[Cite as State v. Latocha , 2020-Ohio-2664.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SHELBY COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 17-19-22
v.
GRAZYNA LATOCHA, OPINION
DEFENDANT-APPELLANT.
Appeal from Sidney Municipal Court Trial Court No. 19CRB002211
Judgment Affirmed
Date of Decision: April 27, 2020
APPEARANCES:
Ralph A. Bauer for Appellant
Jeffrey L. Amick for Appellee Case No. 17-19-22
SHAW, P.J.
{¶1} Defendant-appellant, Grazyna Latocha (“Latocha”), brings this appeal
from the October 22, 2019 judgment of the Sidney Municipal Court sentencing her
to ninety days in jail, with sixty suspended, and three years of probation after
Latocha was convicted in a jury trial of Prohibitions Concerning Companion
Animals in violation of R.C. 959.131(D)(1), a second degree misdemeanor, and
Prohibitions Concerning Companion Animals in violation of R.C. 959.131(D)(2), a
second degree misdemeanor. On appeal Latocha contends that she received
ineffective assistance of trial counsel, that the trial court erred by ordering her to
forfeit all of her French Bulldogs pursuant to R.C. 959.99(E)(6)(a), and that there
was insufficient evidence presented to convict her.
Background
{¶2} On April 26, 2019, Latocha was charged with Prohibitions Concerning
Companion Animals in violation of R.C. 959.131(D)(1), a second degree
misdemeanor, and Prohibitions Concerning Companion Animals in violation of
R.C. 959.131(D)(2), a second degree misdemeanor.1 It was alleged that while
firefighters were responding to a fire at Latocha’s residence they found “eighteen
French Bulldogs confined in wire cages, that were stacked upon each other, in the
1 The State styled the charges in the complaint as “Prohibitions concerning companion animals.” The statute is also known as “Cruelty against companion animal.” We will use the styling of the complaint for purposes of this appeal.
-2- Case No. 17-19-22
basement[.] * * * Cages were found by firefighters to be wire[-]tied shut, with no
trays between the stacked [] cages, and what appeared to be a large amount of feces
on the bottom of the cages.” (Doc. No. 1). It was also alleged that Latocha failed
to provide necessary veterinary medical sustenance to one of the French Bulldogs
as it had a significant eye malady resulting in blindness in one eye. (Id.) Counsel
was appointed for Latocha and she entered pleas of not guilty to the charges.
{¶3} Prior to trial, Latocha filed a motion to have the dogs released to her
care and a hearing was held on her motion. At the hearing, evidence was presented
that Latocha’s home was currently unlivable as it had a tarp over parts of the roof
and the electricity was not on. More importantly, testimony was presented that
Latocha’s home was not actually zoned to have a kennel, which was defined as four
or more dogs on a single property for any reason, and Latocha far exceeded the
number of dogs she could have in the city of Sidney. Considering this evidence and
the charges against Latocha related to her care of the dogs, the dogs’ poor living
conditions, and their health issues, Latocha’s motion was denied and the dogs
remained in the Dog Warden’s custody.
{¶4} The case proceeded to a jury trial on August 29-30, 2019. After the
presentation of evidence, the jury found Latocha guilty of both charges against her.
Sentencing was set for a later date.
-3- Case No. 17-19-22
{¶5} Following Latocha’s convictions, the State filed a motion to have all
seventeen of Latocha’s French Bulldogs forfeited pursuant to R.C. 959.99(E)(6).2
Latocha filed a memorandum in response arguing that forfeiture of the dogs was
discretionary rather than mandatory. She claimed that in this case the dogs should
be returned to her.
{¶6} On October 22, 2019, the matter proceeded to a sentencing hearing and
a hearing on the State’s forfeiture request. Ultimately the dogs were ordered
forfeited and Latocha was sentenced to serve a ninety day jail term on each count,
with sixty days suspended. The thirty day jail terms were ordered to be served
concurrently. Latocha was also placed on probation, which included the condition
that she not have any companion or breeding animal of any kind. A judgment entry
memorializing Latocha’s sentence was filed that same date. It is from this judgment
that Latocha appeals, asserting the following assignments of error for our review.
Assignment of Error No. 1 Appellant’s trial counsel rendered ineffective assistance of counsel, in violation of her constitutional rights.
Assignment of Error No. 2 Trial Court committed an abuse of discretion in ordering Appellant to forfeit her companion dogs and have no companion or breeding dogs in the future violating her right to due process and [it was an] unjustified taking of her property without compensation.
2 Although eighteen French Bulldogs were removed from Latocha’s home, one died the first night it was in the shelter.
-4- Case No. 17-19-22
Assignment of Error No. 3 The guilty finding was not supported by legally sufficient evidence.
{¶7} We elect to address the assignments of error out of the order in which
they were raised.
Third Assignment of Error
{¶8} In Latocha’s third assignment of error, she argues that there was
insufficient evidence presented to convict her.
Standard of Review
{¶9} “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, 61 Ohio
St.3d 259 (1991), paragraph two of the syllabus; State v. Pountney, 152 Ohio St.3d
474, 2018-Ohio-22, ¶ 19 (an appellate court’s function in a sufficiency review is not
to determine if the evidence should be believed). 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., following Jackson v. Virginia, 443
U.S. 307, 99 S.Ct. 2781 (1979); State v. Ford, --- Ohio St.3d ---, 2019-Ohio-4539,
¶ 317. “In deciding if the evidence was sufficient, we neither resolve evidentiary
-5- Case No. 17-19-22
conflicts nor assess the credibility of witnesses, as both are functions reserved for
the trier of fact.” State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571,
2013-Ohio-4775, ¶ 33, citing State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-
6267, ¶ 25 (1st Dist.); see also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-
Ohio-2380, ¶ 19, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997)
(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight
of the evidence.”).
Analysis
{¶10} In this case Latocha was convicted of one count of Prohibitions
Concerning Companion Animals in violation of R.C. 959.131(D)(1), and one count
of Prohibitions Concerning Companion Animals in violation of R.C. 959.131(D)(2).
The requisite statutory provisions read as follows.
(D) No person who confines or who is the custodian or caretaker of a companion animal shall negligently do any of the following:
(1) Torture, torment, or commit an act of cruelty against the companion animal;
(2) Deprive the companion animal of necessary sustenance or confine the companion animal without supplying it during the confinement with sufficient quantities of good, wholesome food and water if it can reasonably be expected that the companion animal would become sick or suffer in any other way as a result of or due to the deprivation or confinement[.]
{¶11} In order to convict Latocha at trial, the State presented testimony that
members of the Sidney Fire Department responded to a fire at Latocha’s residence
-6- Case No. 17-19-22
on the night of March 26, 2019. Latocha lived in a “very large old house, three
stories,” and the “whole roof [was] fully engulfed” in flames. (Tr. at 94-95).
{¶12} One of the individuals who responded to the scene was
firefighter/paramedic Chance Guisinger who overheard Latocha state that there
were no people or pets in the house. Despite Latocha’s statement, it was protocol
for the fire department to conduct a search of the residence, so a team of three
firefighters went inside wearing full “turnout” gear, which consisted of a coat,
jacket, a hood, helmet, mask, and a breathing apparatus. Testimony indicated that
because the fire was primarily on the roof at that point, there was little-to-no smoke
on the first floor. Nothing of note was found on the first floor.
{¶13} The three firefighters then made their way into the basement, which
was a large area splitting off through multiple doorways. Although there was little-
to-no smoke in the basement either, there was between six inches to a foot of water
because the water being used on the roof was coming down to rest there.
{¶14} The firefighters went in different directions in the basement and nearly
simultaneously they all found dogs in kennels. Firefighter Quinten Pence located a
cage with four to six puppies in it, Firefighter Guisinger and Firefighter Bryan
Ramge each separately located kennels with dogs in them, some of those kennels
being stacked on top of others. There were empty kennels as well. The firefighters
-7- Case No. 17-19-22
shouted their findings to each other, and thinking that they had perhaps twenty to
twenty-five dogs in the basement, they radioed for assistance in removing them.
{¶15} Regarding what he observed, Firefighter Guisinger testified that the
“dog kennels [were] stacked on top of each other with dogs in them and wire-tied
shut.” (Tr. at 101). By stacked, Firefighter Guisinger clarified that at least “five or
six” were stacked two-high, so that one kennel was on top of another. (Id. at 102).
He testified that “normally dog kennels have a grate that you can put on underneath
to catch the feces. They were not – there was no grates and it looked as though the
dogs were standing just on grated wire and they would urinate or feces [sic] on top
of the other dogs [below].” (Id.) He added that some of the dogs were alone in
kennels while some were in doubles.
{¶16} Firefighter Guisinger indicated that the kennels were wired shut so
tightly that he had to cut multiple times with a wire cutter to get them open. He
testified it looked like the dogs had been locked inside for months because there was
not a regular sliding locking mechanism utilized on the kennels; rather there were
wires holding the kennels shut that looped around multiple times.
{¶17} Firefighter Guisinger testified that once the cages were open the dogs
were “filthy.” (Tr. at 103). He testified that some of the dogs looked “malnourished
but they – there was feces everywhere.” (Id. at 103-104). He strongly emphasized
that the dogs were covered in feces.
-8- Case No. 17-19-22
{¶18} Firefighter Guisinger testified that he could not smell the dogs while
he was handling them because he was wearing a breathing apparatus but once the
dogs had been moved and he took his mask off the firefighters’ turnout gear smelled
awful. He testified, “Some of the dogs were so gross, you didn’t want to even grab
them.” (Tr. at 104). In addition, Firefighter Guisinger testified that some of the
dogs had eye injuries and one had, “I believe it was a prolapsed uterus where the
female ends were sticking out of the back of the dog.” (Id.)
{¶19} Firefighter Ramge also saw a dog with “red tissue coming from
coming from her vaginal area, and it was discharged down to her legs.” (Tr. at 165).
Further, he observed a dog with a bulging eye, and he saw scars on the dogs’ feet
that looked like they were white in color, thus appearing older. Firefighter Ramge
testified he saw puppies swimming on each other’s backs to stay above the water in
the basement.
{¶20} After the firefighters cut the wires on the cages they moved the dogs
to a detached garage. Firefighter Pence and Firefighter Ramge both noted how
much feces they observed in the basement and in/around the cages. Firefighter
Ramge testified that he saw some feces stuck on the top of one of the cages from
the dog that was in the cage above, and he confirmed that his turnout gear smelled
awful from handling the dogs.
-9- Case No. 17-19-22
{¶21} Shelby County Sheriff’s Deputy/Dog Warden Kelli Ward responded
to the scene of the fire due to the presence of the dogs. She noted that the dogs
smelled like “fecal matter.” (Tr. at 193). She counted eighteen French Bulldogs
total—twelve were adults and six were puppies. Two of the females had visible
vaginal concerns and multiple males had visible eye problems. With the assistance
of another cruiser, the dogs were transported to a shelter where they were examined
by a veterinarian.
{¶22} The veterinarian, Dr. Amanda Wagner, went to the shelter and
examined the dogs after they arrived. Because of the fire she was initially concerned
with smoke inhalation or potential fire burns. Dr. Wagner testified that she handled
each dog personally. She testified that the dogs were wet and that they smelled of
urine and feces such that she carried a towel to use between dogs.
{¶23} Dr. Wagner testified that while there were no critical emergencies,
there were a number of issues with the dogs that needed to be addressed in the short
term. She noted that two dogs had vaginal hyperplasia and one of those two was
borderline for a full “vaginal prolapse,” which she defined.
{¶24} Another dog had a progressive eye disease, though the eye was already
dead. Dr. Wagner testified that the eye condition would have taken at least a week
to get to that point, that the dog was likely experiencing pain and suffering before
the eye died, and that the condition would have been readily apparent to anyone
-10- Case No. 17-19-22
taking care of the dog. Dr. Wagner testified that it was possible that the eye could
have been saved with proper care, but at the very least proper care would have
lessened or eliminated the pain. A picture of the dog and it’s bulging eye was
introduced into evidence. The eye is extensively protruding into a cone-shape.
{¶25} Dr. Wagner testified that of the twelve adult dogs she examined three
males and three females had significant enough maladies to be noted, and that was
an abnormal number of dogs with serious health issues. However, she testified that
the dogs did not look malnourished. Dr. Wagner also testified that she had
vaccinated a litter of puppies for Latocha a little over a month before the fire, but
there is no indication she had ever dealt with the adult dogs.
{¶26} Deputy Ward testified that the cruiser used to transport the dogs to the
shelter had to be extensively scrubbed because of how dirty the dogs were. She also
testified that all of the dogs needed baths the morning that they were brought into
the shelter. In addition, Deputy Ward noted that one of the puppies died after its
first night in the shelter. Deputy Ward spoke with Latocha at the scene and Latocha
said the dogs got veterinary care in Dayton but she could not recall the name of the
vet.
{¶27} Latocha’s counsel challenged the testimony of the firefighters on the
basis that they had all written reports in the days after the incident but the reports
did not mention certain things such as how dirty the dogs were or how they smelled
-11- Case No. 17-19-22
like feces. The firefighters all stated that they thought they were just writing reports
for the fire and that they did not include that much detail. Firefighter Guisinger
testified that he had been a firefighter/paramedic for nine years and had never been
called to testify in a case. He indicated he would be more thorough in the future
when writing his reports.
{¶28} At the conclusion of the testimony, the jury found Latocha guilty of
both counts of Prohibitions Concerning Companion Animals.
{¶29} On appeal, Latocha argues that there was insufficient evidence
presented to convict her. Specifically, she contends that the evidence was
insufficient to support a finding that her dogs were deprived of necessary sustenance
or that the dogs experienced any pain or suffering. She argues that the testimony
from the witnesses indicated that the dogs were properly nourished, and the
testimony of Dr. Wagner only indicated that the dog with the dead eye could have
potentially improved with proper care.
{¶30} In analyzing the evidence, we emphasize that a dog, regardless of
where it is kept, is defined as a companion animal pursuant to R.C. 959.131(A)(1).
In addition, the testimony unequivocally indicated that the house was Latocha’s and
that the dogs were hers. Thus these elements of Latocha’s convictions are readily
established here.
-12- Case No. 17-19-22
{¶31} As to Latocha’s conviction regarding R.C. 959.131(D)(1), the State
had to show that Latocha either tortured, tormented, or committed an act of cruelty
against a companion animal. “For purposes of R.C. 959.131, ‘[c]ruelty,’ ‘torture,’
and ‘torment’ mean ‘every act, omission, or neglect by which unnecessary or
unjustifiable pain or suffering is caused, permitted, or allowed to continue, when
there is a reasonable remedy or relief.’ ” State v. Southern, 2d Dist. Montgomery
No. 27932, 2018-Ohio-4886, ¶ 31, quoting R.C. 1717.01(B); R.C. 959.131(A)(2).
That definition “ ‘is broad enough to include situations where an animal suffers
needlessly because of the owner’s failure to seek critically necessary veterinary
care, if such care represents a reasonable remedy.’ ” Id. quoting State v. Dresbach,
122 Ohio App.3d 647, 651 (10th Dist. 1997). Failure to seek timely treatment for a
dog’s internal parasite infestation is one example that, if proven, would sustain a
cruelty to animals conviction. Id.
{¶32} The testimony here indicated that some of the French Bulldogs were
in the bottom of stacked cages with urine and feces falling on them from dogs who
were in the stacked cage above. Further, the testimony indicated that the top cages
had no bottom so in addition to defecating on the dogs below, the dogs on top also
stood and laid on the wire.
{¶33} Moreover, according to Dr. Wagner, half of the adult dogs had notable
maladies, some of them visibly distressing that would have been readily apparent to
-13- Case No. 17-19-22
anyone handling the dogs. In addition, the dogs’ cages were tied so tightly that it
took multiple cuts from wire cutters to remove them. Any and all of these instances
could constitute unjustifiable suffering through acts or neglect on Latocha’s part.
Thus sufficient evidence was presented to convict Latocha of a violation of R.C.
959.131(D)(1).
{¶34} In order to convict Latocha of a violation of R.C. 959.131(D)(2), the
State had to show that Latocha “Deprive[d] the companion animal of necessary
sustenance or confine[d] the companion animal without supplying it during the
confinement with sufficient quantities of good, wholesome food and water if it can
reasonably be expected that the companion animal would become sick or suffer in
any other way as a result of or due to the deprivation or confinement[.]”
{¶35} The State alleged that Latocha’s failure to provide veterinary care to
the dog with the protruding-and-now-dead eye constituted failure to provide
necessary sustenance through proper veterinary care. Latocha counters that failure
to provide veterinary medical care did not constitute a failure to provide
“sustenance.” In addition, Latocha contends that Dr. Wagner’s testimony actually
supported an acquittal because Dr. Wagner only stated that the dog’s eye could have
possibly been saved with proper care.
{¶36} Latocha’s argument ignores the testimony that the dog’s eye injury
would have been readily apparent to anyone caring for the dog, that treatment with
-14- Case No. 17-19-22
antibiotics could have been beneficial, and that the dog would have been suffering
from pain that treatment could have alleviated had the dog received proper
veterinary care. In addition, “sustenance” was defined for the jury as meaning “the
supplying or being supplied with the necessaries of life.” (Tr. at 338-339). The jury
was able to determine for itself whether proper veterinary care should fall under the
category of being supplied with the necessaries for life. Based on the testimony,
when viewing it in the light most favorable to the State, we cannot find that there
was insufficient evidence presented to convict Latocha of a violation of R.C.
959.131(D)(2). See State v. Schuler, 12th Dist. Butler No. CA2018-04-067, 2019-
Ohio-1585, ¶¶ 30-35.
{¶37} Lastly, Latocha summarily argues in her brief that her convictions
were against the manifest weight of the evidence without setting this issue out as its
own assignment of error. In reviewing whether a verdict was against the manifest
weight of the evidence, the appellate court sits as a “thirteenth juror” and examines
the conflicting testimony. State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-
52. 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.” Id.
-15- Case No. 17-19-22
{¶38} Nevertheless, a reviewing court must allow the trier-of-fact
appropriate discretion on matters relating to the credibility of the witnesses. State
v. DeHass, 10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight
standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavily against
the conviction,’ should an appellate court overturn the trial court’s judgment.” State
v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v. Hunter,
131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
{¶39} After reviewing the evidence in this case, we cannot find that the
evidence weighs heavily against a conviction. We also cannot find that the
factfinder clearly lost its way. While Latocha argues that the testimony regarding
feces being in the bottom of cages was questionable, the jury was entitled to find
the firefighters’ testimony credible. Therefore, Latocha’s third assignment of error
is overruled.
First Assignment of Error
{¶40} In Latocha’s first assignment of error, she argues that she received
ineffective assistance of trial counsel.
{¶41} “To establish a claim for ineffective assistance of counsel, a defendant
must show that counsel’s performance was deficient and that counsel’s deficient
performance prejudiced him.” State v. Hernandez, 3d Dist. Defiance Nos. 4–16–
-16- Case No. 17-19-22
27, 28, 2017–Ohio–2797, ¶ 12, citing State v. Phillips, 3d Dist. Allen No. 1–15–43,
2016–Ohio–3105, ¶ 11, citing State v. Jackson, 107 Ohio St.3d 53, 2005–Ohio–
5981, ¶ 133, citing Strickland v. Washington, 466 U.S. 668, 687 (1984). The failure
to make either showing defeats a claim of ineffective assistance of counsel. State v.
Bradley, 42 Ohio St.3d 136, 143 (1989), quoting Strickland at 697. (“[T]here is no
reason for a court deciding an ineffective assistance of counsel claim to approach
the inquiry in the same order or even to address both components of the inquiry if
the defendant makes an insufficient showing on one.”).
{¶42} Notably, the beginning of Latocha’s “ineffective assistance” argument
seems to be taken from a different brief, as it references alibi witnesses for a murder
case. Nevertheless, after this detour into a seemingly different case, Latocha makes
arguments that are related to the case sub judice, specifically contending that her
trial counsel was ineffective for failing to submit any photographs showing the wire
cages in which the dogs were housed. She indicates that this “clearly” would have
indicated that the cages had pans in the bottoms of the cages and that they were
appropriate for housing the French Bulldogs.
{¶43} Contrary to Latocha’s argument, we do not know if the pictures exist
at all as they are not included in the record. For this reason alone we could overrule
Latocha’s assignment of error as she cannot demonstrate error or prejudice.
-17- Case No. 17-19-22
{¶44} Notwithstanding this point, if Latocha is referring to photographs that
were presented at an earlier hearing wherein Latocha sought to have her dogs
returned prior to trial, those pictures are not dispositive in this matter as there is no
indication that the cages in the pictures were those that originally housed the dogs
in Latocha’s basement. The pictures Latocha introduced at the hearing on having
her dogs released showed cages she hoped to put some of the dogs in if they were
returned to her. In fact, even in those pictures, Latocha did not have enough cages
for all of the dogs.
{¶45} Furthermore, the firefighters in this case specifically testified that the
cages in Latocha’s residence did not have pans on the bottom and that dogs were
getting covered in feces because of it. On the record before us we cannot find that
Latocha demonstrated either that her counsel was ineffective or that she was
prejudiced by any purported ineffectiveness. Therefore, her first assignment of error
Second Assignment of Error
{¶46} In her second assignment of error, Latocha argues that the trial court
abused its discretion by ordering her to forfeit her French Bulldogs and have no
companion or breeding animals in the future.
Pursuant to R.C. 959.99(E)(6)(a),
-18- Case No. 17-19-22
A court may order a person who is convicted of or pleads guilty to a violation of section 959.131 of the Revised Code to forfeit to an impounding agency, as defined in section 959.132 of the Revised Code, any or all of the companion animals in that person’s ownership or care. The court also may prohibit or place limitations on the person’s ability to own or care for any companion animals for a specified or indefinite period of time.
{¶47} The preceding statute clearly and unambiguously provides a trial court
with authority to require a defendant convicted of a violation of R.C. 959.131 to
forfeit any or all companion animals, and the trial court also has the authority to
prohibit a person’s ability to own a companion animal for an indefinite period of
time.
{¶48} In this case the trial court heard arguments regarding forfeiture of the
French Bulldogs, and ultimately ordered them to be forfeited. The trial court also
ordered Latocha not to have any companion or breeding animals in the future. The
trial court’s decision is supported here by multiple facts: 1) the animals were found
in appalling conditions; 2) when firefighters were at the scene, Latocha indicated
there were not even any animals in her burning residence, establishing Latocha’s
callous nature towards the dogs; and 3) many of the dogs had serious maladies.
Deputy Ward testified that the situation reminded her of a “puppy mill.”
{¶49} Given these facts, we find that the trial court’s forfeiture order and the
order regarding Latocha not having companion or breeding animals is supported by
the evidence. Latocha’s claim that the forfeiture of all the French Bulldogs served
-19- Case No. 17-19-22
no rational purpose is directly contradicted by the facts. Moreover, to the extent
that Latocha argues that she should only have to forfeit dogs that were directly
subject to violations of R.C. 959.131, this is clearly contradicted by R.C.
959.99(E)(6)(a), therefore this argument is not well-taken. For all these reasons,
Latocha’s second assignment of error is overruled.
Conclusion
{¶50} For the foregoing reasons Latocha’s assignments of error are overruled
and the judgment of the Sidney Municipal Court is affirmed.
WILLAMOWSKI and ZIMMERMAN, J.J., concur.
/jlr
-20-