[Cite as State v. Tolle, 2013-Ohio-5568.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ADAMS COUNTY
STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 13CA964 : vs. : : DECISION AND JUDGMENT CHRISTOPHER TOLLE, : ENTRY : Defendant-Appellant. : Released: 12/11/13 _______________________________________________________ APPEARANCES:
Timothy Young, Ohio Public Defender, and Valerie Kunze, Assistant State Public Defender, Columbus, Ohio, for Appellant.
C. David Kelley, Adams County Prosecuting Attorney, and Michele L. Harris, Assistant Adams County Prosecutor, West Union, Ohio, for Appellee. _____________________________________________________________
McFarland, P.J.
{¶1} Christopher Tolle appeals his convictions and sentences for
breaking and entering, a fifth degree felony in violation of R.C. 2911.13(A),
and theft, a first degree misdemeanor in violation of R.C. 2913.02(A)(1)
imposed by the Adams County Court of Common Pleas after he was found
guilty by a jury. On appeal, Appellant contends that 1) his convictions for
breaking and entering and theft were supported by insufficient evidence in
violation of his right to due process; 2) his convictions for breaking and Adams App. No. 13CA964 2
entering and theft were against the manifest weight of the evidence and in
violation of his right to due process; and 3) the trial court erred when it
ordered restitution in the amount of $630.00 when the only economic loss
contained in the record was estimated to be $230.00. Having determined
that Appellant’s convictions were supported by sufficient evidence and were
not against the manifest weight of the evidence, Appellant’s first and second
assignments of error are overruled. Further, having found no plain error in
the trial court’s award of restitution, Appellant’s third assignment of error is
overruled. Accordingly, Appellant’s convictions and sentences are affirmed.
FACTS
{¶2} At 9:00 a.m. on February 28, 2012, Jeanne Wilson arrived at
Crossroads Dairy Bar in Seaman, Ohio, to find the back door open. Jeanne
Wilson is the daughter of Melissa Hupp, owner of Crossroads Dairy Bar.
Upon entering, Wilson noted there were footlongs thrown in the pizza oven,
ice cream that had been run out of the machine, and there were “pop and
cups sitting around.” Wilson further noted potato chips, ice cream, a bucket
of pennies and change from the cash register were missing. Also missing
were baby shower gifts being stored there. Wilson later noted that the
backdoor’s screen window had been removed and was on the ground near Adams App. No. 13CA964 3
the store. Deputy Mark Brewer responded to the call about the break-in.
Upon arriving he took photographs and made a report.
{¶3} Subsequently, on October 18, 2012, Christopher Tolle was
indicted on one count of breaking and entering, a fifth degree felony in
violation of R.C. 2911.13(A), and one count of theft, a first degree
misdemeanor in violation of R.C. 2913.02(A)(1), both stemming from the
incident at the Crossroads Dairy Bar. The matter was tried to a jury on
March 25, 2013. The State presented four witnesses, which included
Melissa Hupp, Jeanne Wilson, Deputy Mark Brewer, and Christopher
Abbott.
{¶4} Jeanne Wilson testified to arriving at the dairy bar on the day in
question to find the back door open and items missing and in disarray.
Melissa Hupp testified regarding being the owner of the business. She
testified that the door had been locked and that no one had been given
permission to enter the building or remove property from the building. She
also testified to the value of certain items that were taken, which amounted
to approximately $230.00. Deputy Brewer testified that he responded to the
call regarding the break in that occurred at the dairy bar and that when he
arrived he noted that “[s]omebody had jimmied with the screen on the back
door and reached through and unlocked it and went inside.” Adams App. No. 13CA964 4
{¶5} He further testified to what he found inside, which indicated
evidence that someone had ransacked the bathroom, as well as eaten some
food and ice cream. He stated that he took photographs of his findings. At
that time eight photographs were entered into evidence, which consisted of
the state of the dairy bar after the break-in, as well as a photograph of the
bathroom area where there appeared to be some blue latex gloves laying on
the floor. Lastly, Deputy Brewer testified that he was familiar with
Appellant and identified him by name as being present in the courtroom.
{¶6} Finally, Christopher Abbott testified on behalf of the State.
Abbott testified that he was with Appellant on the night of the dairy bar
break-in, and that he was the lookout while Appellant entered the dairy bar
through the back. He testified that he also entered the dairy bar to tell
Appellant to hurry up. He further testified that their purpose in entering the
dairy bar was to take stuff, and that they took pop, ice cream and chips. He
testified that he saw Appellant take some gift bags and that when the two got
back into Appellant’s car, Appellant had approximately twenty dollars worth
of loose change. Abbott also testified that Appellant wore blue latex gloves
while he was in the dairy bar, which he had seen Appellant use previously
while tattooing. Abbott identified the blue latex gloves in the photos as the
ones Appellant was wearing. Abbott further testified that he was currently Adams App. No. 13CA964 5
on probation as a result of being convicted of breaking and entering into the
Crossroads Dairy Bar. He stated that he was not promised any “deals” for
testifying.
{¶7} At the close of the State’s evidence, Appellant moved for
acquittal pursuant to Crim.R. 29, which was denied by the trial court.
Appellant then rested his case, without presenting any evidence or witnesses.
The jury ultimately found Appellant guilty of both charges, breaking and
entering and theft. As a result, the trial court sentenced Appellant to an
eleven month term of imprisonment on the felony charge and a six month
term of local incarceration on the misdemeanor charge, to be served
concurrently. The trial court further ordered Appellant to pay $630.00 in
restitution, as well as the costs of prosecution.1 It is from these convictions
and sentences that Appellant now brings his timely appeal, assigning the
following errors for our review.
ASSIGNMENTS OF ERROR
“I. CHRISTOPHER TOLLE’S CONVICTIONS FOR BREAKING AND ENTERING AND THEFT WERE SUPPORTED BY INSUFFICIENT EVIDENCE IN VIOLATION OF TOLLE’S RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION. 1 The restitution order specified as follows: “The defendant is further ordered to pay restitution to the victim, Michelle Hupp, in the amount of $630.00, jointly and severally with convicted co-defendant, Christopher Abbott. Adams App. No. 13CA964 6
II. CHRISTOPHER TOLLE’S CONVICTIONS FOR BREAKING AND ENTERING AND THEFT WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, IN VIOLATION OF TOLLE’S RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITIED STATES CONSTITUTION, AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION
III. THE TRIAL COURT ERRED WHEN IT ORDERED RESTITUTION IN THE AMOUNT OF $630 WHEN THE ONLY ECOMONIC LOSS CONTAINED IN THE RECORD WAS ESTIMATED TO BE $230.”
ASSIGNMENT OF ERROR I
{¶8} In his first assignment of error, Appellant contends that his
convictions for breaking and entering and theft were supported by
insufficient evidence and therefore violated his right to due process. 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. Dennison,
4th Dist. Washington No. 06CA48, 2007-Ohio-4623, ¶ 9. See, e .g. State v.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the
syllabus (superseded on other grounds by constitutional amendment). See
State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668 (1997). The relevant
inquiry is whether, after viewing the evidence in a light most favorable to Adams App. No. 13CA964 7
the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt. Id.; citing Jackson
v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979).
{¶9} A sufficiency of the evidence challenge tests whether the state's
case is legally adequate to satisfy the requirement that it contain prima facie
evidence of all elements of the charged offense. See State v. Martin, 20 Ohio
App.3d 172, 174, 485 N.E.2d 717 (1st Dist.1983), and Carter v. Estell (CA
5, 1982), 691 F.2d 777,778. It is a test of legal adequacy, rather than a test of
rational persuasiveness. Dennison, supra at ¶ 10.
{¶10} The sufficiency of the evidence test “raises a question of law
and does not allow us to weigh the evidence,” State v. Martin, supra, at 174.
Instead, the sufficiency of the evidence test “gives full play to the
responsibility of the trier of fact [to fairly] resolve conflicts in the testimony,
to weigh the evidence, and to draw reasonable inferences from basic facts to
ultimate facts.” State v. Thomas, 70 Ohio St.2d 79, 79-80, 434 N.E.2d 1356
(1982); State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967),
paragraph one of the syllabus.
{¶11} Here, Appellant was charged with breaking and entering in
violation of R.C. 2911.13(A) and theft in violation of R.C. 2913.02(A)(1).
R.C. 2911.13(A) provides as follows: Adams App. No. 13CA964 8
“(A) No person by force, stealth, or deception, shall trespass in
an unoccupied structure, with purpose to commit therein any
theft offense, as defined in section 2913.01 of the Revised
Code, or any felony.”
R.C. 2913.02(A)(1) provides as follows:
“(A) No person, with purpose to deprive the owner of property
or services, shall knowingly obtain or exert control over either
the property or services in any of the following ways:
(1) Without the consent of the owner or person authorized to
give consent[.]”
{¶12} Here, Appellant contends that his convictions were supported
by insufficient evidence. In support of his contention, he argues that the
only evidence connecting him to the break-in was the testimony of
Christopher Abbott, who was already found guilty of breaking and entering
into the dairy bar, and who was currently on probation as a result. He also
argues that despite Abbott’s testimony, the State failed to introduce evidence
how Appellant entered the dairy bar or his purpose in entering. Appellant
further points out that the police did not recover any of the stolen items from
him. Adams App. No. 13CA964 9
{¶13} Commonly, there is no direct evidence of a defendant's state of
mind and as such, the State must rely on circumstantial evidence to satisfy
this element of its case. In re Horton, 4th Dist. No. 04CA794, 2005-Ohio-
3502, ¶ 23. A defendant's state of mind may be inferred from the totality of
the surrounding circumstances. Id. (internal citations omitted).
Circumstantial and direct evidence possess the same probative and
evidentiary value. Id.; citing State v. Jenks, 61 Ohio St.3d 259, 272, 574
N.E.2d 492 (1991). “When viewing circumstantial evidence, ‘the weight
accorded an inference is fact-dependent and can be disregarded as
speculative only if reasonable minds can come to the conclusion that the
inference is not supported by the evidence.’ ” Jenks, supra; quoting Wesley
v. The McAlpin Co., 1st Dist. No. C9305286, need WL cite (May 25, 1994);
citing Donaldson v. Northern Trading Co., 82 Ohio App.3d 476, 483, 612
N.E.2d 754(1992).
{¶14} While Appellant argues there is insufficient evidence to prove
how he entered the dairy bar and what his purpose was in entering, he
disregards Hupp’s testimony that the door was locked and that no one had
been given permission to enter the dairy bar, as well as Deputy Brewer’s
testimony that upon arrival it appeared the screen on the backdoor had been
“jimmied.” He also disregards Abbott’s testimony that the purpose in going Adams App. No. 13CA964 10
there was “to take stuff” and that Abbott served as the look out while
Appellant entered the dairy bar. We believe this evidence passes the
sufficiency test. A reasonable trier of fact could infer that Appellant
trespassed into the dairy bar, an unoccupied structure, by force, with purpose
to commit a theft offense therein, and once inside did, without the consent of
the owner, exert control over her property. Thus, 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 crimes proven beyond a reasonable
doubt.
{¶15} With respect to Appellant’s claim that Abbott’s testimony was
not credible, we are mindful the weight of evidence and credibility of
witnesses are issues to be decided by the trier of fact. State v. Dye, 82 Ohio
St.3d 323, 329, 695 N.E.2d 763 (1998); State v. Frazier, 73 Ohio St.3d 323,
339, 652 N.E.2d 1000 (1995); State v. Williams, 73 Ohio St.3d 153, 165,
652 N.E .2d 721 (1995); State v. Vance, 4th Dist. Athens No. 03CA27,
2004-Ohio-5370, ¶ 9. We also acknowledge that the trier of fact is in a much
better position than an appellate court to view witnesses and observe their
demeanor, gestures, and voice inflections, and to use those observations to
weigh the credibility of the testimony. See Myers v. Garson, 66 Ohio St.3d
610, 615, 614 N.E.2d 742 (1993); Seasons Coal. Co. v. Cleveland, 10 Ohio Adams App. No. 13CA964 11
St.3d 77, 80, 461 N.E.2d 1273 (1984); Vance, ¶ 9. Further, the trier of fact
is free to believe all, part or none of the testimony of each witness who
appears before it. See State v. Long, 127 Ohio App.3d 328, 335, 713 N.E.2d
1 (4th Dist.1998); State v. Nichols, 85 Ohio App.3d 65, 76, 619 N.E.2d 80
(4th Dist .1993); State v. Harriston, 63 Ohio App.3d 58, 63, 577 N.E.2d
1144 (8th Dist.1989); Vance, ¶ 9.
{¶16} Thus, despite Appellant’s argument that Abbott was not a
credible witness, issues of Abbott’s credibility and weight to be afforded to
his testimony were within the province of the jury. Although the jury was
free to reject Abbott’s testimony, it did not. For the foregoing reasons, we
find there was sufficient evidence that Appellant committed the crimes of
breaking and entering and theft. Accordingly, Appellant’s first assignment
of error is overruled.
ASSIGNMENT OF ERROR II
{¶17} In his second assignment of error, Appellant contends that his
convictions for breaking and entering and theft were against the manifest
weight of the evidence. In determining whether a criminal conviction is
against the manifest weight of the evidence, an appellate court must review
the entire record, weigh the evidence and all reasonable inferences, consider
the credibility of witnesses, and determine whether, in resolving conflicts in Adams App. No. 13CA964 12
the evidence, the trier of fact clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed. Dennison, supra
at ¶ 11; State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997),
citing State v. Martin, supra, at 174.
{¶18} A reviewing court will not reverse a conviction where there is
substantial evidence upon which the court could reasonably conclude that all
the elements of an offense have been proven beyond a reasonable doubt.
State v. Johnson, 58 Ohio St.3d 40, 41, 567, N.E.2d 266 (1991); State v.
Eskridge, 38 Ohio St.3d 56, 526 N.E.2d 304 (1988), paragraph two of the
syllabus. We realize that the evidence may pass a sufficiency analysis and
yet fail under a manifest weight of the evidence test. Dennison, supra at ¶
15. See, State v. Brooker, 170 Ohio App.3d 570, 868 N.E.2d 683, 2007-
Ohio-588, ¶ 16; citing Thompkins, supra.
{¶19} Appellant raises no new arguments in support of this
assignment of error, but instead relies on the same argument raised in
support of his sufficiency argument above to now argue that his conviction
was against the manifest weight of the evidence. In considering this
assignment of error, we consider the same evidence as we considered in
determining that Appellant’s convictions were supported by sufficient
evidence. As set forth above, although evidence may pass a sufficiency Adams App. No. 13CA964 13
analysis but fail under a manifest weight of the evidence test, we do not find
that situation at play here.
{¶20} Once again, Appellant’s primary dispute seems to be with the
weight the jury afforded the testimony of Christopher Abbott. However,
“[t]he decision whether, and to what extent, to credit the testimony of
particular witnesses is within the peculiar competence of the factfinder, who
has seen and heard the witness.” State v. Lunsford, 12th Dist. Brown No.
CA2010-10-021, 2011-Ohio-6259, ¶ 17; citing State v. Rhines, 2nd Dist.
Montgomery No. 23486, 2010-Ohio-3117, ¶ 39. Furthermore, we note that
there was no conflicting evidence for the jury to consider as Appellant chose
not to testify and presented no witnesses or other evidence in his defense.
Here, the jury opted to believe the State’s version of the events, which
included the testimony of Abbott. We cannot say that the jury lost its way or
created such a miscarriage of justice that Appellant’s conviction must be
reversed. Accordingly, Appellant’s second assignment of error is overruled.
ASSIGNMENT OF ERROR III
{¶21} In his third assignment of error, Appellant contends that the
trial court erred in ordering $630.00 in restitution, claiming that the record
only contained economic loss of $230.00. Adams App. No. 13CA964 14
{¶22} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896
N.E.2d 124, the Supreme Court of Ohio announced the standard for
appellate review of felony sentences which involves a two-step analysis.
First, we “must examine the sentencing court's compliance with all
applicable rules and statutes in imposing the sentence to determine whether
the sentence is clearly and convincingly contrary to law.” Kalish at ¶ 4. If
the sentence is not clearly and convincingly contrary to law, we review the
trial court's sentence for an abuse of discretion. Id. The term “abuse of
discretion” implies that the court's attitude is unreasonable, arbitrary, or
unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144
(1980).
{¶23} R.C. 2929.18 governs the imposition of financial sanctions and
provides in section (A)(1) as follows:
“(A) Except as otherwise provided in this division and in
addition to imposing court costs pursuant to section 2947.23 of
the Revised Code, the court imposing a sentence upon an
offender for a felony may sentence the offender to any financial
sanction or combination of financial sanctions authorized under
this section or, in the circumstances specified in section
2929.32 of the Revised Code, may impose upon the offender a Adams App. No. 13CA964 15
fine in accordance with that section. Financial sanctions that
may be imposed pursuant to this section include, but are not
limited to, the following:
(1) Restitution by the offender to the victim of the offender's
crime or any survivor of the victim, in an amount based on the
victim's economic loss. If the court imposes restitution, the
court shall order that the restitution be made to the victim in
open court, to the adult probation department that serves the
county on behalf of the victim, to the clerk of courts, or to
another agency designated by the court. If the court imposes
restitution, at sentencing, the court shall determine the amount
of restitution to be made by the offender. If the court imposes
restitution, the court may base the amount of restitution it
orders on an amount recommended by the victim, the offender,
a presentence investigation report, estimates or receipts
indicating the cost of repairing or replacing property, and other
information, provided that the amount the court orders as
restitution shall not exceed the amount of the economic loss
suffered by the victim as a direct and proximate result of the
commission of the offense. If the court decides to impose Adams App. No. 13CA964 16
restitution, the court shall hold a hearing on restitution if the
offender, victim, or survivor disputes the amount. All restitution
payments shall be credited against any recovery of economic
loss in a civil action brought by the victim or any survivor of
the victim against the offender.
If the court imposes restitution, the court may order that the
offender pay a surcharge of not more than five per cent of the
amount of the restitution otherwise ordered to the entity
responsible for collecting and processing restitution payments.
The victim or survivor may request that the prosecutor in the
case file a motion, or the offender may file a motion, for
modification of the payment terms of any restitution ordered. If
the court grants the motion, it may modify the payment terms as
it determines appropriate.”
{¶24} A review of the record indicates that Appellant did not object
to the amount of the restitution ordered below. A defendant who fails to
object to the amount of restitution waives all but plain error. State v.
Johnson, 4th Dist. Washington No. 03CA11, 2004-Ohio-2236, at ¶ 8-9.
“[T]here are ‘three limitations on a reviewing court's decision to correct [a
waived error]. First, there must be an error, i.e., a deviation from a legal rule. Adams App. No. 13CA964 17
* * * Second, the error must be plain. To be ‘plain’ within the meaning of
Crim.R. 52(B), an error must be an ‘obvious' defect in the trial proceedings.
* * * Third, the error must have affected ‘substantial rights.’ [The Supreme
Court of Ohio has] interpreted this aspect of the rule to mean that the trial
court's error must have affected the outcome of the trial.” State v. Lynn, 129
Ohio St.3d 146, 2011-Ohio-2722, 950 N.E.2d 931, ¶ 13; quoting State v.
Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240. Regarding
the third limitation, “reversal is warranted only when the outcome of the trial
clearly would have been different without the error.” State v. Beebe, 4th Dist.
Hocking No. 10CA2, 2011-Ohio-681, ¶ 10; citing State v. Long, 53 Ohio
St.2d 91, 372 N.E.2d 804, at paragraph two of the syllabus (1978).
{¶25} Yet “[e]ven when all three prongs are satisfied, a court still has
discretion whether or not to correct the error.” Lynn at ¶ 14; citing State v.
Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, at ¶ 62. Courts
are “to notice plain error ‘with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.’ ” Id. at
¶ 14; quoting Barnes at 27; quoting Long at paragraph three of the syllabus.
Here, Appellant claims that the record only supports a restitution
award of $230.00 rather than $630.00. The record reveals that, in addition to
evidence presented a trial, the trial court relied upon information permitted Adams App. No. 13CA964 18
by R.C. 2929.18(A)(1), specifically, a pre-sentence investigation report
indicating the amount of restitution due. Although the testimony presented
at trial did indicate economic loss of approximately $230.00,2 the PSI relied
upon by the trial court contained more detailed information. Specifically,
the PSI stated as follows with respect to restitution:
“According to records provided by the Adams County
Prosecutors Office additional items were stolen that had not
been reported on the original police report. Employees at the
Dairy Bar were preparing a baby shower for one of the workers
and those gifts in the amount of $200.00 were stolen and not
claimed as a loss on insurance. Insurance covered all the loss
and the owner was required to pay a $250.00 deductible out of
pocket. Since the claim was filed their insurance premium has
increased $45 per month and they are requesting 4 months
reimbursement. Total restitution owed is $630.00 payable to
Melissa Hupp.”
{¶26} “[T]he amount of the restitution must be supported by
competent, credible evidence in the record from which the court can discern
the amount of the restitution to a reasonable degree of certainty.” Johnson at
2 This $230.00 was comprised of the estimated value of the change, ice cream, chips and gifts that were taken from the Dairy Bar. Adams App. No. 13CA964 19
¶ 10; citing State v. Sommer, 154 Ohio App.3d 421, 424, 2003-Ohio-5022,
797 N.E.2d 559, ¶ 12 and State v. Gears, 135 Ohio App.3d 297, 300, 733
N.E.2d 683 (1999). We conclude that here, the record contains competent,
credible evidence to support the restitution award and as such, we find no
error, let alone plain error, in the trial court’s restitution order. Accordingly,
Appellant’s third and final assignment of error is overruled.
{¶27} Having found no merit to any of the assignments of error
raised by Appellant, Appellant’s convictions and sentences are affirmed.
JUDGMENT AFFIRMED. Adams App. No. 13CA964 20
JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED and that costs be assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Adams County Common Pleas 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.
Abele, J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court,
BY: _________________________ Matthew W. McFarland 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.