COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60700 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION ARCHIE HILL : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JULY 23, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-254552. JUDGMENT: AFFIRM. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Michael D. Horn Assistant County Prosecutor The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Edward S. Wade, Jr., Esq. 75 Public Square Building Suite 1210 Cleveland, Ohio 44113 - 2 - SWEENEY, JAMES D., J.: Defendant-appellant Archie Hill ("Hill") appeals from his jury trial conviction of: nine counts of rape [R.C. 2907.02]; one count of kidnapping [R.C. 2905.01]; one count of felonious assault [R.C. 2903.11]; and one count of felonious sexual 1 penetration [R.C. 2907.12]. For the reasons adduced below, we affirm. A review of the lengthy record reveals that the jury trial herein commenced on Wednesday, September 5, 1990. Subsequent to voir dire but prior to the impaneling of the jury, the sole black juror was excused by the court for cause because she indicated that she could not be impartial and fair. Counsel for co- defendant William McKinsey ("McKinsey"), joined by Hill's counsel, objected, not at the time of the juror's excusal, but prior to the jury being impaneled. R. 6-7. The court overruled the objection. The jury, therefore, was an all white jury. At trial, the State offered the testimony of seven witnesses during its case-in-chief, and three witnesses in rebuttal. Hill offered the testimony of five witnesses during his case-in- chief. McKinsey took the stand in his own defense during his case-in-chief. The first witness for the prosecution was the victim, Lisa Hunter ("Hunter"), who testified as follows: (1) she is thirty- 1 Hill is a paraplegic who has no use of his legs and uses a wheelchair. His upper extremities are still useful to a limited degree. - 3 - one years old, a divorced mother of an eleven-year-old son, and lives with her mother; (2) she and Hill had lived in the same neighborhood in East Cleveland, Ohio, and had been socially acquainted, but she moved in 1988; (3) since moving in 1988, she had no contact with Hill until once in September, 1989, and then again on June 4, 1990, when Hill and McKinsey drove past her on her way to work and stopped to chat; (4) on the evening of June 4, 1990, Hunter visited Hill at his home on 18093 Weston Avenue, just to talk for a couple of hours and have a few drinks; (5) on June 5, 1990, Hunter was waiting for a bus at a bus stop at East 107th Street and Euclid Avenue on her way to work; (6) Hill and McKinsey drove past the bus stop at approximately 12:15 p.m. and offered her a ride to work; (7) Hunter, being late for work, accepted the invitation; (8) once in the car, Hill said he had to stop briefly at his home to get his wallet before taking her to work; (9) they arrived at Hill's house around 12:30 p.m.; (10) McKinsey left the house for ten minutes in order to take his girlfriend, who was at the house, home; (11) McKinsey came back, locked the front door upon the order of Hill, and was instructed by Hill to do what he had been told to do; (12) McKinsey then threw her down on the living room floor and raped her vaginally and anally with his penis as Hill looked on and encouraged him; (13) she was wearing peach colored underwear and a white brassiere in addition to a jean skirt and a blouse on June 5, 1990; (14) McKinsey then dragged her into a bedroom and threw her - 4 - onto a bed; (15) Hill came into the bedroom and hoisted himself onto the bed, and with the assistance of McKinsey, undressed; (16) with McKinsey holding her head, she was forced to perform fellatio upon Hill; (17) McKinsey also struck her on the buttocks during this time; (18) Hill, who had an erection, did not 2 ejaculate ; (19) following Hill, McKinsey then raped her again vaginally and anally; (20) then, on the order of Hill, McKinsey had her take some orange-colored pills with some wine; (21) this concoction made her somewhat drowsy; (22) Hill and McKinsey then left the room for a while, warning her not to attempt leaving; (23) after a period of time, the attackers returned; (24) upon the orders of Hill, McKinsey obtained a belt and whipped Hunter on her back as she cried and screamed; (25) she was then forced to perform fellatio upon both Hill and McKinsey, and was vaginally raped again by McKinsey; (26) Hill, while they lay on the bed, also inserted his hand into her vagina; (27) while laying beside her, Hill placed a large kitchen knife to her throat and threatened to kill her; (28) Hill then had McKinsey obtain a pair of women's underwear from a drawer and had her put them on; (29) at about 3:00 in the morning, during a lull in the attacks, she grabbed the knife and her purse and, wearing only the panties given by her attackers, fled the house; (30) she ran down the street hysterically, seeking help from homes with lights 2 Hill was not wearing his external, condom type, catheter at the time. - 5 - on; (31) after pounding on several doors without success, a citizen aided her and called the police; (32) the police arrived with EMS; (33) she told them the names of her attackers and the location of the Hill house, and was then transported to Huron Road Hospital where she was examined and treated; (34) about a week later, officers from the Cleveland Police Sex Crimes Unit took pictures of her bruises on her legs, back, buttocks and arms from the attack, these pictures were admitted into evidence; (35) about two and one-half weeks after the attack, she was admitted into the hospital due to bloody discharges and a urinary infection; (36) she did not leave the house until after the attacks, did not visit the County Welfare Department in early June, and did not visit any hospital with Hill; (37) she lives with her mother, a 10-15 minute walk from Hill's house; (38) her sense of time was inexact during the attacks because she was scared; (39) her mother had driven Hunter and her son to a pediatrician's appointment on the morning of June 4, 1990. The second witness for the prosecution was Anthony Matthews ("Matthews"), who testified as follows: (1) he is a nineteen- year-old man who lives on Weston Avenue; (2) on June 6, 1990, between 3:00 - 3:30 a.m., a frantic naked woman banged on his front door; (3) this woman had only underpants on and said someone was trying to kill her; (4) he smelled no alcohol on her breath and called the police; (5) he would not let her into the - 6 - house; (6) he identified Hunter from a photograph exhibit as being the woman at his door that night. The third witness for the prosecution was Kevin Bonner ("Bonner"), who testified as follows: (1) he was staying at his place of business on the evening of June 5, 1990; (2) his wife called him on his electronic pager in the early morning hours of June 6, 1990; (3) arriving home, he saw a woman, screaming and carrying a large knife in one hand, banging on his front door; (4) he calmed her down, covered her with a blanket, and brought her inside his house as his wife called the police; (5) the photograph exhibit of Hunter pictures the woman who he helped that morning; (6) he gave the knife to one of the police officers who responded to the call; (7) he detected no alcohol on the woman's breath; (8) the woman was totally hysterical; (9) he identified the knife in court as the knife he took from the woman. The fourth witness for the prosecution was Brian Bentley ("Bentley"), who testified as follows: (1) he is a Cleveland Police patrolman who responded to a radio dispatch to Weston Avenue between 3:00 - 4:00 a.m. on June 6, 1990; (2) the woman said she had been raped, and identified the two attackers and the home address of Hill; (3) the victim appeared raggedy with hair messed; (4) he and several other officers went to Hill's house and were invited in after identifying themselves; (5) while at the house for about twenty minutes, they were allowed access by - 7 - Hill to all rooms in the home; (6) the condition of the house was a mess; (7) upon police request, Hill placed some women's clothing in a bag for the victim's use at the hospital; (8) Hill picked up this clothing with his hand while in the first bedroom on the right; (9) both Hill and McKinsey said that Hunter had been at the house, that the sex was consensual; (10) Hill denied having any sex with Hunter or any other woman since he was partially paralyzed in 1966; (11) the beds in the three bedrooms did not have linens on them; (12) he did not see a lock on Hill's bedroom door; (13) he detected alcohol on Hunter's breath; (14) Hill and McKinsey were dressed when the officers arrived; (15) Hill said that Hunter was at his house for three to five days on her own volition, and that she had been drinking and ingesting cocaine. The fifth witness for the prosecution was Dr. Debra Walton, M.D. ("Dr. Walton"), who testified as follows: (1) she examined and treated Hunter at the emergency room of Huron Road Hospital at 5:00 a.m. on June 6, 1990; (2) Hunter did not appear drunk and she did not detect the smell of alcohol; (3) there were many fresh bruises on Hunter's arms, legs, buttocks and lower back; (4) the victim's vagina had tears and small fissures with some bleeding and swelling, evidencing force; (5) there was also some swelling to the victim's anus; (6) the victim did not test positive for sexually transmitted disease at the time; (7) the victim did have a yellowish-gray vaginal discharge, evidencing - 8 - infection or ejaculate; (8) the victim was tearful and very anxious; (9) the bleeding from the victim's vagina was fresh; (10) a quadriplegic could have limited use of his arms and hands; (11) paralyzed persons are susceptible to urinary infections. The sixth witness for the prosecution was Patrick Evans ("Evans"), who testified as follows: (1) he is a detective with the Cleveland Police Sex Crimes Unit; (2) he first became involved in the case on June 25, 1990; (3) copies of phone logs from the 911 emergency telephone system shows that a person named Matthews placed a call at 3:26 a.m. on June 6, 1990. The seventh witness for the prosecution was Tina Wolff ("Wolff") , who testified as follows: (1) she is a scientific examiner at the Cleveland Police Department's scientific investigation unit laboratory; (2) she examined the rape kit prepared at the hospital and the panties which were given to Hunter by her attackers; (3) the crotch of the panties tested positive for seminal fluid; (4) vaginal and anal swabs of the victim tested positive for semen. The prosecution rested and the defendant's motions for acquittal were denied. Defendant Hill then offered the testimony of his first witness, Jesse Rice ("Rice"), who stated: (1) when he visited Hill's house at 4:00 p.m. on June 4, 1990, McKinsey and the victim were there and she said she was living at the house; (2) he socialized with Hunter a few times in the past six to seven - 9 - years; (3) he has been helping Hill around the house for the past year or two; (4) Hill can get out of the wheelchair by himself and could pick up small items, light his own cigarettes, and eat with his hands using utensils; (5) he did not see Hunter on June 5 or 6, 1990; (6) prior to seeing Hunter at the house, he thought she was living with her mother; (7) Hill paid him to help around the house; (8) he last talked to Hill about two months before the trial, discussing the accusations of the victim; (9) at his visit to the home, Hunter was not drinking; (10) Hill had three children. The second witness for Hill was Clyde Henderson ("Henderson"), who testified as follows: (1) he has known both Hill and Hunter for about eight years, having been introduced to Hunter by Hill at his prior apartment; (2) he telephoned Hill on June 1, 1990, at 11:00 a.m., and Hunter answered the telephone; (3) he sees Hunter about three to four times per month; (4) he saw Hunter with McKinsey and Hill around Noon on June 5, 1990, in front of a store on Euclid Avenue; (5) at the store, Hunter was seated in the back seat of Hill's car, Hill was in the passenger seat, and McKinsey was coming from the store with a soda pop; (6) he talked with Hill and Hunter for thirty minutes or until about 12:30 p.m.; (7) there are no locks on Hill's bedroom door; (8) he usually telephones his close friend Hill almost daily; (9) Hill had two children; (10) Hill pays him fifty dollars per month for - 10 - cleaning his house; (11) he first heard about the accusations when he spoke with Hill on July 18, 1990. The third witness for Hill was Leslie Aikens ("Aikens"), a case manager at a local government-funded guidance center, who testified as follows: (1) she arrived at University Hospital's Urology Clinic at 1:00 p.m. on June 5, 1990, with a client; (2) Hill, McKinsey and a woman arrived at the clinic between 2:15 - 2:30 p.m.; (3) Hill introduced her to Lisa Hunter; (4) Hunter told her that she was staying at Hill's house; (5) she spoke with Hunter for two hours in the waiting area as Hill was being examined; (6) Hill, Hunter and McKinsey left the clinic at about 4:00 p.m.; (7) she left the clinic around 4:30 p.m.; (8) Hunter had a bruise on her neck and arm while at the clinic; (9) Hill telephoned her at her office and asked if she would be a witness on his behalf; (10) Hill did not tell her what to say prior to testifying; (11) she later stated on cross-examination that she left the clinic at 5:30 p.m.; (12) she was positive that the woman in the photograph exhibit (Hunter) was the woman she spoke to at the clinic. The fourth witness for Hill was Jane Barnhart ("Barnhart"), the head nurse and manager of ambulatory practices at University Hospital, who testified as follows: (1) the urology clinic is part of ambulatory practices; (2) Hill, based on his past medical records, had some decrease in his upper extremity reflexes; (3) Hill kept his appointment at the clinic for 2:45 p.m. on June 5, - 11 - 1990, and a urinary tract infection was diagnosed at that time; (4) she could not tell from the records of the clinic when Hill was actually seen by the doctor on June 5, 1990. The fifth and final witness for Hill was Lorenzo Henderson ("Henderson"), who testified as follows: (1) he is a mail carrier for the United States Postal Service; (2) he has known Hill for the last eight years; (3) he delivered mail to Hill's prior apartment when Hill lived on Page Avenue; (4) he knew Hunter about seven years ago; (5) he saw Hunter at Hill's Page Avenue apartment in 1987, that she was over there many times, principally when Hill's ex-wife was out of the home. Defendant McKinsey took the stand on his own behalf during his case-in-chief and testified as follows: (1) he is twenty- two years old and has been living with Hill for eight months; (2) he helps care for Hill and cleans the house; (3) in exchange for his services, he receives room, board, and money; (4) Hunter visited often and moved in on June 1, 1990; (5) Hunter brought only the clothes on her back when she moved in, using Hill's ex- wife's clothing which was at the house thereafter; (6) on June 5, 1990, at about 11:00 a.m., he, Hill and Hunter drove down to the County Welfare Department, where Hunter went inside to drop off a letter; (7) they then drove east on Euclid Avenue, stopping at a Stop-n-Shop grocery store; (8) McKinsey went inside the store and, upon exiting the store, encountered Clyde Henderson; (9) they talked with Henderson for 30-45 minutes; (10) Hill had an - 12 - appointment at the urology clinic at University Hospital at 2:45 p.m.; (11) it took thirty minutes to drive west on Euclid Avenue from the store to the hospital, arriving there between 2:15 - 2:30 p.m.; (12) the drive took such a short time because the traffic was light; (13) the doctor saw Hill after a thirty minute wait; (14) the examination took one hour; (15) Hunter talked with Leslie Aikens the whole time; (16) they left the hospital between 4:30 - 5:00 p.m.; (17) they then went to a McDonald's restaurant to eat on the way home; (18) after eating, they stopped at an address on East 135th Street to pick up a girlfriend (Ms. Angie Box) of the witness; (19) the four of them went back to Hill's house and talked in the living room; (20) at some point, he can't recall the time, Hunter went to use the bathroom, got dressed, and then left the house; (21) there are no locks on any of the bedroom doors; (22) he took Ms. Box home around 11:00 p.m.; (23) Hunter was back at the house when he returned around 11:30 p.m.; (24) Hunter wanted something to drink, so he went to the store; (25) the store would not accept his identification card and refused to sell him liquor, so he returned to the house; (26) Hunter then went back to the store, purchased a fifth of Wild Irish Rose wine, and returned home; (27) the three of them then went back to Hill's bedroom and watched television for forty- five minutes; (28) he then made up Hill's bed with fresh linen and retired to his own bedroom between 12:30 - 1:00 a.m.; (29) his bedroom is the first bedroom on the right; (30) Hunter, since - 13 - moving in, slept in Hill's bedroom; (31) he had sexual intercourse with Hunter on June 2, 1990, but not on June 5 or 6; (32) Hunter then came to his bedroom wanting to perform fellatio upon him, but he refused stating, "No. Get away from me. You ain't going to drain my life."; (33) Hunter, upset, went back to Hill's bedroom; (34) at about 3:30 a.m., he heard Hill call his name as Hunter ran past his closed door, exiting the house; (35) he then locked the front door and went back in his room; (36) he doesn't know why Hunter left; (37) he never witnessed Hill strike, yell at, or have sex with Hunter; (38) Hill receives a government check every two weeks in the amount of $240.00; (39) Hill pays him $5.00 per hour for his services of forty hours per week; (40) Hill's ex-wife still had clothes at the house even though she had not been to the house in eight months; (41) Hill can remove his catheter by himself and get into bed by himself; (42) at least one hour elapsed between his refusal of fellatio and Hunter's leaving the house. In rebuttal, the prosecution offered the testimony of three witnesses. The first rebuttal witness was Randy Davis, who has known Hunter for five years. Mr. Davis stated that he did not know Hill, but that he received four or five phone calls from him beginning in June of 1990. Mr. Davis could not independently identify the voice of Hill as the voice on the telephone. - 14 - The second rebuttal witness was Lonzia Todd, a secretary at the urology clinic. Ms. Todd stated that Hill came in for an appointment on June 5, 1990, accompanied by two men only. She did not see a woman with Hill, and had never seen Hunter before. She also does not remember seeing two women having a conversation over a lengthy time period in the waiting area on the afternoon of June 5, 1990. The third and final rebuttal witness was Cleveland Police patrolman John Mantifel, the partner of Officer Bentley. Officer Mantifel corroborated his partner's testimony and added that: (1) McKinsey stated that he had had sex with Hunter on June 5, 1990; and (2) he included McKinsey's remark in his police report. The renewed requests for acquittal were denied prior to the jury's finding of guilt. This appeal presents three assignments of error for review. I ARCHIE HILL'S CONVICTIONS WERE CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE. The following was stated by this court in State v. Perry (April 16, 1992), Cuyahoga App. No. 60433, unreported, at 16-17: The issue of manifest weight of the evidence was discussed in City of Cleveland v. Laux (June 27, 1991), Cuyahoga App. No. 58856, unreported, at pages 15-16: This court stated the following in State v. Mattison (1985), 23 Ohio App. 3d 10, at page 14: - 15 - A reviewing court cannot reverse a judgment of conviction in a criminal case where there is sufficient evidence presented to the jury "'which, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt.'" State v. Eley (1978), 56 Ohio St. 2d 169, 172 [10 O.O. 3d 340]; see, also, State v. DeHass (1967), 10 Ohio St. 2d 230 [39 O.O. 2d 366]. *** The eight factors listed in Gaston are merely guidelines to be taken into account when weighing the evidence. They are not hard and fast rules which must be followed. The eight factors mentioned in the above citation and relied upon by appellant, which are contained in State v. Gaston (Jan. 11, 1979), Cuyahoga App. No. 37846, unreported, were referenced by the Mattison court in the syllabus. These factors are: 1. The reviewing court is not required to accept as true the incredible; 2. whether the evidence is uncontradicted; 3. whether a witness was impeached; 4. what was not proved; 5. the certainty of the evidence; 6. the reliability of the evidence; 7. whether a witness' testimony is self-serving; 8. whether the evidence is vague, uncertain, conflicting or fragmentary. (Emphasis added.) Reviewing the record before us, we find that the trier of fact judging the credibility of the witnesses, had before it competent, credible evidence to support a finding of guilt. Assignment overruled. II - 16 - PROSECUTORIAL MISCONDUCT DENIED APPELLANT HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL. Appellant argues prosecutorial misconduct during the cross- examination of McKinsey by the State: Q. And you didn't attack Lisa Hunter in the living room of Archie's house on June 5th, shortly after noon? A. No. Q. As a matter of fact, you never laid a finger on her that day, right? Is that what you are telling us? A. Yes. That is what I am telling you. Q. Officer Bentley, when you [McKinsey] admitted you [McKinsey] had sex with her [Hunter] that day [June 5], he's [Officer Bentley] lying? A. Yes. Q. When, as a matter of fact, nothing happened on June 5th of 1990? Nothing unusual happened? A. No. Q. I suppose the doctor [Walton] is lying about the bruises and the swelling and the lacerations? MR. ROSE: Objection. Ms. KANGESSER: Objection. THE COURT: Overruled. BY MR. BRODNIK: Q. I suppose none of that happened either, right, William? A. Not by me. R. 339; [Explanatory notes added]. - 17 - Cross-examination is to be "permitted on all relevant matters and matters affecting credibility." Evid. R. 611(B); also see Evid. R. 607. The prosecution was cross-examining McKinsey on matters of credibility. Even if we were to assume, for sake of argument, that the line of questioning by the prosecution was error, we do not believe that Hill was prevented a fair trial based on the remainder of the record or that the outcome of the trial would have been different but for this question. See State v. Maurer (1984), 15 Ohio St. 3d 239; State v. Smith (1984), 14 Ohio St. 3d 13. Assignment overruled. III DEFENDANT-APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. The standard of review to be applied to this assignment is provided in State v. Bradley (1989), 42 Ohio St. 3d 136, paragraphs two and three of the syllabus: 2. Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. (State v. Lytle [1976], 48 Ohio St. 2d 391, 2 O.O. 3d 495, 358 N.E. 2d 623; Strickland v. Washington [1984], 466 U.S. 668, followed.) - 18 - 3. To show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different. Appellant alleges five claims of ineffective assistance of his trial counsel team of two attorneys. The first claim involves the failure of Hill's team of counsel to subpoena three witnesses on behalf of Hill. The purported testimony of these witnesses would have corroborated the testimony of other defense witnesses who stated that: Hunter was living at the Hill home in early June, 1990; Hunter used the clothing of the ex-wife which was at the home; Hunter was seen drinking and using drugs at the Hill home in early June, 1990, prior to June 5. The second claim involves the failure of Hill's team of counsel to introduce into evidence a purported parking ticket from University Hospital issued on Hill's car on June 5, 1990, at 4:10 p.m. This would tend to corroborate the testimony of other defense witnesses that Hill was at the urology clinic on June 5, 1990. The third claim involves the failure of counsel to introduce into evidence a purported photograph of Hunter and Jessie Rice together at Hill's home prior to June 5, 1990. This would tend to corroborate other defense witness testimony that Hunter was at - 19 - the Hill home prior to June 5 and that she used drugs and alcohol. The fourth claim involves the failure of counsel to subpoena pediatrician Dr. Ford Lewis and/or his medical records in order to show that Hill, McKinsey and Hunter were at the doctor's office on the morning of June 4, 1990, for Hunter's son's appointment. Again, this would tend to corroborate other defense witness testimony. This corroborative, cumulative, evidence does not overcome the testimony of the prosecution that the sex which took place was forceful in nature. Had this purported testimony been offered, it is not a reasonable probability that the result of the trial would have been different. Accordingly, the defendant has failed to maintain his burden under the second element of the two-part test for ineffective assistance of counsel. The fifth claim involves the alleged failure "of counsel to properly raise the issue after objection, regarding the removal of the only black juror sitting on the panel." Appellant's brief, at 32. Contrary to appellant's argument, defense counsel properly raised the issue by immediately joining in the objection raised by McKinsey's counsel to the removal of the sole black juror for cause by the court. Additionally, appellant's use of Batson v. Kentucky (1986), 476 U.S. 79, is misplaced. In Batson, the court held that a - 20 - defendant may establish a prima facie case of purposeful discrimination in jury selection solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial. In the present case, the juror was removed, not through the use of a peremptory challenge by the State, but by the court for cause because the juror indicated that she could not be fair and impartial. The appellant has also overlooked the fact that no objection to the jury panel as comprised with the sole black juror was raised by either defense. Accordingly, we conclude that the appellant has failed to support a case of purposeful discrimination in the selection of the jury. That being the case, there was no ineffective assistance of defense counsel where there is no reasonable presumption that the outcome of the trial would have been different but for the removal of the black juror. If anything, defendant benefitted from the removal of the juror because he had a more fair and impartial jury as a result of the court's action. Assignment overruled. Judgment affirmed. - 21 - It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN DYKE, P.J., and FRANCIS E. SWEENEY, J., CONCUR. JAMES D. SWEENEY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .