[Cite as State v. Littlefield, 2013-Ohio-481.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY
STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 11CA3247 : vs. : : DECISION AND JUDGMENT SHERILL LITTLEFIELD, : ENTRY : Defendant-Appellant. : Released: 02/07/13 _____________________________________________________________ APPEARANCES:
Thomas M. Spetnagel and Paige J. McMahon, Chillicothe, Ohio, for Appellant.
Michele R. Rout, Assistant Law Director, Chillicothe, Ohio, for Appellee. _____________________________________________________________
McFarland, P. J.
{¶1} Sherill Littlefield appeals from her conviction in the Chillicothe
Municipal Court, for the offense of operating a motor vehicle with a
prohibited blood-alcohol concentration in violation of R.C.
4511.191(A)(1)(A). Appellant contends that the trial court erred by (1)
denying her motion to suppress all evidence obtained from an allegedly
illegal stop of her motor vehicle, and (2) denying her motion to suppress the
results of her breath test when the trooper involved herein was unable to
identify which Intoxilyzer 8000 model he used on the night in question. Ross App. No. 11CA3247 2
After reviewing the record, the trooper testified to his reasonable articulable
suspicion that the Appellant had violated a traffic law by failing to stay
within marked lanes. Therefore, the traffic stop was justified. As such, the
motion to suppress was properly denied on this basis. We also find the State
demonstrated substantial compliance with the Department of Health
regulations in administering Appellant’s breath test. The trooper was a
certified operator of the Intoxilyzer 8000 machine located at the Ross
County Law Enforcement Complex on January 23, 2011, and properly
identified it by serial number. There was no prejudice to Appellant in this
matter by the lack of strict compliance with regard to the trooper’s failure to
distinguish the particular Intoxilyzer model used to test Appellant’s breath.
Therefore, Appellant’s breath test was admissible and the trial court did not
err. Accordingly, we affirm the trial court’s judgment.
FACTS
{¶2} During the early morning of January 23, 2011, Ohio State
Highway Patrol Trooper Robert Haislop (“the trooper”) observed
Appellant’s vehicle traveling ahead of him, approximately 100 feet, in the
northbound passing lane of S.R. 159 in Ross County, Ohio. Appellant’s
vehicle was weaving within its lane. Traffic was sparse and the lanes were
snow-covered. As the trooper followed, Appellant made several marked Ross App. No. 11CA3247 3
lane violations of the center fog line. After following Appellant
approximately ½ to one full mile and observing the marked lanes violations,
the trooper pulled her over. As he approached Appellant’s vehicle, he made
several observations that led him to believe Appellant had been consuming
alcohol. As a result, the trooper asked Appellant to step out of her vehicle,
and he subsequently conducted various field sobriety tests. Based upon his
observations, the trooper arrested Appellant for driving under the influence
of an alcoholic beverage, R.C. 4511.19(A)(1)(D), and eventually transported
her to the Ross County Law Enforcement Complex. While there, Appellant
took a breath test on the Intoxilyzer 8000 which resulted in a .117 test grams
per 210 liters of breath. She was then charged with a violation of R.C.
4511.19(A)(1)(A).1
{¶3} Appellant filed a motion to suppress arguing there was no
reasonable articulable suspicion that Appellant had engaged in criminal
behavior and further, that the State failed to comply with the rules and
regulations of the Ohio Department of Health. The court subsequently held
a suppression hearing. Trooper Haislop testified he is a ten-year employee of
the Ohio State Highway Patrol. He testified to the marked lanes violations
as indicated above and the State played the trooper’s video recording of the 1 Appellant was also charged with a marked lanes violation, R.C. 4511.33 and a seat-belt violation, R.C. 4513.263. These charges, along with the R.C. 4511.19(A)(1)(D) violation were subsequently dismissed when Appellant entered a no-contest plea to the R.C. 4511.19(A)(1)(A) charge. Ross App. No. 11CA3247 4
violations. The trooper also testified his video equipment was in working
order at the time he observed Appellant’s vehicle.
{¶4} Regarding the breath test, Trooper Haislop testified he is a
certified operator of the Intoxilyzer 8000. The trooper testified he took a
training course and passed a test in order to be certified. The Intoxilyzer
8000 machine used to perform Appellant’s breath test was located in the
Ross County Law Enforcement Complex. The instrument’s serial number
was 80-004169. The trooper testified generally when he activates the
machine, it “boots up,” and automatically checks itself as to proper
functioning. The trooper testified he logs into the system by scanning his
certified operator’s card into the machine. His testimony revealed that the
above activation, self-check, and log-in occurred on the date of Appellant’s
stop and breath test. The trooper further testified he observed Appellant for
the required 20- minute period, the machine performed its own series of
checks, and then Appellant was asked to blow into the machine. The trooper
testified, again generally, that once a sample is complete, the machine
analyzes the sample and performs another self-check. At that point, more
information is entered into the system and more checks are performed. Then
a second breath sample is taken. The trooper testified the machine was Ross App. No. 11CA3247 5
working properly on January 23, 2011, and it produced the two breath
samples.
{¶5} On cross-examination, Trooper Haislop testified that the
certification bottle number on the date of the stop was 0-5-2-3. The dry gas
standard lot number is 6-4-1-3-5-8. The dry gas lot number corresponded to
the same gas lot number that was used the previous October to calibrate the
machine. He also testified regarding the manufacturer’s certificate for the
analysis of the dry gas lot number of 6-4-1-3-5-8. The manufacturer’s
certificate was certified from the Department of Health. Defense counsel
also inquired: “Is this an Intoxilyzer 8005 or Intoxilyzer OH5 or OH2?” The
trooper responded: “I don’t know sir. I just know it is an Intoxilyzer 8000.”
Counsel further questioned: “Is there any document that you can point us to
that would tell us whether it’s an OH5 or OH2?” The trooper responded:
“No sir.”
{¶6} At the conclusion of the hearing, “State’s Exhibit “A,” the breath
test results, were admitted into evidence. “ State’s Exhibit “B”, the certified
operator’s card, was also admitted. The front of the card states: “Robert
Haislop is authorized to perform breath tests using the Intoxilyzer 8000
under the provisions of 3701.43 of the Ohio Revised Code and chapters
3701-53-01 through 10 of the Ohio Administrative Code.” In addition, Ross App. No. 11CA3247 6
“OH-5” appears to be stamped on the back of the card. The back of the card
states that the card is the property of the Ohio Department of Health.
Finally, a packet of 6 pages of documents were admitted, which contained
the following:
(1) Certificate of Calibration for the Intoxilyzer 8000, serial number
80-004169, dated November 4, 2009;
(2) Certificate of Calibration for the Intoxilyzer 8000, serial number
80-004169, dated May 26, 2009;
(3) Intoxilyzer Alcohol Analyzer Model 8000, serial number 80-
004169, dated November 1, 2010;
(4) Ohio Department of Health, approval of instrument check
solution, Lot of Batch # ODH-0016, dated December 16, 2009;
(5) Ohio Department of Health Instrument Certification Report, ODH
SOL#ODH-0016, Lot # 641358, dated October 12, 2010; and,
(6) Certificate of Analysis for Calgaz Lot # 641358, dated July 14,
2009 with expiration date of July 14, 2011. 2
{¶7} The above documents each contain verification of being true and
accurate copies, kept in the ordinary course of business, of the originals on
2 The transcript is confusing, but indicates that the documents’ admission was offered by the State and stipulated with defense counsel prior to the hearing. For reasons unclear, these documents appear marked as Defendant’ s Exhibit “1.” Ross App. No. 11CA3247 7
file at the Ohio Department of Health (hereinafter “DOH”). In closing, the
State offered:
“Additionally, Your Honor, while we were talking, the trooper did realize it is an OH5 as indicated on the back of his certification. That certification and the magnetic strip that gets sent through the machine that does let him operate that machine and does properly identify him as a certified operator, which is, I guess, obviously is an OH5. The certification doesn’t indicate specifically whether it’s an OH5 or whether it’s an OH2, but the trooper is certified and does match up with the- - was allowed to run his swipe through, and as he testified, the machine accepted him as one of the operators and it does indicate on that machine that it is an OH5. That he is certified to operate. The certification by the State do(sic) not indicate specifically which kind it is.”
The trial court denied the motion to suppress.
{¶8} On May 14, 2011, Appellant pled no contest to a violation of
R.C. 4511.19(A)(1)(A). Appellant now brings this appeal, setting forth two
assignments of error for our review.
ASSIGNMENTS OF ERROR
I. THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION TO SUPPRESS FOR A LACK OF PROBABLE CAUSE TO INITITATE THE TRAFFIC STOP.
II. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO SUPPRESS THE RESULTS OF HER BREATH TEST. Ross App. No. 11CA3247 8
LEGAL ANALYSIS
{¶9} Our review of a decision on a motion to suppress “presents
mixed questions of law and fact.” State v. McNamara, 124 Ohio App.3d
706, 710, 707 N.E.2d 539 (1997); citing United States v. Martinez (C.A.11,
1992), 949 F.2d 1117, 1119. At a suppression hearing, the trial court is in
the best position to evaluate witness credibility. State v. Carter, 72 Ohio
St.3d 545, 552, 651 N.E.2d 965, 973 (1995). Accordingly, we must uphold
the trial court’s findings of fact if competent, credible evidence in the record
supports them. State v. Guysinger, 86 Ohio App.3d 592, 594, 621 N.E.2d
726, 727 (1993). We then conduct a de novo review of the trial court’s
application of the law to the facts. State v. Anderson, 100 Ohio App.3d 688,
691, 654 N.E.2d 1034, 1036 (1995).
The Traffic Stop
{¶10} In her first assignment of error, Appellant contends the trial
court erred in failing to grant the motion to suppress all evidence obtained
from the allegedly illegal stop because there was no probable cause.
Specifically, Appellant argues the trooper did not possess a reasonable
suspicion of criminal activity to stop her vehicle because the video recording
of the stop demonstrated that obscured lane markings and lack of other
travel on the roadway would not permit an individual of reasonable caution Ross App. No. 11CA3247 9
to suspect Appellant had violated the marked lanes ordinance. Appellant
also argues the trooper’s subjective beliefs regarding the alleged violation of
marked lanes were not accurate when compared to the video evidence. As
such, Appellant argues the stop of the vehicle was improper and all evidence
obtained as a result of the stop should have been suppressed.
{¶11} The Fourth Amendment to the United States Constitution and
Article I, Section 14 of the Ohio Constitution provide for “[t]he right of the
people to be secure***against unreasonable searches and seizures***.”
Searches and seizures conducted without a prior finding of probable cause
by a judge or magistrate “are per se unreasonable under the Fourth
Amendment, subject to only a few specifically established and well-
delineated exceptions.” Katz v. United States, 389 U.S. 347,357, 88 S. Ct.
507, 514 (1967); State v. Tincher, 47 Ohio App.3d 188, 548 N.E.2d 251
(12th Dist. 1988). If the government obtains evidence through actions that
violate an accused’s Fourth Amendment rights, that evidence must be
excluded at trial. State v. LeMaster, 4th Dist. No. 11CA3236, 2012-Ohio-
971, 2012 WL 762342, at ¶ 8.
{¶12} The Supreme Court of Ohio has stated that “[p]robable cause is
certainly a complete justification for a traffic stop,” but the court has ‘not
held that probable cause is required.’” State v. Ward, 4th Dist. No. 10CA30, Ross App. No. 11CA3247 10
2011-Ohio-1261, 2011 WL 9178545, ¶13, citing State v. Mays, 119 Ohio St.
3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, at ¶23. Instead, to justify a
traffic stop based upon less than probable cause, an officer must be able to
articulate specific facts that would warrant a person of reasonable caution to
believe that the person has committed, or is committing, a crime, including a
minor traffic violation. See Terry v. Ohio, 392 U.S. 1, 21, 88. S.Ct. 1868
(1968). See, also, Mays at ¶8. Chillicothe v. Frey, 156 Ohio App.3d 296,
2004-Ohio-927, 805 N.E.2d 551 at ¶14; State v. Garrett, 4th Dist. No.
05CA802, 2005-Ohio-5155, 2005 WL 2389635, ¶10. Reasonable suspicion
sufficient to conduct a stop exists if there is “at least a minimal level of
objective justification for making the stop.” Illinois v. Wardlow, 528 U.S.
119, 123, 120 S.Ct. 673 (2000). As we explained in State v. Emerick, 4th
Dist. No. 06CA45, 2007-Ohio-4398, ¶15:
“A traffic stop may pass constitutional muster even where the state cannot convict the driver due to a failure in meeting the burden of proof or a technical difficulty in enforcing the underlying statute or ordinance.***The very purpose of an investigative stop is to determine whether criminal activity is afoot. This does not require scientific certainty of a violation nor does it invalidate a stop on the basis that the subsequent investigation reveals no illegal activity is present.”
{¶13} A court that must determine whether a law enforcement officer
possessed a reasonable suspicion or probable cause to stop a vehicle must Ross App. No. 11CA3247 11
examine the “totality of the circumstances.” Ward, ¶14. See, e.g., United
States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct.744 (2002). Moreover, the
touchstone of a Fourth Amendment analysis is the reasonableness of the
intrusion. Ward, ¶14. See, e.g., Pennsylvania v. Mimms, 434 U.S. 106, 108-
109, 98 S.Ct. 330, (1997).
{¶14} A police officer may stop the driver of a vehicle after observing
a de minimis violation of traffic laws. State v. Guseman, 4th Dist. No.
08CA15, 2009-Ohio-952, 2009 WL 537198, ¶20, citing, State v. Bowie, 4th
Dist. No. 01CA34, 2002-Ohio-3553, 2002 WL 1565710, ¶8, 12, and 16,
citing Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769 (1996). See,
also, Dayton v. Erickson, 76 Ohio St.3d 3, 655 N.E.2d 1091 (1996),
syllabus.
{¶15} In the case sub judice, we agree with the trial court’s conclusion
that Trooper Haislop had probable cause to stop Appellant’s vehicle for the
marked lanes violation. We note, however, that the trial court used a higher
standard of evaluation than necessary and that the trooper’s reasonable and
articulable suspicion that Appellant violated a traffic law is sufficient. The
trooper testified that as he followed Appellant on S.R. 159, he observed
several marked lane violations of the center fog line. Moreover, the trial
court reviewed the video recording and, while acknowledging that there Ross App. No. 11CA3247 12
were snow-covered areas on the roadway, he observed two occasions on
which the white line was visible for a substantial period of time and
Appellant continued to drive over it. This Court has reviewed the video
recording and we agree with the trial court. We find no contradiction
between the trooper’s testimony and the video recording evidence.
Accordingly, we overrule the first assignment of error.
The Breath Test Results
{¶16} The results of an alcohol content test administered pursuant to
R.C. 4511.19 may be admitted into evidence upon a showing that the test
was administered in accordance with Department of Health (hereinafter
“DOH”) regulations. See State v. Hurst, 4th Dist. No. 08CA43, 2009 Ohio
3127, 2009 WL 1830760, ¶59; State v. Gibson, 4th Dist. No. 04CA2805,
2005 Ohio 5273, ¶9, citing Cincinnati v. Sand, 43 Ohio St.2d 79, 330 N.E.
2d 908, (1975) paragraph two of the syllabus. The state need not prove strict
or perfect compliance with DOH regulations, but rather, must prove
“substantial compliance” with the regulations in order for the test results to
be admissible. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797
N.E.2d 71, at ¶27; State v. Plummer, 22 Ohio St. 3d 292, 490 N.E.2d 902
(1986), syllabus. Only errors that are clearly de minimis in nature are
excusable. Burnside at ¶34. Once the state shows substantial compliance Ross App. No. 11CA3247 13
with the regulations, the burden shifts to the defendant to show prejudice
resulting from the failure to strictly comply. Hurst, at ¶59, citing Plummer;
State v. Wasmer, 4th Dist. No. 714, 1994 WL 90400 (Mar. 16, 1994).
{¶17} In this matter, Appellant contends that Trooper Haislop’s
failure to identify the instrument model he was using to perform Appellant’s
breath test fatally undermines the foundation for admitting Appellant’s
breath test. Therefore, Appellant asserts the trial court erred in overruling the
motion to suppress the test. In her brief, Appellant presents only the narrow
question of whether Trooper Haislop’s failure to identify the specific
Intoxilyzer model undermines the foundation for admitting Appellant’s
breath. Appellant argues the omission is problematic because OAC-3701-
53-03 and OAC 3701-53-04 set forth different procedures for calibration and
operation of the Intoxilyzer 8000 OH-2 and OH-5 models. Appellant is
correct in that there are different established procedures for calibration and
operation of the two Intoxilyzer models.
{¶18} Ohio Administrative Code 3701-53-02, breath tests, delineates
the approved evidential breath testing instruments which include, pursuant to
(A)(3) of that regulation, the Intoxilyzer 8000 OH-5, and pursuant to (B)(1),
the Intoxilyzer 8000 OH-2. Subpart(D) sets forth that breath samples using
instruments, including the Intoxilyzer model 8000 OH-2, shall be analyzed Ross App. No. 11CA3247 14
according to the operational checklist for the instrument being used. And,
subpart (E) sets forth that breath samples using the Intoxilyzer model 8000
OH-5 shall be analyzed according to the instrument display for the
instrument being used.
{¶19} Appellant has argued that there was no substantial compliance
with OAC 3701-53-03, blood, urine and other bodily substance tests. That
regulation states, in pertinent part: “(A) Alcohol in blood, urine and other
bodily substances shall be analyzed based on approved techniques or
methods.” This regulation lists various approved techniques or methods,
including gas chromatography, which is relevant to the OH-5 Intoxilyzer
8000 model herein. But, Appellant does not take issue with any particular
aspect of the analysis, i.e. the gas chromatology performed here.
{¶20} Appellant also asserts there was no substantial compliance with
OAC 3701-53-04, instrument checks, controls and certifications, which is
set forth, in pertinent part, as follows:
(A) A senior operator shall perform an instrument check on approved evidential breath testing instruments listed under paragraphs (A)(1), (A)(2), and (B) of the rule 3701-53-02, no less frequently than once every seven days in accordance with the appropriate instrument checklist for the instrument being used. (B) Instruments listed under paragraph (A)(3) of rule 3701-53-02 of the Administrative Code shall automatically perform a dry gas control test before and after every subject test and instrument certification using a dry gas standard traceable to the national institute of standards and technology (NIST). Ross App. No. 11CA3247 15
{¶21} Subpart (A) mandates that Intoxilyzer model 8000 OH-2 must
be tested at least once every seven days in accordance with its appropriate
instrument checklist. Subpart (B) mandates that a dry gas control test be
automatically performed before and after every subject test and instrument
certification. Subpart B’s requirement is specific as to the Intoxilyzer model
8000 OH-5 at issue herein. Once again, however, Appellant does not
contend that the dry gas control test was not performed in a timely manner,
or that it was not performed properly, only that the trooper did not
distinguish the Intoxilyzer 8000 model as being an “OH-2” or “OH-5.”
{¶22} We begin our discussion by noting that the decision to admit or
exclude evidence rests within the sound discretion of the trial court. State v.
Moss, 4th Dist. No. 95CA2089, 1996 WL 130982, (Mar. 15, 1996), citing
State v. Combs, 62 Ohio St. 3d 278, 581 N.E.2d 1071 (1991); State v. Sage,
31 Ohio St.3d 173, 510 N.E.2d 343 (1987), paragraph two of the syllabus.
An abuse of discretion connotes more than an error of law or judgment; it
implies that the court’s attitude is unreasonable, arbitrary or unconscionable.
Id, citing State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992); State v.
Montgomery, 61 Ohio St.3d 410, 575 N.E.2d 167 (1991). When applying
the abuse of discretion standard, a reviewing court is not free to merely
substitute its judgment for that of the trial court. See In re Jane Doe, 57 Ohio Ross App. No. 11CA3247 16
St.3d 135, 566 N.E.2d 1181 (1991), citing Berk v. Matthews, 53 Ohio St.3d
161, 559 N.E.2d 1301 (1990). We further note “the Rules of Evidence do
not apply to suppression hearings.” State v. Ulmer, 4th Dist. No.
09CA3283, 2010-Ohio-695, 2010 WL 686256, ¶10, quoting State v. Bozcar,
113 Ohio St.3d 148, 2007-Ohio-1251, 863 N.E.2d 155, at¶17, citing Evid.R.
101(C)(1) & 104(A). Therefore, “‘[a]t a suppression hearing, the court may
rely on ***evidence, even though that evidence would not be admissible at
trial.’” Maumee v. Weisner, 87 Ohio St.3d 295, 298, 1999-Ohio-68, 720
N.E.2d 507, quoting United States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406
(1980).
{¶23} During the suppression hearing, the State produced evidence
that Appellant was observed for 20 minutes prior to taking the breath test.
Trooper Haislop testified he scanned his certified operator’s card into the
Intoxilyzer 8000 machine located in the Ross County Law Enforcement
Complex. The trooper followed all prompts and commands he was given
electronically. Trooper Haislop also identified the serial number of the
instrument he used 80-004169, and testified the machine was certified. The
trooper testified that everything was working correctly on the machine and it
produced a clean result. Of chief importance is the trooper’s testimony that
the machine would have rejected Appellant’s test and the entire process Ross App. No. 11CA3247 17
would have had to be restarted from the beginning, had the machine not
been working properly. From his testimony and the documents offered into
evidence, the trial court found that the breath test was admissible. We agree.
{¶24} The Supreme Court of Ohio has held that certified copies of
police logs showing calibration of intoxilyzer equipment were admissible,
despite absence of calibrating officer at trial. State v. Ward, 15 Ohio St. 3d
355, 474 N.E.2d 300 (1984). Exclusion of observations by police officers
from hearsay exception for business reports prohibits its introduction of
reports which recite officer’s observations of criminal activities or
observations made as part of investigation of criminal activities. Id. at 357,
474 N.E.2d 300. Rules of Evid. Rule 803(8). Introduction of records of
routine, intrapolice, or machine maintenance nature, such as intoxilyzer
calibration logs is not prohibited as hearsay. Ward, supra, at 357, 474
N.E.2d 300. Evid.R.803(8). Regarding the calibration testimony, the trial
court held as follows:
“[T]he court notes that the documents submitted by the State show various certifications. There is the same serial number on the machine. ***Yes, as the certificates of calibration on the second page of the Defendant’s Exhibit 1….The lot number of the solution is verified. The certification of analysis on the last page of Defendant’s Exhibit 3 shows it passed their standards. Page 5 is instrument certification and shows it was certified within a year of the test, has the serial number and the dry gas lot number, which is the same as shown on the test case, Exhibit A, so the Court finds Defendant’s Exhibit A admissible, and finds the test admissible, the results admissible.” Ross App. No. 11CA3247 18
{¶25} Trooper Haislop testified the machine was functioning properly or it
would have rejected the test and the entire process would have had to have been
restarted. The documentary evidence stipulated by counsel and admitted into
evidence supports the fact that the Intoxilyzer 8000 machine used to perform
Appellant’s breath test was properly identified by serial number and properly
calibrated.
{¶26} Based upon the evidence before us in the record, we find that
Appellant failed to produce evidence demonstrating a lack of proper foundation for
admission of the breath test results simply because the trooper failed to explicitly
distinguish in his testimony that the particular Intoxilyzer 8000 model used on the
night in question was an OH-5 or an OH-2. The documentary evidence admitted
cured any deficiency in the trooper’s testimony. As such, we conclude find that
the trial court did not err by overruling Appellant’s motion to suppress the breath
test results. Accordingly, Appellant’s second assignment of error is overruled. The
decision of the trial court is affirmed.
JUDGMENT AFFIRMED. Ross App. No. 11CA3247 19
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee recover of Appellant 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 Chillicothe Municipal Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Harsha, J. & Kline, J: Concur in Judgment and Opinion.
For the Court,
BY: _________________________ Matthew W. McFarland Presiding Judge Ross App. No. 11CA3247 20
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.