COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68206 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION TERRANCE TUCKER : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : AUGUST 17, 1995 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-311,421 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor RALPH KOLASINSKI, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: JAMES A. DRAPER Cuyahoga County Public Defender VALERIA R. ARBIE, Assistant 1200 West Third Street, N.W. 100 Lakeside Place Cleveland, Ohio 44113-1569 AUGUST PRYATEL, J.: The defendant-appellant, Terrance Tucker (hereinafter "appellant"), appeals from his jury trial conviction on one count of rape in violation of R.C. 2907.02, with a prior aggravated felony specification: to wit; appellant had previously been convicted of aggravated burglary in 1986. I. On June 30, 1994, appellant was indicted by the Cuyahoga County Grand Jury stemming from an offense of rape on July 20, 1993. On July 7, 1994, appellant entered a plea of not guilty to the charges contained in the indictment. Thereafter, on October 31, 1994, the matter proceeded to a trial before a jury. The facts pertinent to the present case can be derived from the record and the briefs of the parties presented before this court. They are as follows: A. Appellant is the father to seven minor children. Three of appellant's children were born to Ms. Desirre Whittaker. Ms. Whittaker is the aunt of Takeia Whittaker, the victim in the present case. The acts which constitute the offense of rape were - 3 - alleged to have occurred at Desirre's two-story apartment on July 20, 1993. i. For its case, the State of Ohio presented the testimony of three witnesses: the victim, Takeia Whittaker; her father, Mr. Kenneth Whittaker; and Cleveland Policeman Samuel Byrd. These witnesses testified, in pertinent part, as follows: TAKEIA WHITTAKER: Nine-year-old Takeia Whittaker, after being determined competent to testify, stated that Desirre Whittaker is her aunt. Takeia stated that Mr. Tucker lived with her aunt and cousins during the summer of 1993. Takeia stated that one time during the summer of 1993, she was visiting at Desirre's apartment to play with her cousins. On that day, Takeia's Aunt Desirre left the children in the care of Mr. Tucker while she went to the clinic. After some time, Takeia became tired and went to an upstairs bedroom to sleep. Takeia testified that while she was lying on the bed resting and watching television, Mr. Tucker came into the bedroom to use the telephone. According to Takeia's testimony, while Mr. Tucker was still on the telephone, "he stuck his foot in [her] private part." This touching continued for "three minutes, or two." After Mr. Tucker completed his phone call, Takeia stated that he pulled his boxer shorts down, grabbed her hand and made her touch his penis. Takeia - 4 - stated that Mr. Tucker then put his hand on her head and made her go down and suck on his penis. This lasted for "about four or five minutes." Takeia testified that she than told Mr. Tucker the following: "[I] have to throw up," but then he said, "Okay." But I really wanted to go -- you know, I made it up so I can go in there, but I really went into the bathroom, but I didn't throw up, I just washed my mouth out. And then I went to go play in my cousin's room. When asked if Mr. Tucker said anything to her after the incident, Takeia stated the following: TAKEIA: [H]e told me, "Don't tell anybody." * * * PROSECUTOR: Let me ask you this. If you told somebody, what was going to happen? TAKEIA: Well, I think he was going to whop me, or hit me, -- PROSECUTOR: Did he say that? TAKEIA: -- in the face. No. Or, he said, "Don't tell anybody", and I thought -- I said, "Okay." And I looked into his eyes and thought he was going to say like, if you tell anybody, I'll kill you, or I'll hit you, --" PATROLMAN SAMUEL BYRD: Patrolman Byrd testified that he responded to a call to Mr. Kenneth Whittaker's home on January 6, 1994. Patrolman Byrd testified that on that date, he talked to both Mr. Whittaker and - 5 - Takeia Whittaker about her alleged abuse. On direct examination, Patrolman Byrd testified to the following events as related to him by Takeia Whittaker: PTRLM. BYRD: Well, she told me she had visited her aunt and she was playing down with her cousin downstairs at her aunt's address, and she was approached by the suspect. And she stated that he asked her to do a favor for him. * * * She said that the suspect asked her to perform oral on her. If she didn't do it, he would beat her, and she complied. PROSECUTOR: Did she indicate to you where this occurred? PTRLM. BYRD: She said it was downstairs of that address. PROSECUTOR: And did she indicate what room to you? PTRLM. BYRD: I'm assuming it was in the basement. Yeah, the basement, is what she told me. On cross-examination, Patrolman Byrd added that Takeia Whittaker also stated that her cousin (appellant's daughter) was also molested by appellant on the same day. However, Patrolman Byrd admitted that he was unaware that any follow-up was ever done with regard to the cousin. KENNETH WHITTAKER: - 6 - Mr. Whittaker testified that appellant was the father of three of his sister Desirre (a.k.a. "Dizzy") Whittaker's children. Mr. Whittaker stated that during the summer of 1993, appellant lived with his sister Desirre. On January 3, 1994, Mr. Whittaker was watching the local television news with his daughter Takeia. After two stories regarding young children being abused, Mr. Whittaker told Takeia that if anyone ever "attacked, threatened or touched" her, she should not be afraid to tell him about it. Mr. Whittaker testified that Takeia responded as follows: WHITTAKER: Well, she told me in her own words, she said, "Daddy, something like that happened to me." And I said, "Okay, tell me." And she said that -- she said, "Well, you know, when we were over Aunt Dizzy's house and we spent the night over there", she said that she -- that -- well, she said that Terrance had made her do something. And I said, "Do what?" And she said that he made her, in her words at that time, she said he made her put her mouth on his thing. That is what she said. And then I said, "Who, Terrance, Dizzy's son Terrance?" And she said "No, his father." And after that she went on to tell me what happened. And after that I called the police. PROSECUTOR: What did she tell you about how it happened? - 7 - WHITTAKER: She told me that -- she said that she was sleeping, and she was in Aunt Dizzy's room sleeping and Terrance had woke her up. She said that he asked her, would she like to suck his penis. * * * PROSECTOR: Did she use the word "penis"? WHITTAKER: No, she didn't use the word penis. She was still referring to it as his thing. PROSECUTOR: All right. WHITTAKER: She said that he had asked her if she would like to do that. And she told him no. And she said that he had grabbed her and he had made her, he had made her do it. PROSECUTOR: Made her do what? WHITTAKER: He had made her suck his thing. During Mr. Whittaker's testimony, he admitted to a discrepancy within the stories that Takeia originally told to the police and a version Takeia told to him several weeks later. He testified as follows: MR. D'ANGELO: If I understand you correctly sir, the first time she told you she was asleep in bed upstairs, or is that the second time. MR. WHITTAKER: The second time. MR. D'ANGELO: The first time she said she was playing upstairs with her cousins, correct? - 8 - MR. WHITTAKER: Correct. MR. D'ANGELO: And at that time she was taken away and brought downstairs, correct, and that is where this allegedly occurred? MR. WHITTAKER: Right. ii. After presentation of Mr. Whittaker's testimony, the state rested its case. Thereafter, appellant's Crim.R. 29 motion with respect to the issue of force was denied by the trial court and appellant went forward with the presentation of his defense. In addition to his own testimony, appellant offered the testimony of two of his sisters, Ms. Leona Tucker and Ms. Edith Tucker, as well as the testimony of the mother of two of his seven children, Mrs. Pamela Brooks. TERRENCE TUCKER: Appellant testified that he started living with Desirre Whittaker about 1988. He testified that he moved out of Desirre's home after his mother died in late June, 1993. At that time, he began to live with his sister, Edith Tucker. Appellant admitted to being present at Desirre's apartment during the summer of 1993; however, he denied that he ever touched, molested or engaged in oral sex with Takeia Whittaker. Appellant admitted to prior criminal convictions for aggravated burglary, grand theft and - 9 - receiving stolen property; however, appellant denied ever being arrested or convicted for any sex offense. MS. LEONA TUCKER: Leona Tucker testified that she is the mother of six children and the grandmother of twelve as well as the sister of appellant. She stated that for ten years, appellant had stayed with her family and acted as her babysitter. Ms. Tucker testified that at no time did she have problems with appellant relative to any abuse or molestation of her children or grandchildren. MS. EDITH TUCKER: Edith Tucker testified that she is the mother of two adult children. She testified that appellant lived with her in the early months of 1994. Edith Tucker stated that there had never been any complaints brought to her attention about molestation and sex abuse. MRS. PAMELA BROOKS: Pamela Brooks testified that she is the mother of two of appellant's children. She testified she is presently separated from her husband and that appellant has lived with her "off and on for the last seven years." During 1993, appellant stayed with Mrs. Brooks in the early part of the year as well as in August and September. Mrs. Brooks testified that during his stays with her, - 10 - appellant was frequently left alone in the presence of her children and nieces; however, Mrs. Brooks stated that she had no complaints of appellant molesting any children. iii. At the conclusion of Mrs. Brooks' testimony, the appellant rested his case and the matter was submitted to the jury. On October 26, 1994, the jury returned a verdict of guilty against appellant for one count of rape in violation of R.C. 2907.02. Further, the jury made two special findings; to wit, 1) that the victim, Takeia Whittaker, was under the age of thirteen at the time of the offense, and 2) that appellant used force in committing the offense charged. Thereafter, finding no reason for delay, the trial court sentenced appellant to a term of life imprisonment. III. Appellant timely appealed his conviction, raising the following assignments of error for our review. I. MR. TUCKER'S RIGHT TO A FAIR TRIAL GUARANTEED BY THE DUE PROCESS PROVISIONS OF ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED BY THE MISCONDUCT OF THE PROSECUTOR DURING CLOSING ARGUMENT. II. TERRANCE TUCKER WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES - 11 - CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION WHEN TRIAL COUNSEL FAILED TO CONDUCT A PRETRIAL INVESTIGATION IN A REASONABLE MANNER. III. THE TRIAL COURT ABUSED ITS DISCRETION AND DEPRIVED TERRANCE TUCKER OF DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION XIV OF THE OHIO CONSTITUTION WHEN IT CONDUCTED A HEARING TO DETERMINE A CHILD WITNESS'S COMPETENCY WHICH WAS INSUFFICIENT AS MATTER OF LAW. IV. THE VERDICT FINDING TERRANCE TUCKER GUILTY OF RAPE WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE BECAUSE THERE WAS NO SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE ELEMENTS OF THE OFFENSE HAD BEEN PROVEN BEYOND A REASONABLE DOUBT. A. Appellant, in his first assignment of error, contends that his due process rights were violated by the misconduct of the prosecutor during his closing argument. Generally, a prosecutor is afforded great latitude in closing arguments. State v. Thompson (1987), 33 Ohio St.3d 1, 14; State v. Jacks (1989), 63 Ohio App.3d 200, 210. In addition, remarks made during closing arguments are to be viewed in their entirety to determine whether they were prejudicial. State v. Byrd (1987), 32 Ohio St.3d 79, 82; State v. Maurer (1984), 15 Ohio St.3d 239, 266; State v. Mann (1993), 93 Ohio App.3d 301. In order to justify a reversal of a judgment on the basis of prosecutorial misconduct, the defendant must satisfy the two-prong test set forth in State v. Keenan (1993), 66 Ohio - 12 - St.3d 402. First the defendant must show on appeal that the prosecutor's actions were improper. Second, the defendant must show that the prosecutor's actions deprived him of a fair trial. In the present case, appellant contends that the prosecutor made improper statements regarding the issue of force that affected appellant's right to a fair trial. The specific basis of appellant's argument is that during his closing argument, the prosecutor stated the following: PROSECUTOR KOLASINSKI: I anticipate the judge will give you an instruction that force may be subtle and/or psychological. And that is what happened in this case. And that you may take into consideration things like the fact that he is an adult, the victim is a child. The difference in size, she fears him. She's scared of him. Remember later on he tells her, "If you tell anybody about this I'm going to beat your ass." Once again the size and his position of authority in this house, especially when Aunt Dizzy is not around. (Emphasis added). In addition, during his final closing argument, the prosecutor again stated that the defendant had "threatened to beat her ass if she tells anyone." We first note that appellant failed to object at trial to the use of the phrase "beat your ass"; therefore, in regard to the use of this statement by the prosecutor, the appropriate review is a plain error analysis. Crim.R. 52(B); State v. Coulter (1992), 75 Ohio App.3d 219, 231-232. Plain error does not exist unless it is determined that, but for the prosecutor's conduct, the verdict would have been otherwise. State v. Stover (1982), 8 Ohio App.3d 179. - 13 - While we agree with appellant that the prosecutor improperly quoted the child-witness's testimony, we do not find that this incorrect quotation amounted to prosecutorial misconduct. The record clearly reveals that the child-witness was misquoted by the prosecutor. Nowhere within the testimony of Takeia Whittaker was the word "ass" uttered; instead, Takeia stated that appellant told her not to tell anybody and that she thought appellant was going to whop her or hit her in the face. However, this mere incorrect quotation by the prosecutor does not raise to the level of prosecutorial misconduct. Appellant contends that this incorrect quotation by the prosector was "the only example of force or threats of force" presented. The record reveals otherwise. Takeia testified that appellant put his hand on her head and made her suck his penis. Supra. In addition, Takeia stated that she felt appellant might "whop her" if she said anything. While the prosecutor's choice of words was less than flawless, from a review of the closing argument in its entirety, we do not find the prosecutor's incorrect quotation to amount to prejudicial error. Therefore, we hold that the jury's verdict was not influenced by the prosecutor's improvident comments made during his closing argument and that the prosector's comments did not deny appellant a fair trial. Accordingly, appellant's first assignment of error is not well taken. - 14 - B. In his second assignment of error, appellant contends that he was denied the effective assistance of trial counsel. In order to succeed on a claim of ineffective assistance of counsel, there must be a determination as to whether there has been substantial violation of any of defense counsel's essential duties to his client, and there must be determination as to whether defense was prejudiced by counsel's ineffectiveness. Strickland v. Washington (1984), 466 U.S 668; State v. Nichols (1993), 66 Ohio St.3d 431, 436; State v. Bradley (1989), 42 Ohio St.3d 136, 141-142. Appellant's claim of ineffective assistance of counsel rests upon his contention that his trial counsel failed to obtain a copy of the transcript of the preliminary hearing held in the Cleveland Municipal Court on May 19, 1994, hence failing the essential duty to properly investigate and prepare his client's defense. The preliminary hearing was held for the purpose of determining whether there was probable cause to bind the defendant over to the jurisdiction of the Cuyahoga County Common Pleas Court. During this hearing, only Officer Walton of the Cleveland Police Department testified to comments made by Takeia Whittaker during an interview with a sex abuse social worker. Officer Walton was observing the social worker's interview through a two-way mirror. During this interview, Takeia Whittaker recounted her allegations against defendant, telling a slightly different version (but not of - 15 - the rape) than the stories she previously told to her father and the police. Appellant contends that his trial counsel was wholly unaware of this hearing due to his failure to properly prepare his case. However, a thorough review of the record shows that appellant's contention is without merit. Near the end of his cross-examination of Takeia Whittaker, defense counsel made a motion for an in-camera inspection of 1 Officer Walton's report pursuant to Crim.R. 16. Crim R. 16(g) provides the following: (g) Upon completion of a witness' direct examination at trial, the court on motion of the defendant shall conduct an in camera inspection of the witness' written or recorded 1 The transcript of the May 19, 1994, preliminary hearing reveals the following: PUBLIC DEFENDER: Was the child's statement reduced to writing ? OFFICER WALTON: Yes, yes, I have a report of what she said. PUBLIC DEFENDER: Was the child's statement made in the presence of her aunt? OFFICER WALTON: No, sir. PUBLIC DEFENDER: Did the child sign the statement? OFFICER WALTON: No, sir. PUBLIC DEFENDER: Was it read to her? OFFICER WALTON: No, sir. PUBLIC DEFENDER: But the statement is recorded in the Prosecutor's file, is it? OFFICER WALTON: Yes, sir. The Prosecutor has a copy of my report. PUBLIC DEFENDER: Summary? OFFICER WALTON: Yes. PUBLIC DEFENDER: Summaries of the child's statement? OFFICER WALTON: Yes. - 16 - statement with the defense attorney and prosecuting attorney present and participating, to determine the existence of inconsistencies, if any, between the testimony of such witness and the prior statement. If the court determines that inconsistencies exist, the statement shall be given to the defense attorney for use in cross-examination of the witness as to the inconsistencies. It was this report that defense counsel attempted to use in order to show the discrepancies within Takeia's testimony. However, the record shows that the following side-bar conference was conducted before the judge in regard to defense counsel's motion: MR. D'ANGELO: Your honor, pursuant to Rule 16, it is my understanding that this witness made a verbal statement and she was interviewed by representatives of the Cleveland Police Department, and a summary of what she told the police is contained in the police report; although, I think because of her age she didn't sign anything. I ask the Court for an in camera - - Rule 16 in camera review of their document. THE COURT: Okay. MR. D'ANGELO: It's also my understanding there might be something exculpatory in there. THE COURT: Do you have a written statement by this child? PROSECUTOR: No. THE COURT: Her statement she signed indi- cating -- PROSECUTOR: No. - 17 - THE COURT: You have an oral statement given to a police officer? PROSECUTOR: Yes, sir. THE COURT: That's not her statement, so I will not make him produce that; however, if there is something exculpatory or if you think could be considered exculpatory -- PROSECUTOR: I'll tell the Court now, your Honor, the only thing in the statement is, "The victim also states that her cousin's daughter of the boyfriend's girlfriend, one Desirre Whittaker, was also raped by the suspect the same day she was." After this side bar, the judge denied defense counsel's Crim.R. 16 motion. We find that the trial judge properly denied the admission of Officer Walton's report under Crim.R. 16 as it was not a prior statement of the witness. It had not been read to her, signed by her or signed by her guardian and therefore merely represented the recollection of Takeia's words by Officer Walton as he observed through the two-way mirror. Therefore, we find that a review of the record shows that appellant's trial counsel was well aware of the facts adduced at the preliminary hearing and, in fact, attempted to introduce these very facts in order to cross-examine Takeia. The record further shows that defense counsel very thoroughly cross-examined all the state's witnesses in regard to the various discrepancies within - 18 - their version of the crime. Therefore, we hold that appellant was not denied his right to effective assistance of counsel as his counsel adequately and appropriately prepared his client's defense. Accordingly, appellant's second assignment of error is not well taken. C. In his third assignment of error, appellant contends that the competency hearing held by the trial court was insufficient as a matter of law and amounted to an abuse of discretion. "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. In State v. Frazier (1991), 61 Ohio St.3d 247, the Supreme Court of Ohio set forth the test to be applied when a child under the age of ten is to be a witness at trial: In determining whether a child under ten is competent to testify, the trial court must take into consideration (1) the child's ability to receive accurate impressions of fact or to observe acts about which he or she will testify, (2) the child's ability to recollect those impressions or observations, (3) the child's ability to communicate what was observed, (4) the child's understanding of the truth and falsity and (5) the child's appreciation of his or her responsibility to be truthful. In the present case, the trial court conducted a competency hearing prior to Takeia's testimony. During this hearing, both - 19 - defense counsel and the prosecution were present. The record reveals that the trial judge elicited from Takeia her age, birthplace and grade in school. In addition, the trial court ascertained that Takeia understood the difference between the truth and a lie and that you get in trouble if you lie. Takeia also stated that the reason she was in court was "[t]o testify for Terrance Tucker." In addition, Takeia stated that she would tell the truth about what happened. At the end of the trial court's questioning, neither defense counsel nor the prosecutor posed any questions for Takeia. The trial court satisfactorily inquired of the child in a manner sufficient to determine the necessary prongs of Frazier, supra. Our review of the competency hearing fails to show that the trial court abused its discretion in finding Takeia competent to testify. Accordingly, appellant's third assignment of error is not well taken. D. In his fourth assignment of error, appellant contends that the jury verdict finding him guilty of rape in violation of R.C. 2907.02 was against the manifest weight of the evidence. In determining whether the decision of a trial court is against the manifest weight of the evidence, the following factors are guide- lines to be taken into account by the reviewing court: - 20 - (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. The court, reviewing the entire record, weights the evidence and all reasonable inferences, considers the credibility of the witnesses and determine 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; State v. Martin (1983), 20 Ohio App.3d 172, 175. In the present case, appellant was charged with violation of R.C. 2907.02, which states, in pertinent part, as follows: (A) (1) No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when any of the following applies: * * * (b) The other person is less than thirteen years of age, whether or not the offender knows the age of the other person. - 21 - The entirety of the case rests upon the credibility of the witnesses. Due to the oral nature of the act, there can be no physical evidence upon which the trier of fact could give weight or rely. Instead, the state presented the testimony of Takeia Whittaker. Takeia testified that appellant took his hand and made her lick his penis. Takeia also told this story to both her father, Kenneth Whittaker, and the investigating police officer, Patrolman Byrd. Both of these men testified that Takeia told them that appellant made her suck his penis. Appellant contends that the variations in Takiea's accounts both on the stand and to the two other witnesses proves Takeia's testimony is "not worthy of belief." We do not agree. One very clear fact is not clouded by the minor discrepancies in Takeia's testimony: Each time she was asked to recount the story as to the rape, she stated that while she was over at her Aunt Dizzy's home, appellant took her head and made her suck his penis. Whether the act occurred upstairs or downstairs is definitely a contradicted issue but one of minor concern. The testimony of all of the state's witnesses clearly shows that (1) on a warm day (2) in her Aunt Dizzy's apartment, (3) when Takiea was only nine years old, (4) appellant took Takeia's head and made her suck his penis. We find that this evidence, if believed by a jury, is sufficient to satisfy all of the necessary elements to warrant a conviction of rape by force of a person under the age of thirteen in violation of R.C. 2902.07. - 22 - Therefore, we find that appellant's convictions are not against the manifest weight of the evidence as there existed sufficient evidence to prove all the essential elements of the crime beyond a reasonable doubt. Accordingly, appellant's fourth assignment of error is not well taken. Judgment affirmed. - 23 - 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 Cuyahoga County Court of Common Pleas 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. JAMES D. SWEENEY, P.J. JOSEPH J. NAHRA, J. CONCUR JUDGE AUGUST PRYATEL* *SITTING BY ASSIGNMENT: August Pryatel, retired Judge of the Eighth Appellate District. 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, .