State v. Hairston

[Cite as State v. Hairston, 2016-Ohio-8495.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, :

No. 15AP-1013

v. : (C.P.C. No. 13CR-2125)

Vent L. Hairston, : (REGULAR CALENDAR)

Defendant-Appellant. :

D E C I S I O N

Rendered on December 29, 2016

On brief: Ron O'Brien, Prosecuting Attorney, and Steven L.

Taylor, for appellee.

On brief: Barnhart Law Office LLC, and Robert B.

Barnhart, for appellant.

APPEAL from the Franklin County Court of Common Pleas

HORTON, J.

{¶ 1} Defendant-appellant, Vent L. Hairston ("appellant"), appeals from a

judgment of the Franklin County Court of Common Pleas finding him guilty of one count

of kidnapping and two counts of rape. Because the trial court did not abuse its discretion

in allowing amendment of the indictment, and because there was no abuse of discretion

or plain error in allowing a police officer to testify regarding the 12-year-old victim's

statements, we affirm.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} On April 19, 2013, the grand jury indicted appellant with one count of

kidnapping and five counts of rape, with a specification that the victim was under 13 years

of age. The indictment alleged that the victim, F.M., was 12 years old at the time and that

the offenses occurred on April 5, 2013. Originally, the counts of rape alleged the following

No. 15AP-1013 2

sexual conduct: digital vaginal penetration (Count 2), digital anal penetration (Count 3),

cunnilingus (Count 4), anal intercourse (Count 5), and fellatio (Count 6).

{¶ 3} Before trial, pursuant to Crim.R. 7(D), the trial court granted the state's

motion, over appellant's objection, to amend Count 6 to allege that the sexual conduct was

vaginal intercourse rather than fellatio. (Aug. 24, 2015 Tr. Vol. I at 13.) Trial commenced

on August 24, 2015. The trial testimony showed that, on April 5, 2013, L.M. reported to

Columbus Police that her 12-year-old daughter, F.M., was missing. (Tr. Vol. I at 234.) The

family had been playing at a park near Nelson Rd. and Fifth Ave. in Columbus, Ohio. L.M.

noticed that F.M. was missing when the family got ready to leave. (Tr. Vol. I at 80, 237.)

Police arrived on the scene and tried to help. (Tr. Vol. I at 238.) Despite the use of police

dogs and a helicopter, they were unable to locate the missing child. (Tr. Vol. I at 82, 86.)

{¶ 4} Around midnight, L.M. received a call from F.M., via a phone number that

L.M. did not recognize. (Tr. Vol. I at 239-44.) F.M. did not state her location but L.M.

could hear a man in the background, and F.M. handed the phone to him. The man

identified himself as Vent Hairston. (Tr. Vol. I at 240-44.) L.M. did not know him. (Tr.

Vol. I at 243.) Appellant told L.M. over the phone that he was with her daughter, and he

gave the location of where they were and said that she could be picked up. (Tr. Vol. I at

240-42.) He said that F.M. was okay. (Tr. Vol. I at 242.)

{¶ 5} When L.M. reached the location, she did not immediately see her daughter,

but then F.M. and appellant, whom L.M. identified in court, came walking around a

corner. (Tr. Vol. I at 244-45.) F.M. looked shaken up and was in tears. (Tr. Vol. I at 244-

46.) F.M. hugged her mom and said she was sorry for leaving the park. L.M. said it was

not F.M.'s fault and exclaimed "[t]hank God." (Tr. Vol. I at 245.) Appellant then

responded, "[t]hank God she is fine" and turned around and walked away. (Tr. Vol. I at

245.) F.M. did not say anything until they were back in the car. F.M. was crying and

shaking when she told L.M. what had happened to her. As a result of those disclosures,

L.M. called the police. (Tr. Vol. I at 246.)

{¶ 6} Officer Robert Griffin responded to the convenience store parking lot at the

corner of Westerville Rd. and Thornapple Way at approximately 1:00 a.m. (Tr. Vol. I at

99-101.) He talked to F.M. and described her emotional state: "She seemed somewhat

stunned. She had sort of a flat affect. She seemed timid. She seemed almost shellshocked."

No. 15AP-1013 3

(Tr. Vol. I at 102.) Defense counsel objected to the introduction of F.M.'s statements to the

police officer but the court overruled the objection on the grounds that the statements

were an excited utterance. F.M. told the police officer that she had been picked up by a

man in a van after she left the park to go to a nearby convenience store to get something to

drink. (Tr. Vol. I at 108.) The man drove her to an apartment and sexually assaulted her

through vaginal and anal penetration with his penis. (Tr. Vol. I at 108, 114.) She also

reported that she took a shower at the man's direction. (Tr. Vol. I at 116.) She described

the man as an older black male who is short, thin, bald, with a goatee and moustache,

wearing a purple suit and purple shoes, and said his name was Vance. (Tr. Vol. I at 116-17,

121.) The officer drove F.M. around the area and she identified a van and an apartment.

(Tr. Vol. I at 123.) The officer then took her to Nationwide Children's Hospital.

{¶ 7} At Nationwide Children's Hospital, F.M. was interviewed by licensed

independent social worker Sarah Saxbe. (Tr. Vol. I at 153.) Saxbe was permitted to testify

to the disclosures made by F.M. over defense counsel's objection. (Tr. Vol. I at 181-83.)

F.M. was tearful when she disclosed that she was sexually assaulted by a man who was a

stranger. (Tr. Vol. I at 182, 198.) Saxbe testified that F.M. disclosed that the man

penetrated her vagina and anus. (Tr. Vol. I at 182-83.) She also disclosed that the man

put his mouth on her genitals and breasts and butt. (Tr. Vol. I at 190.)

{¶ 8} Theresa Warnimont is a sexual assault nurse examiner who also examined

F.M. She also testified to F.M.'s disclosures over objection. F.M. disclosed vaginal and

anal penetration and that the man put his mouth on her genitals and licked her breasts.

(Tr. Vol. II at 326-28.) Warnimont examined and photographed F.M. and noted internal

and external injuries to her vagina and anus. (Tr. Vol. II at 333-40.) Warnimont collected

rape-kit evidence during the examination, including swabs from the vagina and anus. (Tr.

Vol. II at 339-44.) F.M.'s clothing was also collected, including her underwear. (Tr. Vol. II

at 339-40.)

{¶ 9} Lead Detective David Bobbitt testified that appellant lived at the address

pointed out by F.M. and that the van she identified was also registered to him. (Tr. Vol. II

at 469, 504.) Bobbitt served a search warrant on appellant's home and collected DNA

from him. (Tr. Vol. II at 487-97.) Detective Bobbitt found a purple suit in appellant's

home. (Tr. Vol. II at 492.) He also took custody of the rape-kit evidence for preservation

No. 15AP-1013 4

and submitted it for comparison to appellant's known DNA sample. (Tr. Vol. II at 484-87,

497-501.)

{¶ 10} David Ross testified that he is a forensic scientist at the Ohio Bureau of

Criminal Investigation ("BCI"). (Tr. Vol. III at 523.) He conducted testing of the rape-kit

evidence in search for the presence of bodily fluids, primarily looking for evidence of

semen. (Tr. Vol. III at 529-30.) Initial testing of the vaginal swab from the rape kit for

F.M. confirmed the presence of a bodily fluid, but was inconclusive as to whether the

substance was or was not semen. (Tr. Vol. III at 530-31, 538-44.) On the anal swab, Ross's

results indicated trace amounts of semen. (Tr. Vol. III at 545.) Trace amounts of semen

were also found on F.M.'s underwear. (Tr. Vol. III at 552.)

{¶ 11} Devonie Herdemann, another BCI forensic analyst, compared the DNA

found in the anal swabs and underwear to appellant. (Tr. Vol. III at 602-05.) The analysis

found that the DNA in the anal swab contained F.M.'s DNA and a male profile, but the

sample was not strong enough to include or exclude appellant. (Tr. Vol. III at 602.)

However, the DNA found in the underwear was a match for appellant. (Tr. Vol. III at

605.) The expected frequency of the occurrence of this DNA profile consistent with

appellant from the underwear is one in 1,734,000,000,000,000,000 unrelated

individuals. (Tr. Vol. III at 606; State's Ex. G-2.)

{¶ 12} On August 31, 2015, the jury returned guilty verdicts as to Count 1

(kidnapping), Count 5 (rape - anal intercourse), and Count 6 (rape - vaginal intercourse),

along with the age specifications. (Oct. 7, 2015 Jgmt. Entry at 1.) The jury returned not

guilty verdicts to the other three rape counts. Id.

{¶ 13} On September 16, 2015, the trial court sentenced appellant to 10 years to life

in prison on Count 1, and 25 years to life on Counts 5 and 6. The sentence on Count 1 was

to be served consecutively to the concurrent sentences on Counts 5 and 6 for a total

sentence of 35 years to life in prison.

II. ASSIGNMENTS OF ERROR

{¶ 14} Appellant appeals, assigning the following errors:

[I.] THE TRIAL COURT ERRED WHEN IT ALLOWED THE

STATE TO AMEND COUNT SIX OF THE INDICTMENT

BEFORE TRIAL.

No. 15AP-1013 5

[II.] THE TRIAL COURT IMPROPERLY ADMITTED

TESTIMONIAL HEARSAY EVIDENCE.

III. STANDARD OF REVIEW

{¶ 15} An appellate court "review[s] a trial court's decision to permit the

amendment of an indictment under an abuse-of-discretion standard. To constitute

reversible error, [the defendant] must show not only that the trial court abused its

discretion, but that the amendment prejudiced his defense." State v. Beach, 148 Ohio

App.3d 181, 2002-Ohio-2759, ¶ 23 (1st Dist.). An abuse of discretion connotes more than

an error of law or judgment; it connotes a decision that was arbitrary, unconscionable, or

unreasonable. State v. Adams, 62 Ohio St.2d 151, 157 (1980).

{¶ 16} Hearsay exceptions are reviewed for an abuse of discretion. State v. Dever,

64 Ohio St.3d 401, 410 (1992). "[A] trial court has broad discretion in the admission of

evidence, and unless it has clearly abused its discretion and the defendant has been

materially prejudiced thereby, an appellate court should not disturb the decision of the

trial court." State v. Issa, 93 Ohio St.3d 49, 64 (2001). Thus, a "trial court has broad

discretion to determine whether a declaration should be admissible as a hearsay

exception." Dever at 410.

{¶ 17} A question of whether a statement violates the Confrontation Clause is

reviewed de novo. State v. Durdin, 10th Dist. No. 14AP-249, 2014-Ohio-5759, ¶ 15.

IV. ASSIGNMENT OF ERROR ONE

{¶ 18} Crim.R. 7(D) discusses the amendment of indictments: "The court may at

any time before, during, or after a trial amend the indictment, information, complaint, or

bill of particulars, in respect to any defect, imperfection, or omission in form or substance,

or of any variance with the evidence, provided no change is made in the name or identity

of the crime charged."

{¶ 19} The Ohio Constitution guarantees the right to have an indictment presented

to the grand jury: "[N]o person shall be held to answer for a capital, or otherwise

infamous, crime, unless on presentment or indictment of a grand jury." Ohio

Constitution, Article I, Section 10.

{¶ 20} Appellant argues that the trial court violated appellant's right to a grand jury

under Ohio Constitution, Article I, Section 10, because the trial court improperly allowed

No. 15AP-1013 6

the state to amend Count 6 of the indictment before trial from alleging rape by fellatio to

rape by vaginal intercourse. (Tr. Vol. I at 9-13.) Defense counsel objected on general

grounds and the specific ground, stating "[t]hat's almost like or akin to a subsequent

charge being added that was not presented to the grand jury in this case. If you want to

charge a guy with an offense, due process requires that that evidence be presented to a

grand jury to make that determination, not a substitution." (Tr. Vol. I at 11.)

{¶ 21} Appellant recognizes that this court allowed a similar amendment in State

v. Smith, 10th Dist. No. 03AP-1157, 2004-Ohio-4786. In Smith, this court found no error

where the trial court allowed the state to change the sexual conduct at issue from fellatio

to digital vaginal penetration. Id. at ¶ 15. However, appellant argues that Smith did not

analyze the question from the perspective of the right to a grand jury and should be

reconsidered for that reason.

{¶ 22} The state argues that appellant fails to show an abuse of discretion or

prejudicial error warranting reversal, because provided there is no change in the "name or

identity of the crime charged," Crim.R. 7(D) allows the trial court to amend the

indictment at any time before, during, or after trial, with respect to any defect,

imperfection, or omission in form or substance or with respect to any variance in the

evidence. The state notes that this court and other courts have already held that an

amendment changing a rape count from one form of sexual conduct to another is allowed

under Crim.R. 7(D).

{¶ 23} Appellant acknowledges that Smith allows such an amendment under

Crim.R. 7(D). Subsequent cases from this court have agreed with Smith, holding that

"[a]mending a rape charge from one type of sexual conduct to another type of sexual

conduct changes neither the name nor the identity of the rape offense." State v. Abdullah,

10th Dist. No. 05AP-1316, 2006-Ohio-5412, ¶ 24; State v. Martin, 10th Dist. No. 05AP-

818, 2006-Ohio-2749, ¶ 9 (no abuse of discretion allowing such amendment.). The

Second District followed this line of cases in State v. Jones, 2nd Dist. No. 26289, 2015-

Ohio-4116, ¶ 126, holding that the indictment could be amended from one type of "sexual

contact" to another type. Likewise, the Eighth District in State v. Steele, 8th Dist. No.

101139, 2014-Ohio-5431, ¶ 30, upheld as "properly made" an amendment of the "sexual

conduct" involved in rape to "vaginal intercourse" from "anal intercourse." In accordance

No. 15AP-1013 7

with our case law, the amendment of Count 6 from "fellatio" to "vaginal intercourse" did

not change the name or identity of the offense and was proper.

{¶ 24} In addition, the outcome of this issue does not change when it is reviewed as

a constitutional matter. As recognized by the Second District in Jones at ¶ 124, quoting

State v. Strozier, 2d Dist. No. 14021 (Oct. 5, 1994), " 'Crim.R. 7(D) embodies the

protections guaranteed in Section 10, Article I, of the Ohio Constitution.' " That court

rejected the constitutional challenge to the amendment from one type of "sexual contact"

to another type, emphasizing that the "amendment did not change the penalty or degree

of the offense" and "the State was still required to prove, and did in fact prove, that Jones

had 'sexual contact' " with the victim. Jones at ¶ 129. The Supreme Court also has

recognized that the rule complies with the constitutional provision. " 'As long as the state

complies with Crim.R. 7(D), it may cure a defective indictment by amendment, even if the

original indictment omits an essential element of the offense with which the defendant is

charged.' " State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, ¶ 69, quoting State v.

Pepka, 125 Ohio St.3d 124, 2010-Ohio-1045, ¶ 15. In addition, this court has rejected a

constitutional challenge to this kind of amendment in Martin at ¶ 7-11, denying the

assignment of error that asserted that the amendment was constitutional error. The rule

operates in a manner consistent with the constitutional protection. By complying with the

rule, the state complies with the constitutional protection as well.

{¶ 25} Further, there was no showing of prejudice that would indicate an abuse of

discretion. The claim of vaginal intercourse had been present in the discovery provided to

appellant. Appellant contended that there was no type of sexual conduct at all. There is

no prejudice when the defense theory denying the occurrence of any sexual conduct can

still be pursued. Abdullah at ¶ 26. Appellant fails to show a constitutional violation, or a

prejudicial abuse of discretion warranting reversal. Appellant's first assignment of error

is overruled.

V. ASSIGNMENT OF ERROR TWO

{¶ 26} Testimony of hearsay is generally prohibited by Evid.R. 802. However,

Evid.R. 803(2) sets forth the hearsay exception for excited utterances, which are defined

as a "statement relating to a startling event or condition made while the declarant was

under the stress of excitement caused by the event or condition." Substantial time frames

No. 15AP-1013 8

are tolerated in this context, especially when the declarant is a child. State v. Jones, 135

Ohio St.3d 10, 2012-Ohio-5677, ¶ 169; State v. Wallace, 37 Ohio St.3d 87, 90-91 (1988).

Statements by sexually assaulted children have been upheld "even when made after a

substantial lapse of time" because "children are likely to remain in a state of nervous

excitement longer than would an adult." State v. Taylor, 66 Ohio St.3d 295, 304 (1993).

{¶ 27} The Confrontation Clause bars "admission of testimonial statements of a

witness who did not appear at trial unless he was unavailable to testify and the defendant

had had a prior opportunity for cross-examination." Crawford v. Washington, 541 U.S.

36, 53-54 (2004). "Statements are nontestimonial when made in the course of police

interrogation under circumstances objectively indicating that the primary purpose of the

interrogation is to enable police assistance to meet an ongoing emergency," but that

statements are testimonial when the circumstances indicate that there "is no such ongoing

emergency, and that the primary purpose of the interrogation is to establish or prove past

events potentially relevant to later criminal prosecution." Davis v. Washington, 547 U.S.

813, 822 (2006). Therefore, even if a statement falls under a hearsay exception it can be

excluded as testimonial because such statements violate the Confrontation Clause.

However, nontestimonial statements would be admissible under a hearsay exception.

{¶ 28} Appellant argues that the trial court improperly allowed Officer Griffin to

testify about F.M.'s statements because (1) the statements were not excited utterances,

and (2) even if the statements were excited utterances, they were testimonial and their

admission violated the Confrontation Clause. Appellant argues that the basis for the trial

court's conclusion that the statements were excited utterances was the police officer's

testimony that F.M. "seemed somewhat stunned. She had sort of a flat affect. She seemed

timid. She seemed almost shellshocked." (Tr. Vol. I. at 102.) Appellant argues that, since

F.M. displayed a flat affect, she was not in a period of nervous excitement and, therefore,

her statements were not excited utterances.

{¶ 29} In addition, appellant asserts that, at the time the statements were made,

there was no ongoing emergency because F.M. had been returned to her family and was in

a police cruiser driving around to obtain information about the suspect. Therefore,

appellant argues that the primary purpose of the officer's questions was to obtain

No. 15AP-1013 9

information for later prosecution and, as such, the statements are testimonial and should

have been excluded.

{¶ 30} Finally, appellant argues that he was prejudiced by the admission of F.M.'s

statements to police because her statement that she was driven in a van to an apartment

formed the basis of appellant's kidnapping conviction and, therefore, without that

information, the jury would have no evidence to conclude that appellant was responsible

for removing her from the park. (Tr. Vol. I at 108.)

{¶ 31} The state notes that appellant did not preserve a Confrontation Clause

objection to this evidence. When Griffin began to specifically describe F.M.'s statements,

appellant objected on grounds that no foundation had been laid for an excited utterance

exception to the hearsay rule. (Tr. Vol. I at 105.) Appellant did not make any

Confrontation Clause objection. In response, the prosecutor noted that F.M. was still

affected by the immediacy of events. The court noted that an excited utterance can occur

even a day after the startling event and that the foundation can be established through the

statements themselves and that no specific time limit applies. (Tr. Vol. I at 106.) The

court concluded that the statements related to startling events and that the foundation

had been laid that F.M. was shell-shocked and still under the stresses of the trauma of the

situation. (Tr. Vol. I at 107.) The state argues that the trial court did not abuse its

discretion in overruling the objection based on the excited utterance exception, and that

there was no plain error regarding any Confrontation Clause issue.

{¶ 32} In regards to an excited utterance hearsay exception, "[a] declarant's failure

to react in a fashion completely dominated by hysteria and shock should not

automatically render a statement inadmissible as an excited utterance." State v.

Hoagland, 12th Dist. No. CA83-02-014 (Mar. 19, 1984.) The relative lack of outward

emotion is not necessarily calm but rather shock, and "a statement made while in shock is

an excited utterance." Maggard v. Ford Motor Co., 320 F.Appx. 367, 375 (6th Cir.2009),

citing Haggins v. Warden, 715 F.2d 1050, 1058 (6th Cir.1983).

{¶ 33} The startling events here would have been overwhelming for a 12-year-old

girl. She had just undergone kidnapping at the hands of a sex offender and repeated rapes

over the course of a number of hours, suffering external and internal injuries. The victim's

statements about the initial transportation to the apartment was part of the chain of

No. 15AP-1013 10

startling events over which the victim, who had only been released by her abductor

moments before her statements to the police officer, would still be suffering stress. The

statements described those events so as to be admissible excited utterances. The court did

not abuse its discretion in finding that the statements were admissible.

{¶ 34} The next question is whether or not F.M.'s statements were testimonial or

nontestimonial. As argued by the state, appellant did not preserve a Confrontation Clause

objection to the statements. Appellant only objected on hearsay grounds. "Objection on

one ground does not preserve other, unmentioned grounds." State v. Wallace, 10th Dist.

No. 08AP-2, 2008-Ohio-5260, ¶ 25. Moreover, a criminal constitutional question may not

be raised on appeal "unless it is presented and urged in the court below." State v.

Williams, 51 Ohio St.2d 112, 117 (1977). As a result, appellant has waived all but plain

error. State v. Jordan, 10th Dist. No. 06AP-96, 2006-Ohio-6224, ¶ 22.

{¶ 35} While statements to a police officer can qualify as "testimonial" under the

line of cases beginning with Crawford, such statements can also be nontestimonial in

regard to ongoing emergencies and other circumstances if the defendant has not shown

that the primary purpose was to create an out-of-court substitute for trial testimony. Ohio

v. Clark, _ U.S. _ , 135 S.Ct. 2173, 2179-81 (2015).

{¶ 36} In this case, the situation had emergency implications based on safety and

medical concerns. The police needed to assess the level of the potential danger to the

public by determining what crimes had occurred and how they occurred. The questioning

by Officer Griffin occurred just minutes after the victim had been "released," and while

the appellant was still unknown and at large. It would have appeared to the police that

the offender had abducted the victim, held her for several hours, and sexually assaulted

her. This behavior indicated a possible continuing danger and called for quick questioning

to ascertain exactly what had happened. The need to address the victim's potentially

serious injuries can also be relevant in dealing with an ongoing problem. In fact, the

victim needed medical assistance because of the rapes and the danger of sexually

transmitted diseases. Given these circumstances, appellant cannot show that the primary

purpose was to create a substitute for in-court testimony. In fact, the information in the

record supports admissibility because of the safety and medical circumstances involved in

the case.

No. 15AP-1013 11

{¶ 37} As stated in State v. Campbell, 69 Ohio St.3d 38, 41 (1994), fn. 2, "[o]ur

cases make clear that we will not overturn a conviction for alleged error not raised below,

unless it amounts to plain error." "[T]he lack of a 'plain' error within the meaning of

Crim.R. 52(B) ends the inquiry and prevents recognition of the defect." State v. Barnes,

94 Ohio St.3d 21, 28 (2002). In Barnes at 27, the court stated that the plain error analysis

begins with three criteria: (1) there must be "a deviation from a legal rule"; (2) the defect

must be "obvious"; and (3) the error "must have affected the outcome of the trial." "Notice

of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice." State v.

Long, 53 Ohio St.2d 91, 96 (1978).

{¶ 38} Recent cases have confirmed that the prejudice prong under the plain error

standard focuses on whether the outcome clearly would have been different. In State v.

Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, ¶ 120, quoting State v. Adamson, 72 Ohio

St.3d 431, 434-35 (1995), quoting State v. Moreland, 50 Ohio St.3d 58, 62 (1990), the

court said that " ' "[p]lain error does not exist unless it can be said that but for the error,

the outcome of the trial would clearly have been otherwise." ' "

{¶ 39} In the present case, appellant cannot satisfy the obvious error, outcome

determination, and manifest miscarriage of justice prongs of the plain error analysis.

Appellant cannot show obvious error under the Confrontation Clause in the introduction

of F.M.'s statements by Officer Griffin.

{¶ 40} Finally, the introduction of F.M.'s statements about transportation were

harmless given that the kidnapping statute allows conviction when the removal or

restraint is by any means. R.C. 2905.01(A). No matter what means appellant used to get

the victim from where she went missing to where she was found miles away and hours

later, appellant was guilty of kidnapping. In addition, there was overwhelming evidence

that appellant raped F.M., as shown by the internal injuries and the presence of his semen

on her underwear. The record supports the view that the jury still would have convicted

appellant on the same counts, and that no manifest miscarriage of justice occurred.

Appellant's second assignment of error is overruled.

No. 15AP-1013 12

VI. DISPOSITION

{¶ 41} Having overruled appellant's assignments of error, we affirm the judgment

of the Franklin County Court of Common Pleas.

Judgment affirmed.

DORRIAN, P.J. and SADLER, J., concur.

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