[Cite as State v. Cole, 2011-Ohio-409.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-10-30
v.
DANIEL LEVI COLE, OPINION DEFENDANT-APPELLANT.
Appeals from Seneca County Common Pleas Court Trial Court No. 09-CR-0213
Judgment Affirmed
Date of Decision: January 31, 2011
APPEARANCES:
Martin D. Koop for Appellant
Derek W. DeVine and Gregory A. Tapocsi for Appellee Case No. 13-10-30
PRESTON, J.
{¶1} Defendant-appellant, Daniel Levi Cole (hereinafter “Cole”), appeals
the judgment of conviction and sentence entered against him by the Seneca
County Court of Common Pleas, which found him guilty of failure to comply with
the order or signal of a police officer. For the reasons that follow, we affirm.
{¶2} On September 23, 2009, the Seneca County Grand Jury indicted
Cole with one count of failure to comply with the order or signal of a police
officer in violation of R.C. 2921.331(B), (C)(5)(a)(i), a felony of the third degree.
Cole entered a plea of not guilty to the count and waived his right to a trial by jury.
{¶3} On March 18-19, 2010, the case proceeded to a bench trial. At trial,
the State presented testimony from the officer who had been directly involved in
the incident. Officer Lourel Benavides, a patrolman for the village of Bettsville,
testified that she had been working on August 7, 2009, within the village limits,
and had been patrolling the area and observing traffic. (Id. at 12-13). Officer
Benavides explained that she had been wearing her uniform and had been driving
a marked Bettsville police cruiser, which was grey in color and had large reflective
logos on both of the sides of the car that stated “Bettsville,” and which was
equipped with an audible siren system and overhead lights. (Id. at 14-18); (State’s
Ex. 1, 2, 3). Around 11:56 a.m., Officer Benavides said that she observed a tan
Mercury Sable traveling at what she believed to be faster than the posted speed
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limit, which in that particular area was 25 m.p.h. (Mar. 18, 2010 Tr. at 12-13, Vol.
I). As the vehicle drove past her location, she observed that the driver’s side
window was rolled half-way down, and thus, she could clearly identify that the
driver and sole occupant of the vehicle was the defendant. (Id. at 13).
{¶4} Officer Benavides testified that the vehicle had been originally
traveling eastbound on State Route 12, and then, it abruptly turned southbound
onto King Street without signaling. (Id. at 19). Once she saw the vehicle turn
onto King Street without signaling, Officer Benavides said that she immediately
began to follow the vehicle. (Id.). By the time she approached the intersection of
State Route 12 and King Street, the vehicle was approximately two blocks ahead
of her on King Street. (Id. at 20). Officer Benavides said that she then observed
the vehicle approach the intersection of King Street and David Street, roll through
the stop sign, and again abruptly turn left (eastbound) onto David Street without
signaling. (Id.). Officer Benavides continued to follow the vehicle, and by the
time she came to the stop sign at the intersection of King and David, she said that
the vehicle was still traveling eastbound on David. (Id.). While she was
momentarily stationary at that intersection, Officer Benavides said that she utilized
her handheld radar unit, which indicated that the tan Mercury Sable was traveling
at 35 m.p.h. in a 20 m.p.h. school zone. (Id. at 22).
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{¶5} Officer Benavides stated that when she turned onto David Street, she
alerted her audible sirens twice and activated her flashers. (Id. at 22). At trial,
Officer Benavides confirmed that her flashers and the audible sirens had been
working properly that day. (Id. at 22-23). Officer Benavides testified that after
she turned on her flashers and began to follow the vehicle on David Street, the tan
Mercury Sable began to accelerate and continue to the intersection of David and
Michael Street, at which point in time Officer Benavides “noticed that he [] looked
up like in an upward motion as if looking in the rearview mirror and continued
on.” (Id. at 23). When the vehicle reached the next intersection, it rolled through
that stop sign and continued on David Street towards the intersection at Sullivan
Street. (Id. at 23). Officer Benavides said that the vehicle then turned right
“abruptly” without signaling onto Sullivan Street and began to accelerate up
Sullivan Street heading southbound. (Id. at 24). Officer Benavides said that at
that point she radioed dispatch and told them that she was in pursuit of a vehicle
that was not pulling over upon her signals and requested back-up. (Id. at 24).
{¶6} While following the vehicle on Sullivan Street, which was located in
a residential area with a posted speed limit of 25 m.p.h., Officer Benavides again
testified that the tan Mercury Sable began to accelerate and, that at one point, she
said that her speedometer read 65 m.p.h. (Id. at 24-25). She further stated that she
had been “nervous and scared” going that fast down the residential street since
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there was a playground nearby, along with residential homes right next to the road.
(Id. at 25-26). Officer Benavides also noted that there had been several places that
the vehicle could have utilized and pulled over onto on Sullivan Street, including a
school parking lot, several driveways and pull-off areas in front of adjacent homes.
(Id. at 26-27).
{¶7} Officer Benavides testified that rather than pulling over the vehicle
continued to travel on Sullivan until it “abruptly” turned left onto Douglas Street,
but this time she said that she lost sight of the vehicle. (Id. at 27). Nevertheless,
when she eventually turned onto Douglas Street, Officer Benavides testified that
she noticed “a cloud, dust of smoke, white smoke from rocks to the left down [an]
alleyway,” so she decided to turn left down the alleyway. (Id.). Upon turning into
the alley, Officer Benavides said that she immediately noticed skid marks leading
to the tan Mercury Sable which was now crashed into the back of a residential
garage door. (Id. at 27); (State’s Exs. 4-7). As Officer Benavides pulled up, she
said that Cole was already out of the vehicle and was going towards the front of
his vehicle to look at the damage to the car and garage. (Id. at 33). When she got
out of her vehicle, she noticed that Cole was talking on his cell phone, and when
he saw her she said that he began to shout obscenities at her. (Id.). Officer
Benavides described Cole’s demeanor as being aggressive and angry. (Id.).
Officer Benavides testified that she told Cole to put down his cell phone and get
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back in his vehicle, but when he failed to comply with her orders she said that she
drew her weapon. (Id. at 35). Eventually, she said that Cole got back in to his
vehicle and soon afterwards Officer Mackling arrived at the scene and assisted her
in arresting Cole for fleeing and eluding and driving under suspension. (Id. at 36).
While placing Cole under arrest, Officer Benavides said that Officer Mackling
asked Cole why he had not stopped, and Cole responded by apologizing to her and
said that he had seen the flashers but had decided to flee. (Id. at 36).
{¶8} Overall, Officer Benavides testified that the incident had lasted
approximately two minutes from the time when she had turned on her flashers and
activated her audible sirens to when she saw Cole and his vehicle at the back of
the residential garage. (Id. at 34). With respect to her interactions with Cole after
he had crashed into the residential garage door, Officer Benavides described
Cole’s demeanor as being aggressive and angry towards her. (Id. at 33).
Additionally, as a result of Cole’s actions, the bottom part of the residential garage
door was “pushed in” about a foot and was rendered inoperable. (Id. at 29).
{¶9} At the close of the State’s case, the defense made a motion for
acquittal pursuant to Crim.R. 29 claiming that the State had failed to present
sufficient evidence on the requisite mental state. The trial court denied the
motion.
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{¶10} Cole then took the stand and testified as to his version of events.
Cole testified that he had been driving a tan Mercury Sable on August 7, 2009
through the village of Bettsville. (Mar. 19, 2010 Tr. at 203, Vol. II). In particular,
Cole said that he had been coming up State Street and was getting ready to turn
left onto Route 12 when he noticed a Bettsville police cruiser drive past him on
Route 12 and turn right on the same street he had been planning on turning onto.
(Id.). Cole’s testimony further provided:
Q. Okay. What happened after you saw the police cruiser? A. I didn’t think she would notice me or nothing, you know. So I took a right to get out of town because I know I don’t got a driver’s license. So I wanted to get out of town. I was out filling out applications. I wanted to get out of town as quick as possible. That’s why I tried, because Bettsville was closed down that day for like maybe a week. You couldn’t go through State Street. So I just wanted to get out of town quick before she got on the other side of town and seen me again. So that’s, you know – Q. So did she have her lights on when you passed her? A. No. Q. Did she signal with some sort of audio device to say pull over? A. No. Q. Did she give you any hand gestures? A. No. Q. Say, hey, pull over? A. No. Q. So it was your angle to get out of town? A. Right. Q. Did that mean you were running from her? A. No, sir. Q. But you were leaving town in a hurry, weren’t you? A. Yes, sir.
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Q. You weren’t being chased? A. No, I would never flee. I was not being chased. Q. What was – did you ever see the overhead lights? A. Yes. Q. When did you see the overhead lights? A. When I turned on to Sylvania, I was about two blocks ahead and I looked back and I seen her cop car coming, just coming on to Sylvania. That’s the second time I seen her. And she had her lights on. Q. So what’d you do? A. I turned off the road, you know. If a cop gets behind you, you’re supposed to pull out of the way or get out of her way, I guess. Q. Did you try to get out of her way? A. Yes. Q. How did you end up into the garage? A. I was watching where she was going then I seen her take a left and the left in the alley. I was paying attention to her. Seen she was after me. So I pulled straight over in the driveway. I was going a bit too fast. I slid in the stones and I hit the garage door.
(Id. at 203-05). Cole then said that when he got out of his car to look at the
damage to the car and the garage door, the officer pulled up behind him and he
told her that he was only getting out of his vehicle to check the damage. (Id. at
206). Cole testified that he did not believe he had been aggressive towards the
officer and believed he had been “respectful.” (Id. at 206). Moreover, while he
acknowledged that he had told Officer Mackling that he had seen the police
cruiser’s activated lights, he denied telling the officers that he had been fleeing.
(Id.). Cole also said that although Officer Benavides screamed and yelled at him
when she pulled up to his vehicle, he said that she never drew her weapon on him.
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(Id. at 205). Nevertheless, Cole admitted to speeding, driving while under an
operator’s license suspension, and committing two stop sign violations. (Id. at
208). However, he again stated that he had not been fleeing from the police
officer because he had not known that the lights were intended for him. (Id.). In
fact, Cole said that once it became apparent to him that the police officer was
pursuing him, he pulled into the alley and immediately pulled into a driveway, but
because he had been going too fast, he lost control of his car and ran into a garage
door on the property. (Id.).
{¶11} On March 24, 2010, after having considered all of the evidence, the
trial court found Cole guilty of failure to comply with an order or signal of a police
officer. The trial court postponed the matter for sentencing and ordered a pre-
sentenced investigation (“PSI”) be conducted.
{¶12} On July 20, 2010, the trial court sentenced Cole to five (5) years
imprisonment and additionally imposed a ten (10) year Class II driver’s license
suspension.
{¶13} Cole now appeals and raises the following three assignments of
error.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S MOTION UNDER CRIM.R. 29(A) FOR ACQUITTAL.
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ASSIGNMENT OF ERROR NO. II
THE CONVICTION OF APPELLANT WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.
ASSIGNMENT OF ERROR NO. III
THE VERDICT OF GUILTY RENDERED BY THE JUDGE WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶14} In his first two assignments of error, Cole argues that the State failed
to present sufficient evidence that he had acted “willfully” in failing to comply
with the signal of the police officer. As a result, Cole claims that the trial court
erred in denying his Crim.R. 29(A) motion for acquittal and that his conviction
was not supported by sufficient evidence. Additionally, in his third assignment of
error, Cole argues that his conviction was also against the manifest weight of the
evidence.
{¶15} Crim R. 29(A) provides,
The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction for such offense or offenses.
“Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment of
acquittal if the evidence is such that reasonable minds can reach different
conclusions as to whether each material element of a crime has been proved
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beyond a reasonable doubt.” State v. Bridgeman (1978), 55 Ohio St.2d 261, 381
N.E.2d 184, syllabus. This court has previously found that the Bridgeman
standard “must be viewed in light of the sufficiency of evidence test * * *.” State
v. Foster (Sept. 17, 1997), 3d Dist. No. 13-97-09, at *2.
{¶16} “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.” State v. Jenks (1981),
61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus, superseded by
state constitutional amendment on other grounds in State v. Smith (1997), 80 Ohio
St.3d 89, 684 N.E.2d 668. Accordingly, “[t]he relevant inquiry is whether, after
viewing the evidence in a light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime proven beyond a
reasonable doubt.” Id.
{¶17} We note that while Cole raised a Crim.R. 29(A) motion at the close
of the State’s case, Cole failed to renew his Crim.R. 29(A) motion at the close of
all of the evidence presented at trial. However, Cole was tried to the bench, and
“‘[i]n [a] non-jury trial * * * the defendant’s plea of not guilty serves as a motion
for judgment of acquittal, and obviates the necessity of renewing a Crim.R. 29
motion at the close of all the evidence.’” State v. Ham, 3d Dist. No. 16-09-01,
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2009-Ohio-3822, ¶10, quoting City of Dayton v. Rogers (1979), 60 Ohio St.2d
162, 163, 398 N.E.2d 781, overruled on other grounds by State v. Lazzaro (1996),
76 Ohio St.3d 261, 667 N.E.2d 384. See, also, State v. Stoner, 2nd Dist. No. 2008
CA 83, 2009-Ohio-2073, ¶22, and State v. Bidlack (Oct. 16, 1987), 3d Dist. No.
11-85-8, at *1, both citing Rogers, 60 Ohio St.2d 162.
{¶18} Unlike our review of the sufficiency of the evidence, an appellate
court’s function when reviewing the weight of the evidence is to determine
whether the greater amount of credible evidence supports the verdict. State v.
Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541. In reviewing
whether the trial court’s judgment was against the weight of the evidence, the
appellate court sits as a “thirteenth juror” and examines the conflicting testimony.
Id. In doing so, this Court must review the entire record, weigh the evidence and
all of the reasonable inferences, consider the credibility of witnesses, and
determine whether in resolving conflicts in the evidence, the factfinder “‘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. Andrews, 3d Dist. No. 1-05-
70, 2006-Ohio-3764, ¶30, quoting Thompkins, 78 Ohio St.3d at 387, quoting State
v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717.
{¶19} Here, Cole was charged with failure to comply with an order or
signal of a police officer, which is prescribed in R.C. 2921.331(B). R.C.
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2921.331(B) provides “[n]o person shall operate a motor vehicle so as willfully to
elude or flee a police officer after receiving a visible or audible signal from a
police officer to bring the person’s motor vehicle to a stop.” Further, R.C.
2921.331(C)(5)(a)(ii) provides that “[a] violation of division (b) of this section is a
felony of the third degree if the jury or judge as trier of fact finds any of the
following by proof beyond a reasonable doubt: * * * The operation of the motor
vehicle by the offender caused a substantial risk of serious physical harm to
persons or property.”
{¶20} On appeal Cole only argues that the State failed to prove the
requisite mental culpability: that he “willfully” eluded or fled from the police
officer. As a result, Cole argues that the trial court erred in denying his Crim.R.
29(A) motion, and also argues that his conviction was not supported by sufficient
evidence and that his conviction was against the manifest weight of the evidence.
{¶21} With respect to the sufficiency argument, while Cole claims that
there was insufficient evidence to show that he “willfully” fled or eluded Officer
Benavides, we find that after construing the evidence in a light most favorable to
the State, there was sufficient evidence for the trier of fact to find that Cole
willfully fled or eluded Officer Benavides based on his actions that day.
{¶22} The term “willfully” is not defined in R.C. 2901.22, which is the
statutory provision that covers culpable mental states for criminal liability.
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However, the 1974 committee comments to R.C. 2901.22 state the following:
“Purpose is defined in terms of a specific intention either to cause a certain result,
or to engage in conduct of a certain nature regardless of what the offender intends
to accomplish through that conduct. ‘Purposely’ in the new code equates with
‘purposely,’ ‘intentionally,’ ‘willfully,’ or ‘deliberately’ in the former law.”
{¶23} Generally, the intent of a person cannot be proven by direct
evidence, thus proof of intent may be shown from circumstantial evidence. State
v. Lott (1990), 51 Ohio St.3d 160, 168, 555 N.E.2d 293; State v. O’Black, 3d Dist.
No. 1-10-25, 2010-Ohio-4812, ¶18. Circumstantial evidence is “‘the proof of
certain facts and circumstances in a given case, from which the jury may infer
other connected facts which usually and reasonably follow according to the
common experience of mankind.’” State v. Fisher, 3d Dist. No. 2-10-09, 2010-
Ohio-5192, ¶26, quoting State v. Duganitz (1991), 76 Ohio App.3d 363, 367, 601
N.E.2d 642, citing Black’s Law Dictionary (5 Ed.1979) 221. Notably,
circumstantial evidence and direct evidence have the same probative value, and in
fact, “‘[c]ircumstantial evidence * * * may also be more certain, satisfying and
persuasive than direct evidence.’” Id. at ¶27, quoting Lott, 51 Ohio St.3d at 167,
quoting Michalic v. Cleveland Tankers, Inc. (1960), 364 U.S. 325, 330, 81 S.Ct. 6,
5 L.Ed.2d 20.
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{¶24} Here, Officer Benavides testified that on August 7, 2009, while
wearing her uniform and driving a marked police cruiser, she observed a tan
Mercury Sable going faster than the posted speed limit and “abruptly” turn without
signaling. Officer Benavides said that she followed the vehicle and additionally
observed it roll through a stop sign, turn again without signaling, and speed
through a school zone. Consequently, Officer Benavides said that she activated
her lights and sirens; however, instead of stopping, the vehicle began to accelerate.
Moreover, Officer Benavides said that the vehicle rolled through another stop
sign, turned again without signaling, and accelerated to speeds close to 65 m.p.h.
in a residential area where the posted speed limit was 25 m.p.h. Finally, while she
momentarily lost sight of the vehicle in her pursuit, she said that she eventually
found the vehicle in an alley, crashed into a residential garage door. Officer
Benavides testified that Cole had been the driver and sole occupant of the tan
Mercury Sable and that his demeanor towards her had been angry and aggressive.
Furthermore, Officer Benavides stated that Cole acknowledged that he had seen
her lights, but had told her that he had decided to flee.
{¶25} After viewing this evidence in a light most favorable to the State, we
believe that any rational trier of fact could have found the element of the requisite
mental culpability proven beyond a reasonable doubt, specifically that Cole
“willfully” fled or eluded a police officer. After Officer Benavides activated her
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lights and sirens, the evidence indicates that Cole did not stop but in fact began to
accelerate down a residential street. Not only did Cole accelerate after Officer
Benavides had activated her lights and sirens, but the evidence demonstrates that
he made two “abrupt” turns onto other streets, and again continued to accelerate,
at one point reaching speeds of up to 65 m.p.h. Furthermore, despite the fact that
there had been several places in which Cole could have used to pull-over, the
evidence again shows that he continued to travel down the residential streets with
Officer Benavides following behind him, and only came to a stop after he crashed
into a garage door. Overall, this whole incident, from the time when Officer
Benavides activated her lights and sirens to when she discovered Cole crashed into
a garage door, lasted approximately two minutes. Therefore, given Cole’s
immediate acceleration upon the activation of the officer’s lights and sirens, the
length of time in which he continued to drive with the officer behind him, and the
unpredictable and sometimes dangerous manner in which he drove his vehicle, we
believe that there was sufficient evidence for the trial court to have found that Cole
“willfully” fled or eluded Officer Benavides.
{¶26} In further support of our position, we find the Tenth District Court of
Appeals’ decision in State v. Garrand, 170 Ohio App.3d 487, 2007-Ohio-1244,
867 N.E.2d 887, instructive. In Garrand, the Tenth District Court of Appeals held
that it could be inferred from the facts of the case that the defendant had acted
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willfully concerning a failure to comply charge. 2007-Ohio-1244, at ¶32.
Similarly to the facts in this case, the police in Garrand had activated their lights
and siren and began to follow the defendant in his vehicle; however, the defendant
did not stop, but continued to speed through several intersections before finally
pulling over. Id. On appeal, the Tenth District found that because the defendant
“did not stop, but continued to speed and prolong the police pursuit until he
abruptly stopped on [another street]. [It could] infer appellant willfully eluded the
police from such conduct given that ‘[i]t is a fundamental principle that a person is
presumed to intend the natural, reasonable and probable consequences of his
voluntary acts.’” Id., quoting Lott, 51 Ohio St.3d at 168. See, also, State v.
Roberts, 8th Dist. No. 91086, 2008-Ohio-5750, ¶¶9-10 (citing Garrand and
finding that the testimony at trial, along with the defendant’s erratic driving, were
sufficient to meet the element of willfully eluding a police officer’s signal); State
v. Love, 9th Dist. No. 21654, 2004-Ohio-1422, ¶19 (holding that the following
evidence was sufficient to support a failure to comply conviction: defendant ran a
red light, drove through residential areas at 10 to 15 m.p.h. over the speed limit,
ran two stop signs, drove in the middle of the road, and forced other drivers to pull
over all while two police cars with lights and sirens activated were in pursuit of
him); State v. Hill, 1st Dist. No. C-030678, 2004-Ohio-2275, ¶¶8-13 (stating that
“when the police car came within view of the defendant’s motorcycle,” the
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defendant swerved from lane to lane and sped up from 74 to 120 m.p.h., and
holding that this conduct “was a willful design to flee a police officer”). Here, the
evidence indicates that after the officer activated her lights and sirens, Cole did not
stop but in fact began to accelerate and speed through residential areas, prolonging
the police pursuit until he crashed into the back of a residential garage. Thus, we
may infer from such conduct that Cole was willfully fleeing the police, and
consequently, we find that the trial court did not err in denying Cole’s Crim.R.
29(A) motion and we additionally find that his conviction was supported by
sufficient evidence.
{¶27} With respect to Cole’s argument that his conviction was against the
manifest weight of the evidence, Cole claims that his testimony showed that he did
not willfully flee or elude a police officer because he had not known that the signal
was directed for him and he had only been trying to get out of the way for the
officer.
{¶28} First of all, we note that Cole admitted to committing several traffic
offenses that day, including speeding, driving while under an operator’s license
suspension, and committing two stop sign violations, which tend to support
Officer Benavides’ version of events. In addition, Cole disclosed at trial that he
had “wanted to get out of town as quick as possible * * * before she got on the
other side of town and seen me again” since he had been driving without an
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operator’s license. Moreover, despite Cole’s testimony that he had not known that
the police officer had been pursuing him, there was evidence that he had
acknowledged to the officers that he had observed the officer’s activated lights.
{¶29} Furthermore, while Cole testified that he had not known that the
officer had been pursuing him and that he had only been trying to get out of her
way, his testimony conflicts with Officer Benavides’ testimony regarding his
actions that day. The Ohio Supreme Court has clearly stated that appellate courts
must defer conflicts in the evidence to the trier of fact who had the opportunity to
hear the witnesses and observe their demeanor. State v. Awan (1986), 22 Ohio
St.3d 120, 123, 489 N.E.2d 277. “The choice between credible witnesses and their
conflicting testimony rests solely with the finder of fact and an appellate court
may not substitute its own judgment for that of the finder of fact.” Id.
{¶30} The credibility of Officer Benavides’ and Cole’s testimony was an
issue of fact for the trier of fact. Here, the trial court chose to believe Officer
Benavides’ testimony rather than Cole’s testimony. Since the weight to be given
the evidence and the credibility of witnesses are primarily reserved for the trier of
fact, without more, we will not second guess the conclusion of the trial court.
Therefore, we cannot find that Cole’s conviction was against the manifest weight
of the evidence.
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{¶31} Cole’s first, second, and third assignments of error are, therefore,
overruled.
{¶32} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
ROGERS, P.J., and WILLAMOWSKI, J., concur.
/jlr
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