[Cite as State v. Tomic, 2024-Ohio-5537.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : Hon. Andrew J. King, J. -vs- : : Case No. 2023CA00150 : TYLER T. TOMIC : : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2022CR2185
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: November 22, 2024
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
KYLE L. STONE GEORGE URBAN STARK CO. PROSECUTOR 116 Cleveland Ave. NW LISA A. NEMES Suite 808 110 Central Plaza South, Ste. 510 Canton, OH 44702 Canton, OH 44702-1413 Stark County, Case No. 2023CA00150 2
Delaney, P.J.
{¶1} Appellant Tyler T. Tomic appeals from the October 13, 2023 Judgment
Entry of conviction and sentence of the Stark County Court of Common Pleas. Appellee
is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} This case arose on March 10, 2022, when appellant drove at a high rate of
speed, lost control of the vehicle, and crashed. Although appellant was able to walk away
from the crash, his companion M.I. was trapped beneath the vehicle and died as a result
of his injuries.
{¶3} Appellant’s evening began at the “Old Timer’s Bar” in Massillon, events
appellee illustrated with testimony and video of appellant drinking inside the bar.
Appellant arrived at the bar with his mother around 6:08 p.m.; he parked his vehicle, a
white Mercedes SUV, along the curb. Video from inside the bar clearly depicted appellant
drink at least three beers and three shots, including tequila shots, between 6:14 p.m. and
when he left the bar at 9:14 p.m. Video showed appellant drive off on 13th Street and his
whereabouts for the next approximately 90 minutes are unaccounted for.
{¶4} Appellant next met a friend, M.I., at a gas station on Lake Avenue. M.I.
purchased a Twisted Tea and returned to his own vehicle. Appellant and M.I. both drove
off in their respective vehicles around 10:45 p.m. The two separately drove to a friend’s
house on Vogel Avenue, where M.I. left his truck and joined appellant in appellant’s
vehicle.
{¶5} Appellant drove north on Amherst Road through a residential area. Although
the speed limit is 35 m.p.h., appellant was traveling approximately 86 m.p.h. Stark County, Case No. 2023CA00150 3
and lost control of the vehicle near a significant curve in the road at Ridgecrest Avenue.
Appellant’s vehicle left the roadway, traveled through several yards, struck a culvert and
a telephone pole, and spun into a curb on Taggart Road. Upon striking the curb, the
vehicle flipped and came to rest a few feet from a house, approximately 300 feet from
where appellant first lost control. The crash occurred at approximately 10:52 p.m.
{¶6} Upon hearing what sounded like an explosion, a neighbor on Taggart came
out of his house and found appellant’s vehicle resting on its side in his neighbor’s yard.
He observed car parts spread across the roadway and heavy debris in the yard.
{¶7} The neighbor called 911 and as he was on the call, appellant ran down the
sidewalk and approached him, visibly distraught. The neighbor couldn’t understand what
appellant was saying, but appellant hovered around the vehicle and the neighbor
eventually understood there was someone else in the vehicle.
{¶8} M.I. was not found until Massillon police officers arrived on the scene and
illuminated the area. M.I.’s torso and limbs were visible, but his head was under the
crashed vehicle. An officer approached appellant and asked who was in the car.
Appellant stated it was just the two of them and identified M.I. as his best friend. Appellant
was not injured and initially claimed he was not driving the vehicle.
{¶9} Officers realized M.I. was gasping for breath and moved the vehicle off of
his body. Although lifesaving measures were attempted, M.I. eventually succumbed to
his injuries.
{¶10} In the meantime, appellant identified himself as the owner of the vehicle but
claimed M.I. was driving. Appellant described events leading to the crash as though he
was a passenger in the vehicle. As he continued to talk to police, however, he expressed Stark County, Case No. 2023CA00150 4
concern about M.I. and about consequences he faced, at one point asking whether
“manslaughter” was a possibility and whether he would go home that night. Upon
questioning, appellant replied he had “a few shots of Patron” that evening and had
consumed “a nice amount of alcohol,” although he maintained he wasn’t driving.
{¶11} Examination of the vehicle at the crash scene revealed the driver’s seatbelt
was extended and locked into position, but the passenger seatbelt was tight. When a
vehicle is involved in a crash, the seatbelt cannot extend or retract. The position of the
seatbelts revealed to investigators that the driver was wearing a seatbelt and was not
ejected from the vehicle at the time of the crash, but the passenger was not wearing a
seatbelt and was therefore ejected from the vehicle. The inevitable conclusion of the
evidence was that appellant was the belted driver and M.I. was the unbelted passenger.
{¶12} Further investigation at the scene revealed a small, clear plastic container
which held cigarettes and marijuana.
{¶13} Police determined the crash occurred within Jackson Township and a
Jackson officer, Ptl. Wiseman, arrived on the scene. Massillon officers told him M.I. had
been transported to the hospital with what they believed were likely fatal injuries. Wiseman
approached appellant to speak to him about the crash and observed multiple cuts on
his hands and face, along with blood. Appellant said he wasn’t sure when he sustained
the injuries. A medic inquired whether appellant was intoxicated, and appellant again said
he was drinking before the crash: three shots and four beers. Appellant continued to
insist M.I. was the driver. Stark County, Case No. 2023CA00150 5
{¶14} Wiseman suspected appellant was under the influence of alcohol. He noted
the odor of an alcoholic beverage upon his breath, glassy eyes, and slurred speech.
Appellant’s responses to the officer’s questions were delayed.
{¶15} When medics examined appellant, there was visible bruising to his left
shoulder, consistent with where the driver’s-side seat belt would have been.
{¶16} Sgt. Sprowl arrived for the purpose of managing the scene and assigning
tasks. As he approached the overturned vehicle, he smelled the odor of an alcoholic
beverage. Inside the passenger compartment of the vehicle, he found a red solo cup and
a can of Twisted Tea resting on the driver’s-side door. Outside the moon roof, he found
a cellophane baggie that appeared to contain cocaine. He observed the plastic container
containing marijuana and cigarettes next to the vehicle. Another officer found a silver pill
container key chain nearby. Sprowl photographed the scene and took measurements.
{¶17} Appellant was transported to the police department and presented with the
BMV 2255 form typically used in O.V.I. arrests, advising a suspect of the consequences
of consenting to or refusing breath, urine, or blood testing. Officer Wiseman read the
document to appellant and signed it, but did not issue the document to appellant because
charges were not being filed at that time due to the fatality.
{¶18} In the booking area, appellant asked Wiseman whether he would consent
to testing if he was in appellant’s position, but Wiseman declined to answer. While in the
booking area, appellant made statements to himself or to someone on the phone that he
was “whipping” the vehicle at the time of the crash, which officers took as an admission
of driving. Appellant asked whether marijuana would show up in test results and indicated
his concern about the potential result. Stark County, Case No. 2023CA00150 6
{¶19} At the crash scene, appellant had stated he would provide a chemical test,
but at the station declined to do so. Appellant called his mother to discuss getting an
attorney and afterward declined to perform field sobriety tests.
{¶20} Police released appellant that night and proceeded with further investigation
of the crash.
{¶21} M.I.’s injuries proved fatal and his remains were transferred to the office of
the Stark County Coroner, who observed extensive contusions and abrasions on M.I.’s
body. The toxicology report indicated the presence of alcohol and cocaine in M.I.’s
system. The level of cocaine was 868 nanograms per milliliter, a level which is quite high
because a level of 900 nanograms per milliliter could cause death in some individuals.
The coroner determined, however, that cocaine use was not the cause of M.I.’s death.
{¶22} M.I.’s death was deemed “accidental” with the coroner opining he was
ejected during the crash but remained alive under the weight of the vehicle. The cause
of death was a massive crush injury to M.I.’s head, chest, and abdomen with skeletal and
visceral injury. The coroner’s report also indicated ethanol and benzoylecgonine
intoxication due to the toxicology results.
{¶23} In the meantime, the crash investigation continued with collection of
evidence including the vehicle’s data module, which indicated appellant was traveling at
86 m.p.h. approximately two and a half seconds before the recorded crash event. The
driver’s seatbelt was found to have a “friction burn” indicating the driver was belted at the
time of the crash; the passenger seatbelt had no such mark.
{¶24} The investigation included steps to identify the driver because appellant
claimed he was the passenger. D.N.A. on the driver’s-side airbag excluded M.I. as the Stark County, Case No. 2023CA00150 7
source of the D.N.A. A sample was obtained from appellant and his D.N.A. was found to
be a consistent match with the driver’s-side airbag profile.
{¶25} The crime lab also tested the suspected contraband found in the wreckage
of the vehicle. The white powdered substance in the baggie was cocaine; the silver
keychain compartment contained methamphetamine and oxycodone. The green
vegetable matter found in the plastic container was determined to be marijuana.
{¶26} At the conclusion of the investigation of the crash, officers charged
appellant, determining the driver’s failure to control the vehicle caused the crash and the
crash caused the death of M.I. Lt. Coppock determined the driver failed to control the
vehicle and appellant was the driver, and separately determined the evidence showed
appellant was intoxicated when he operated the vehicle. In reaching that conclusion,
Coppock relied on the observations of officers at the crash scene and appellant’s own
statements.
{¶27} Appellant was charged by indictment with one count of aggravated
vehicular homicide pursuant to R.C. 2903.06(A)(1)(a) and (B)(2)(a), a felony of the
second degree [Count I]; one count of aggravated vehicular homicide pursuant to R.C.
2903.06(A)(2)(a) and (B)(3), a felony of the third degree [Count II]; one count of O.V.I.
pursuant to R.C. 4511.19(A)(2)(a) and (b), a misdemeanor of the first degree [Count III];
and one count of possession of marijuana pursuant to R.C. 2925.11(A)(C)(3)(a), a minor
misdemeanor.
{¶28} Appellant entered pleas of not guilty and the matter proceeded to trial by
jury. Appellant was found guilty as charged upon Counts I and II, and not guilty upon
Counts III and IV. The trial court imposed a prison term of 5 to 7½ years. Stark County, Case No. 2023CA00150 8
{¶29} Appellant now appeals from the judgment entry of his convictions and
sentence.
{¶30} Appellant raises three assignments of error:
ASSIGNMENTS OF ERROR
{¶31} “I. APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST
WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”
{¶32} “II. THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO
PRESENT A JURY INSTRUCTION ON A LESSER INCLUDED (OR INFERIOR
DEGREE) OFFENSE.”
{¶33} “III. THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT’S
CRIMINAL RULE 29 MOTION FOR ACQUITTAL BECAUSE THE STATE FAILED TO
PRODUCE SUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION AGAINST
APPELLANT.”
ANALYSIS
I., III.
{¶34} Appellant’s first and third assignments of error are related and will be
addressed together. He argues his convictions are not support by sufficient evidence and
are against the manifest weight of the evidence, and that the trial court should have
granted his Crim.R. 29(A) motion for acquittal. We disagree.
{¶35} The legal concepts of sufficiency of the evidence and weight of the evidence
are both quantitatively and qualitatively different. State v. Thompkins, 1997-Ohio-52,
paragraph two of the syllabus. The standard of review for a challenge to the sufficiency
of the evidence is set forth in State v. Jenks, 61 Ohio St.3d 259 (1991) at paragraph two Stark County, Case No. 2023CA00150 9
of the syllabus, in which the Ohio Supreme Court held, “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.
The 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.”
{¶36} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the
entire record, weighs the evidence and all reasonable inferences, considers the credibility
of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly
lost its way and created such a manifest miscarriage of justice that the conviction must
be overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.
Reversing a conviction as being against the manifest weight of the evidence and ordering
a new trial should be reserved for only the “exceptional case in which the evidence weighs
heavily against the conviction.” Id.
{¶37} Appellant moved for acquittal pursuant to Crim.R. 29(A), which states a
court “shall order the entry of the judgment of acquittal of one or more offenses * * * if the
evidence is insufficient to sustain a conviction of such offense or offenses.” Because a
Crim.R. 29 motion questions the sufficiency of the evidence, “[w]e apply the same
standard of review to Crim.R. 29 motions as we use in reviewing the sufficiency of the
evidence.” State v. Anderson, 2024-Ohio-3181, ¶ 38 (5th Dist.). Whether the evidence is
legally sufficient to sustain a verdict is a question of law. Id., citing State v. Thompkins, Stark County, Case No. 2023CA00150 10
supra. “Sufficiency is a test of adequacy.” Id. “We construe the evidence in a light most
favorable to the prosecution and determine whether a rational trier of fact could have
found the essential elements of the offense proven beyond a reasonable doubt.” Id., citing
State v. Jenks, paragraph two of the syllabus.
{¶38} Appellant was found guilty upon one count of aggravated vehicular
homicide pursuant to R.C. 2903.06(A)(1)(a), a felony of the second degree, and one count
of aggravated vehicular homicide pursuant to R.C. 2903.06(A)(2)(a), a felony of the third
degree. Those sections state the following:
(A) No person, while operating or participating in the operation
of a motor vehicle, motorcycle, utility vehicle, mini-truck, snowmobile,
locomotive, watercraft, or aircraft, shall cause the death of another
or the unlawful termination of another's pregnancy in any of the
following ways:
(1)(a) As the proximate result of committing a violation of
division (A) of section 4511.19 of the Revised Code or of a
substantially equivalent municipal ordinance;
....
(2) In one of the following ways:
(a) Recklessly;
. . . .[.]
{¶39} Appellant asserts there is no evidence he was under the influence of drugs
or alcohol at the time of the crash and points to alleged flaws in the analyses of Coppock Stark County, Case No. 2023CA00150 11
and the crash reconstruction. Appellant further points to the level of cocaine metabolites
in the victim’s body and the coroner’s conclusion that the victim’s death was “accidental.”
{¶40} One of appellant’s expert witnesses, Henry Lipian, opined that Coppock
could have taken additional technological steps in his analysis of what Lipian described
as a “complex” crash. It was up to the factfinder to determine the weight to be given
Lipian’s testimony:
Finally, we note the jury is not required to give any additional
weight to the opinion of an expert, if any weight at all. Rather, an
expert's opinion is admissible, as is any other testimony, to aid the
trier of fact in arriving at a correct determination of the issues being
litigated. Expert testimony is permitted to supplement the decision-
making process of the “fact finder” not to supplant it. See Ragon v.
Vitali & Beltrami, Jr. Inc., [42 Ohio St.2d 161, (1975)]. Again, we
stress that a jury is considered the primary fact-finder whose
determinations must be afforded due deference upon appellate
review.
Doss v. Smith, 1998 WL 338070, *2 (8th Dist.).
{¶41} The weight of the evidence and the credibility of the witnesses are
determined by the trier of fact. State v. Yarbrough, 2002-Ohio-2126, ¶ 79. The jury as
the trier of fact was free to accept or reject any and all of the evidence offered by the
parties and assess the witness's credibility. “While the trier of fact may take note of the
inconsistencies and resolve or discount them accordingly * * * such inconsistencies do
not render defendant's conviction against the manifest weight or sufficiency of the Stark County, Case No. 2023CA00150 12
evidence.” State v. Johnson, 2015-Ohio-3113, ¶ 61 (5th Dist.), citing State v. Nivens,
1996 WL 284714 (10th Dist.). The jury need not believe all of a witness’ testimony, but
may accept only portions of it as true. Id.
{¶42} Upon our review of the record, the jury could reasonably find appellant guilty
of the charged offenses. Appellee’s evidence included police body cam videos from the
crash scene, allowing the jury to view appellant’s speech and movements. Officers
described the odor of an alcoholic beverage emanating from appellant’s breath and stated
his slurred, delayed speech was even more pronounced in person. Appellant admitted
he had a “few shots of Patron” and consumed “a nice amount” of alcohol, while he
continued to deny he was the driver. The jury was able to view appellant’s growing
concern and questions about consequences he faced as he implicitly acknowledged he
was the driver.
{¶43} Appellant also acknowledged a concern that his marijuana use would be
apparent if he submitted to chemical testing, which he therefore refused. As appellee
points out, the jury may have inferred appellant’s refusal to submit to a chemical test
indicated knowledge and fear of the likely result, and therefore demonstrates
consciousness of guilt. State v. Farina, 1987 WL 15374, *1 (5th Dist.), citing Westerville
v. Cunningham, 15 Ohio St.2d 121 (1968) [“The refusal of one accused of intoxication to
take a reasonably reliable chemical test for intoxication may have probative value on the
question as to whether he was intoxicated at the time of such refusal.”]
{¶44} Appellant further argues his excessive speed demonstrated by the evidence
does not rise to the level of “recklessness” that would support a conviction upon R.C.
2903.06(A)(2)(a), supra. Grossly excessive speed, however, when combined with other Stark County, Case No. 2023CA00150 13
factors, will support a finding of recklessness. State v. Skaggs, 2010-Ohio-302, ¶ 47 (2nd
Dist.). The evidence in the instant case established appellant was driving more than two
and a half times the posted speed limit when he lost control of the vehicle, resulting in a
catastrophic rollover crash. The jury could reasonably find appellant’s conduct was
reckless.
{¶45} Finally, appellant argues the jury’s guilty verdict upon Count I was
“inconsistent” with its not-guilty verdict upon Count III, in which appellant was found not
guilty of O.V.I. pursuant to R.C. 4511.19(A)(2)(a) and (b). The elements of the Count III
O.V.I. offense are as follows:
(A)(2) No person who, within twenty years of the conduct
described in division (A)(2)(a) of this section, previously has been
convicted of or pleaded guilty to a violation of this division, a violation
of division (A)(1) of this section, or any other equivalent offense shall
do both of the following:
(a) Operate any vehicle, streetcar, or trackless trolley within
this state while under the influence of alcohol, a drug of abuse, or a
combination of them;
(b) Subsequent to being arrested for operating the vehicle,
streetcar, or trackless trolley as described in division (A)(2)(a) of this
section, being asked by a law enforcement officer to submit to a
chemical test or tests under section 4511.191 of the Revised Code,
and being advised by the officer in accordance with section 4511.192 Stark County, Case No. 2023CA00150 14
of the Revised Code of the consequences of the person's refusal or
submission to the test or tests, refuse to submit to the test or tests.
{¶46} Count III, therefore, required appellee to prove 1) appellant operated a
vehicle under the influence of alcohol, and 2) appellant refused to submit to a chemical
test. The predicate offense of Count I, as noted supra, is causing the death of another
“[a]s the proximate result of committing a violation of division (A) of section 4511.19….”
To find appellant guilty of aggravated vehicular homicide in Count I, it was sufficient for
the jury to find that appellant operated a motor vehicle while under the influence of alcohol
or drugs, and that offense proximately caused the victim’s death. We need not speculate
why the jury acquitted appellant upon Count III, which required proof of different elements.
{¶47} Moreover, the jury's verdicts also are not legally conflicting. A jury need not
deliver rationally consistent verdicts in order for the verdicts to be upheld. State v.
Trewartha, 2005–Ohio–5697, ¶ 15 (10th Dist.). As long as sufficient evidence supports
the jury's verdict at issue, other seemingly inconsistent verdicts do not undermine the
otherwise sufficient evidence. Id.
{¶48} Any inconsistencies in the evidence were for the trial court to resolve. State
v. Dotson, 2017-Ohio-5565, ¶ 49 (5th Dist.). “The weight of the evidence concerns the
inclination of the greater amount of credible evidence offered in a trial to support one side
of the issue rather than the other.” State v. Delevie, 2019-Ohio-3563, ¶ 30 (5th Dist.),
appeal not allowed, 2020-Ohio-518, citing State v. Brindley, 2002-Ohio-2425, ¶ 16 (10th
Dist.). Stark County, Case No. 2023CA00150 15
{¶49} Appellant’s convictions are supported by sufficient evidence and are not
against the manifest weight of the evidence. The first and third assignments of error are
overruled.
II.
{¶50} In his second assignment of error, appellant argues the trial court should
have instructed the jury upon the lesser misdemeanor offense of vehicular homicide
pursuant to R.C. 2903.06(A)(3)(a) and (C). We disagree.
{¶51} A jury charge on a lesser-included offense is required only where the
evidence presented at trial would reasonably support both an acquittal on the crime
charged and a conviction upon the lesser or inferior offense. State v. Bordeau, 2023-
Ohio-2040, ¶ 35 (5th Dist.), citing State v. Thomas, 40 Ohio St.3d 213, paragraph two of
the syllabus (1988). In making this determination, the court must view the evidence in a
light most favorable to the defendant. State v. Smith, 89 Ohio St.3d 323, 331 (2000).
Nevertheless, an instruction is not warranted every time any evidence is presented on a
lesser-included offense. There must be sufficient evidence to allow a jury to reasonably
reject the greater offense and find the defendant guilty on a lesser-included offense. State
v. Shane, 63 Ohio St.3d 630, 632-633 (1988); State v. Conway, 2006-Ohio-791, ¶ 134.
{¶52} When reviewing a trial court's jury instructions, the proper standard of
review for an appellate court is whether the trial court's refusal to give a requested jury
instruction constituted an abuse of discretion under the facts and circumstances of the
case. State v. Miku, 2018-Ohio-1584, ¶ 53 (5th Dist.).
{¶53} Appellant was charged with one count of aggravated vehicular homicide, a
felony of the second degree, pursuant to R.C. 2903.06(A)(1)(a) and (B)(2)(a), described Stark County, Case No. 2023CA00150 16
supra. He was also charged with a violation of aggravated vehicular homicide, a felony
of the third degree, pursuant to R.C. 2903.06(A)(2)(a) and (B)(3), described supra.
{¶54} At trial, appellant request an instruction upon vehicular homicide, a first-
degree misdemeanor, pursuant to R.C. 2903.06(A)(3)(a): “No person, while operating or
participating in the operation of a motor vehicle, . . . shall cause the death of another or
the unlawful termination of another's pregnancy in any of the following ways:
….Negligently[.]”
{¶55} Appellant argues the coroner opined M.I.’s death was “accidental,” which
should have allowed the jury to consider whether appellant’s conduct was negligent. A
person acts negligently when, because of a substantial lapse from due care, the person
fails to perceive or avoid a risk that the person's conduct may cause a certain result or
may be of a certain nature. R.C. 2901.22(D). A person is negligent with respect to
circumstances when, because of a substantial lapse from due care, the person fails to
perceive or avoid a risk that such circumstances may exist. Id.
{¶56} The trial court overruled appellant’s motion for the misdemeanor instruction,
noting appellant was driving two and a half times the posted speed limit around a
significant curve. T. IV, 87-88. The trial court noted other evidence must also be
considered, including appellant’s admitted alcohol consumption and his complete loss of
control of the vehicle. T. IV, 89. Upon consideration of all of the events leading to the
crash, a reasonable jury would not be able to find appellant not guilty of aggravated
vehicular homicide but guilty of vehicular homicide. T. IV, 90-91. The trial court
concluded the evidence would not allow the jury to find appellant was anything less than
reckless. Stark County, Case No. 2023CA00150 17
{¶57} We agree with the reasoning of the trial court. The evidence does not
support a finding the crash was caused by mere negligence. See, Bordeau, supra, 2023-
Ohio-2040, ¶ 43 (5th Dist.) Either the crash occurred because appellant was under the
influence of alcohol, or because he drove recklessly. Id. We find the trial court did not
abuse its discretion in failing to give the requested instruction, as the evidence did not
reasonably support conviction of the lesser offense and acquittal of the greater.
{¶58} Appellant’s second assignment of error is overruled.
CONCLUSION
{¶59} Appellant’s three assignments of error are overruled and the judgment of
the Stark County Court of Common Pleas is affirmed.
By: Delaney, P.J.,
Baldwin, J. and
King, J., concur.