[Cite as State v. Cutright, 2015-Ohio-374.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY
STATE OF OHIO, : : Plaintiff-Appellant : : Case No. 14CA3442 v. : : DECISION AND KARICE M. CUTRIGHT, : JUDGMENT ENTRY : Defendant-Appellee. : Released: 01/29/2015
APPEARANCES: Matthew S. Schmidt, Ross County Prosecuting Attorney, and Jeffrey C. Marks, Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio, for Appellant.
Timothy Young, Ohio Public Defender and James S. Szorady, Assistant Ohio Public Defender, Chillicothe, Ohio, for Appellee.
Per Curiam.
{¶ 1} The state of Ohio, appellant, appeals the decision of the Ross County Court of
Common Pleas sustaining appellee-defendant Karice M. Cutright’s motion to suppress evidence
seized during a traffic stop. A police officer stopped Cutright’s vehicle after a citizen flagged
down the officer and relayed a complaint. The citizen reported that she saw a group of people
exit a vacant house; and she suspected the group to be engaged in drug related activity. The trial
court granted Cutright’s motion to suppress because the state failed to prove that the officer
possessed reasonable suspicion to stop the vehicle. For the following reasons, we sustain the
state of Ohio’s assignment of error, and reverse the judgment of the trial court. This cause is
remanded to the trial court so it may decide Cutright’s motion to suppress applying the proper
legal standard.
Statement of Facts Ross App. No. 14CA3442 2
{¶ 2} In March 2013, appellee-defendant, Cutright was indicted on one count of
Possession of Heroin, a fifth degree felony, in violation of R.C. 2925.11 and one count of Illegal
Conveyance of Prohibited Items onto Ground of a Specified Governmental Facility, a third
degree felony in violation of R.C. 2921.36. In October 2013, Cutright filed a motion to suppress
all evidence resulting from a traffic stop on November 12, 2012.
{¶ 3} The parties presented the facts during the hearing on the motion to suppress.
Sergeant Timothy Gay (“Sgt. Gay”) was the only witness that was presented at the hearing. On
November 30, 2012, Sgt. Gay was in the middle of second shift when Carrie Brown (“Brown”)
approached him. Brown was a resident of the neighborhood Sgt. Gay was patrolling. Sgt. Gay
testified that he conversed with Brown through his cruiser window, as he remained seated in the
vehicle. Sgt. Gay testified:
SHE ADVISED THAT THERE WAS A HOUSE ACROSS THE STREET
FROM HER THAT WAS VACANT, THAT SHE SUSPECTED THERE WAS
DRUG DEALERS WORKING OUT OF THAT HOUSE, THE VACANT
HOUSE, AND THAT SHE SAW PEOPLE COMING OUT OF THAT HOUSE
GETTING INTO A WHITE VAN THAT WAS PARKED JUST UP FROM
WHERE I STOPPED TO TALK TO HER.
{¶ 4} Sgt. Gay testified that the area was known for drug activity. However, Sgt. Gay’s
police report of the incident did not specify that the area was known for drug activity. Sgt. Gay
saw the white van in question as Brown was talking to him. As Sgt. Gay was still speaking to
Brown, the van pulled away and began traveling westbound. Less than a quarter mile down the
road, Sgt. Gay marked the van on dispatch and initiated a stop. Sgt. Gay gave the following
testimony on direct examination: Ross App. No. 14CA3442 3
MARKS [PROSECUTOR]: WHY DID YOU THEN INITIATE A TRAFFIC
STOP ON THE WHITE VAN?
GAY: TO INVESTIGATE THE COMPLAINT OF BEING AT THE VACANT
HOUSE AND DRUG ACTIVITY.
MARKS: WHAT WERE YOU, WHAT PARTICULAR CRIMES WERE YOU
INVESTIGATING AT THAT POINT IN TIME?
GAY: THE TRESPASSING OR POSSIBLY BURGLARY AT A RESIDENCE,
AND POSSIBLE DRUG ACTIVITY.
MARKS: AND YOU STATE THAT CUTRIGHT WAS IN THE VAN WHEN
YOU STOPPED IT?
GAY: YES.
{¶5} On cross examination Sgt. Gay testified:
SZORADY [DEFENSE COUNSEL]: AND THEN SHE SAYS AND I’M
QUOTING THIS FROM YOUR REPORT, “SHE THINKS THEY MAY BE
USING DRUGS”. [SIC]
SZORADY: OKAY. SHE DIDN’T KNOW ANY OF THE OCCUPANTS OF
THE VAN, NONE OF THAT RELAYED TO YOU THAT SHE DIDN’T
KNOW ANY OF THE OCCUPANTS OF THE VAN?
GAY: RIGHT
***
SZORADY: MS. BROWN DOESN’T INDICATE THAT SHE SEES ANY
DRUG USE, CORRECT? SHE DIDN’T SEE ANYONE USING DRUGS? Ross App. No. 14CA3442 4
GAY: NO NOT THAT I KNOW OF, SHE’D HAVE TO TESTIFY TO THAT.
SZORADY: AND YOU DIDN’T SEE ANY DRUGS BEING USED WHEN
YOU PULLED UP…WELL YOUR INITIAL LOOK AT THE VAN WHEN
YOU’RE THERE, YOU DON’T SEE ANYBODY USING DRUGS.
GAY: RIGHT.
SZORADY: AND THEN ONCE YOU PULLED IT OVER YOU DON’T SEE
ANYONE USING DRUGS AT THE TIME, RIGHT?
SZORADY: SO EVERYTHING THAT YOU BASED YOUR
INVESTIGATION ON AT THIS POINT IS THROUGH CARRIE BROWN
WHO IS A RESIDENT IN THAT NEIGHBORHOOD.
SZORADY: SO MS. BROWN GIVES YOU…ESSENTIALLY SHE SAYS I
HAVE A HUNCH THAT THIS IS GOING ON, AND YOU FOLLOWED
THAT.
{¶ 6} After the stop, Sgt. Gay checked out the house in Brown’s complaint. He testified:
“The house appeared to be vacant. There were no signs of any forced entry. There was no
damage that I could find, and I had no way to get in and check any further.”
{¶ 7} The trial court granted Cutright’s motion to suppress. At the conclusion of the
suppression hearing, the trial court articulated its findings of fact and reason for its ruling. The
court stated: Ross App. No. 14CA3442 5
SHE [BROWN] DIDN’T HAVE ANY SPECIFIC INFORMATION TO WHICH
SHE PROVIDED TO HIM [SGT. GAY] OTHER THAN JUST HER HUNCH.
IT’S MY UNDERSTANDING FROM HIS [SGT. GAY] TESTIMONY THAT
HE DID NOT HAVE ANY DRUG ABUSE COMPLAINTS FROM THE
SPECIFIC ADDRESS WHERE THE VAN WAS, BUT FROM THE BUILDING
NEXT DOOR.
A WHITE VAN WAS PARKED NEAR THE BUILDING WHERE HE DID
HAVE SPECIFIC INFORMATION OF PREVIOUS DRUG ACTIVITY
THOUGH. THE WHITE VAN THEN PULLED AWAY, TRAVELED LESS
THAN A QUARTER OF MILE [SIC] AND OFFICER GAY STOPPED THE
VEHICLE.
THE COURT WOULD NOTE THAT REASONABLE CAUSE FOR [SIC]
STOP DOESN’T HAVE TO BE BASED SOLELY ON A POLICE OFFICER’S
PERSONAL OBSERVATIONS AS IN TERRY. HOWEVER, IT DOES
REQUIRE I THINK SPECIFIC INFORMATION COMING FROM AN
INDIVIDUAL THAT WOULD HAVE BEEN ABLE TO PROVIDE IT. IN THIS
CASE IT WAS NOT NECESSARILY AN ANONYMOUS SOURCE, BUT WE
ALSO DON’T KNOW THE VERACITY OF MS. BROWN. WE DON’T
KNOW WHETHER SHE IS RELIABLE, IF SHE HAS PROVIDED RELIABLE
INFORMATION IN THE PAST I JUST SIMPLY DON’T KNOW.
IT’S EQUALLY POSSIBLE THAT MS. CUTRIGHT WAS AN APPRAISER,
OR AN ELECTRICIAN, OR SOMEBODY HIRED TO WORK AT THAT
HOUSE AS ANY OTHER THING. Ross App. No. 14CA3442 6
BASED ON ALL THE EVIDENCE THAT HAS BEEN SUBMITTED, THE
COURT FINDS THAT THE STATE DID NOT MEET ITS BURDEN, AND AS
SUCH THE COURT FINDS THERE WAS NOT PROBABLE CAUSE OR
REASONABLE SUSPICION TO STOP THE VEHICLE IN THIS CASE.
{¶ 8} The state asserts in this appeal that the ruling on the motion to suppress has
rendered its proof of the charges so weak in its entirety that any reasonable possibility of
effective prosecution has been destroyed.
Appellant’s Sole Assignment of Error:
THE TRIAL COURT ERRED IN GRANTING THE DEFENDANT-
APPELLEE’S MOTION TO SUPPRESS DUE TO THE FACT THAT THE
OFFICER POSSESSED A REASONABLE SUSPICION OF CRIMINAL
ACTIVITY, BASED UPON SPECIFIC AND ARTICULABLE FACTS, WHICH
ALLOWED HIM TO PULL OVER THE VEHICLE IN WHICH THE
DEFENDANT-APPELLEE WAS A PASSENGER WITHOUT VIOLATION OF
ANY OF HER CONSTITUTIONAL RIGHTS
{¶9} The state argues that the trial court erred because the information from Brown
provided Sgt. Gay with reasonable suspicion that a trespass or possibly a burglary or breaking
and entering had been committed. The state also contends that the trial court made a mistake of
law when it determined that there could not be much weight given to the information Brown
relayed. As a result, according to the state, Sgt. Gay was justified in initiating an investigative
stop of appellee Cutright.
{¶ 10} Appellee Cutright argues that under the totality of the circumstances test, the trial
court properly weighed the credibility and veracity of Brown’s tip and reached the correct Ross App. No. 14CA3442 7
conclusion in granting the motion to suppress. Specifically, Cutright suggests that the state
incorrectly sets forth that an identified citizen informant’s tip is reliable based solely on their
status. Cutright states that Sgt. Gay witnessed no drug activity; and Brown did not witness any
drug use or activity. In addition, no testimony was presented demonstrating how Brown knew the
house in question was vacant.
A. Standard of Review
{¶ 11} Our review of a trial court's decision on a motion to suppress presents a mixed
question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003–Ohio–5372, 797 N.E.2d
71, ¶ 8. When considering a motion to suppress, the trial court acts as the trier of fact and is in
the best position to resolve factual questions and evaluate witness credibility. Id. Accordingly,
we defer to the trial court's findings of fact if they are supported by competent, credible evidence.
Id. Accepting those facts as true, we must independently determine whether the trial court
reached the correct legal conclusion in analyzing the facts of the case. Id.
B. Investigative Stop
{¶ 12} The Fourth Amendment to the United States Constitution and Section 14, Article I
of the Ohio Constitution guarantee the right of the people to be free from unreasonable searches
and seizures. See State v. Orr, 91 Ohio St.3d 389, 391, 2001-Ohio-50, 745 N.E.2d 1036. These
two provisions contain nearly identical language and the Supreme Court of Ohio has interpreted
them as affording the same level of protection. Id. “Once the defendant demonstrates that he was
subjected to a warrantless search or seizure, the burden shifts to the State to establish that the
warrantless search or seizure was constitutionally permissible.” State v. Hansard, 4th Dist.
Scioto No. 07CA3177, 2008–Ohio–3349, at ¶ 14, citing Maumee v. Weisner, 87 Ohio St.3d 295, Ross App. No. 14CA3442 8
297, 1999–Ohio–68, 720 N.E.2d 507 and Xenia v. Wallace, 37 Ohio St.3d 216, 524 N.E.2d 889
(1988), at paragraph two of the syllabus.
{¶ 13} Based on the parties’ arguments on appeal, the stop at issue in this case is an
investigative stop subject to Fourth Amendment jurisprudence. The investigative stop exception
to the Fourth Amendment warrant requirement allows a police officer to stop and briefly detain
an individual if the officer possesses a reasonable suspicion, based upon specific and articulable
facts, that criminal activity “may be afoot.” State v. Abernathy, 4th Dist. Scioto No. 07CA3160,
2008-Ohio-2949 ¶22-24, quoting Terry v. Ohio, 392 U.S. 1, 30 (1968); see also United States v.
Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002); Illinois v. Wardlow, 528 U.S. 119,
123, 120 S.Ct 573, 145 L.Ed.2d 570 (2000); State v. Andrews, 57 Ohio St.3d 86, 565 N.E.2d
1271 (1991); State v. Venham, 96 Ohio App.3d 649, 654, 645 N.E.2d 831, 833 (1994).
{¶ 14} A valid investigative stop must be based upon more than a mere “hunch” that
criminal activity is afoot. See e.g., Arvizu at 273; Wardlow at 124; Terry at 27. Reviewing courts
should not, however, “demand scientific certainty” from law enforcement officers. Wardlow at
125. Rather, a reasonable suspicion determination “must be based on commonsense judgments
and inferences about human behavior.” Id. Thus, “the likelihood of criminal activity need not
rise to the level required for probable cause, and it falls considerably short of satisfying a
preponderance of the evidence standard.” Arvizui at 274; Wardlow at 123.
{¶ 15} A court that is determining whether a law enforcement officer possessed
reasonable suspicion to stop an individual must examine the “totality of the circumstances.” See
e.g., Arvizu at 273. The totality of the circumstances approach “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. Ross App. No. 14CA3442 9
quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Thus,
when a court reviews an officer's reasonable suspicion determination, a court must give “due
weight” to factual inferences drawn by resident judges and local law enforcement officers. Id.
{¶ 16} An informant's tip may provide officers with the reasonable suspicion necessary
to conduct an investigative stop. Abernathy, 2008-Ohio-2949 at ¶ 26. Where the information
possessed by the police before the stop stems solely from an informant’s tip, the determination of
reasonable suspicion will be limited to an examination of the weight and reliability due that tip.
Maumee, 87 Ohio St.3d 295, 1999-Ohio-68, 720 N.E.2d 507 at 299. The appropriate analysis
then is whether the tip itself has sufficient indicia of reliability to justify the investigative stop.
Id. Factors considered “highly relevant in determining the value of the [informant’s] report” are
the informant’s veracity, reliability, and basis of knowledge. Id. (Citations omitted).
C. Analysis
{¶ 17} In the case sub judice, the information leading to the stop of Cutright came from
Brown. Courts have generally classified informants into three groups: the anonymous informant,
the known informant, and the identified citizen informant. Maumee at 300. Brown cannot be
classified as anonymous or a known informant (“someone from the criminal world who has
provided previous reliable tips”) given the circumstances of her report to Sgt. Gay. Id. Therefore,
for purposes of constitutional analysis, Brown is an “identified citizen informant” in this case.
The trial court recognized Brown’s status, stating: “In this case it was not necessarily an
anonymous source, but we also don’t know the veracity of Brown. We don’t know whether she
is reliable, if she has provided reliable information in the past. I simply don’t know.”
{¶ 18} In Maumee the Ohio Supreme Court further explained: Ross App. No. 14CA3442 10
While the United States Supreme Court discourages conclusory analysis based
solely upon these categories, insisting instead upon a totality of the circumstances
review, it has acknowledged their relevance to an informant's reliability. The
court has observed, for example, that an anonymous informant is comparatively
unreliable and his tip, therefore, will generally require independent police
corroboration. Alabama v. White, [496 U.S. 325, 330, 110 S.Ct. 2412, 110
L.Ed.2d 301 (1990).] The court has further suggested that an identified citizen
informant may be highly reliable and, therefore, a strong showing as to the other
indicia of reliability may be unnecessary: “[I]f an unquestionably honest citizen
comes forward with a report of criminal activity—which if fabricated would
subject him to criminal liability—we have found rigorous scrutiny of the basis of
his knowledge unnecessary.” Illinois v. Gates, [462 U.S. 213, 233–234, 103 S.Ct.
2317, 76 L.Ed.2d 527 (1983).]
Id. at 300.
{¶ 19} Based on the evidence in this case, we find the trial court erred in granting
appellant Cutright’s motion to suppress. The state argues 1) the trial court erred in its assessment
of the veracity of Brown and 2) Sgt. Gay possessed reasonable suspicion to initiate an
investigatory stop. First we will address the trial court’s assessment of the credibility of Brown.
{¶ 20} According to the United States Supreme Court’s analysis, a main difference
between an anonymous informant and an identified citizen informant is that an anonymous
informant will generally require independent police corroboration. Id. The analysis also suggests
that increased scrutiny of an identified informant may be unnecessary. The state cites State v.
Thompson, 4th Dist. Washington No. 94CA35, 1995 Ohio App., where this Court stated: “When Ross App. No. 14CA3442 11
an average citizen tenders information to the police, the police should be permitted to assume
that they are dealing with a credible person in the absence of special circumstances suggesting
that such might not be the case.”
{¶ 21} Conclusory analysis based solely upon the category a witness falls under is
discouraged. Maumee at 300. However, the primary concern for a court is to evaluate the tip’s
weight and reliability in order to determine if reasonable suspicion existed. Id. at 299. In that
regard, the trial court concluded that it did not have any information pertaining to Brown’s
reliability. The trial court evaluated Brown’s tip regarding appellee Cutright stating: “It’s equally
possible that Ms. Cutright was an appraiser, or an electrician, or somebody hired to work at that
house as any other thing.”
{¶ 22} We are mindful that the trial court is in the best position to resolve factual
questions and evaluate witness credibility. Nevertheless, in doing so, the trial court must apply
the correct analytical factors. The reliability of a known citizen informant may be presumed. Id.
at 300, citing U.S. v. Parsquarille (C.A.6, 1994), 20 F.3d 682, 689. See, also, State v. Summers,
5th Dist. Morgan No. 02CA7, 2002 -Ohio-5284, ¶ 26 citing State v. Gardner, 74 Ohio St.3d 49,
63, 656 N.E.2d 623, 1995-Ohio-168 citing Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527
(1983). Yet the trial court concluded that it did not know Brown’s reliability without stating any
reason why it should be in question. Therefore, we find that the trial court erred in its analysis of
the reliability of Brown’s information.
{¶ 23} Next, the state argues that regardless of the drug activity “hunch,” Brown was able
to inform Sgt. Gay that the individuals in the van had just left a vacant house where no one was
living at the time. The state claims that, with those specific facts, Sgt. Gay possessed reasonable
suspicion to stop the white van on the suspicion of trespass. The state contends that the trial court Ross App. No. 14CA3442 12
seemed to completely disregard this information and only focused on the likelihood of a drug
offense having been committed.
{¶ 24} Examining the information Brown supplied Sgt. Gay, we find the trial court also
erred in its analysis of whether Sgt. Gay possessed reasonable suspicion to stop Cutright.
Concerning the suspicion of trespass, the trial court concluded that it was possible that the
individuals walking out of the vacant house and getting in the van were hired to work at the
house. The incident occurred after 9:30 P.M., so it seems improbable that such an assumption
could be correct. More importantly, the principal function of an investigative stop is to resolve
the very ambiguity that equally plausible innocent and culpable possibilities create. Such a stop
is reasonably designed to enable police to quickly determine whether they should allow a suspect
to go about her business or to hold her to answer charges. The proper analysis focuses upon
whether there is a substantial possibility that criminal conduct has occurred, is occurring, or is
about to occur. See, City of Chillicothe v. Ingham, 4th Dist. Ross No. 1948, 1994 WL 67786
(Feb. 24, 1994), Harsha, P.J., dissenting, and the authorities cited there at *4. The test regarding
reasonable suspicion is not whether there is a potentially innocent explanation for defendant’s
behavior. Here, a resident of a neighborhood known for drug activity reported that individuals
were coming out from an abandoned house after 9:30 P.M. The proper legal standard is whether
under the totality of the circumstances, the officer had a reasonable suspicion that criminal
activity, in this case a trespass, “may be afoot.”
{¶ 25} In light of the foregoing, we reverse the trial court’s decision to grant Cutright’s
motion to suppress. This cause is remanded to the trial court so it may decide Cutright’s motion
to suppress applying the proper legal standards. We add, however, that our opinion should not be Ross App. No. 14CA3442 13
construed as a comment on the actual merits of the motion to suppress after the trial court applies
the proper legal standards.
JUDGMENT REVERSED AND CAUSE REMANDED.
Hoover, P.J., dissenting:
{¶ 26} I respectfully dissent from the per curiam opinion. I would overrule the state’s
sole assignment of error and affirm the judgment of the trial court.
As the trial court is in the best position to resolve factual questions and evaluate witness
credibility, I would defer to the trial court’s findings if supported by competent, credible
evidence. Burnside, supra, at ¶ 8. Here, the court expressed a neutral opinion on whether Brown
was reliable or not. Sgt. Gay never testified that Brown reported any specific witness of drug
activity, as it was just her hunch that the individuals were engaged in such behavior. It was
Brown’s hunch, not Sgt. Gay's hunch, that the white van was involved in drug activity. It is
inconsequential that Sgt. Gay investigated the house later, after the traffic stop, to confirm that
the house was in fact vacant. Therefore, I would find that the trial court’s evaluation of Brown
was in accordance with the proper legal standard.
{¶ 27} Based on the information Brown supplied to Sgt. Gay, the trial court did not err in
its analysis of whether Sgt. Gay had reasonable suspicion to stop the white van. With respect to
the issue of a possible trespass, Brown’s information did not report inherent illegal activity.
Another observer at the same time may have reasonably concluded that the individuals were
there for a legitimate purpose. It is well established that reasonable suspicion must be established
on more than just a “hunch.”Arvizu, supra, at 274. The trial court found that Brown lacked
specific information other then her hunch. On cross examination, Sgt. Gay answered in the
affirmative when he was asked if all he possessed was a hunch. “ ‘The articulable and reasonable Ross App. No. 14CA3442 14
suspicion must exist in the officer's mind at the time of the stop and cannot be based on facts
obtained after the initial stop.’ ” Chillicothe v. Ingham, 4th Dist. Ross No. 1948, 1994 WL
67786, *2 (Feb. 24, 1994), quoting State v. Freeman, 64 Ohio St.2d 291, 294, 414 N.E.2d 1044
(1980). Affirming information regarding the status of the house only came about after the stop
occurred. After the stop, Sgt. Gay checked out the house in Brown’s complaint. He saw no signs
of any forced entry. He could not find any damage.
{¶ 28} When viewing the totality of the circumstances in this case, sufficient articulable
facts did not exist to constitutionally justify the stop. This Court has stated the following:
“***[T]he Supreme Court made it clear that good faith, accompanied only by an
inarticulate hunch, is not enough for even the temporary ‘seizure’ of a stop. And
that is all that appears on this record. * * * This may have been enough reason for
an officer to become suspicious enough to keep an eye on defendant. But it can
hardly be deemed to be an objective indicator of reasonable suspicion of criminal
conduct. * * * The inarticulate hunch, the awareness of something unusual, is
reason enough for officers to look sharp. Their knowledge and experience identify
many incidents in the course of a day that an untrained eye might pass without
any suspicion whatever. But awareness of the unusual, and a proper resolve to
keep a sharp eye, is not the same as an articulated suspicion of criminal conduct.
Defendant's acts, as reported, were too innocuous to warrant the intrusion of a
temporary seizure for questioning.”
Id. at *3, quoting United States v. Montgomery, 561 F.2d 875, 879 (D.C.Cir.1977).
{¶ 29} Accordingly, I would find that the trial court did not err in either evaluating the
veracity of the witness Brown or in its conclusion that the state had not met its burden in proving Ross App. No. 14CA3442 15
that Sgt. Gay possessed reasonable suspicion when he performed a stop on Cutright’s white van.
I would overrule the state's sole assignment of error and affirm the judgment of the trial court. Ross App. No. 14CA3442 16
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS REVERSED AND CAUSE REMANDED. Appellee shall pay the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Harsha, J. & McFarland, A.J.: Concur in Judgment and Opinion. Hoover, P.J.: Dissents with Dissenting Opinion.
FOR THE COURT:
By: William H. Harsha, Judge
By: Matthew W. McFarland, Administrative Judge
By: Marie Hoover, Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.