed] or attempt[ed] to cause physical harm to a family or
household member”1 and knew the victim was pregnant at the time of the violation. R.C.
1 “‘Family or household member’” is defined as a person “who is residing or has resided with the offender” and is “[a] spouse, a person living as a spouse, or a former spouse of the offender;” “[a] parent, a foster parent, or a child of the offender, or another person related by consanguinity or affinity to the offender;” or “[a] parent or a child of a spouse, person living as a spouse, or former spouse of the offender, or another person related by consanguinity or affinity 4
2919.25(A), (D)(5). Accordingly, the pregnancy specification does not define the offender based
on a class and the intermediate scrutiny test is not applicable.
{¶10} Mr. Celli clarifies his position by noting that an offender is not subject to the
mandatory prison time when the victim is a male, because males cannot bear children. The
parties have not cited and this Court has not found any Ohio law addressing Mr. Celli’s equal
protection argument that the mandatory prison time is unconstitutional because it is based on the
gender of the victim.
{¶11} This Court must apply the same threshold analysis from above to the victim. Mr.
Celli’s argument fails because he does not take into consideration all of the elements of the
pregnancy specification. The pregnancy specification requires more than proof that the victim
was pregnant. It also requires that the offender “knew” the victim was pregnant at the time the
domestic violence occurred. R.C. 2919.25(D)(5). Thus, an offender who commits domestic
violence against a pregnant victim, but does not know that the victim is pregnant is not subject to
the mandatory prison term. The pregnancy specification is not based on a gender classification
of the victim and the intermediate scrutiny test is not applicable.
{¶12} Mr. Celli also argues the statute is unconstitutional because mandatory prison
time applies regardless of whether there is actual harm to the unborn child. Mr. Celli only
presented his equal protection claim under the intermediate scrutiny test which applies to
classifications based on gender and illegitimacy. See Clark, 95 Ohio App.3d at 211-212. The
to a spouse, person living as a spouse, or former spouse of the offender.” R.C. 2919.25(F)(1)(a)(i)-(iii). Also, included in this definition is “[t]he natural parent of any child of whom the offender is the other natural parent or is the putative other natural parent.” R.C. 2919.25(F)(1)(b). “‘Person living as a spouse’ means a person who is living or has lived with the offender in a common law marital relationship, who otherwise is cohabiting with the offender, or who otherwise has cohabited with the offender within five years prior to the date of the alleged commission of the act in question.” R.C. 2919.25(F)(2). 5
above framed argument does not fall under either a gender or illegitimacy classification and thus
is not subject to the intermediate scrutiny test.
{¶13} Mr. Celli has failed to correctly identify the classification created by statute and
this Court will not construct one for him in order to proceed with an equal protection analysis.
See State v. Schulz, 9th Dist. Summit No. 26875, 2015-Ohio-2252, ¶ 13. Mr. Celli’s first
assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED AS A MATTER OF LAW BECAUSE THE STATE FAILED TO ESTABLISH ON THE RECORD SUFFICIENT EVIDENCE TO SUPPORT THE CHARGES LEVIED AGAINST MR. CELLI IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE 14TH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, SECTIONS 1, 10 & 16 OF THE OHIO CONSTITUTION.
{¶14} In his second assignment of error, Mr. Celli argues that there is insufficient
evidence to uphold his conviction for domestic violence. Specifically, Mr. Celli argues the State
did not prove that he “acted knowingly with respect to his conduct on October 18, 2015.” This
Court disagrees.
{¶15} “‘[This Court] review[s] a denial of a defendant’s Crim.R. 29 motion for acquittal
by assessing the sufficiency of the State’s evidence.’” State v. Bulls, 9th Dist. Summit No.
27029, 2015-Ohio-276, ¶ 6, quoting State v. Frashuer, 9th Dist. Summit No. 24769, 2010-Ohio-
634, ¶ 33. When reviewing the sufficiency of the evidence, this Court must review the evidence
in a light most favorable to the prosecution to determine whether the evidence before the trial
court was sufficient to sustain a conviction. State v. Jenks, 61 Ohio St.3d 259, 273 (1991).
An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, 6
any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.
Id. at paragraph two of the syllabus.
{¶16} A sufficiency challenge to a criminal conviction presents a question of law, which
the appellate court reviews de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997); State v.
Trifari, 9th Dist. Medina No. 08CA0043-M, 2009-Ohio-667, ¶ 12. Although the standard of
review is de novo, the appellate court does not resolve evidentiary conflicts or assess the
credibility of witnesses, because these functions belong to the trier of fact. State v. Tucker, 9th
Dist. Medina No. 14CA0047-M, 2015-Ohio-3810, ¶ 7.
{¶17} Mr. Celli only challenges the mens rea element of the offense. He contends, even
viewing the evidence in a light most favorable to the prosecution, no rational trier of fact could
have found that he “acted knowingly with respect to his conduct on October 18, 2015.” Mr.
Celli argues that N.H. testified that she was the aggressor, Mr. Celli did not punch or attack her,
and their physical contact was a mutual scuffle. Thus, he asserts his actions were merely
reactions to N.H.’s aggressions.
{¶18} R.C. 2919.25(A) states “[n]o person shall knowingly cause or attempt to cause
physical harm to a family or household member.” “A person acts knowingly, regardless of
purpose, when the person 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.” R.C. 2901.22(B). Motive, purpose,
and mistake of fact are irrelevant when it comes to knowledge. State v. Wenger, 58 Ohio St.2d
336, 339 (1979), fn. 3. “A defendant need not act with deliberate intent to act knowingly; if the
result is probable, then the defendant acts with knowledge.” State v. Kartman, 7th Dist. Belmont
No. 01 BA 65, 2002-Ohio-5189, ¶ 8, citing Wenger at 339. “[W]hether a person acts knowingly 7
can only be determined, absent a defendant’s admission, from all the surrounding facts and
circumstances, including the doing of the act itself.” State v. Huff, 145 Ohio App.3d 555, 563
(1st Dist.2001).
{¶19} In the fall of 2015, N.H. and Mr. Celli were renting the basement of N.H.’s best
friend’s home. On October 18, 2015, N.H. and Mr. Celli were arguing most of the morning. In
an attempt to diffuse the situation, N.H. and her best friend left the house to go to the grocery
store. When they returned, N.H. discovered that Mr. Celli had packed some of his and her
belongings into his car. This upset N.H. and she went outside to take her things out of the car.
{¶20} N.H.’s best friend was inside the house when she heard N.H. and Mr. Celli
arguing very loudly. She went outside to tell them to “calm down a little, be quiet” and then
returned inside. The best friend testified that the screaming escalated and she could hear N.H.
crying. She went to the side window to look outside and “watched [Mr. Celli] slam [N.H.’s]
head into the back side of [her] vehicle twice.” The best friend explained N.H. fell onto the
ground. “And after she fell to the ground right there, [Mr. Celli] then proceeded to grab her by
the back of her head and slam her into the ground.” She described the injuries to N.H. as a
bloody lip and little bloody spots from pebbles on her face. After witnessing these events, the
best friend called 911.
{¶21} A neighbor, who does not know N.H. or Mr. Celli, witnessed them arguing and
engaging in a physical struggle. The neighbor was outside on his porch when he heard yelling,
but could not make out what was said. According to the neighbor, Mr. Celli was carrying a
basket and N.H. “snatched” it from him and started throwing clothes in the yard. They then got
“face-to-face” and were yelling back and forth when “he had her around the throat and they went 8
to the ground.” Mr. Celli fell on top of N.H. and she was kicking to get him off of her. After
witnessing these events, the neighbor went inside to call 911.
{¶22} N.H. testified that she was very angry with Mr. Celli but did not want him to
leave. She began “wrestling over suitcases” and ended up on the ground. She admitted that she
was the one on the ground and that her lip was cut and her forehead bruised and scratched.
However, she did not think that “he intentionally, * * *, put [her] on the ground.” She also
conceded that she told the police that Mr. Celli punched her and put her face into the driveway.
{¶23} Officer Hackathorn testified that when he arrived at the scene, N.H. had blood on
her lip and forehead, she was crying, upset, and under some distress. N.H. told the officer that
“she had been into a fight with her boyfriend; * * *; that her boyfriend had hit her in the face,
which kind of pushed her to the ground. And then she tried to get back up off the ground, and he
again shoved her face into the ground.” The officer took photographs of N.H.’s injuries, which
depict a bloody lip, scrapes on her forehead, and a black eye. The officer also questioned Mr.
Celli as to how blood got on his right knuckles. Mr. Celli did not know.
{¶24} Mr. Celli did not testify. However, the surrounding facts and circumstances
provide sufficient evidence that he acted knowingly when he caused physical harm to N.H. See
Huff, 145 Ohio App.3d at 563. The testimony reflects a mutual, but escalating argument and
struggle between Mr. Celli and N.H. over personal belongings. During the struggle, Mr. Celli
grabbed N.H. by her head and throat, knocked her to the ground, and pushed her face into the
gravel driveway. A reasonable trier of fact could find that Mr. Celli was aware that he was about
to make physical contact with N.H., and that by doing so he would probably cause her physical
harm. Because injury is probable in a mutual, but escalating physical struggle, Mr. Celli acted
with knowledge. 9
{¶25} N.H.’s belief about whether Mr. Celli intended to harm her does not refute the
mens rea of knowingly in a domestic violence conviction. See Huff at 563. Mr. Celli’s
intentions are immaterial. See Kartman, 2002-Ohio-5189, at ¶ 8 (“A defendant need not act with
deliberate intent to act knowingly.”) The evidence reflects Mr. Celli acted knowingly by
engaging in conduct which increased the probability of violence and injury to N.H. See State v.
Dixon, 8th Dist. Cuyahoga No. 82951, 2004-Ohio-2406, ¶ 15.
{¶26} Viewing the evidence in a light most favorable to the State, there is sufficient
evidence for a rational trier of fact to have found the essential element of knowingly in a
domestic violence charge proven beyond a reasonable doubt. See Jenks, 61 Ohio St.3d 259, at
paragraph two of the syllabus. Mr. Celli’s second assignment of error is overruled.
THIRD ASSIGNMENT OF ERROR
MR. CELLI’S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE [] IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE 14TH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, SECTIONS 1, 10 & 16 OF THE OHIO CONSTITUTION.
{¶27} In his third assignment of error, Mr. Celli argues his conviction is against the
manifest weight of the evidence because of the inconsistencies between all of the witnesses’
testimony and the best friend’s lack of credibility. This Court disagrees.
{¶28} A conviction that is supported by sufficient evidence may still be found to be
against the manifest weight of the evidence. Thompkins, 78 Ohio St.3d at 387. While the test of
sufficiency requires a determination of whether the State has met its burden of production at trial,
a manifest weight challenge questions whether the State has met its burden of persuasion. Id. at
390 (Cook, J., concurring).
{¶29} When applying the manifest weight standard, appellate courts are required to
consider the whole record, “weigh the evidence and all reasonable inferences, consider the 10
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). “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 factfinder’s resolution of the conflicting testimony.” Thompkins at 387,
quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). This discretionary power should be exercised
only in exceptional cases where the evidence presented weighs heavily in favor of the defendant
and against the conviction. Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175
(1st Dist.1983); see also Otten at 340.
{¶30} Mr. Celli argues his conviction is against the manifest weight of the evidence
because the four witnesses have different accounts of what transpired. He questions the
credibility of the testimony from the best friend and the neighbor because they did not witness
the entire event. He also challenges the credibility of the police officer’s testimony because it
was based on a statement made by N.H., who claims to have been pressured by the police to
make a statement that was contrary to what happened. Lastly, Mr. Celli questions the motive
and credibility of the best friend’s testimony.
{¶31} There are differences in the testimony between the best friend and the neighbor as
to what they witnessed happening between Mr. Celli and N.H. While they both agree that there
was yelling, they testified to slightly different physical conduct. The jury could have found the
differences in the testimony attributable to the fact that the best friend and the neighbor
witnessed the incident at different times. 11
{¶32} The best friend indicated she was inside the house and Mr. Celli and N.H. were
outside. The best friend went to the window when the screaming escalated. Thus, there was a
delay in the best friend witnessing the incident. Moreover, both the best friend and the neighbor
admit to losing sight of the incident while making the 911 calls.
{¶33} The 911 calls are timestamped. The neighbor made the first call at 2:01 p.m.,
followed by the best friend at 2:02 p.m. Based on the timing of the 911 calls, the jury could have
concluded that what the best friend observed happened after what the neighbor observed. “[T]he
trier of fact is in the best position to determine the credibility of witnesses and evaluate their
testimony accordingly.” State v. Johnson, 9th Dist. Summit No. 25161, 2010-Ohio-3296, ¶ 15.
Thus, the jury was in the best position to determine if the differences in the testimony between
the best friend and the neighbor were actual inconsistencies or just observations from different
vantage points and periods of time.
{¶34} The only witness who testified to the entire incident was N.H. Called as the
court’s witness, N.H. told the jury “[i]t stinks” that she has been subpoenaed to come to court to
testify in this matter and wished this would “just * * * go away.” While N.H. testified that she
felt pressured by her best friend and the police to make the statement, the jury also heard the jail
call between Mr. Celli and N.H. in which he tells her to drop the charges. In the same call, Mr.
Celli tells N.H. how much he loves her, how sorry he is, that he does not know how he did that to
her, and asks her to bail him out. The jury was in the best position to determine N.H.’s credibility
and evaluate her testimony to decide if she was pressured to make a statement to the police or to
drop the charges. See Johnson at ¶ 15.
{¶35} At trial, N.H. testified that the fight that day was both of their faults. She
described the incident as a “stupid tug of war * * * over luggage” in which they “wrestled” and 12
she “was the one by the car and on the ground.” However, she adamantly denied it was a
physical attack and denied that Mr. Celli punched her.
{¶36} N.H.’s testimony conflicts with the statement that she gave to the police when
they arrived on the scene. “[I]n domestic violence cases, it is not uncommon for the complaining
witness to change her story before trial.” State v. Brown, 3d Dist. Allen No. 1-97-74, 1998 WL
227182, *2 (May 8, 1998). Officer Hackathorn testified as to N.H.’s statement, and her physical
and emotional appearance when he arrived on scene. N.H.’s statement to the police was that
“she had been into a fight with her boyfriend; * * *; that her boyfriend had hit her in the face,
which kind of pushed her to the ground. And then she tried to get back up off the ground, and he
again shoved her face into the ground.” N.H. admits she made this statement to the police, but
only because she felt pressured to do so.
{¶37} The officer described N.H. as having blood on the left side of her lip and face and
little scrapes on the left side of her forehead. Additionally, she was crying and had a difficult
time speaking because she was choked up. He described N.H. as presenting as “emotionally
distraught, very upset from something traumatic that occurred.”
{¶38} At trial, N.H. conceded to having a “cut on [her] lip and [a] scratch on [her] face”
from “wrestling” with Mr. Celli. However, she minimized the injuries, claiming they looked
worse in the pictures than they really were because nobody would let her clean up. She also
denied that she had a black eye in the pictures, saying instead that it was her “natural dark eyes
and the shadow.”
{¶39} The bloody lip and scrape on the forehead, along with N.H. appearing visibly
distraught and having a considerably darker and bigger circle under her left eye than her right
eye, were depicted in the photographs taken at the scene and admitted into evidence. N.H.’s 13
original statement and the testimony of the best friend and officer were supported by the only
physical evidence in the case, the photographs. The jury was free to disregard the victim’s
contradictory trial testimony where there was evidence presented in support of the victim’s prior
statement of the facts. See Brown, 1998 WL 227182 at *2.
{¶40} Lastly, Mr. Celli asserts the verdict was against the manifest weight of the
evidence because the best friend’s testimony was not credible and she had motive to lie. He
points to N.H.’s testimony that her best friend is manipulative and selfish and did not like Mr.
Celli dating N.H. The best friend testified that she did not agree with some of the things Mr.
Celli had done in the past, but she didn’t “have [any] hard feelings towards [Mr. Celli]. [She
was] not mad at him. [She doesn’t] dislike him. [She was] just [there] to tell the truth.” The
best friend readily admitted she does not like Mr. Celli dating N.H. and she had expressed that
opinion to N.H. Additionally, the best friend indicated she broke her wrist in a fight with her
brother, while N.H. testified that her best friend broke her wrist in a fight with a boyfriend, who
subsequently went to jail for domestic violence. It was within the jury’s province to believe or
reject the testimony of the best friend and to weigh her credibility. See State v. Miles, 9th Dist.
Summit No. 26187, 2012-Ohio-2607, ¶ 24, quoting State v. Rice, 9th Dist. Summit No. 26116,
2012-Ohio-2174, ¶ 35.
{¶41} “In reaching its verdict, the jury was in the best position to evaluate the
credibility of the witnesses and it was entitled to believe all, part, or none of the testimony of
each witness.” State v. Shank, 9th Dist. Medina No. 12CA0104-M, 2013-Ohio-5368, ¶ 29. This
Court will not overturn a conviction as being against the manifest weight of the evidence simply
because the trier of fact chose to believe the State’s version of events over another version. State
v. Tabassum, 9th Dist. Summit No. 25568, 2011-Ohio-6790, ¶ 27. 14
{¶42} Based upon the evidence presented at trial, the jury found Mr. Celli guilty of
domestic violence. Having reviewed the record, this Court cannot conclude that the jury clearly
lost its way and created a “manifest miscarriage of justice.” Otten, 33 Ohio App.3d at 340. The
third assignment of error is overruled.
III.
{¶43} Mr. Celli’s first, second, and third assignments of error are overruled. The
judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
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 Summit, 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 to Appellant.
LYNNE S. CALLAHAN FOR THE COURT 15
HENSAL, P. J. SCHAFER, J. CONCUR.
APPEARANCES:
DAWN M. KING, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.