COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61015 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION BENJAMIN JOHNSON : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 20, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-253619 JUDGMENT: AFFIRMED IN PART, REVERSED IN PART AND VACATED IN PART DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. HYMAN FRIEDMAN, ESQ. CUYAHOGA COUNTY PROSECUTOR CUYAHOGA COUNTY PUBLIC DEFENDER BY: CARMEN M. MARINO, ESQ. BY: BEVERLY J. PYLE, ESQ. ASSISTANT COUNTY PROSECUTOR ASST. PUBLIC DEFENDER The Justice Center The Marion Building, Rm. 307 1200 Ontario Street 1276 West Third Street Cleveland, Ohio 44113 Cleveland, Ohio 44113-1569 - 1 - DYKE, J.: Appellant was indicted on June 5, 1990 on one count of rape, R.C. 2907.02, and one count of kidnapping, R.C. 2905.01. A jury found appellant guilty on both counts as charged in the indictment on November 1, 1990. Appellant was sentenced to life imprisonment plus costs on count one and the maximum term of ten to twenty-five years plus costs on count two. The ten year term is of actual incarceration and the terms are to be served consecutively. The trial court judge ordered a further condition by sentencing appellant to "solitary confinement every May 22nd for the rest of his natural life to reflect upon the lifelong terror he had inflicted upon the innocent victim." On May 22, 1990 eight year old Eva Watkins was walking to her aunt's house when she saw Benjamin Johnson in his baseball uniform in front of his house. Eva testified that she asked "Benny", a family friend, to take her to his baseball game and he agreed. Benny played for his High School team, Lincoln West. Eva and Benny walked several blocks toward Gordon Park, where the game was scheduled to be held. When they reached what used to be Hodge Elementary School, but was now being used as an art school, Benny walked Eva behind a blue and white pick-up truck parked in the grass in front of the school. Charlette Whitby testified that she and her mother, Eva Henry, were walking past the old elementary school at that time, approximately 3:30 in the afternoon. Ms. Whitby noticed a man on - 2 - top of a little girl "going up and down" behind the pick-up truck. Ms. Whitby could see them from the sidewalk as she looked across the school yard underneath the truck. She called her mother's attention to the scene. At first Ms. Henry did not believe her daughter, who said that a man was raping a little girl, but she turned back to look where her daughter indicated. By this time Eva had seen the two women looking at them. According to Ms. Whitby's testimony she said something to the man. Ms. Whitby and Ms. Henry both saw the man jump up and pull up the little girl's underpants and pants and then pulled up his own pants. The mother called out to the man, asking what he was doing to that little girl. He looked at the women from behind the truck and ducked back down again. Eva ran from one end of the truck to the other. Appellant then took Eva by the hand and began walking off toward the direction of Gordon Park. Both women noted that the little girl was crying. Ms. Henry told her daughter to follow them while she called for help. Ms. Henry used a pay phone to call police. Meanwhile, Ms. Whitby followed appellant and Eva. Ms. Whitby asked appellant how he could do such a thing to a little girl. He told her that she didn't know what she was talking about and to get the "F" away. Ms. Whitby continued to follow at a distance. Once they reached Gordon Park Ms. Whitby requested help from Shannon Russell, who was sitting in his truck with a woman. He had a cellular phone in his vehicle. After Ms. Whitby told Mr. - 3 - Russell what she had witnessed, he wasn't sure he wanted to get involved. However, he had noticed appellant and the girl walk past. When he looked again, Mr. Russell saw dirt on the little girl's coat and behind and on the knees of appellant's pants. Mr. Russell agreed to let Ms. Whitby call the police from his car. Detective Cross received the report over the radio and arrived at Gordon Park a few minutes later. He questioned Ms. Whitby and Mr. Russell. Detective Russell then proceeded to arrest appellant. Detective Russell testified that Eva was not crying when he first saw her and did not appear to be pulling away from appellant. When Eva saw the officer's gun pointing at appellant she began crying and told Detective Cross not to hurt appellant. Detective Cross asked Eva if appellant had touched her vaginal area and indicated the area to which he was referring. Eva nodded yes. She also answered affirmatively when Shannon Russell asked if appellant had put his penis in her privates. Eva was taken to the hospital where she told Dr. Carroll that Benny had tried to push his penis in but it didn't go very far. Dr. Carroll testified that she observed redness on Eva's labia and around her hymen, which was still intact. Dr. Carroll indicated that the redness was consistent with penetration to a depth of 1/2-3/4 inches. The cultures taken by Dr. Carroll did not show any trace of semen or sperm. However, Dr. Carroll - 4 - testified that Eva tested positive for chlamydia, a sexually transmitted venereal disease. Eva could not have gotten this disease from the incident that afternoon because the disease takes several days to develop to a point where a positive culture would result. Benny tested negative for chlamydia. Detective Walton came to the hospital that evening to interview Eva. On the first visit Eva refused to verbally relate what had happened to her behind the truck with Benny. On Detective Walton's next visit the following day he brought anatomically correct dolls. He asked Eva to identify the parts of the dolls, which she labeled "the privates" of both male and female dolls. When Detective Walton asked her to show him what Benny had done to her, Eva put the male doll's penis inside the female doll's vagina. When testifying on the stand Eva showed marked signs of nervousness. She was told several times by the trial judge to stop biting her arm. Eva also apparently had her hands covering her eyes throughout most of her testimony. She refused to tell the jury what happened to her but answered that Benny had taken her pants down and his pants down. Eva also testified that she had told Detective Walton where her privates were and what had happened when she was with Benny. When asked if she had told Detective Walton the truth, she answered "yes." When Eva was asked, on cross-examination, if she was crying when she came from behind the truck she answered "yeah." When asked if she was - 5 - frightened, she responded, "I wanted to go home." Defense attorney asked her if she didn't want to go to the ball game then, to which she answered, "no." Appellant asserts seven assignments of error. I THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant argues that the evidence "was contradictory, incredible, and failed to fit together in a logical pattern." Appellant argues further that none of the state's witnesses had testified that Eva's liberty was restrained, to support the kidnapping conviction. The standard of review used by this court to assess the validity of a claim that the verdict is against the manifest weight of the evidence is set forth by State v. Martin (1983), 20 Ohio App. 3d 172, at paragraph three of the syllabus: The court, 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 reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. - 6 - After reviewing the entire record, this court determines that the jury did not clearly lose it way nor did a manifest miscarriage of justice take place. The evidence presented by Ms. Whitby, Ms. Henry, Eva, Mr. Russell and Detective Cross was quite consistent with appellant's guilt on both the charge of rape and the separate charge of kidnapping. Dr. Carroll's testimony was consistent with Eva's explanation to Detective Walton of what had occurred. Appellant's argument that the state's witnesses failed to testify as to any restraint on Eva's liberty also lacks merit. Ms. Whitby and Ms. Henry both testified that Eva was crying as appellant led her by the hand from behind the truck. Eva also testified that she was crying at this point and wanted to go home, not to the ball game. Ms. Whitby testified that it took between fifteen and twenty minutes to arrive at Gordon Park from the old school. This testimony is evidence of a prolonged restraint of Eva's liberty over a substantial distance on foot. Appellant's first assignment of error is overruled. II THE TRIAL COURT ERRED TO BENJAMIN JOHNSON'S PREJUDICE BY ENTERING JUDGMENT ON AND SENTENCING HIM FOR BOTH RAPE AND KIDNAPPING WHICH, UNDER THE CIRCUMSTANCES OF THE CASE, WERE ALLIED OFFENSES COMMITTED WITH A SINGLE ANIMUS. Appellant argues that the court erred in refusing to merge the offenses for sentencing. He argues that there was no evidence of restraint either before or after the alleged rape. - 7 - Appellant's argument seems to be that the only restraint which took place was during the rape and that Eva willingly accompanied him to the scene of the rape and afterwards to the ball park. This argument is not well taken. R.C. 2941.25 governs the validity of sentencing a defendant on two counts where defendant's conduct may or may not be construed to constitute two or more offenses. R.C. 2941.25(B) reads as follows: Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them. Appellant's conviction on both the rape and kidnapping charges is proper under R.C. 2941.25(B) if the two offenses were committed separately or with a separate animus. The Ohio Supreme Court set forth guidelines for determining this issue in State v. Logan (1979), 60 Ohio St. 2d 126, at the syllabus. In establishing whether kidnapping and another offense of the same or similar kind are committed with a separate animus as to each pursuant to R.C. 2941.25(B), this court adopts the following guidelines: (a) Where the restraint or movement of the victim is merely - 8 - incidental to a separate underlying crime, there exists no separate animus sufficient to sustain separate convictions; however, where the restraint is prolonged, the confinement is secretive, or the movement is substantial so as to demonstrate a significance independent of the other offense, there exists a separate animus as to each offense sufficient to support separate convictions; (b) Where the asportation or restraint of the victim subjects the victim to a substantial increase in risk of harm separate and apart from that involved in the underlying crime, there exists a separate animus as to each offense sufficient to support separate convictions. Rape and kidnapping are offenses of the same or similar kind. State v. Logan, supra, and State v. Price (1979), 60 Ohio St. 2d 136. Under the guidelines propounded by the Ohio Supreme Court, appellant's conviction on both counts is supported by evidence of a separate animus. As this court points out under the first assignment of error, evidence of restraint does exist. The restraint was prolonged, fifteen to twenty minutes after leaving the school grounds, and substantial in the distance traveled by foot to Gordon Park. This evidence demonstrates a significant independence in the act of moving and restraining the victim from the rape which occurred. This court previously followed the Logan guidelines when it held: - 9 - A conviction for rape and kidnapping will be upheld when the restraint or movement of the victim is significantly independent of the rape, thus demonstrating a separate animus or purpose for each act. (R.C. 2941.25, construed.) State v. Mitchell (1989), 60 Ohio App. 3d 106, at paragraph one of the syllabus. Appellant's second assignment of error is overruled. III MR. JOHNSON WAS DENIED HIS FEDERAL AND OHIO CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND DUE PROCESS WHEN THE TRIAL COURT REFUSED TO GIVE HIS REQUESTED JURY INSTRUCTION ON ATTEMPTED RAPE. Appellant argues that evidence existed from Ms. Whitby's testimony, Eva's testimony and Eva's physical exam that appellant may not have been successful in completing the offense of rape. Appellant requests a reversal and new trial due to this error on the part of the trial court. The Ohio Supreme Court decided whether the jury should have been charged with the law on a crime of lesser degree in State v. Deem (1988), 40 Ohio St. 3d 205. However, the Court also made clear that the test is applicable to criminal attempts. The Court stated: [If] during the course of trial the defendant presents sufficient evidence that his conduct was unsuccessful in constituting the indicted offense, an instruction to the jury on attempt would be proper. - 10 - State v. Deem, at 208. The evidence presented by Ms. Whitby's testimony was that she saw appellant "going up and down" on the little girl. She did not actually see appellant's penis so she could not testify affirmatively to penetration. This does not constitute by inference evidence that supports a verdict of attempted rape. Eva's testimony was that her pants were down and appellant's pants were down but she refused to tell the jury what appellant actually did to her. Eva testified that she had previously informed Detective Walton that appellant had put his privates in hers. Detective Walton's testimony was that Eva had used the anatomically correct dolls to demonstrate that penetration actually occurred. Eva's trial testimony can not be construed to support a verdict on attempted rape. The evidence presented by Dr. Carroll from Eva's physical exam was that penetration had occurred at least to a depth of 1/2-3/4 of an inch based on the redness apparent on Eva's hymen. The fact that no semen or sperm traces were found does not inferentially support a verdict on attempted rape. The trial court judge gave his reasons for denying the requested jury instruction on attempted rape. (Trial Transcript p. 279): First of all, in listening to the doctor, there is no doubt at all -- I mean, she said, even though there was some cross- examination on it, that there was penetration. Let me put it another - 11 - way. There was a comment made by the little girl about the penetration. This court does not find sufficient evidence that appellant's conduct was unsuccessful in constituting rape, to justify a charge to the jury on attempted rape. Appellant's third assignment of error is overruled. IV MR. JOHNSON WAS DENIED HIS RIGHT TO A FAIR AND IMPARTIAL TRIAL GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION BY THE MISCONDUCT OF STATE WITNESS, DETECTIVE MARVIN CROSS, AND THE PROSECUTING ATTORNEY. Appellant complains that Detective Cross and the prosecuting attorney in his closing remarks presented inadmissable evidence of other acts. The Ohio Supreme Court set forth the rule to be applied when determining if evidence of other acts has been properly admitted. Evidence of other acts of a defendant is admissible pursuant to R.C. 2945.59 only when it tends to show one of the matters enumerated in that statute and when it is relevant to prove the defendant's guilt of the offense in question. State v. DeMarco (1987), 31 Ohio St. 3d 191, at paragraph one of the syllabus. When asked by appellant's counsel if appellant denied the accusations of rape at the time of his arrest, Detective Cross responded: - 12 - After I read him his Miranda warnings, the second time, I asked him, I asked the defendant did he want to make any statement. He told me no, he wanted to talk to his mother. He said that he had been accused of this once before and that is when he told us that he had already -- (Tr. 82) At this point appellant's counsel properly objected. The objection was overruled. The court went on to say, out of the presence of the jury, that it was unaware of what Detective Cross was going to say, yet the judge thought the witness was responsive to the question. The judge promised to give an instruction to the jury to disregard the testimony. However, this instruction does not appear in the transcript of the trial proceedings. Appellant also complains of the statement made by the prosecuting attorney in his closing argument that Eva had contracted chlamydia from "the sexual conduct from this man by private previous incidents." (Tr. 229). However, defense counsel failed to object to the statement at trial. In State v. DeMarco, supra, the defendant was indicted on charges of defrauding a group of investors and grand theft pertaining to an incident involving a Porsche. The State presented testimony from a collection manager at defendant's bank to the effect that he believed the defendant to be in violation of his lessor operating agreement as to fifty-six cars the - 13 - defendant's business had leased. The prosecuting attorney made at least five references to alleged misconduct involving cars different from the Porsche. These references clearly were intended to imply that the defendant was involved in a large scale illegal operation. The Ohio Supreme Court held that: The evidence offered by the state regarding delinquent loans by Bank One to Auto Cars is not relevant to proof of the guilt of the appellant of the offense in question. The alleged delinquency of Auto Cars in its car loan payments does not necessarily establish any wrongdoing in appellant; nor is there an illustrated connection between the alleged delinquent loans on the part of the appellant and the crimes for which he was charged and convicted: dealings with the 1980 Porsche. In this case we believe the state was impermissibly allowed to imply that appellant was involved in a large-scale operation to defraud banks and insurance companies without establishing a proper evidential predicate or nexus with the appellant for the admission of this matter. This court finds DeMarco controlling in that similar testimony and arguments by the State form the basis of appellant's assigned error. Detective Cross's testimony referring to appellant's statement is not relevant to proof of appellant's guilt on the charge of rape. Nor is the State's illogical argument in closing - 14 - a permissible reference, relevant to establishing guilt. "An appellate court need not consider an error" to which no objection was made at trial. State v. Williams (1979), 51 Ohio St. 2d 112, at paragraph one of the syllabus. However, in spite of counsel's failure to object to the state's comment during closing argument, we find that both statements were made in violation of R.C. 2945.59. Although these errors rise to the level of being constitutional errors, we find that they constitute harmless error. Where constitutional error in the admission of evidence is extant, such error is harmless beyond a reasonable doubt if the remaining evidence, standing alone, consti- tutes overwhelming proof of defendant's guilt. State v. Williams (1983), 6 Ohio St. 3d 281, at paragraph six of the syllabus. Appellant's fourth assignment of error is overruled V MR. JOHNSON WAS DENIED HIS RIGHT TO A FAIR AND IMPARTIAL TRIAL AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WHEN THE TRIAL COURT ADMITTED DETECTIVE WALTON'S TESTIMONY RECOUNTING EVA WATKINS' USE OF ANATOMICALLY CORRECT DOLLS. Appellant argues that Eva's use of the dolls was inadmissible hearsay under Evid. R. 801(A), nonverbal conduct admitted as an assertion. This court has held that a child's use of anatomically correct dolls to indicate what happened to them - 15 - "constitutes nonverbal conduct intended as an assertion to qualify the actions as a statement susceptible to an analysis utilizing the Rules of Evidence concerning hearsay. Evid. R. 801(A)(2)." State v. Wagner (1986), 30 Ohio App. 3d 261, 262. Appellant complains that the trial court erred in admitting Detective Walton's testimony describing Eva's use of the dolls. Appellant failed to object to the testimony at trial, rendering this court's review of the trial court's decision to allow the testimony difficult. Under State v. Williams (1979), 51 Ohio St. 2d 112, paragraph one of the syllabus "[a]n appellate court need not consider an error" to which no objection was made at trial. Yet again, in spite of defense counsel's failure to object, we will address this issue, assuming that the trial court admitted the hearsay under the excited utterance exception. Evid. R. 803(2). Evid R. 803 states: The following are not excluded by the hearsay rule even though the declarant is available as a witness: * * * (2) Excited utterance. 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. The Ohio Supreme Court has set forth the rationale behind allowing admission of excited utterances as follows: - 16 - The circumstances surrounding an excited utterance - a startling event, a statement relating to that event, a declarant under the stress of the event - do not allow the declarant a meaningful opportunity to reflect on statements regarding the event. Without opportunity to reflect, the chance that a statement is fabricated, or distorted due to a poor memory, is greatly reduced. This is the rationale for allowing an excited utterance into evidence. State v. Wallace (1988), 37 Ohio St. 3d 87, 88. This court has followed the "clear judicial trend, recognized in Ohio, to liberalize the requirements for an excited utterance when applied to young children victimized by sexual assaults." State v. Wagner (1986), 30 Ohio App. 3d 261, at paragraph one of the syllabus. The primary focus of the reviewing court to determine whether a child's statements, verbal or nonverbal, constitute admissible hearsay under this exception, is upon whether or not "the declarant is still under the stress of nervous excitement from the event." State v. Boston (1989), 48 Ohio St. 3d 108, 118. See also, State v. Duncan (1978), 53 Ohio St. 2d 215; State v. Wagner, supra; and State v. Wallace, supra. Eva refused to relate the specific circumstances of the incident to Detective Walton on that same day. The next day Detective Walton returned to the hospital with the anatomically correct dolls. At this time Eva communicated through use of the - 17 - dolls the details of the attack. She still refused to verbally relate the circumstances to the officer. Detective Walton was asked at trial about Eva's demeanor in the hospital on that first night. He responded that Eva's reaction was exactly like that she had demonstrated on the stand. Throughout Eva's testimony and once during her competency hearing the trial court judge reminded Eva not to bite herself. Apparently she also had her face hidden by her hands. The judge asked her if she could see his tie through her fingers and if she recognized Detective Walton in the courtroom through her fingers. Eva's biting and covering her face clearly indicate symptoms of nervous excitement. This is what Detective Walton also witnessed in the hospital, according to his testimony. One day elapsed between Eva's demonstration with the dolls and the incident. The record does not reveal Eva's nervous behavior while demonstrating with the dolls, but she clearly could not verbalize the specific circumstances as an eight year old might if not under stress. Detective Walton and Dr. Carroll both testified to Eva's nervous conduct the night before she was interviewed by Detective Walton with the dolls. Taking these facts into consideration, it would have been reasonable for the trial court to find that Eva was still in a state of nervous excitement at the time of her nonverbal statement to Detective Walton. - 18 - The trial court has broad discretion to allow hearsay testimony relating to the excited utterances of child victims of sexual abuse. State v. Boston, supra, and State v. Wagner, supra. We find no abuse of discretion on the part of the trial court in admitting the testimony of Detective Walton. Appellant further argues under this assignment of error that no foundation was laid to the effect that Eva was unable to relate the events to the jury. Appellant incorrectly cites two cases which appellant asserts require a foundation under these circumstances. Evid. R. 803(2) allows hearsay under the excited utterance exception "even though the declarant is available as a witness." Although there was no requirement on the State to show she was unavailable as a witness, the following exchange clearly indicates a refusal to testify under Evid. R. 804(A), rendering Eva unavailable: Q. Do you want to tell the jury what was happening when you were on the ground and Benny was on top of you? A. No. Q. You don't want to tell them? A. No. Q. Do you remember when we talked about things that were good and bad and telling the truth and telling a lie? A. Yeah. - 19 - Q. Do you remember we talked about that? A. Yeah. Q. Do you think you could tell the jury what happened when Benny was on top of you? A. No. Appellant's fifth assignment of error is overruled. VI THE TRIAL COURT ERRED AND VIOLATED APPELLANT'S RIGHT TO DUE PROCESS OF LAW AS PROTECTED BY THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION BY JOURNALIZING AN ENTRY WHICH INCREASED APPELLANT'S SENTENCE ON COUNT ONE TO LIFE IMPRISONMENT WHEN IT HAS PRONOUNCED IN OPEN COURT A SENTENCE OF FIFTEEN YEARS TO LIFE. Appellants's argument is well taken. The sentence as journalized differs from the one read in open court. Appellant agrees that the proper sentence was for imprisonment for life. Appellant requests that the matter be remanded for proper resentencing following the due process requirement. Crim. R. 43(A) specifically requires that the defendant shall be present at every stage of the proceedings, including the imposition of sentence, and this applies where one sentence is vacated and a new sentence imposed. Columbus v. Rowland (1981), 2 Ohio App. 3d 144, at the syllabus; followed by this court in State v. Walton (1990), 66 Ohio App. 3d 243, 247. Accordingly, we reverse and remand the matter for resentencing in appellant's presence. - 20 - VII THE TRIAL COURT'S SENTENCE DENIED MR. JOHNSON HIS RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION WHEN IT ORDERED SOLITARY CONFINEMENT FOR MR. JOHNSON EACH MAY 22. Appellant's due process argument is well taken. The trial court ordered solitary confinement for appellant each May 22, the day of appellant's crime. A trial court is authorized to pronounce judgment only as provided by law. State v. Dillon (1883), 30 Ohio St. 586; State v. Bilder (1987), 39 Ohio App. 3d 135. The legislature possesses the power to define and fix punishment for criminal offenses. Cleveland v. Scott (1983), 8 Ohio App. 3d 358. "The discretionary power of judges to sentence is granted by the legislature and can be circumscribed by the legislature." Cleveland v. Scott, at 358. Although trial courts were previously authorized to sentence prisoners to solitary confinement, see Ex Parte Clark (1893), 50 Ohio St. 649, such a sentence is not authorized by the pertinent provisions in this case. That portion of the sentence ordering solitary confinement is vacated. Appellant's seventh assignment of error is sustained. Judgment affirmed in part, reversed in part, and vacated. - 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. DAVID T. MATIA, C.J., AND KRUPANSKY, J., CONCUR. ~JUDGE ANN DYKE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment 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. .