[Cite as State v. Clark, 2016-Ohio-2825.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 96207
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
DARIUS CLARK DEFENDANT-APPELLANT
JUDGMENT: CONVICTIONS AFFIRMED AND REMANDED FOR RESENTENCING
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-10-536300-A
BEFORE: Blackmon, J., E.A. Gallagher, P.J., and McCormack, J.
RELEASED AND JOURNALIZED: May 5, 2016 ATTORNEYS FOR APPELLANT
Robert L. Tobik Cuyahoga County Public Defender
By: Nathaniel McDonald Erika B. Cunliffe Jeffrey Gamso Assistant Public Defenders 310 Lakeside Avenue Suite 200 Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
By: Jennifer A. Driscoll Mark J. Mahoney Matthew E. Meyer Anthony Thomas Miranda Assistant County Prosecutors 9th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 PATRICIA ANN BLACKMON, J.:
{¶1} This case is before us on remand from the United States Supreme Court and
the Ohio Supreme Court to review the admissibility of a child victim’s statements to his
teachers under Evid.R. 807.
{¶2} On November 22, 2010, a jury convicted Darius Clark of multiple counts of
felonious assault, endangering children, and domestic violence in relation to the abuse of
Clark’s girlfriend’s two children, A.T. and L.P. The trial court subsequently sentenced
Clark to 28 years in prison, and Clark appealed. For a thorough recitation of the facts,
see State v. Clark, 8th Dist. Cuyahoga No. 96207, 2011-Ohio-6623 (“Clark I”); State v.
Clark, 137 Ohio St.3d 346, 2013-Ohio-4731, 999 N.E.2d 592 (“Clark II”); and Ohio v.
Clark, 576 U.S. ____, 135 S.Ct. 2173, 192 L.Ed.2d 306 (2015) (“Clark III”). The
procedural history of the case leading up to remand follows.
{¶3} On December 22, 2011, this court reversed Clark’s convictions and ordered
a new trial, finding that the trial court’s ruling L.P. incompetent to testify was
incompatible with the admissibility of L.P.’s out-of-court statements identifying Clark as
L.P.’s abuser. Clark I. This court ruled that the police detective’s, social workers’, and
teachers’ testimonies violated the Sixth Amendment Confrontation Clause to the United
States Constitution and that L.P.’s relatives’ testimonies were inadmissible under Evid.R.
807. Id. This court also found that there was sufficient evidence in the record to
support a finding that L.P. suffered serious physical harm in relation to the felonious
assault and endangering children convictions. Id. {¶4} The Ohio Supreme Court accepted the state’s appeal of Clark I, challenging
one issue only: “whether the trial court violated Darius Clark’s constitutional right to
confront the witnesses against him when it admitted a hearsay statement that
three-and-a-half-year-old L.P. made to his preschool teachers * * * in response to
questions asked about his injuries to his eye and marks on his face observed upon his
arrival at a preschool day care.” Clark II at ¶ 1. In affirming Clark I, the Ohio
Supreme Court held that “the statement L.P. made to his preschool teacher is testimonial
in nature, and its admission into evidence violated Clark’s right to confront witnesses
under the Sixth Amendment to the United States Constitution.” Clark II at ¶ 4.
{¶5} The United States Supreme Court reversed Clark II, holding that “the Sixth
Amendment did not prohibit the state from introducing L.P.’s statements at trial * * *
[because] L.P.’s statements to his teachers were not testimonial.” Clark III at 2182-2183.
{¶6} When a statement is not testimonial in nature, its admissibility “is the
concern of state and federal rules of evidence, not the Confrontation Clause.” Clark III at
2180, citing Michigan v. Bryant, 562 U.S. 344, 359, 131 S.Ct. 1143, 179 L.Ed.2d 93
(2011). Accordingly, we now review the admissibility of L.P.’s statements to his
teachers under Evid.R. 807. Additionally, we review the assignments of error this court
rendered moot in Clark I.1 Upon review, we affirm Clark’s convictions and remand this
case for a limited resentencing hearing.
1 See appendix. I. Admissibility of L.P.’s Statements to Teachers Under Evid.R. 807
{¶7} Evid.R. 807 governs the admissibility of a child’s out-of-court statement in
abuse cases and states, in pertinent part, as follows:
(A) An out-of-court statement made by a child who is under twelve years of age at the time of trial or hearing * * * describing any act of physical violence directed against the child is not excluded as hearsay * * * if all of the following apply:
(1) The Court finds that the totality of the circumstances surrounding the making of the statement provides particularized guarantees of trustworthiness that make the statement at least as reliable as statements admitted pursuant to [other hearsay exceptions]. The circumstances must establish that the child was particularly likely to be telling the truth when the statement was made and that the test of cross-examination would add little to the reliability of the statement. In making its determination of the reliability of the statement, the court shall consider all of the circumstances surrounding the making of the statement, including but not limited to spontaneity, the internal consistency of the statement, the mental state of the child, the child’s motive or lack of motive to fabricate, the child’s use of terminology unexpected of a child of similar age, the means by which the statement was elicited, and the lapse of time between the act and the statement. In making this determination, the court shall not consider whether there is independent proof of the * * * act of physical violence.
(2) The child’s testimony is not reasonably obtainable by the proponent of the statement.
(3) There is independent proof of the * * * act of physical violence.
(4) At least ten days before the trial or hearing, a proponent of the statement has notified all other parties in writing of the [particulars] of the statement.
{¶8} On remand in the case at hand, the parties agree that Evid.R. 807(A)(2) and
(4) are satisfied. Therefore, our analysis of the admissibility of L.P.’s statements to his
teachers is twofold: first, whether L.P. “was particularly likely to be telling the truth when
the statement was made and [whether] the test of cross-examination would add little to the reliability of the statement”; and second, whether there was independent proof of the
abuse. Evid.R. 807(A)(1) and (3).
A. Reliability of Statements
{¶9} The first of L.P.’s teachers to testify was Ramona J. Whitley. She testified
that L.P. had been in her class for two-to-three weeks when, on March
17, 2010, she noticed that his eye was red. She asked him what happened. At first,
L.P. said nothing happened. She asked again, and L.P. said he fell down. Whitley
brought L.P. into a classroom where the lighting was better and noticed red marks on his
head.
{¶10} Whitley further inquired of L.P. as to what happened, and eventually L.P.
“mentioned” the name “Dee,” which is Clark’s nickname. Whitley testified that
she did not see any marks on L.P. the previous day, March 16, 2010.
According to Whitley, L.P.’s mom picked him up from school on March 16, 2010, and
Clark dropped L.P. off at school on March 17, 2010.
{¶11} The second teacher of L.P.’s to testify was Debra Jones. She testified that
on March 17, 2010, L.P. had been a student of hers “maybe a week or two.” According
to Jones, on March 17, 2010, Whitley brought to her attention “signs of redness” near
L.P.’s eye and around his neck. Jones brought L.P. to her supervisor’s office. Jones’s
supervisor lifted L.P.’s shirt up, and the two teachers “saw enough to make the call” to
report child abuse. Jones also testified that she did not see any red marks on L.P.’s eye, neck, or head the previous day, March 16, 2010. Jones testified that when she asked
L.P., “What happened to you?” L.P. “said something like, Dee, Dee.”
{¶12} Pursuant to Evid.R. 807, in determining whether L.P. “was particularly
likely to be telling the truth,” this court must consider the following factors: “spontaneity,
the internal consistency of the statement, the mental state of the child, the child’s motive
or lack of motive to fabricate, the child’s use of terminology unexpected of a child of
similar age, the means by which the statement was elicited, and the lapse of time between
the act and the statement.”
{¶13} Upon review, we find that L.P.’s statements were elicited “in response to
questions asked” by his teachers and not strictly spontaneous. Clark II at ¶ 1. As to
internal consistency, although L.P. initially gave three different answers to his teachers’
questions about who abused him, “Dee” was the only person whose name L.P. said. We
find no evidence in the record regarding a motive or lack of motive to fabricate. As to
the terminology of L.P.’s statement, identifying “Dee,” we find nothing unexpected
about this language from a three-year-old. As to the lapse of time between the act and
the statement, L.P.’s teachers testified that they did not notice bruises on L.P.’s head or
around his eye on March 16, 2010, but that the bruises and/or marks were visible the next
day, on March 17, 2010. Additionally, the emergency room physician testified that he
examined L.P. on March 18, 2010, and some of the bruising appeared brand new and
some of it was “days or longer older.”
B. Independent Proof of Abuse {¶14} A plain reading of Evid.R. 807(A)(3) requires “independent proof of the
sexual act or act of physical violence.” In the case at hand, there is independent
testimonial, documentary, and photographic evidence of the physical violence L.P.
suffered. Whether the abuse happened is not in question.
{¶15} Upon review, we find that L.P.’s statements to his teachers were made
under unique circumstances. Teachers have a special relationship with children, and
R.C. 2151.421, which governs a teacher’s duty to report child abuse, was designed “as a
mechanism for identifying and protecting abused and neglected children at the earliest
possible time.” Yates v. Mansfield Bd. of Edn., 102 Ohio St.3d 205, 2004-Ohio-2491,
808 N.E.2d 861, ¶ 24.
{¶16} Teachers, “when acting in their official or professional capacity, hold unique
positions in our society. They are not only the most likely and qualified persons to
encounter and identify abused and neglected children, but they are often directly
responsible for the care, custody, or control of these children in one form or another.”
Id. at ¶ 30. Upon review, we find that L.P.’s teachers are in a more objective position
than L.P.’s family members to question L.P. about domestic violence.
{¶17} Accordingly, L.P.’s statements to his teachers identifying Clark as his abuser
are admissible under Evid.R. 807. Therefore, we find no error in the court’s admission
of these statements. Accordingly, Clark’s third and fourth assigned errors are
overruled.
II. Manifest Weight of the Evidence {¶18} In Clark’s second assigned error, he argues that L.P.’s mother’s
(“Mother”) “testimony was so incredible that the jury could not
reasonably conclude that * * * Clark was the perpetrator beyond a reasonable doubt.”
{¶19} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264,
¶ 25, the Ohio Supreme Court addressed the standard of review for a criminal manifest
weight challenge, as follows:
The criminal manifest-weight-of-the-evidence standard was explained in
State v. Thompkins (1997), 78 Ohio St.3d 380, 1997- Ohio-52, 678 N.E.2d
541. In Thompkins, the court distinguished between sufficiency of the
evidence and manifest weight of the evidence, finding that these concepts
differ both qualitatively and quantitatively. Id. at 386, 678 N.E.2d 541. The
court held that sufficiency of the evidence is a test of adequacy as to
whether the evidence is legally sufficient to support a verdict as a matter of
law, but weight of the evidence addresses the evidence’s effect of inducing
belief. Id. at 386-387, 678 N.E.2d 541. In other words, a reviewing court
asks whose evidence is more persuasive — the state’s or the defendant’s?
We went on to hold that although there may be sufficient evidence to
support a judgment, it could nevertheless be against the manifest weight of
the evidence. Id. at 387, 678 N.E.2d 541. “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.” Id. at 387, 678
N.E.2d 541, citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211,
72 L.Ed.2d 652.
{¶20} An appellate court may not merely substitute its view for that of the jury, but
must find that “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.” Thompkins at 387. Accordingly, reversal on manifest weight grounds
is reserved for “the exceptional case that the evidence weighs heavily against the
conviction.” Id.
{¶21} Mother testified that late on the night of March 16, 2010, she left L.P. and
A.T. with Clark while she went out of town to prostitute herself under Clark’s direction.
Mother testified that when she left, A.T. had burn marks on her. Mother questioned
Clark about the marks, and he said A.T. burned herself on a hot comb. Mother testified
that there were no marks on L.P. when she left.
{¶22} Mother testified that she received a phone call from a social worker on
March 17 or March 18, right after she arrived in Washington, D.C., informing her that her
children had been abused. Mother testified that she lied to social workers and family
members about her whereabouts because she did not want them taking her children away
or knowing she was a prostitute. Mother did not return to Cleveland until she was
arrested five months later in August. Mother denied abusing L.P. and A.T. and testified
that she never saw Clark hit or abuse her children. {¶23} Upon review, we find that Clark’s convictions are not against the manifest
weight of the evidence. Determining Mother’s credibility was within the province of the
jury. State v. DeHaas, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). Furthermore, L.P.
identified Clark as his abuser. We cannot say that the jury lost its way and committed a
miscarriage of justice. Accordingly, Clark’s second assigned error is overruled.
III. Jury Instructions
{¶24} In his fifth assigned error, Clark argues that the court abused its discretion
when it denied his request to instruct the jury that L.P. did not testify because the trial
court found him incompetent to do so.
{¶25} “A trial court should give a proposed jury instruction if it is a correct
statement of the law and is applicable to the facts of the particular case.” State v. Rose,
8th Dist. Cuyahoga No. 89457, 2008-Ohio-1262, ¶ 18.
{¶26} In the case at hand, Clark argues that the jury should have been instructed as
follows:
[L.P.] did not testify in this case. At a prior hearing, this court found that [L.P.] was not competent to testify. As a result, it did not permit him to be called as a witness either by the state or the defense in this trial. * * * In light of the court’s conclusion that [L.P.] was incompetent to testify, it is for you, to determine how much weight, if any, to give to alleged statements of [L.P.] that were offered by other witnesses.
{¶27} Clark’s proposed instruction also included the five factors that the court
considered when determining that L.P. was incompetent to testify.
{¶28} The court denied Clark’s request for this jury instruction, reasoning that
“[t]hese are guidelines for the court to [use] in determining the competency of a witness to testify,” and not proper charges to the jury. Upon review, we conclude that the gist of
the proposed jury instruction is not a “statement of law”; rather, it is a factual finding
made by the court after a hearing. Although the guidelines are “correct” statements, the
point on which Clark attempted to instruct the jury was the court’s conclusion or finding
that L.P. was incompetent. Clark did not cite, and we do not find, any Ohio case law
where the jury was instructed, properly or not, on an incompetency finding.
Accordingly, Clark’s fifth assigned error is overruled.
IV. Duplicitous Indictment
{¶29} In Clark’s sixth assigned error, he argues that “the state failed to separate
distinct instances of alleged abuse into separate counts,” thus resulting in a duplicitous
indictment. Specifically, Clark argues that the felonious assault, child endangering, and
domestic violence charges concerning each child are based on jury speculation because
the evidence did not refer to any specific incidents of abuse. Clark further argues that
the evidence presented at trial showed that A.T. “suffered numerous injuries, [but]
[b]ecause of the identical counts in the indictment, it is impossible to tell whether the
injuries that formed the basis of Counts 2, 3, 4, and 5 of the grand jury’s indictment were
the same injuries that the jury considered in reaching its verdict with respect to each
count.”
{¶30} Clark was indicted for the following nine counts: 1) felonious assault of
L.P.; 2) felonious assault of A.T.; 3) felonious assault of A.T.; 4) felonious assault of
A.T.; 5) felonious assault of A.T.; 6) child endangerment of L.P.; 7) child endangerment of A.T.; 8) domestic violence against L.P.; and 9) domestic violence against A.T. The
state alleged that all nine counts occurred between February 28, 2010 and March 17,
2010. Clark was convicted of eight counts and was acquitted of one of the felonious
assault charges involving A.T.
{¶31} Mother testified that when she left town on March 16, 2010, at midnight,
A.T. had burn marks on her face, arm, and chest. According to Mother, L.P. had no
marks on him.
{¶32} Dr. Jeffrey Pennington testified that he examined L.P. and A.T. on March
18, 2010. According to the doctor, L.P. had abrasions and bruising “in different stages
of development” on his face, upper torso, left chest, right shoulder, back, and both thighs.
A.T. had burns on her chest, face, and buttocks, and her right hand was bruised and
swollen. A.T. also had two black eyes and scab wounds and hair loss on her scalp.
{¶33} Dr. Pennington testified that most of L.P.’s injuries occurred “within days”
before the medical exam and that his bruises were “in various stages of healing.” A.T.’s
injuries were possibly “weeks old.” The doctor estimated that the injuries occurred
between February 28 and March 18, 2010, although he did not testify about a more
specific time frame for each injury.
{¶34} Pursuant to Crim.R. 8(A), a criminal indictment must contain “a separate
count for each offense,” and under Crim.R. 31(A), an accused is entitled to a unanimous
jury verdict. When two or more separate offenses are joined in one count, the
indictment is considered duplicitous because “unanimity may be compromised.” State v. Ward, 9th Dist. Lorain No. 09CA009720, 2011-Ohio-518, ¶ 5. In other words, “while
the jury may agree that the defendant is guilty of [a] count, they may have not
unanimously decided which set of facts resulted in the offense.” Id.
V. Multiple Identical and Undifferentiated Counts
{¶35} In his seventh assigned error, Clark argues that Counts 2, 3, 4, and 5, which
charge him with felonious assault of A.T. between February 28 and March 17, 2010,
violate his constitutional right of presentment to the grand jury, due process, and
protection against double jeopardy. Specifically, Clark argues that “the four felonious
assault counts regarding [A.T.] cannot be sustained based on the evidence presented.”
We note that Clark was acquitted of one count of felonious assault regarding A.T. and
convicted of three counts. Nonetheless, the gist of Clark’s argument is that he “cannot
identify the conduct associated with each count in order to determine with accuracy to
what extent he may plead a former acquittal or conviction.”
{¶36} As support for this argument, Clark cites to a line of cases involving “carbon
copy” indictments and stemming from Russell v. United States, 369 U.S. 749, 82 S.Ct.
1038, 8 L.Ed.2d 240 (1962) and Valentine v. Konteh, 395 F.3d 626 (6th Cir.2005).
Numerous charges cannot be made out through estimation or inference. Instead, if prosecutors seek multiple charges against a defendant, they must link those multiple charges to multiple identifiable offenses. * * * Courts cannot uphold multiple convictions when they are unable to discern the evidence that supports each individual conviction.
Valentine at 636-637. {¶37} There is no question that A.T. suffered abuse, and the evidence presented at
trial concerned multiple injuries. Dr. Pennington testified about multiple wounds on
various parts of A.T.’s body that were “days or weeks” old. In addition, Mother testified
that on March 16, 2010, A.T. had burns on her body and no other injuries. It is
undisputed that by March 18, 2010, A.T. had injuries on her body in addition to burns.
Accordingly, we overrule Clark’s sixth and seventh assigned errors.
VI. Allied Offenses
{¶38} Prior to being sentenced, Clark requested that the court merge his
convictions into a single count regarding L.P. and a single count regarding A.T. The
court denied Clark’s request and sentenced him as follows: Eight years on each felonious
assault charge, with three counts running consecutively; four years on each endangering
children count, with one running consecutive to the 24 years for the assaults; and six
months on each domestic violence charge, to run concurrently, for an aggregate sentence
of 28 years in prison.
{¶39} Ohio case law and the interpretation of R.C. 2941.25, which governs
multiple counts and allied offenses, has evolved since Clark’s 2010 convictions.
However, in State v. Ketterer, 140 Ohio St.3d 400, 2014-Ohio-3973, 18 N.E.3d 1199, the
Ohio Supreme Court ruled that the new analysis for allied offenses was not to be applied
retroactively. “We agree with the appellate courts that have declined to apply Johnson
retroactively to judgments that were final as of the date that case was decided.” Id. at ¶
15. {¶40} R.C. 2941.25 states as follows:
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses of
the same or similar kind committed separately or with a separate animus as
to each, the indictment may contain counts for all such offenses, and the
defendant may be convicted of them all.
{¶41} At the time of Clark’s convictions, the controlling law regarding allied
offenses was State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181.
Under Cabrales, the allied offense analysis did “not require a strict textual comparison
under R.C. 2941.25(A). Instead, if, in comparing the elements of the offenses in the
abstract, the offenses are so similar that the commission of one offense will necessarily
result in commission of the other, then the offenses are allied offenses of similar import.”
Cabrales at ¶ 26.
{¶42} Clark argues that his convictions for felonious assault, endangering children,
and domestic violence should merge because they are allied offenses. To commit
felonious assault under R.C. 2903.11(A)(1), an offender must knowingly cause serious
physical harm to another. To commit endangering children under R.C. 2919.22(B)(1), an offender must recklessly abuse a child.2 To commit domestic violence in violation of
R.C. 2919.25(A), an offender must knowingly cause physical harm to a family or
household member.
{¶43} Clark was convicted of recklessly abusing A.T. and L.P., who were children,
knowingly causing serious physical harm to A.T. and L.P., and knowingly causing harm
to A.T. and L.P., who were members of his household. The Ohio Supreme Court has
recognized that separate convictions may be upheld for each victim of a crime. See, e.g.,
State v. Jones, 18 Ohio St.3d 116, 118, 480 N.E.2d 408 (1985). See also State v. Ruff,
143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 45 (“[w]hen a defendant’s conduct
victimizes more than one person, the harm for each person is separate and distinct, and
therefore, the defendant can be convicted of multiple counts”).
{¶44} This court has previously held that domestic violence and felonious
assault are not allied offenses.
[T]he elements do not correspond to such a degree that the commission of domestic violence necessarily results in the commission of felonious assault. Domestic violence may occur without a felonious assault, where the harm does not rise to the level of serious physical harm. Likewise, felonious assault may occur without domestic violence, where the victim is not a family or household member.
State v. Sandridge, 8th Dist. Cuyahoga No. 87321, 2006-Ohio-5243, ¶ 33.
2 We note that endangering children in violation of R.C. 2919.22(A) encompasses creating “a substantial risk to the health or safety of the child”; however, Clark was not convicted of this offense. Rather, Clark was convicted of the “abusing a child” subsection of child endangerment. {¶45} Additionally, Ohio courts have held that “[f]elonious assault and child
endangering have different culpable mental states,” thus, they are not allied offenses of
similar import. State v. Journey, 4th Dist. Scioto No. 09CA3270, 2010-Ohio-2555, ¶ 25.
To commit felonious assault, one must act knowingly, and to commit child endangering,
one must act recklessly. Furthermore, an assault victim need not be a child.
Accordingly, Clark’s convictions are not subject to merger under Cabrales, 118 Ohio
St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, and his eighth assigned error is overruled.
VII. Court Costs
{¶46} Clark argues, and the state concedes, that the reference to costs in his
sentencing entry is improper, because the court did not impose a fine or costs at his
sentencing hearing. See State v. Lynch, 8th Dist. Cuyahoga No. 90630,
2008-Ohio-5594, ¶ 12. The state requests that this matter be remanded to the trial court
for a limited resentencing hearing to address court costs per the Ohio Supreme Court’s
directive in State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, ¶ 22.
Clark’s final assigned error is sustained, and this case is remanded for a limited
resentencing hearing consistent with Joseph.
{¶47} Convictions affirmed and case remanded for a limited resentencing hearing.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate be sent to the Cuyahoga County Court of
Common Pleas to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
EILEEN A. GALLAGHER, P.J., and TIM McCORMACK, J., CONCUR