COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 67430 & 67438 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION WILBERT BRADLEY, aka WILBERT : GREER, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : JUNE 15, 1995 CHARACTER OF PROCEEDING : Criminal appeals from : Common Pleas Court : Case No. CR-306269 and : CR-306596 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Thomas E. Conway John W. Monroe Assistant County Prosecutors The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: John B. Gibbons 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 -3- NAHRA, J.: In these consolidated cases, defendant-appellant Wilbert Bradley (a.k.a. Wilbert Greer) appeals from his convictions for aggravated murder with a felony murder and a firearm specification and aggravated robbery with a firearm specification in App. No. 67430 and from his conviction for aggravated robbery in App. No. 67438. The facts relevant to these appeals are set forth below. The incident which led to appellant's convictions in App. No. 67430 occurred in the early morning hours of December 10, 1993 in the area of Cleveland known as the Longwood Estates. Twenty-one year old Dennis Neal, the victim, had been selling drugs there. With him was his "runner," Derrick Sims. Neal had had a fairly successful night: he had made from five to ten sales with the last one netting him a hundred dollars. The two men were thereafter standing around near one of the apartment buildings, talking while Sims smoked some crack cocaine. Some teenage drug dealers, one of whom was Jerrick Eggleton, were in their company. After about an hour, at approximately 4:30 a.m., Neal and Sims began to walk, intending to go to a friend's house. They had only proceeded a short distance, however, when they were approached from the rear by appellant and his companion, Robert Jones. Appellant and Jones confronted Neal and told him they were aware of his last sale. They tried to intimidate him; Jones, who weighed about two hundred and fifty pounds, "brushed" Neal's -4- shoulder. Neal and Sims tried to avoid any trouble by continuing to walk away. Jones then grabbed Neal from behind and put him in a "headlock." Jones' grip was so tight that Neal began to lose consciousness. As Jones was holding Neal thusly, appellant immediately ransacked Neal's pockets. Appellant quickly pulled out a wad of folded money and a gun. When Jones felt Neal's limpness, he lowered him to the ground so he and appellant could more easily search his clothing. Within seconds, however, Neal regained consciousness and began to rise, struggling with his assailants. Jones attempted to regain a hold on him. Appellant had a simpler method of control: he put Neal's gun up against Neal's chest and pulled the trigger. At the shot, Sims ran. After gaining some shelter about thirty feet away, he turned to see Jones lowering Neal to the ground again. Neal was on his side. Appellant pointed the gun at him and fired it again. Then appellant and Jones ran. Although he had been shot in the chest and the buttocks, Neal managed to get to his feet and tried to walk away from the scene. Sims ran back to help him. As Sims was supporting Neal, Jerrick Eggleton also ran over and tried to help. The two could not carry Neal to any of the buildings, however, so Sims simply placed Neal on a patch of grass while Eggleton left to summon aid. Eventually, an Emergency Medical Service unit responded to the scene. The technician who tried to stabilize Neal prior to transporting him noticed Neal, though moaning in pain, was alert -5- and oriented. The technician also noticed Sims and pointed him out to the police officer who arrived at the scene as Neal was being placed in the unit. The police officer spoke briefly to Sims and received some cursory information from him including the statement that "Will" shot Neal. Sims did not want to be seen speaking with the officer, but he was otherwise cooperative and coherent. Similarly, when he arrived at the hospital, Neal appeared coherent and oriented to the emergency room nurse. The nurse was getting Neal ready for emergency surgery when he mentioned appellant's nickname and also later stated to her he "couldn't believe the MF shot him." The nurse reported what she had heard to her husband, a Cleveland police officer. Neal died early the next morning. An autopsy was performed that same day. The assistant coroner who performed the autopsy noted on the body entrance gunshot wounds on the upper left abdomen and the left buttock. The upper wound clearly showed the muzzle imprint of the gun which had expelled the bullet. That bullet perforated the liver, an artery, the right kidney and several portions of the bowel before coming to rest in the right side of the body. The second wound was uneven and demonstrated no evidence that the bullet was fired at close range. That bullet passed through muscle and pelvic bone before coming to rest in tissue close to the sacrum. Both bullets were recovered and given to the police department for further analysis. -6- Appellant was arrested the day after the autopsy. There were two outstanding arrest warrants for appellant, both for aggravated robbery. By this time, moreover, the police detectives working on the shooting had become aware that the nurse had heard the victim mentioned appellant's nickname and that Sims had seen "Will" shoot Neal. Therefore, following appellant's arrest, since he was by then a suspect in the shooting, appellant was interviewed regarding it. At that time, after being informed of his constitutional rights, appellant voluntarily gave a written statement to the police wherein he gave his version of the incident. A few days later, both Sims and Eggleton were also interviewed by police officers regarding the shooting. As a result of these interviews, the detectives eventually found Robert Jones and arrested him. On December 29, 1993, Jones also gave a written statement to the police regarding the shooting. On January 25, 1994 appellant was indicted in case no. CR- 306269 for the shooting death of Dennis Neal. Count one charged appellant with aggravated murder (murder with prior calculation and design), R.C. 2903.01, and contained a felony murder and a firearm specification. Count two charged appellant with aggravated murder (death caused "while committing or attempting to commit . . . Aggravated Robbery"), R.C. 2903.01, and contained a felony murder and a firearm specification. Count three charged appellant with aggravated robbery, R.C. 2911.01, and contained a firearm specification. -7- A few days later, appellant was also indicted in Case No. CR- 206596 on five additional counts, viz., kidnapping, R.C. 2905.01; aggravated burglary, R.C. 2911.11; felonious assault, R.C. 2903.11; aggravated robbery, R.C. 2911.01, and having a weapon while under disability, R.C. 2923.13. The first four counts of this indictment carried firearm and violence specifications. Appellant entered pleas of not guilty to all the charges and was assigned counsel. Prior to the commencement of appellant's trial in Case No. CR- 306269, appellant filed a motion to suppress evidence, contending that his written statement to the police was illegally obtained. The trial court held a hearing on the motion, then overruled it. Thereafter, a jury was chosen and appellant's trial proceeded. The state presented the testimony of numerous witnesses and introduced into evidence many physical items, including the autopsy protocol, the victim's hospital records, and photographs taken of the scene, the victim and his clothing. After the presentation of the state's evidence, the trial court overruled appellant's Crim.R. 29 motion for acquittal. Appellant presented the testimony of only one witness in an attempt to cause doubt on the credibility of Jerrick Eggleton. The trial court then overruled appellant's renewed Crim.R. 29 motion for acquittal and also permitted appellant's written statement to be introduced into evidence; however, the trial court granted the state's motion to dismiss the first count of the indictment. -8- Subsequently, the jury found appellant guilty of the remaining counts of the indictment. After the penalty phase, the jury recommended a sentence of thirty years to life imprisonment. While his sentence in CR-306269 was pending, appellant entered into a plea bargain arrangement in his other pending case, CR- 306596. The trial court held a hearing on the matter. At the hearing, appellant entered a plea of guilty to the count of aggravated robbery, with both specifications deleted; the prosecutor recommended the remaining counts be nolled. The trial court accepted both appellant's plea and the state's recommendation. Appellant was ultimately sentenced as follows: In CR - 306269, a term of incarceration of three years to be served prior to and consecutive with concurrent terms of thirty years to life on count two and eight to twenty-five years on count three; in CR- 306596, a term of incarceration of five to twenty-five years, to be served concurrently with the sentence in CR-306269. Appellant has filed a timely appeal of his convictions in this court. He presents six assignments of error for review, the first five of which pertain to his convictions in CR-306269. I. Appellant's first assignment of error states: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT- APPELLANT'S MOTION TO SUPPRESS HIS STATEMENT AS IT WAS MADE FOLLOWING AN ILLEGAL ARREST. -9- Appellant argues the trial court improperly denied his motion to suppress evidence because his written statement was illegally obtained. He bases his argument on two contentions, viz., the police arrested him without an arrest warrant and the police lacked probable cause to arrest him for Neal's murder. Neither contention is supported by the record. At the hearing on appellant's motion to suppress evidence, one of the homicide detectives assigned to the investigation of Neal's murder testified that at the time of appellant's arrest, there were two outstanding arrest warrants for him. Although these sought appellant on charges of aggravated robbery, that fact alone does not cause his later voluntarily-given statement regarding the murder to be improperly obtained. State v. Fields (1991), 75 Ohio App.3d 123; State v. Hanni (June 4, 1974), Cuyahoga App. No. 32512, 1 unreported. Moreover, the record reflects the arresting officers had reasonable grounds for making the arrest since they had information from Sims and the emergency room nurse linking appellant with the crime. Thus, appellant's reliance on State v. Wages (1993), 87 Ohio App.3d 780, is misplaced. Furthermore, the record fails to reflect any coercive police conduct which would render appellant's statements inadmissible. State v. Dailey (1990), 53 Ohio St.3d 88, cf., State v. Arrington 1 The detectives' testimony was corroborated by appellant's indictment in case no. CR-306596, which included the charge of aggravated robbery. -10- (1984), 14 Ohio App.3d 111. The totality of the circumstances, rather, supports the trial court's finding appellant's statements were voluntary. State v. Spinks (1992), 79 Ohio App.3d 720. Since appellant's arrest was lawful and it is apparent from the record he subsequently voluntarily gave statements to the investigating officers after being informed of his constitutional rights, appellant's first assignment of error is overruled. II. Appellant's second assignment of error states: THE TRIAL COURT ERRED IN ALLOWING DOCTOR CHALLENER TO TESTIFY AND GIVE AN EXPERT OPINION BASED ON THE AUTOPSY RESULTS PREPARED BY ANOTHER PATHOLOGIST. Appellant argues he was denied his right to a fair trial by the admission into evidence of Dr. Challener's testimony. Specifically, appellant contends Dr. Challener should not have been permitted to give his opinion concerning the possible cause of the deformity of the bullet recovered from the victim's pelvic region. As an initial matter, it must be noted this court has previously held that an autopsy protocol is admissible as a business exception under Evid.R. 803(6) and a defendant is not denied his right to confrontation where a coroner who did not personally perform an autopsy is permitted to testify concerning the autopsy and its results. State v. Boyd (May 28, 1992), Cuyahoga App. No. 60639, unreported. In the present case, Dr. Challener identified the autopsy protocol prepared by Dr. Heather Raff, revealed that it was a -11- regularly prepared document and contained the seal of the Cuyahoga County Coroner's Office, and stated that consistent with his supervisory responsibilities at the Cuyahoga County Coroner's Office, he had reviewed the findings with Dr. Raff before the case was closed. Additionally, Dr. Challener related that he had reviewed the autopsy report, the microscopic slides prepared in connection with the case, the photographs and the trace evidence findings prior to testifying at appellant's trial. Thus, Dr. Challener was qualified to testify concerning the autopsy protocol. State v. Mack (Dec. 2, 1993), Cuyahoga App. No. 62366, unreported. It must also be noted that the extent to which expert testimony and opinion evidence are received rests largely within the discretion of the trial court. Camden v. Miller (1986), 34 Ohio App.3d 86 at 91. See, also, Frank v. Vulcan Materials Co. (1988), 55 Ohio App.3d 153. Evid.R. 702 and 703 permit an expert witness to testify concerning facts or data admitted into evidence if the testimony will assist the jury in understanding the evidence. State v. Solomon (1991), 59 Ohio St.3d 124. . . . [W]here an expert bases his opinion, in whole or in major part, on facts or data perceived by him, the requirement of Evid.R. 703 has been satisfied. It is important to note that Evid.R. 703 is written in the disjunctive. Opinions may be based on perceptions or facts or data admitted in evidence. Id. at 126. (Emphasis in original.) It is clear from a perusal of Dr. Challener's testimony that his expert opinion regarding the deformity of the bullet was based -12- upon his experience as applied to facts and data included in both the autopsy protocol and the forensic reports, all of which were admitted into evidence. State v. Underwood (1991), 73 Ohio App.3d 834; Lambert v. Goodyear Tire & Rubber Co. (1992), 79 Ohio App.3d 15 at 29-31; cf., State v. Jones (1983), 9 Ohio St.3d 123; State v. Chapin (1981), 67 Ohio St.2d 437. Therefore, the trial court did not err in admitting his testimony into evidence. Accordingly, appellant's second assignment of error is also overruled. III. Appellant's third assignment of error states: THE TRIAL COURT ERRED IN ALLOWING THE STATE OF OHIO TO CALL PATROL OFFICER LIVINGSTON TO TESTIFY ABOUT AN UNSWORN STATEMENT MADE BY ANOTHER STATE'S WITNESS, DERRICK SIMS. Appellant argues the trial court erred in permitting the introduction into evidence of Derrick Sims' oral statement given to the police officer who responded to the scene right after the shooting. The trial court permitted the testimony pursuant to 2 Evid.R. 801(D)(1)(b). 2 Evid.R. 801(D)(1)(b) provides: RULE 801. DEFINITIONS The following definitions apply under this article: * * * (D) Statements Which Are Not Hearsay. A statement is not hearsay if: -13- It is appellant's contention that in his cross-examination of Sims, he sought only to impeach Sims with evidence of a prior conviction; thus, Evid.R. 801(D)(1)(b) was an improper basis upon which to permit the police officer's testimony. The record, however, belies appellant's contention. A review of appellant's cross-examination of Sims clearly demonstrates that, after Sims had stated on direct examination he had told the officer who responded to the scene that he saw appellant shoot Neal, appellant sought to impeach Sims by intimating he was too "high" to comprehend the events he had witnessed on the night of the incident and that he "fingered" appellant as the shooter only in a later interview with police officers. The officer who responded to the scene of the shooting was thus later in the trial permitted to testify that on the night of the incident, Sims was cooperative and coherent and, further, that he stated at the time that "Will" shot Neal. This testimony was therefore entirely proper pursuant to Evid.R. 801(D)(1)(b). State v. Mullins (1986), 34 Ohio App.3d 192; State v. Bock (1984), 16 Ohio App.3d 146; see, also, Motorists Mut. Ins. Co. v. Vance (1985), 21 Ohio App.3d 205. (1) Prior Statement by Witness. The declarant testifies at trial or hearing and is subject to cross- examination concerning the statement, and the statement is * * * (b) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive * * * . -14- Since the situation which occurred in this case was precisely the situation to which Evid.R. 801(D)(1)(b) applies, the trial court did not err in admitting the police officer's testimony. Accordingly, appellant's third assignment of error is also overruled. IV. Appellant's fourth assignment of error states: THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING DEFENDANT-APPELLANT'S MOTION FOR JUDGMENT OF ACQUITTAL PURSUANT TO RULE 29(A), OHIO RULES OF CRIMINAL PROCEDURE, AS THERE WAS INSUFFICIENT EVIDENCE TO PROVE EACH AND EVERY ELEMENT OF THE OFFENSES CHARGED BEYOND A REASONABLE DOUBT. Appellant apparently argues the evidence adduced at trial was sufficient to prove only that Neal accidentally shot himself with his own gun during a struggle with appellant. This argument is unpersuasive. According to Crim.R. 29(A), a motion for judgment of acquittal may be granted if the evidence is insufficient to sustain convictions on the offenses charged. If, however, reasonable minds can reach different conclusions as to whether each element of an offense has been proven beyond a reasonable doubt, the motion must be overruled. State v. Bridgeman (1978), 55 Ohio St.2d 261. An appellate court reviewing the denial of a Crim.R. 29 motion is required to view the evidence in a light most favorable to the prosecution. State v. Jenks (1991), 61 Ohio St.3d 259; State v. Martin (1983), 20 Ohio App.3d 172, 175. -15- Having thoroughly scrutinized the record, this court finds there was sufficient evidence presented at trial which, if believed, would convince the average mind of appellant's guilt of the offenses charged beyond a reasonable doubt. The state presented three eyewitnesses to the shooting, viz., Derrick Sims, Robert Jones and Jerrick Eggleton, all of whom gave a substantially identical version of the incident. These witnesses stated the following: 1) appellant and Jones were aware Neal had made a lot of money that night; 2) they approached Neal in a threatening manner; 3) Jones grabbed Neal and held him while appellant went through his pockets; 4) appellant gained possession of Neal's money and his gun; 5) appellant then shot Neal in the chest and shot him again as he lay on the ground; and 6) appellant and Jones then fled as Sims and Eggleton went to aid Neal, who subsequently died from his wounds. The testimony of these eyewitnesses was corroborated by the testimony of the investigating police officers and emergency medical personnel, and by the autopsy report and the trace evidence findings. Viewing the evidence adduced at appellant's trial in a light most favorable to the prosecution, therefore, any rational trier of 3 fact could have found the essential elements of aggravated murder 3 R.C. 2903.01(B), Aggravated Murder, states in pertinent part the following: (b) No person shall purposely cause the death of another while committing or attempting to commit, or while fleeing immediately after committing or -16- 4 and aggravated robbery proven beyond a reasonable doubt. State v. Taylor (1993), 66 Ohio St.3d 295; State v. Anderson (May 12, 1994), Cuyahoga App. Nos. 65378, 65379, unreported; State v. Burford (Dec. 9, 1993), Cuyahoga App. No. 64432, unreported. For the foregoing reasons, the trial court did not err in denying appellant's motions for acquittal. State v. Jenks, supra; State v. Johnson (1978), 56 Ohio St.2d 35. Accordingly, appellant's fourth assignment of error is overruled. V. Appellant's fifth assignment of error states: DEFENDANT-APPELLANT'S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant argues that based upon the totality of the evidence it was not reasonable for the jury to have found him guilty of the offenses charged. His argument is not persuasive. In State v. Martin, supra, at 175, the court set forth the test to be utilized when addressing the issue of manifest weight of the evidence: attempting to commit * * * aggravated robbery * * * . 4 R.C. 2911.01 states in pertinent part: (A) No person, in attempting or committing a theft offense, * * * or in fleeing immediately after such attempt or offense, shall do either of the following: (1) Have a deadly weapon or dangerous ordnance * * * on or about his person or under his control; (2) Inflict, or attempt to inflict, serious physical harm on another. -17- There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here the test is much broader. 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. * * * See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. (Emphasis added.) A reviewing court will not reverse a verdict where there is substantial evidence upon which the trier of fact could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169; State v. Jenks, supra. Moreover, the weight of the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. A review of the record in this case demonstrates appellant's convictions for the aggravated robbery and aggravated murder by the shooting of the victim were in accord with the manifest weight of the evidence. The testimony of the state's witnesses created a compelling scenario which was corroborated by the coroner's report, trace evidence findings, and physical evidence discovered. Appellant's written statement given to the police and his evidence at trial, on the other hand, was self-serving, essentially uncorroborated, and did little to discredit the credibility of the state's witnesses. -18- In short, there was consistent, credible evidence adduced at trial in this case which supported the jury's conclusion that with Jones' help appellant shot and killed Neal after robbing him. State v. Coleman (1988), 37 Ohio St.3d 286; State v. Anderson, supra. The record in this case reflects that, weighing all the evidence, drawing all the reasonable inferences therefrom and considering the testimony and credibility of the state's witnesses and the appellant's evidence, the verdict fails to indicate the jury lost its way and created a manifest miscarriage of justice. State v. Martin, supra. Accordingly, appellant's fifth assignment of error is also overruled. Appellant's convictions and sentences in App. No. 67430 are therefore affirmed. VI. Appellant's sixth and final assignment of error pertains to App. No. 67438 and relates to his conviction in case no. CR- 306596. It states as follows: THE TRIAL COURT ERRED IN ACCEPTING DEFENDANT-APPELLANT'S GUILTY PLEA AS IT WAS NOT FREELY AND VOLUNTARILY MADE. Without citing any authority as required by App.R. 16(A)(7), appellant argues in a conclusory fashion that simply because he was facing sentencing in case no. CR-306269, his guilty plea in this case was "involuntary." The record does not support appellant's argument. -19- The transcript of appellant's plea hearing reveals the trial 5 court fully complied with the requirements of Crim.R. 11(C) prior to accepting appellant's plea in this case. The Ohio Supreme Court has held that in order to safeguard a defendant's constitutional rights, a trial court's colloquy pursuant to Crim.R. 11(C) must demonstrate "substantial compliance" with the requirements of the rule and defined the words thusly: Substantial compliance means that under the totality of the circumstances the defendant subjectively 5 Crim.R. 11 states in pertinent part: RULE 11. Pleas, Rights Upon Plea * * * (C) Pleas of guilty and no contest in felony cases. * * * (2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept such plea without first addressing the defendant personally and: (a) Determining that he is making the plea voluntarily, with understanding of the nature of the charge and of the maximum penalty involved, and, if applicable, that he is not eligible for probation. (b) Informing him of and determining that he understands the effect of his plea of guilty or no contest, and that the court upon acceptance of the plea may proceed with judgment and sentence. (c) Informing him and determining that he understands that by his plea he is waiving his rights to jury trial, to confront witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to require the state to prove his guilt beyond a reasonable doubt at a trial at which he cannot be compelled to testify against himself. -20- understands the implications of his plea and the rights he is waiving. Stewart, supra; State v. Carter (1979), 60 Ohio St.2d 34, 38, 14 O.O.3d 199, 201, 396 N.E.2d 757, 760, certiorari denied (1980), 445 U.S. 963. Furthermore, a defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must show a prejudicial effect. Stewart, supra, at 93, 5 O.O.3d at 56, 364 N.E.2d at 1167; Crim.R. 52(A). The test is whether the plea would have otherwise been made. Id. State v. Nero (1990), 56 Ohio St.3d 106 at 108. (Emphasis added.) Although appellant asserts that his plea was involuntary simply because of the pending sentencing in the Neal murder case, his assertion is insupportable. With the terms of the plea bargain fully set forth for the record, appellant indicated his subjective awareness of the implications of his plea, viz., that in exchange for pleading guilty to only one amended charge in this case, he would be guaranteed a single term of imprisonment to be run concurrently with the sentence in CR-306269. Appellant was then exhaustively informed of the rights he was waiving by entering his guilty plea. He stated he understood them and still wished to enter the plea. Finally, the trial court accepted appellant's guilty plea in CR-306596. There is thus nothing in the record which establishes appellant's guilty plea was not knowingly, intelligently, and voluntarily made. Rather, a review of the record in this case reveals "under the totality of the circumstances" appellant clearly understood "the implications of his plea;" furthermore, since appellant made his plea in order to obtain a dismissal of many other significant and serious charges against him, he cannot -21- demonstrate a "prejudicial effect." State v. Johnson (1988), 40 Ohio St.3d 130. Therefore, the trial court did not err in accepting appellant's guilty plea. Accordingly, appellant's sixth and final assignment of error is also overruled. Appellant's conviction and sentence in App. No. 67438 are affirmed. -22- 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. DYKE, P.J., and O'DONNELL, J., CONCUR. JOSEPH J. NAHRA 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 .