[Cite as Toledo v. Bryant-Bey, 2023-Ohio-4798.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio/City of Toledo Court of Appeals No. L-23-1048
Appellee Trial Court No. CRB-22-11978
v.
Matheno Bryant-Bey DECISION AND JUDGMENT
Appellant Decided: December 28, 2023
*****
Rebecca Facey, City of Toledo Prosecuting Attorney, and Jimmie Jones, Assistant Prosecuting Attorney, for appellee.
Tyler Naud Jechura, for appellant.
MAYLE, J.
{¶ 1} Following a jury trial, defendant-appellant, Matheno Bryant-Bey, appeals
the February 28, 2023 judgment of the Toledo Municipal Court, convicting him of sexual
imposition. For the following reasons, we affirm the trial court judgment. I. Background
{¶ 2} Matheno Bryant-Bey was charged with two counts of sexual imposition,
violations of R.C. 2907.06(A)(1), third-degree misdemeanors. Following a jury trial,
Bryant-Bey was found not guilty of the first count and guilty of the second count. The
trial court sentenced him to 60 days in jail and he was deemed a Tier 1 sex offender.
{¶ 3} According to the evidence presented at trial, as to the first count, on
November 29, 2022, Bryant-Bey approached S.M., a children’s librarian at the Toledo-
Lucas County Library, and asked for help finding a holiday book. He followed S.M. to
the corner of the library where those books were shelved. While S.M. was bending down
searching the bookshelf for books, she could not see Bryant-Bey, but she sensed that he
was behind her. He smelled of alcohol. She then felt something press against her
buttocks. S.M. was confident that it was Bryant-Bey’s erect penis, but she admitted that
she did not actually see an erect penis, so she could not be certain.
{¶ 4} As to the second count, on December 30, 2022, 19-year-old J.B. was
shopping with her mother at The Buckle at the mall. Bryant-Bey walked behind her and
stepped on her heel, bumping J.B. into her mother. As this happened, Bryant-Bey cupped
J.B.’s buttocks with his hand, moved his hand onto her back, and cupped her buttocks
again. Bryant-Bey mumbled “sorry,” and J.B. instinctively said, “that’s okay.” J.B.’s
mother had seen Bryant-Bey earlier in their shopping trip and had noticed that he smelled
of alcohol.
2. {¶ 5} Both S.M. and J.B. testified, as did J.B.’s mother and the police officers who
took S.M. and J.B.’s reports. Significantly, both J.B. and her mother said that J.B.
reported the incident directly to the officer, but the officer testified that he initially
obtained the relevant information from J.B.’s mother while J.B. stood next to her and
nodded. He testified that once he learned that J.B. was not a juvenile, he asked her
directly for information, but by then, all he needed was her name, address, and phone
number. He had already received all other pertinent information from J.B.’s mother.
{¶ 6} In addition to these witnesses, the city presented testimony from A.N.
Bryant-Bey had been convicted of gross sexual imposition under R.C. 2907.05(A)(1)
(sexual contact compelled by force or threat of force) for groping A.N.’s buttocks in 2019
in an elevator at St. Vincent Hospital, where she worked. We reversed Bryant-Bey’s
conviction, holding that the state had not presented sufficient evidence to support the
element of force. State v. Bey, 6th Dist. Lucas No. L-19-1099, 2020-Ohio-4601, ¶ 28.
Before trial, Bryant-Bey moved in limine to prevent the city from offering evidence of
“previous acts or other pending cases,” including evidence of this 2019 incident.
Nevertheless, the city expressed its intent to offer evidence of the incident at trial to show
a common plan or scheme or lack of mistake or inadvertence. In a written judgment filed
February 14, 2023, the trial court concluded that the city could present evidence of the
incident, but it held that “[n]o mention of a conviction or appeal may be made.”
3. {¶ 7} On the day of trial, defense counsel told the court on the record that if it was
going to allow evidence of the 2019 incident to be presented to the jury, he wanted the
jury to know that Bryant-Bey had been convicted in connection with this incident, but
that the conviction was reversed and vacated on appeal. He explained: “Our position is
that it’s all or nothing.”
{¶ 8} The court accommodated defense counsel’s request and told the jury of the
conviction and the reversal of the conviction. It also instructed the jury before the parties
presented opening statements—and, again, before allowing A.N. to testify—that it could
consider A.N.’s testimony as evidence of “motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake or lack of accident,” but not to “reach the
conclusion that * * * he did it once before, he probably did it this time too.” It reiterated
this admonition in its general jury instructions.
{¶ 9} The jury found Bryant-Bey not guilty of the sexual imposition of S.M., but
guilty of the sexual imposition of J.B. Bryant-Bey appealed. He assigns the following
errors for our review:
THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT
ALLOWED A WITNESS TO TESTIFY ABOUT EVENTS FOR WHICH
THE DEFENDANT WAS CONVICTED, BUT THEN HAD THAT
CONVICTION REVERSED AND VACATED.
4. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT
CONVICTED THE DEFENDANT BECAUSE THAT CONVICTION
WAS CLEARLY AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
II. Law and Analysis
{¶ 10} In his first assignment of error, Bryant-Bey argues that the trial court erred
in admitting other-acts evidence, and in his second assignment of error, he argues that his
conviction was against the manifest weight of the evidence. We consider each of his
assignments in turn.
A. Evid.R. 404(B)
{¶ 11} In his first assignment of error, Bryant-Bey argues that the trial court erred
when it allowed A.N. to testify about the 2019 incident at St. Vincent Hospital. He
claims that evidence of the incident should not have been admitted because (1) he never
testified or claimed that he touched the victims in the present case by mistake or
inadvertence, therefore, A.N.’s testimony was not relevant and was highly prejudicial,
and (2) his conviction was reversed on appeal.
{¶ 12} The city responds that the trial court performed the proper analysis before
allowing A.N. to testify. It also maintains that the reversal of Bryant-Bey’s conviction in
the 2019 case did not render A.N.’s testimony inadmissible.
5. {¶ 13} Before trial, Bryant-Bey moved in limine to exclude other-acts evidence.
The city responded that evidence of other acts, including the other-act evidence at issue
here, was admissible to show the absence of mistake and common plan or scheme. The
trial court issued a written judgment employing a three-part test for determining the
admissibility of the evidence: (1) whether the evidence was relevant, (2) whether it was
offered for a purpose other than to prove propensity, and (3) whether the probative value
of the evidence was substantially outweighed by the risk of unfair prejudice. The court
concluded that the evidence was relevant to show that Bryant-Bey had developed a plan
or scheme to seek out women in public places and touch their buttocks, and, if believed
by the jury, would show the absence of mistake or inadvertence. The court concluded
that jury instructions would minimize the risk of confusion or unfair prejudice.
{¶ 14} Under Evid.R. 404(B), “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith.” That evidence may be admissible for other, limited purposes, however,
including “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” Id. “The key is that the evidence must prove something
other than the defendant’s disposition to commit certain acts.” State v. Hartman, 161
Ohio St.3d 214, 2020-Ohio-4440, 161 N.E.3d 651, ¶ 22.
{¶ 15} Additionally, under R.C. 2945.59, “[i]n any criminal case in which the
defendant’s motive or intent, the absence of mistake or accident on his part, or the
6. defendant’s scheme, plan, or system in doing an act is material, any acts of the defendant
which tend to show his motive or intent, the absence of mistake or accident on his part, or
the defendant’s scheme, plan, or system in doing the act in question may be proved,
whether they are contemporaneous with or prior or subsequent thereto, notwithstanding
that such proof may show or tend to show the commission of another crime by the
defendant.”
{¶ 16} To determine whether evidence of other acts is admissible, the first step is
determining whether the evidence is relevant in two respects: (1) to the particular purpose
for which it is offered—i.e., a non-character-based purpose, as allowed by Evid.R.
404(B)—and (2) to an issue that is actually in dispute—i.e., an issue that is material to
the case, as required by Evid.R. 401. State v. Smith, 162 Ohio St.3d 353, 2020-Ohio-
4441, 165 N.E.3d 1123, ¶ 37-38, citing Hartman at ¶ 26-27; State v. Williams, 134 Ohio
St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 20. Additionally, a threshold showing of
“‘substantial proof’” that the defendant is the person who committed the alleged other
acts is required as part of the court’s relevancy determination. Hartman at ¶ 28, quoting
State v. Carter, 26 Ohio St.2d 79, 83, 269 N.E.2d 115 (1971).
{¶ 17} If the evidence passes the relevancy test, the final step to determining its
admissibility is considering, under Evid.R. 403(A), whether the value of the evidence “is
substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or
of misleading the jury.” Smith at ¶ 38, citing Hartman at ¶ 29; Williams at ¶ 20.
7. {¶ 18} The admissibility of other-acts evidence under Evid.R. 404(B) is a question
of law that we review de novo. State v. Worley, 164 Ohio St.3d 589, 2021-Ohio-2207,
174 N.E.3d 754, ¶ 117, citing Hartman at ¶ 22. But the trial court’s weighing of the
probative value of admissible evidence against the danger of unfair prejudice to the
defendant under Evid.R. 403(A) involves an exercise of judgment, so we review that
decision for an abuse of discretion. Id., citing Hartman at ¶ 30.
{¶ 19} Bryant-Bey moved in limine to exclude the other-acts evidence, however,
he did not renew his objection on the record at trial when A.N. testified. Generally
speaking, “the grant or denial of a motion in limine is not a definitive ruling on the
evidence” therefore, “the grant of a motion in limine generally does not preserve any
error for appellate review.” Setters v. Durrani, 2020-Ohio-6859, 164 N.E.3d 1159, ¶ 12
(1st Dist.), citing State v. Grubb, 28 Ohio St.3d 199, 200-202, 503 N.E.2d 142 (1986).
Evid.R. 103 was revised effective July 1, 2017, however, and now provides that “[o]nce
the court rules definitely on the record, either before or at trial, a party need not renew an
objection or offer of proof to preserve a claim of error for appeal.” Evid.R. 103(A)(2).
Here, when the trial court ruled on Bryant-Bey’s motion, it made clear that its ruling was
tentative and could be reconsidered in context at trial. As such, the trial court judgment
cannot be viewed as definitive for purposes of Evid.R. 103(A)(2), therefore, we are
limited to a plain-error review of Bryant-Bey’s assignment of error.
8. {¶ 20} Plain error is error that affects substantial rights. Crim.R. 52(B). In
determining whether plain error occurred, we must examine the alleged error in light of
all of the evidence properly admitted at trial. State v. Hill, 92 Ohio St.3d 191, 203, 749
N.E.2d 274 (2001). Plain error should be found “only in exceptional circumstances and
only to prevent a manifest miscarriage of justice.” Id., citing State v. Long, 53 Ohio St.2d
91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. “Reversal is warranted only
if the outcome of the trial clearly would have been different absent the error.” Id., citing
Long at paragraph two of the syllabus.
{¶ 21} Under R.C. 2907.06(A)(1), “[n]o person shall have sexual contact with
another, not the spouse of the offender * * * when * * * [t]he offender knows that the
sexual contact is offensive to the other person * * * or is reckless in that regard.” By its
terms, “the culpable mental state for a violation of R.C. 2907.06(A)(1) is either
knowledge or recklessness,” therefore, “[t]o obtain a conviction for sexual imposition in
violation of R.C. 2907.06(A)(1), the State must prove either that the defendant knew that
the sexual contact was offensive or that the defendant was reckless with respect to
whether the sexual contact was offensive.” State v. Wrasman, 3d Dist. Auglaize No. 2-
20-03, 2020-Ohio-6887, ¶ 9. “A person acts knowingly, regardless of purpose, when the
person is aware that the person’s conduct will probably cause a certain result or will
probably be of a certain nature.” R.C. 2901.22(B). “A person acts recklessly when, with
heedless indifference to the consequences, the person disregards a substantial and
9. unjustifiable risk that the person’s conduct is likely to cause a certain result or is likely to
be of a certain nature.” R.C. 2901.22(C).
{¶ 22} In State v. Hines, 2018-Ohio-1780, 112 N.E.3d 10 (12th Dist. ), the
defendant was on trial for rape. The victim testified that after a night out drinking with
the defendant and others, she awoke to a sharp pain inside her vagina. She found that her
dress had been pulled up and her tights had been pulled down, and she realized that the
defendant was lying behind her with his fingers inside her vagina. At trial, the court
allowed evidence of a similar incident involving another woman who testified that after a
night out drinking, she awoke to the defendant rubbing her vagina over her clothing.
{¶ 23} On appeal, the defendant challenged the admission of this other-acts
evidence. He argued that his motive, intent, knowledge, or absence of mistake or
accident were not at issue in the case; rather, the only issue was whether he had digitally
penetrated the victim. The Twelfth District rejected his argument. It concluded that the
evidence was properly admitted because it was relevant to establish defendant’s motive,
intent, knowledge, or absence of mistake or accident, and specifically the defendant’s
“scheme, plan, or system in doing the act in question.” Id. at ¶ 56. The court observed
that the trial court minimized the risk of prejudice by specifically instructing the jury both
before the woman’s testimony and during final jury instructions that it could not consider
the testimony to prove character or to prove that defendant acted in conformity with such
character and that it should consider the evidence only for the purposes stated above. It
10. recognized that a jury is presumed to have followed the instructions given to it by the trial
court and found that the record did not reflect any indication that the jury did not follow
the trial court’s instructions.
{¶ 24} Here, the trial court found that A.N.’s testimony about the 2019 incident
was relevant because it showed that Bryant-Bey had a plan or scheme for seeking out
women in public places and touching their buttocks and that he did not accidentally or
inadvertently touch J.B.’s buttocks. It is true, as Bryant-Bey points out, that he did not
testify and, therefore, did not specifically claim that he accidentally or inadvertently
touched J.B.’s buttocks. However, J.B. testified that Bryant-Bey apologized right after
stepping on her heel and cupping her buttocks. As recognized by the trial court, A.N.’s
testimony was relevant because it showed that despite his apology, Bryant-Bey did not
mistakenly bump into J.B. at the mall; his conduct was planned. In other words, A.N.’s
testimony showed that it was more likely that Bryant-Bey acted knowingly or
recklessly—rather than accidentally or inadvertently—when he touched J.B.’s buttocks.
We conclude, therefore, that the other-acts evidence was relevant and the trial court did
not commit error—let alone plain error—in admitting it.
{¶ 25} Turning to Bryant-Bey’s claim of unfair prejudice, like the trial court in
Hines, the trial court here provided instructions that minimized the risk of prejudice.
Before opening statements, before A.N. testified, and then again in its general jury
instructions, the court instructed the jury of the purposes for which it could consider the
11. other-acts evidence and emphasized that it could not consider the evidence for propensity
purposes. The court gave the following instruction before opening statements.
The State will be presenting evidence from several witnesses. Three
of the witnesses are complaining witnesses. You must be careful how you
evaluate this testimony. It is very important you treat * * * the two charges
separately. You may not make the inference that if the defendant did it
once he would likely do it again. Nor may you conclude that if three
witnesses testify to similar acts, he is more likely to have committed such
act. Only if you are convinced, beyond a reasonable doubt, of each and
every element of an offense or offenses may you find the defendant guilty
of that offense or offenses. In other words, it may not be used to establish
that the defendant has a propensity for inappropriate touching. However,
the State may ask you to consider the testimony of the three * * *
complaining witnesses to demonstrate that the defendant had a plan,
motive, or lack of mistake. I understand this may be a difficult concept.
The Court shall provide an example to assist your understanding. Let’s
assume that this were a jury trial for a bank robbery. Let’s also assume that
the State had evidence that the defendant had previously committed another
bank robbery. With just these facts, the State would not be permitted to
introduce evidence of the prior bank robbery. That is because each case
12. must stand on it’s [sic] own. A jury would not be able to hear evidence of
the other robberies because it is too likely that jurors would reach the
conclusion that the accused had committed another bank robbery, so he
probably did this one too. That is inadmissible propensity evidence.
However, let’s tweak the facts. Let’s add that, in the present and prior bank
robberies, the defendant had previously * * * been observed in the bank
taking pictures and taking notes. In this scenario, the State would be
permitted to provide evidence of the other bank robberies to show his plan.
It may also be considered to rebut a claim, from the accused, that he just
happened to be in the bank the day before the bank robbery. In short, you
must be * * * very careful not to reach the conclusion that the defendant * *
* did it before so he probably did it again. You are not permitted to
consider the other acts evidence for this purpose. Finally, like all other
witnesses, in this trial, you are the sole judges of their credibility. You are
charged with determining the true nature [of] other * * * contact if any. * *
* While the State may present these other witnesses, you may conclude that
there was nothing inappropriate in the interactions between defendant and
the witnesses, and that they do not support the State’s position that they are
evidence of planning, motive, or mistake.
13. The court then gave the following instruction after the evidence was presented, but before
submitting the case to the jury:
It is permissible for you to consider the testimony of all witnesses
for [sic] as it relates to the State’s theory the defendant’s actions
demonstrate his plan, motive, or lack of mistake. But you may not find the
defendant guilty of any or all of the offenses unless you are able to
conclude that each of the elements have been proven, beyond a reasonable
doubt, as to each charge or charges. The City has introduced evidence of
an alleged act from 2019. The testimony was introduced because the City
believes that it demonstrates the defendant had a plan or scheme and/or
negates an argument that whatever touching, if any, was a mistake or
inadvertent. It is permissible for you to consider this testimony for that
purpose. It is impermissible for you to conclude that if you believe the
alleged 2019 incident took place that because of that incident, that the
defendant has the proclivity or propensity to commit such acts and
therefore should be found guilty of the present charges. Similarly, you may
find—you may conclude that the November 29th incident supports the
City’s argument that the December 30th incident was not the result of
inadvertence or mistake, and may have been part of a plan or scheme.
Similarly, you may find—conclude that December 30th incident
14. demonstrates lack of mistake or inadvertence or a plan or a scheme. But
you cannot reach the conclusion that because the defendant did it once
before, so he probably did it again. Each of the two charges must stand on
their own.
“[W]hen a court issues a limiting instruction with respect to other-acts evidence, the
instruction should be tailored to the facts of the case.” Hartman, 161 Ohio St.3d 214,
2020-Ohio-4440, 161 N.E.3d 651, at ¶70. The trial court here issued a specifically-
tailored instruction explaining the limited purposes for which the jury could consider the
other-acts evidence here. As such, any risk of unfair prejudice was effectively
minimized.
{¶ 26} As for the fact that Bryant-Bey’s conviction was overturned in Bey, 6th
Dist. Lucas No. L-19-1099, 2020-Ohio-4601, the state argues that the reversal of his
conviction did not preclude it from offering evidence of the conduct for a purpose
permitted under Evid.R. 404(B). We agree.
{¶ 27} The text of Evid.R. 404(B) does not limit the admission of other-acts
evidence to conduct resulting in a conviction. Rather, the Ohio Supreme Court has
articulated that for evidence to be admissible under Evid.R. 404(B), there must be
“substantial proof that the alleged other acts were committed by the defendant.” State v.
Lowe, 69 Ohio St.3d 527, 530, 634 N.E.2d 616 (1994). “‘Substantial proof’ is not proof
‘beyond a reasonable doubt.’” Hines at ¶ 53, quoting State v. Jones, 12th Dist. Butler
15. No. CA2012-03-049, 2013-Ohio-150, ¶ 37. Moreover, in State v. Smith, 162 Ohio St.3d
353, 2020-Ohio-4441, 165 N.E.3d 1123, the Ohio Supreme Court concluded that the trial
court properly allowed the admission of other-acts evidence even though the defendant
had been tried and acquitted of a crime in connection with the conduct underlying the
other-acts evidence.
{¶ 28} In Bey, we reversed Bryant-Bey’s conviction because the state failed to
prove the element of force. His identity as the perpetrator of the offense was not at
issue—there was surveillance video demonstrating that he followed A.N. into the
elevator. Under the circumstances of this case, there was substantial proof that Bryant-
Bey committed the other act even though his conviction was ultimately vacated. The
evidence was, therefore, admissible despite the reversal of his gross-sexual-imposition
conviction. The trial court did not err in admitting the other-acts evidence.
{¶ 29} We find Bryant-Bey’s first assignment of error not well-taken.
B. Manifest Weight of the Evidence
{¶ 30} In his second assignment of error, Bryant-Bey argues that his conviction is
against the manifest weight of the evidence. He argues that the officer’s report of the
incident involving J.B. was unreliable because J.B.’s mother made the report—not J.B.—
even though J.B. was 19 years old. He emphasizes that the officer only saw J.B. shake
her head affirmatively while her mother did the talking, and he never separated J.B. from
her mother to get a report directly from J.B.
16. {¶ 31} The state responds that the jury heard testimony from both J.B. and her
mother, and J.B. clearly testified that Bryant-Bey bumped her, placed his hand on her
buttocks, put his hand on her lower back, then placed it on her buttocks again. It points
out that J.B.’s mother saw Bryant-Bey follow them into two stores.
{¶ 32} When reviewing a claim that a verdict is against the manifest weight of the
evidence, the appellate court must weigh the evidence and all reasonable inferences,
consider the credibility of witnesses, and determine whether the jury clearly lost its way
in resolving evidentiary conflicts so as to create such a manifest miscarriage of justice
that the conviction must be reversed and a new trial ordered. State v. Thompkins, 78
Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). We do not view the evidence in a light
most favorable to the state. “Instead, we sit as a ‘thirteenth juror’ and scrutinize ‘the
factfinder’s resolution of the conflicting testimony.’” State v. Robinson, 6th Dist. Lucas
No. L-10-1369, 2012-Ohio-6068, ¶ 15, citing Thompkins at 388. Reversal on manifest
weight grounds is reserved for “the exceptional case in which the evidence weighs
heavily against the conviction.” Thompkins at 387, quoting State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 33} Although under a manifest-weight standard we consider the credibility of
witnesses, we must nonetheless extend special deference to the jury’s credibility
determinations given that it is the jury who has the benefit of seeing the witnesses testify,
observing their facial expressions and body language, hearing their voice inflections, and
17. discerning qualities such as hesitancy, equivocation, and candor. State v. Fell, 6th Dist.
Lucas No. L-10-1162, 2012-Ohio-616, ¶ 14.
{¶ 34} Here, J.B. testified that Bryant-Bey placed his hand on her buttocks, put his
hand on her lower back, then placed it on her buttocks again. Regardless of whether she
did the talking when the incident was reported to the officer, this was her testimony at
trial. The jury obviously found her testimony credible. We defer to the jury’s credibility
determinations, and we decline to conclude that Bryant-Bey’s conviction was against the
manifest weight of the evidence merely because the jury believed the city’s version of
events over the defendant’s version. See State v. Haugh, 6th Dist. Lucas No. L-15-1115,
2016-Ohio-8008, ¶ 48.
{¶ 35} We find Bryant-Bey’s second assignment of error not well-taken.
III. Conclusion
{¶ 36} The trial court admitted other-acts evidence for proper purposes here.
Although we reversed Bryant-Bey’s conviction relating to the conduct underlying the
other-acts evidence, we did so because we concluded that the state failed to prove an
aggravating element—not because of any doubt concerning Bryant-Bey’s identity as the
perpetrator of the act. We find his first assignment of error not well-taken.
{¶ 37} The victim testified that Bryant-Bey knowingly or recklessly touched her
buttocks, and the jury believed her testimony. We defer to its credibility determinations
here, regardless of whether it was J.B. or her mother who initially reported the incident to
18. the responding officer. Bryant-Bey’s conviction was not against the manifest weight of
the evidence. We find his second assignment of error not well-taken.
{¶ 38} We affirm the February 28, 2023 judgment of the Toledo Municipal Court.
Bryant-Bey is ordered to pay the costs of this appeal under App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Christine E. Mayle, J. ____________________________ JUDGE Gene A. Zmuda, J. ____________________________ Charles E. Sulek, J. JUDGE CONCUR. ____________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
19.