COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70234 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION EUGENE JOHNSON : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION JANUARY 16, 1997 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. CR-324431 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES MICHAEL G. POLITO, ESQ. Cuyahoga County Prosecutor JOHN J. RUSSO, ESQ. MICHAEL D. HORN, Assistant Hildebrand, Williams & Farrell Prosecuting Attorney 21430 Lorain Road 1200 Ontario Street Fairview Park, Ohio 44126- 2125 Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, J., Defendant-appellant Eugene Johnson appeals from his conviction following a jury trial for the murder of Clifton Hudson with a firearm specification. Defendant contends that the trial court erred in permitting improper identification of the defendant where the previous photographic identification was unduly suggestive and unreliable; and in not declaring a mistrial for prosecutorial references to defendant as a member of a gang and evidence of improper communications with the jury respecting their personal safety and intimidation. We find no error and affirm. Clifton Hudson, Jr., age 19, was shot to death on February 10, 1995, on Strathmore Road in East Cleveland. The State's principal witness to the shooting was Tamika Harris, age 15, who was on her way home around 5:45 p.m. with her friend, Monique, when they heard gunshots. Monique ran off, but according to Tamika's testimony, she observed a boy shooting another boy. The victim was lying on the sidewalk and she heard five more shots as she stood up against the bridge. Ms. Harris said she saw a black four-by-four vehicle stopped on Strathmore at the time of the shooting. The assailant later identified by Ms. Harris as defendant Eugene Johnson, had come from the rear of the van toward the victim, after two shots were fired. After the last shots were fired, the black four-by-four - 3 - turned, sped off and turned right on Manhattan Avenue, almost hitting another car. At trial, Ms. Harris identified Eugene Johnson as the person she saw shoot and kill the unarmed victim on Strathmore. She stated that Johnson had a black gun in his hand; she observed him running by her to get to the black four-by-four which had slowed down after turning the corner onto Manhattan. She said Johnson ran toward the vehicle and that she did not see him thereafter. The vehicle then drove down Manhattan and turned onto Ardenall. Ms. Harris observed the victim lying on the ground. She said he yelled "Help" and that his eyeballs started rolling back up in his head. Ms. Harris further testified that she saw two black people in the Blazer. She said she observed defendant Johnson's face since it was light enough for her to see what was going on. The following day, Ms. Harris identified the black four-by- four at the East Cleveland Police Station. She was also shown three photographs by Detective Perry of the East Cleveland Police Department. She immediately identified the photograph of Eugene Johnson as the one who shot Hudson from among the three photos without advice as to whom to pick. Ms. Harris was able to identify Johnson's down jacket which was a Nautica brand. It is similar looking to a down Tommy Hilfiger jacket, which she had previously described in a statement to police. Eugene Johnson's down-filled Nautica jacket is maroon, blue and green in color. She also identified - 4 - Johnson's hooded sweatshirt. Upon cross-examination, Ms. Harris testified that she made a written statement describing Johnson's clothing before she was shown his clothing and before she saw his photograph. East Cleveland Detective Vincent Johnstone testified that he conducted an Atomic Absorption test on co-defendants Wheat and Johnson around 2:00 or 3:00 a.m. after they were arrested as suspects on February 11, 1995. Detective Johnstone swabbed the hands of these two defendants with a Q-tip swab. These swabs, along with ones from co-defendant Glover, were then sent to the Cuyahoga County Coroner's Office. Sharon Rosenberg of the coroner's office testified that she received and analyzed the swabs from the East Cleveland police. The swabs collected from the palm and back of both hands of defendant Wheat were consistent with gunshot residue indicating that he had fired a weapon, or his hands were very close to a weapon being fired. The gunshot residue found on Wheat's hands was not caused by a source other than gunshot residue because of the quantity of antimony and barium. The other two co- defendants' hands tested negative for gunshot residue. However, a pair of gloves found in the pocket of Eugene Johnson's jacket were analyzed by Ms. Rosenberg with the Atomic Absorption Kit. The palm of the left glove was consistent with gunshot residue. The palm of the right glove was inconclusive regarding gunshot residue. - 5 - The Cleveland Indians jacket belonging to defendant Wheat was analyzed and found to have nitrite particles on the left sleeve, indicating, according to Rosenberg, that the sleeve was exposed to gunshot residue. There was no reaction on defendant Johnson's or Glover's jacket. The hands of the victim were negative for gunshot residue. By examining the victim's jacket, Ms. Rosenberg concluded that the muzzle to target distance was greater than two to three feet on all but one of the four bullet holes. One shot was fired within two feet of the victim. Patrolman Jamie Tavano testified that he was called to the murder scene at about 6:00 p.m. while it was still light out. He found the victim dead and lying on his back on the west sidewalk in front of 1706 Strathmore. Officer Tavano spoke with Reginald Longino, Mike Wilson and Eric Reed on the scene. They informed the officer they only heard the gunshots and did not witness the actual shooting. Longino told the officer that before hearing the gunshots, he saw the victim arguing with a man wearing a blue coat. Tavano spoke to a young black female on the scene who had pertinent information so he directed the detective to speak with her. The suspect vehicle was described as a black Bronco or Blazer type vehicle. Later that evening, Officer Tavano observed a similar vehicle parked in the driveway at 1836 Knowles, not far from where the victim was murdered. Upon seeing the vehicle, Officer Tavano called the detectives. - 6 - East Cleveland Detective Michael Perry testified he responded to Strathmore to investigate the shooting. Detective Perry received information that the suspect vehicle was a black Blazer driven by Glover which was located on Knowles at approximately 10:00 p.m. that evening. The police followed the Blazer to Ardenall where Wheat and Glover were arrested in front of Wheat's house. The vehicle was taken to the police garage. According to Detective Perry, defendant Wheat was wearing a Cleveland Indians jacket at the time of his arrest. Defendant Johnson was arrested at his home on Ardenall and his blue, green and maroon Nautica jacket was taken from him at the police station. The down jacket contained the pair of gloves which the BCI tested for lead residue. A sweatshirt was also taken from Johnson. Perry stated that the day after the shooting, he showed Tamika Harris a photo array. He handed her three photographs of Wheat, Glover and Johnson, but did not tell her which one to pick. Harris did not hesitate in identifying the photo of Johnson as the male that did the shooting on Strathmore. She also identified Johnson's Nautica jacket and sweatshirt and the black four-by-four Blazer belonging to Wheat which was later processed by BCI. At the request of the East Cleveland police, a special agent with the Ohio Bureau of Criminal Investigation (BCI) processed the black GMC Jimmy truck for gunshot residue. He took blotter - 7 - paper and applied it to various interior and exterior areas of the vehicle to collect lead and nitrate samples from the surface. An expert forensic scientist and firearms examiner for BCI analyzed the five blotter sheets submitted. He found lead residue on the blotter sheets from the interior of the vehicle, and on the blotter sheet from the exterior area below the passenger side window. He testified that the lead residue was consistent with a firearm having been fired. East Cleveland Detective Johnstone was again brought to the stand and testified that he assisted in the arrest and processing of the defendant. He took Derrick Wheat's oral statement at the station. According to Johnstone, Wheat told the police that on February 10, 1995, at about 5:30 p.m., his friend, defendant Laurese Glover, was driving him home in a black two-door Chevy Blazer. Wheat was seated in the front passenger seat and co- defendant Eugene Johnson, another friend, was seated in the back seat of the Blazer. As they were proceeding northbound on Strathmore approaching Manhattan, they observed the victim being shot five times by a young, tall, slender male wearing a dark blue coat. They continued down Strathmore and turned right on Manhattan and drove to Shaw Avenue where Glover parked and walked to his girlfriend's house across the street. Wheat and Glover met up later that night and went to Wheat's home where they were arrested. - 8 - Detective Johnstone also testified to Laurese Glover's oral statement in which he corroborated Wheat's version of the shooting. Glover described the shooter as a tall, slim black male wearing blue jeans and a dark hooded sweatshirt under a blue coat. Glover told police that after observing the shooting he turned right on Manhattan almost striking a vehicle and drove to 14519 Shaw Avenue, parked and then went to his girlfriend's house on Shaw Avenue. After spending several hours with his girlfriend, Glover drove to his apartment on Knowles. Wheat came over around 11:30 p.m. and they both decided to go to Wheat's house. Upon arriving at Wheat's house they were arrested. They told the police where Johnson lived. Detective Johnstone also testified to defendant Johnson's oral statement. Defendant Johnson told police that on February 10, 1995, he was with Laurese Glover and Derrick Wheat. They spent the afternoon smoking marijuana. He corroborated the statements of Wheat and Glover as to the Blazer trip and observing the shooting. He stated that he observed a tall, slender male wearing a dark brown jacket with a gun, shoot the victim. They continued to where Johnson was dropped off at his home. Johnson told police that at about 2:00 a.m. on the morning of February 11, 1995, Wheat's father called Johnson's home to talk to him about the shooting incident and to find out if Wheat was involved. - 9 - Leroy Malone testified on behalf of defendant Johnson. He has known all three defendants since they were in kindergarten as they lived in the neighborhood. Malone stated that he was parking his truck on Ardenhall, a street over from the murder scene, when he heard five gunshots. He then observed a black Ford Bronco with tinted windows driving towards him with three men inside and saw another man running behind the vehicle. He could see the side of the man's face as he was running and he testified that the man running behind the vehicle was not Johnson, as he was lighter skinned then Johnson and shorter. The man stopped, put something in his pants, then ran down Shaw Avenue. He never got into the vehicle. The vehicle drove right past Malone and he was able to look through the windshield. He saw three people in the truck who resembled the three defendants, but he could not say for sure if it was, in fact, the three defendants. His neighbor, Mr. Hunt, told him that it was Wheat, Johnson and Glover in the truck. He said the vehicle continued to drive about a half block down the street where it parked. He testified he had no reason to believe the vehicle had anything to do with the gunshots. He admitted the vehicle shown to him by the police was the same one he saw driving down the street. Eric Reed testified on behalf of Derrick Wheat. He lived on Strathmore at the time of the murder. He stated that he was watching T.V. upstairs when he heard gunshots. He looked out the window and saw a guy standing over a man lying on the ground and - 10 - was going through his pockets. He said he then went downstairs to another window, which was about four feet away from the men, to get a better look. After the man ran, Reed then when out to check on the man lying on the ground. Reed described the man who was standing over the body as a light skinned black male, about 5'11" in height, wearing a dark jacket with a hooded sweatshirt. He stated that none of the defendants resembled the man he saw. He also stated that he did not notice any vehicle. He said he did not describe the man to the police because they never asked. The three defendants, Johnson, Wheat and Glover were tried together and each found guilty of murder. Defendant Johnson filed a timely appeal from his conviction. We will address the assignments of error in the order asserted. I. THE TRIAL COURT ERRED IN ADMITTING EVIDENCE REGARDING EYEWITNESS IDENTIFICATION WHERE THE PHOTOGRAPHIC IDENTIFICATION PROCEDURE WAS IMPERMISSIBLY SUGGESTIVE AND UNRELIABLE. Defendant Johnson claims that the identification procedure used by the police in getting Tamika Harris to identify the assailant was suggestive and unreliable. There is no evidence on the record to indicate that Tamika Harris was given any suggestion or help by the police when she chose defendant's photo out of the three photo array. However, defendant claims that because defendant wore the same jacket at the time of his arrest when his photo was taken as he wore at the time of the shooting, the array was impermissibly suggestive. Defendant further argues - 11 - that, because Ms. Harris originally stated in her first written statement to police that she did not see his face that clearly, it was impermissively suggestive to show her the photo array. A review of the record does not indicate that defense counsel moved to suppress the photographic identification and there was no objection to the evidence at trial. The failure to file a motion to suppress constitutes a waiver of any error in admitting the statements. Crim.R. 12(C) and (G); State v. Wade (1978), 53 Ohio St.2d 182, paragraph three of the syllabus; State v. Moody (1978), 55 Ohio St.2d 64, 66. In the interest of justice, however, we will address the defendant's argument. Reliability is the basis for determining whether identification evidence is admissible. Manson v. Braethwaite (1977), 432 U.S. 98, 114. The United States Supreme Court has set forth five factors to be considered in evaluating reliability as follows: *** [T]he opportunity of the witness to view the criminal at the time of crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. *** Neil v. Biggers (1972), 409 U.S. 188, 199-200; see, also, State v. Jells (1990), 53 Ohio St.3d 22, 27, cert. denied (1991), 112 S.Ct. 1020. Before determining reliability pursuant to Neil v. Biggers, supra, the court must first determine if the identification - 12 - procedures used were impermissibly suggestive. State v. Merrill (1984), 22 Ohio App.3d 119, 122. The defendant has the burden to show the court that the identification procedures were unnecessarily suggestive. State v. Sims (1984), 13 Ohio App.3d 287, 288. Moreover, even suggestive identification procedures do not preclude admission where the identification itself is determined to be reliable. State v. Moody (1978), 55 Ohio St.2d 64, 67; State v. Bogan (April 25, 1991), Cuyahoga App. No. 58271, unreported. The focus, under the "totality of the circumstances" approach, is upon the reliability of the identification, not the identification procedures. State v. Lott (1990), 51 Ohio St.3d 160, 175, 555 N.E.2d 293, 308: Manson v. Braithwaite (1977), 432 U.S. 98, 114. ("*** reliability is the linchpin in determining the admissibility of identification testimony ***.") *** State v. Jells, supra at 27. (Emphasis in original) In the case sub judice, defendant can demonstrate neither suggestive identification procedures nor unreliable identification. State v. Nelson (July 3, 1991), Cuyahoga App. No. 58813, unreported; State v. Jones (July 2, 1992), Cuyahoga App. No. 60106, unreported. Notwithstanding the use of an earlier suggestive identification procedure, in-court identification is admissible where the State shows, by clear and convincing evidence, that the in-court identification has its origin in observation independent from pretrial identification. State v. Merrill, supra at 122. - 13 - Tamika Harris identified Eugene Johnson in court as the person she saw shoot and kill the victim on Strathmore. She said she saw him with a black gun in his hand. She observed him running by her to the black four-by-four Chevy Blazer. It was light enough for her to see what was going on and she observed the defendant's face. The following day after the murder Ms. Harris was handed a group of photographs at the police department without being told which one to pick. She immediately chose the photograph of Eugene Johnson as the shooter, because "that was the person I seen, and he had on the exact same coat and clothing that I had seen." (Tr. 906). Ms. Harris was also able to identify the defendant's down jacket which was a Nautica brand that looks similar to the Tommy Hilfiger brand mentioned in her first statement. The defendant's down-filled Nautica jacket is maroon, blue and green in color. Although she initially described the jacket as red and blue, the difference between the colors red and maroon is not that significant to cast doubt on her identification. She also identified defendant's black hooded sweatshirt. She described defendant's clothing before it was shown to her by the police. The eyewitness identification of defendant by Harris was reliable based on the opportunity to view the defendant, the accuracy of her description, the length of time between the crime and the identification, and the certainty demonstrated by her at - 14 - the time of the identification. These are the factors to determine the reliability of the identification. State v. Waddy (1992), 63 Ohio St.3d 424, 439, citing Neil v. Biggars (1972), 409 U.S. 188, 196. No due proces violation will be found where an identification does not stem from an impermissibly suggestive confrontation but is instead the result of observations at the time of the crime. Coleman v. Alabama (1970), 399 U.S. 1, 5-6. We find no evidence of suggestiveness that would impair the reliability of the witness's identification. Assignment of Error I is overruled. II. THE TRIAL COURT ERRED IN NOT DECLARING A MISTRIAL WHERE PROSECUTORIAL MISCONDUCT OCCURRED AS A RESULT OF PROSECUTOR'S STATEMENTS DURING VOIR DIRE, OPENING STATEMENTS, AND TRIAL THAT DEFENDANT WAS A MEMBER OF A GANG AND NO EVIDENCE WAS PRESENTED ON THIS ISSUE. Defendant alleges that the State engaged in prosecutorial misconduct preventing defendant from having a fair trial. We recently set forth the standard for prosecutorial misconduct in State v. Gest (1995), 108 Ohio App.3d 248, 257 as follows: Appellant argues in this assignment that numerous instances of prosecutor misconduct occurred during cross-examination of defense witnesses and during closing argument, thereby denying him a fair trial. In evaluating claims of prosecutorial misconduct, "we must remember that 'the touchstone of analysis "*** is the fairness of the trial, not the culpability of the prosecutor." *** The Constitution does not guarantee an "error free, perfect trial."'" State v. Hall (Aug. 3, 1994), Montgomery App. - 15 - No. 13805, 1994 WL 409639, unreported, quoting State v. Landrum (1990), 53 Ohio St.3d 107, 112, 559 N.E.2d 710, 718. Additionally, the following must be kept in mind by a reviewing court: "The Supreme Court set forth the standard in evaluating a claim of prosecutorial misconduct in State v. Keenan (1993), 66 Ohio St.3d 402, 613 N.E.2d 203, as follows: "'*** The prosecutor carries into court the prestige of "the representative *** of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest *** is not that it shall win a case, but that justice shall be done. *** Consequently, improper suggestions, insinuations and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none." Berger v. United States (1935), 295 U.S. 78, 88, 79 L.Ed. 1314, 55 S.Ct. 629[, 633] ***.' Id. at 406 [613 N.E.2d at 207.] "At the same time, this court must remember that the conduct of a prosecuting attorney during the trial cannot be grounds for error unless the conduct deprives the defendant of a fair trial. See State v. Apanovitch (1987), 33 Ohio St.3d 19, 24, 514 N.E.2d 394 [400]. In State v. Gillard (1988), 40 Ohio St.3d 226, 533 N.E.2d 272, the Ohio Supreme Court found that a cross-examiner may ask a question if the examiner has a good-faith belief that a factual predicate for the question exists." State v. Pond (Feb. 16, 1995), Franklin App. No. 94APA07-1007, unreported, 1995 WL 68076; see, also, State v. Maurer (1984), 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768. The State made a statement concerning the defendant's gang membership during voir dire. At that point, the State told potential jurors that they would decide whether or not the - 16 - defendants are gang members. Upon objection, the court then instructed the jurors that: Evidence is not what the lawyers discuss with you during this voir dire. So there is a question that may be determined by you at some later date as to whether or not any of the defendants are, or are not members of any group. But that is for your determination. If it becomes a disputed fact or testimony. And I don't know whether it will or it won't. But anything that the lawyers say during the course of voir dire, and their opening statements, and closing arguments is not evidence. The evidence is what will transpire from the witness stand. (Tr. 91). The court's instruction during voir dire was proper and we find no error. "A jury is presumed to follow the instructions, including curative instructions, given it by a judge. State v. Garner (1995), 74 Ohio St.3d 49, 59. It should be noted that defendant's attorneys also voir dired the jury concerning their feelings concerning gangs, a recognition on their part that the issue may arise in the case and appropriate for voir dire. Defendant claims that the prosecution made a statement regarding the defendant's gang affiliation in opening argument. The statement defendant refers to is the prosecutor's stating, "Mr. Wheat was wearing a Cleveland Indians Jacket, in which I will show some significant (sic) a little later on." This hardly can be prejudicial as the statement could easily have been interpreted to mean that a man wearing an Indian's jacket was identified or that it was found to have gunshot residue on it. - 17 - Furthermore, no objection was made to the statement, therefore, any error is waived. During trial, the prosecutor asked Detective Perry whether he was "familiar with gang activity within the city?" Objection was made and sustained. The trial court further instructed the jury to disregard the question. As noted, a presumption exists that the jury has followed the instructions given to it by the trial court. State v. Gardner, supra. We find no harm, in any event, given the significant evidence supporting defendant's conviction. See State v. Buffard (Oct. 26, 1995), Cuyahoga App. No. 68227, unreported at 2. Assignment of Error II is overruled. III. THE TRIAL COURT ERRED IN NOT DECLARING A MISTRIAL WHERE THERE WAS SUBSTANTIAL EVIDENCE THAT IMPROPER THIRD PARTY COMMUNICATIONS WITH JURORS RESULTED IN JURORS' CONCERN ABOUT PERSONAL SAFETY AND INTIMIDATION, WHICH PREJUDICED THE DEFENDANT'S RIGHT TO BE TRIED BY A FAIR AND IMPARTIAL JURY. Defendant claims that his rights were violated when the trial court, with permission of defense counsel, spoke with the jury concerning their personal safety. The jury sent the following message to the trial judge during deliberations: There are personal concerns relating to protection and safety. We need to speak to the judge privately - not in open court. This note was signed by the jury foreman. The Court spoke to the jury in the deliberation room with the consent of the prosecutor and all defense counsel. The Court put on the record - 18 - that one of the jurors informed him that during lunch break one of the defendants said hello to her while in line in the cafeteria. The juror said hello to the defendant, who was not identified and no further discussion was had. (Tr. 1355-56). The Court put on the record the discussion that took place between the jurors and himself: THE COURT: Now, the Court essentially informed the jurors that they were to decide this case solely on the evidence and the law that was presented at trial. After the discussions, all twelve jurors informed the Court, that they could follow their oath and that they could decide this case solely on the evidence presented, and the laws that I gave them. (Tr. 1356-57). At trial, defense counsel moved for a mistrial based on the fact that because the jury felt intimidated it would be biased. No one based their motion for mistrial on the trial judge's ex parte communication with the jury. The prosecutor did not, as defendant contends, indicate in opening statement that all the defendants were members of a gang. Possible gang involvement was mentioned during voir dire and the Court admonished the jury at that time that evidence is not what the lawyers discuss with you during their voir dire. (Tr. 91). Since defense counsel acquiesced in the trial court's speaking with the jurors off the record, a waiver precludes an alleged error from being raised on appeal unless the error amounts to plain error under Crim.R. 52(B). State v. Swanson - 19 - (1984), 16 Ohio App.3d 375, 377. We find no evidence of same here. The United States Constitution does not require a new trial "every time a juror has been placed in a potentially compromising situation *** [because] it is virtually impossible to shield jurors from every conduct or influence that might theoretically affect their vote." State v. Phillips (1982), 455 U.S. 209, 217. A holding that an unrecorded ex parte communication between trial judge and juror can never be harmless error ignores the day-to- day realities of courtroom life, and undermines society's interest in the administration of criminal justice. Rushen v. Spain (1983), 104 S.Ct. 453. There is nothing in the record to indicate that the jurors' concern for their safety tainted their verdict. In State v. Phillips (1995), 74 Ohio St.3d 72, 88-89, the Ohio Supreme Court held that the defense must prove that the juror was biased. The Court also held that in cases involving outside influences on jurors, trial courts are granted broad discretion in dealing with the contact and determining whether to declare a mistrial or to replace an affected juror. Id. at 89. "Mistrials need be declared only when the ends of justice so require and a fair trial is no longer possible." State v. Franklin (1991), 62 Ohio St.3d 118, 127. A mistrial should not be granted merely because some minor error or irregularity had arisen. State v. Blakenship (1995), 102 Ohio App.3d 534. Here, the jury informed the judge - 20 - that they would be able to decide the case impartially. "A juror's belief in his or her own impartiality is not inherently suspect and may be relied upon by the trial court." State v. Phillips, supra at 89. The trial court dealt with the incident with the jury and counsel in an appropriate manner. We find no abuse of discretion in the court's denial of the motion for mistrial. Assignment of Error III is overruled. Judgment affirmed. 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 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. SPELLACY, C.J., and TIMOTHY E. McMONAGLE, J., CONCUR. JAMES M. PORTER JUDGE - 21 - N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .