COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71578 STATE OF OHIO : : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION LLOYD LANGSTON : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 12, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-337960. JUDGMENT: AFFIRMED IN PART AND VACATED IN PART. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Deborah Naiman, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Robert M. Ingersoll, Esq. Assistant Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, OH 44113 *HOLMES, J.: Lloyd Langston, defendant-appellant, appeals his conviction in -2- the Cuyahoga County Court of Common Pleas on ten counts of Rape of a child in violation of R.C. 2907.02. Defendant-appellant raises five errors for review. For the following reasons, defendant- appellant's conviction is affirmed in part and vacated in part. On April 24, 1996, defendant-appellant was indicted on ten counts of Rape of a child under the age of thirteen during the period between January of 1993 and December of 1995. All counts contained a violence and an aggravated felony specification. Defendant-appellant pled not guilty to all counts. On September 24, 1996, a jury trial began. The state presented five witnesses. After a competency hearing, the State called nine-year-old Ronald Warren as its first witness. After identifying defendant-appellant as the man who occasionally lived in the house with himself and his mother, Ronald testified that defendant-appellant sexually abused him on a number of occasions beginning in January of 1993. Ronald also testified, among other things, that defendant-appellant warned him that if he told anybody, he would kill Ronald's entire family. The State called Dr. Mireille Boutry who is affiliated with Rainbow Babies and Children's Hospital. Dr. Boutry has been a physician for approximately twenty-one years and has received special training in the physical assessment of sexual abuse cases. On April 25, 1996, Dr. Boutry examined Ronald Warren and testified that the exam neither confirmed nor ruled out sexual abuse. Dr. Boutry also testified that cultures were taken for a number of sexually transmitted diseases. The results were all negative. -3- The State also called Yvette Stephens, the mother of Ronald, to testify. Ms. Stephens stated that while her relationship with defendant-appellant had never been intimate, defendant-appellant would spend the night occasionally. Moreover, she testified that defendant-appellant babysat her children a number of times. Ms. Stephens testified that on Easter Sunday of 1996, defendant-appellant was going to babysit for her while she was in school. As she was getting ready, Ms. Stephens testified that Ronald came into her bedroom and asked if he could talk to her. She testified that Ronald seemed very nervous and very serious. She testified that Ronald told her defendant-appellant had been having sex with him since 1992 or 1993. After comforting her child, Ms. Stephens called the police. When the police arrived, they questioned both Ronald and defendant- appellant. The police arrested defendant-appellant. Ms. Stephens subsequently took Ronald to Rainbow Babies and Children Hospital for counseling. The State called Ronald's eleven-year-old sister, Rhonda, to the stand who testified that on Easter Sunday of 1996, she went upstairs and heard people crying downstairs. When she went downstairs, she saw her mother and Ronald crying in the living room. Her mother was calling the police. Rhonda testified that she took her brother into the dining room and had a conversation. At that time, Ronald was crying and tearing up a stuffed animal. The State's final witness was Officer Thomas Horsman of the Cleveland Police Department. Officer Horsman testified that after -4- receiving the radio broadcast on Easter Sunday, 1996, he went to the home of Ms. Stephens. The officer testified that Ronald Warren told him defendant-appellant had sexually abused him approximately ten times between January, 1993 and December, 1995. The officer proceeded to arrest defendant-appellant at that time. Defendant-appellant presented the testimony of several witnesses in an effort to establish that he was not staying overnight at Ms. Stephens' home during the period in which he was accused of sexually molesting the victim. Regina Shanklin testified defendant-appellant stayed with her on and off in 1995 and lived with her for pretty much the whole month of December 1995. She also testified that when defendant-appellant was not staying with her, he would stay with his aunt, Olive McGowan. Lisa McGowan testified that defendant-appellant stayed with her from June, 1994 until January, 1995. He also stayed with her from July, 1995 until the end of October or beginning of November, 1995. She testified that he did not live there continuously but would come and go. More specifically, she testified defendant- appellant would be gone about two times a week. Anita Houston testified that defendant-appellant stayed at her house most of the time from September of 1993 until February or March of 1994. Near the end of his stay, defendant-appellant would go out and not come home. Finally, Olive McGowan testified that from January of 1995 until June of 1995, sometime in 1994, and a couple of months in -5- 1993, defendant-appellantlived with her at her house. On occasion, defendant-appellant would sleep over at his girlfriend Regina's house. On cross-examination, Mrs. McGowan admitted she had been speaking in the hallway with other defense witnesses about the dates involved in the case. On October 16, 1996, the jury came back with a finding of guilty on all ten counts of rape as charged in the indictment. Defendant-appellant was sentenced to an indefinite term of life on each count with counts one through nine running consecutive and count ten running concurrently with credit for time already served. Defendant-appellant now appeals his conviction. In his first assignment of error, Lloyd Langston, defendant- appellant states: I. LLOYD LANGSTON WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL, WHEN THE TRIAL COURT IMPROPERLY RULED THAT A CHILD OF LESS THAN TEN YEARS OF AGE WAS COMPETENT TO TESTIFY. Defendant-appellant argues the trial court committed prejudicial error when it permitted the testimony of the victim who was nine-years-old at the time of the trial. Defendant-appellant argues the trial court failed to make the prerequisite findings as set forth in State v. Frazier (1991), 61 Ohio St.3d 247. Specifically, he argues the court failed to inquire as to whether the child could accurately perceive and recall the incident in question and communicate it. Moreover, defendant-appellant argues that the child's testimony was shaped and molded by other people. For example, the victim testified that he had been sexually abused -6- and molested which were not his words, but that of a counselor who had worked with him. Evid.R. 601(A) provides: Every person is competent to be a witness except: (A) Those of unsound mind, and children under ten years of age, who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating to them truly. -7- This rule requires that a competency hearing be conducted with regard to children under ten years of age. State v. Said (1994), 71 Ohio St.3d 473. In Schulte v. Schulte (1994), 71 Ohio St.3d 41, 43. The Ohio State Supreme Court stated the following with regard to competency hearings of children under ten years of age: This court recently has clarified what a trial court must consider in making a competency determination under Evid.R. 601(A): 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 truth and falsity and (5) the child's appreciation for his or her responsibility to be truthful. State v. Frazier (1991), 61 Ohio St.3d 247, 574 N.E.2d 483, syllabus. The Rules of Evidence, subject to certain exceptions not applicable here, apply equally to both criminal and civil matters. Evid.R. 101(A). Consequently, even though Frazier involved determination of competency in the criminal context, the interpretation we made in Frazier applies with equal weight to the use of the rule in the civil context. A trial court is not required, while making a competency determination, to make express finding on the considerations outlined in Frazier. Such a requirement would unduly burden our trial courts with unnecessary formality. Instead, the trial court is merely required to consider the Frazier factors while making the competency determination. The Frazier factors play a slightly different role in the hands of a court reviewing the competency determination. As we noted in Frazier, the determination of competency is within the sound discretion of the trial judge. 61 Ohio St.3d at 251, 574 N.E. 2d at 486-487. See, also, State v Boston (1989), 46 Ohio St.3d 108, 115, 545 N.E.2d 1220, 1228. The Frazier factors form the backdrop against which a reviewing court evaluates whether the trial judge's determination was an abuse of discretion. After a review of the competency hearing transcript, we find -8- the trial court did not abuse its discretion in finding Ronald Warren competent to testify. Contrary to defendant-appellant's assertions, Ronald was able to tell the court the address of where he lived and the name and location of the school he attended. Ronald communicated with the court regarding the classes he took and the grades he received. Ronald also demonstrated he understood the difference between a lie and the truth. Finally, Ronald demonstrated he understood his responsibility to answer questions truthfully during the courtroom proceedings. Consequently, we hold the trial court did not abuse its discretion in finding Ronald Warren competent to testify. In defendant-appellant's second assignment of error he argues: II. LLOYD LANGSTON WAS DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW BY HIS CONVICTION OF TEN RAPE COUNTS, WHICH WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE TO PROVE GUILT BEYOND A REASONABLE DOUBT. Defendant-appellant argues there was insufficient evidence supporting the majority of the ten separate convictions. Specifically, he argues the only admissible evidence establishing the number of times the victim had been raped was the testimony of the victim who stated that he was raped a number of times and/or that it happened more than once. As such, defendant-appellant argues the state only proved two incidents with counts three through ten being based upon mere speculation. We agree in part with defendant-appellant's assertions. In State v. Jenks (1991), 61 Ohio St.3d 259, the Ohio Supreme Court re-examined the standard of review to be applied by an -9- appellate court when reviewing a claim of insufficient evidence. An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed. State v. Jenks, supra, paragraph two of the syllabus. It is well established that a judgment will not be reversed upon insufficient or conflicting evidence if it is supported by competent credible evidence which goes to all the essential elements of the case. Cohen v. Lamko (1984), 10 Ohio St.3d 167. Where there is substantial evidence upon which the trier of fact has based its verdict, a reviewing court abuses its discretion in substituting its judgment for that of the jury as to the weight and sufficiency of the evidence. State v. Nicely (1988), 39 Ohio St.3d 147. Finally, we note that the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact to determine. State v. DeHass (1967), 10 Ohio St.2d 230. In this case, there is no question that the only admissible testimony concerning the number of times Ronald had been raped by defendant-appellant was the testimony of Ronald. While we agree with defendant-appellant that the testimony is not sufficient to support ten convictions of rape, we find that there exists sufficient evidence to support convictions on three counts of rape -10- of a child in violation of R.C. 2907.02. There is no dispute that Ronald testified he was raped a number of times, and that it happened more than once. We agree with defendant-appellant that this testimony, by itself, is sufficient to support only two counts of rape. However, Ronald also testified that he told his mother that every time when we used to live on Kinsman he would come into my room and he would molest me. Ronald then went on to testify: 1) that in 1993, he thought defendant-appellant lived with them on Kinsman for more than six months, 2) that in 1994, defendant-appellant lived in the -11- house about three months on and off, and 3) that the last time defendant-appellant stayed in the house was December of 1995. We find that this testimony, taken in light most favorable to the state, is sufficient to support three counts of raping a child in violation of R.C. 2907.02 (with aggravated felony and violence specifications). Therefore, in keeping with the trial court's sentence, defendant-appellant is sentenced to the Lorain Correctional Institution for an indefinite term of life on counts one through three to run consecutively. The guilty verdicts for counts four (4) through ten (10) are hereby vacated. Defendant-appellant argues as his third assignment of error: III. LLOYD LANGSTON WAS DENIED HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL BY THE IMPROPER ADMISSION OF HEARSAY EVIDENCE. Specifically,defendant-appellant argues that the trial court erred in permitting Ronald Warren's mother to testify that her son told her that defendant-appellant had sexually abused him in the past. Evid.R. 801(C) defines hearsay as a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted. It is well established that hearsay statements are not admissible into evidence except as otherwise provided by the Constitution of the United States, by the Constitution of the State of Ohio, by statute enacted by the General Assembly not in conflict with a rule of the Supreme Court of Ohio, by the Ohio Rules of Evidence, or by other rules prescribed by the Supreme Court of Ohio. Evid.R. 802. -12- In this case, the state argues the statements made by Ronald Warren's mother are admissible under two exceptions to the hearsay rule; Evid.R. 803(1) and/or Evid.R. 803(2). Evid.R. 803(1) reads: (1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter unless circumstances indicate lack of trustworthiness. The principle underlying this hearsay exception is the assumption that statements or perceptions, describing the event and uttered in close temporal proximity to the event, bear a high degree of trustworthiness. Cox v. Oliver Machinery Co. (1987), 41 Ohio App.3d 28. Moreover, the spontaneity of the statement is the key to the statement's trustworthiness. Id. At 36; State v. Wages (1993), 87 Ohio App.3d 780. In this case, the last incident of rape occurred in December of 1995 and Ronald made his statements approximately five (5) months later on Easter Sunday, April 7, 1996. Accordingly, the statements were not made while the declarant was perceiving the event or condition, or immediately thereafter. As such, the testimony of Ronald's mother concerning statements made by Ronald -13- cannot be admitted into evidence under the present sense exception to the hearsay rule. Evid.R. 803(2) reads: (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. In State v. Chappel (1994), 97 Ohio App.3d 515, this court stated the following regarding the excited utterance exception to the hearsay rule: The court stated in State v. Dickerson (1977), 51 Ohio App.2d 255, 5 O.O.3d 377, 367 N.E.2d 927, held that a statement does not qualify as an excited utterance unless it concerns an event sufficiently startling to render the normal reflective thought process inoperative and is a spontaneous reaction to the occurrence of the event and not the result of reflective thought. The Staff notes to Evid.R. 803(2) list factors which must be considered in determining whether a statement qualifies as an excited utterance: To qualify as an excited utterance considerationmust be given to (a) the lapse of time between the event and declaration, (b) the mental and physical condition of the declarant, (c) the nature of the statement and (d) the influence of intervening circumstances. The elements to be considered in determining what constitutes an excited utterance make it difficult for us to hold as a matter of law that thirty-two hours is too much time, especially for a nine-year old child. The Ohio State Supreme held in State v. Taylor (1993), 66 Ohio St.3d 295, 303, 612 N.E.2d 316, 322, that: -14- There is no per se amount of time after which a statement can no longer be considered to be an excited utterance. The central requirements are that the statement must be made while the declarant is still under the stress of the event and the statement may not be the result of reflective thought. Therefore the passage of time between the statement and the event is relevant but not dispositive of the question. `[E]ach case must be decided on its own circumstances, since it is patently futile to attempt to formulate an inelastic rule delimiting the time limits within which an oral utterance must be made in order that it be termed a spontaneous exclamation.' State v. Duncan [1978], 53 Ohio St.2d [215] at 219-220. 7 O.O.3d [380] at 383, 373 N.E.2d [1234] at 1237 ***. (Emphasis sic.) Yvette Stephens testified that on Easter morning of 1996, while driving from her sisters' house with her children, she picked up the defendant Langston and brought him back to her house so that he could babysit with the children while she was at school. According to Ms. Stephens when they all arrived at her home, Ronald followed her into her bedroom, and appeared very nervous and stressed. At that point Ronald told her that the defendant had been having sex with him since 1992 or 1993. As noted by this court in State v. Chappel, supra, regarding the excited utterance exception to the hearsay rule: The central requirements are that the statement must be made while the declarant is still under the stress of the event and the statement may not be the result of effective thought. Applying this criteria, Ronald's statement was triggered by what was, for him, a very traumatic event, i.e., learning that the man who had previously been sexually abusing him on a regular -15- basis, and from whom he had been free for the past three months was again going to be living in his home for a period of time while his mother was at school. This is the event that caused Ronald to make the spontaneous statement to his mother after he had followed her into her bedroom. Under the facts and circumstances of this case, when Ronald immediately after learning of the return of the defendant expressed himself to his mother, there was impactive thought on the part of Ronald rather than reflective thought. This would reasonably qualify as an exception to the hearsay rule under Evid.R. 803(2). Even if the testimony of Yvette Stephens was considered as hearsay, we conclude that in this case it would constitute harmless error. Errors relating to the trial court's admission of hearsay must be reviewed in light of Evid.R. 103(A) and the standard established in Crim.R. 52(A), providing that such errors are harmless unless the record demonstrates that the errors affected a party's substantial right. In determining that an error in the admission of evidence is harmless, the reviewing court must find that the error -16- complained of did not contribute to the verdict. State v. Smith (1979), 58 Ohio St.2d 344. After a review of the entire record, we find there exists sufficient evidence to support the jury's finding of guilt. Regardless of Ronald's mother's statements, Ronald testified in a credible and competent manner that he had been raped by defendant- appellant on at least three separate occasions. Moreover, Ronald was subject to extensive cross-examination. See State v. Self (1990), 56 Ohio St.3d 73. As such, Ronald's testimony, in and by itself, is sufficient to sustain the guilty verdicts. See e.g., State v. Smith (Jan. 25, 1996), Cuyahoga App. No. 68745, unreported. Accordingly, appellant's third assignment of error is hereby overruled. Defendant-appellant states as his fourth assignment of error: IV. THE TRIAL COURT DENIED LLOYD LANGSTON OF HIS CONSTITUTIONAL RIGHT TO A TRIAL BY JURY, WHEN IT GAVE IMPROPER INSTRUCTIONS, WHILE DEFINING THE LESSER INCLUDED OFFENSE OF SEXUAL BATTERY. Defendant-appellant argues he was denied a fair trial since the trial court failed to give proper instructions concerning the lesser included offense of sexual battery. Specifically, defendant-appellant argues the trial court improperly instructed the jury that to consider the lesser included offense of sexual battery, the jury must first find defendant-appellant not guilty of rape. Moreover, defendant-appellant argues the trial court completely failed to instruct the jury on the elements of the lesser included offense of sexual battery. Initially we note that under some circumstances, sexual -17- battery may be a lesser included offense of rape. See State v. Wilkens(1980), 64 Ohio St.2d 382; State v. Miller (1988), 44 Ohio App.3d 42. However, in this case, it is not necessary to determine whether sexual battery would be considered a lesser included offense to the charge of rape due to the defense put forth by defendant-appellant. It is well established that a charge of a lesser included offense is required only where the evidence presented at trial would reasonably support both an acquittal of the crime charged and a conviction upon the lesser included offense. State v. Thomas (1988), 40 Ohio St.3d 213, paragraph two of the syllabus. In this case, through the testimony of several defense witnesses, defendant-appellant argued he could not have raped the child because he was not present at the victim's house. In such instances, where the jury is presented with a complete defense as to all substantive elements of the crime charged, the trier of fact is prohibited from considering a lesser included offense. The reasoning behind this rule of law is that if the jury believed defendant-appellant's defense, there could be no possible way to find him guilty of the lesser included offense of sexual battery. See State v. Gates (1981), 2 Ohio App.3d 485; State v. Mangus (Feb. 8, 1996), Cuyahoga App. No. 68679, unreported; State v. Kouzelos (April 16, 1992), Cuyahoga App. No. 62568, unreported. Accordingly, defendant-appellant was not entitled to an instruction on the lesser included offense of sexual battery. Therefore, he could not have been denied a fair trial when the -18- trial court failed to give, what he considered, a proper instruction on the lesser included offense of sexual battery. Defendant-appellant's, Lloyd Langston's, fifth assignment of error states: V. WHEN TRIAL COUNSEL FAILS TO OBJECT TO VARIOUS ERRORS THAT OCCURRED DURING THE COURSE OF THE TRIAL, AND THEREBY WAIVES SAID ERRORS FOR APPELLATE REVIEW, THEN COUNSEL'S LAPSE HAS DENIED HIS CLIENT HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL. Defendant-appellant argues he was denied effective assistance of counsel by trial counsel's failure to object to both the hearsay statements made by the victim's mother and the trial court's instruction on the lesser included offense of sexual battery. In order to substantiate a claim of ineffective assistance of counsel, the appellant is required to demonstrate that: 1) the performance of defense counsel was seriously flawed and deficient; and 2) the result of the appellant's trial or legal proceeding would have been different had defense counsel provided proper representation. Strickland v. Washington (1984), 466 U.S. 668, State v. Brooks (1986), 25 Ohio St.3d 144. In reviewing a claim of ineffective assistance of counsel, it must be presumed that a properly licensed attorney executes his legal duty in an ethical and competent manner. State v. Smith (1985), 17 Ohio St.3d 98; Vaughn v. Maxwell (1965), 2 Ohio St.2d 299. The Supreme Court of Ohio, with regard to the issue of ineffective assistance of counsel, held in State v. Bradley (1989), -19- 42 Ohio St.3d 136, that: When considering an allegation of ineffective assistance of counsel, a two-step process is usually employed. First, there must be a determination as to whether there has been a substantial violation of any of defense counsel's essential duties to his client. Next, and analytically separate from the question of whether the defendant's Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness. State v. Lytle (1976), 48 Ohio St.2d 391, 396- 397, 2 O.O.3d 495, 498, 358 N.E.2d 623, 627, vacated in part on other grounds (1978), 438 U.S. 910. This standard is essentially the same as the one enunciated by the United States supreme Court in Strickland v. Washington (1984), 466 U.S. 668. ***. Even assuming that counsel's performance was ineffective, this is not sufficient to warrant reversal of a conviction. An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Cf. United States v. Morrison, 449 U.S. 361, 364- 365 (1981). Strickland, supra, at 691. To warrant reversal, [t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, supra, at 694. In adopting this standard, it is important to note that the court specifically rejected lesser standards for demonstrating prejudice. ***. Accordingly, to show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different. State v. Bradley, supra, at 141, 142. In this case, defense counsel's failure to object to the -20- introduction of the mother's testimony concerning Ronald's statement to her was not ineffective assistance of counsel, in that, as explained earlier, such testimony was an exception to the hearsay rule. Moreover, as set forth in defendant-appellant's fourth assignment of error, defendant-appellant was not entitled to an instruction on the lesser included offense of sexual battery and could not have been prejudiced by what he considered a deficient instruction by the trial court. Accordingly, defense counsel's actions did not have an affect on the outcome of the trial. Therefore, defendant-appellant's claim of ineffective assistance of counsel is not well taken. Judgment affirmed in part in that defendant-appellant's conviction on counts one (1) through three (3) are sustained with defendant-appellant being sentenced to the Lorain Correctional Institution for an indefinite term of life on those three counts consecutively. The guilty verdicts for counts four (4) through ten (10) are hereby vacated. -21- It is ordered that appellee and appellant equally share the 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. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, P.J. and TIMOTHY E. MCMONAGLE, J., CONCUR. *ROBERT E. HOLMES, JUSTICE *Sitting by assignment: Justice Robert E. Holmes, Retired Justice of the Ohio Supreme Court. N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.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 .