COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71981 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION RIMANTAS SAIKUS : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : MARCH 12, 1998 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-334,191 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS-JONES Cuyahoga County Prosecutor WILLIAM R. CAINE, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: MICHAEL E. MURMAN Attorney at Law 14701 Detroit Avenue, #555 Lakewood, Ohio 44107 KENNETH A. ROCCO, J.: -2- Appellant appeals the trial court's denial of his motion to dismiss on the grounds his right to a speedy trial was violated, the trial court's denial of his motion for acquittal pursuant to Crim.R. 29(A), and his conviction on the grounds that it was against the manifest weight of the evidence. As the record indicates the trial court did not err and his conviction was not against the manifest weight of the evidence, we affirm. Appellant was charged in the indictment with two counts of Attempted Aggravated Arson, in violation of R.C. 2923.02 and R.C. 2909.02. Appellant was arraigned on February 15, 1996 and was assigned Attorney Michael Bancroft of the public defender's office. The trial court set bond for appellant at $100,000.00. The public defender's office then recused itself from further representation of appellant, and Attorney John Parker was appointed to represent appellant. Attorney Parker subsequently withdrew from representing appellant after appellant retained Attorney Lee Koosed. Appellant's first attorney had filed a motion for bond reduction on March 8, 1996. The matter was heard on April 15, 1996. The state requested that appellant be referred to the court's psychiatric clinic for an evaluation as to whether or not appellant was sane at the time of the act. The court reduced appellant's bond on May 17, 1996, and appellant was released on May 18, 1996. On June 6, 1996, appellant filed a motion to dismiss on the grounds that his right to a speedy trial had been violated. At the same time, he also filed a written waiver of his right to a speedy trial until August 31, 1996. -3- The trial court denied appellant's motion to dismiss on August 26, 1996, and the matter proceeded to a jury trial. First to testify for the state was Detective Kevin Campbell, who testified that his office was notified by a bank, through its attorney, that there might be a potential difficulty at the scheduled eviction of appellant. Therefore, on February 9, 1996, two unarmed civil deputies, four uniformed deputies assigned to the civil unit, and four plain clothes detectives were assigned to proceed to appel- lant's home. Det. Campbell and the other deputies repeatedly knocked on the door and announced that they were from the sheriff's department. They were unable to see into the home because the blinds were drawn. After approximately one half hour, the deputies decided to enter by force. Det. Campbell was assigned to kick in the door. Two detec- tives from the civil unit, Det. Sparks and Det. Palko, then preceded him into the home. As they had planned, after entering the home, Det. Campbell, Deputy Kanzig, a uniformed deputy, and Det. Campbell's partner, Sgt. Bartko, immediately proceeded to clear the basement. Det. Campbell testified that as he entered the home, he noticed a heavy odor of natural gas. As he advanced down the steps into the basement, the smell got stronger. The room was filled with file cabinets, desks and computers. He saw appellant's head just above a desk and ordered him three times to stand up and show him his hands. -4- Appellant finally stood up after Det. Campbell's third request, and Det. Campbell observed a book of matches in his hand. The detective ordered appellant to come forward, to which appellant replied, Wait a minute. Let me go back and shut the tank off. The detective told him, No. Step towards me. I will shut the tank off. Det. Campbell found a propane tank with the valve open underneath the kneehole of the desk behind which appellant had been crouched. The detective found another pack of matches close to where the tank was located. Det. Campbell then turned off the tank and secured appellant in the upstairs of the home. Det. Campbell then verified photographs that had been taken of the scene. One of the photographs showed a book of matches with the cover torn off and one burnt match lying on a tile approxi- mately where appellant had been crouched down. On cross-examination, Det. Campbell admitted that he did not know how long the burnt match had been on the floor. The burnt match did not appear to have come from either the book of matches appellant was holding or the book of matches that was on the floor. Furthermore, the book of matches that had been on the floor did not have a striker. However, the matchbooks were within reach of appellant. Ted Humbert, an attorney with the law firm of Weltman, Weinberg & Reis testified next. He represented Huntington National Bank and had written a letter to the Cuyahoga County Sheriff's -5- Office because he was concerned that appellant would not volun- tarily leave the property that was being seized. On cross-examination, Mr. Humbert testified that the initial foreclosure action regarding the property involved in this matter had been filed by a different law firm in 1990 and the initial counsel had taken a judgment. Huntington Bank then forwarded the file to him to continue with the foreclosure. Mr. Humbert testified that appellant had previously filed bankruptcy, which resulted in an automatic stay being placed on the sheriff's sale proceedings. After a relief from the stay was granted, another sheriff's sale was scheduled and the property was sold in September 1995. At the time the sheriffs went to the property, the right of possession had vested in the bank. Mr. Humbert also testified that appellant was proceeding pro se in the foreclosure and bankruptcy actions. Next to testify was Lieutenant Charles Cummings, an arson investigator with the Cleveland Fire Department. Lt. Cummings testified as an expert. After examining the physical evidence, he explained that if the amount of propane that was probably released had been ignited, it could have caused damage to the home and anyone in the basement and possibly damage to surrounding homes and injury to people who were nearby. Deputy Alfred Freeman, of the Cuyahoga County Sheriff's Department, then testified. Deputy Freeman testified that appel- lant had received notice of the eviction ten days prior to its scheduled date. Deputy Michael Sparks was also present at the -6- eviction. He testified that he had previously seen appellant at the sheriff's sale in September, where appellant had attempted to interrupt the sale. Deputy Robert Palko, Deputy Dale Kanzig, and Sergeant David Bartko all corroborated Det. Campbell's testimony regarding the events of February 9, 1996. Sgt. Bartko further testified that he was concerned when he smelled the gas after entering the home that either his men or members of the household might have been injured or might have been at risk of injury. John Puskar then testified as an expert for the defense. He knew appellant professionally, as a member of the American Society for Mechanical Engineers. Puskar opined that the tank would have had to have been open for ten to thirty-six minutes to release the amount of propane he believed to have escaped from the tank. He testified that a person inhaling propane may become drowsy or dizzy. He further testified that the pilot lights on the stove, the hot water heater and on the furnace had been put out, thus eliminating possible sources of ignition. Puskar also stated that the burnt match that was found was unlikely to have been lit while the tank was open. He determined that the match had burned for ten to fifteen seconds; if the amount of oxygen required to keep the match burning for that length of time was present, an explosion most likely would have occurred. Appellant himself then testified. Appellant was born in 1946 in Germany. He later moved with his family to Venezuela and then, -7- in 1959, moved to the United States. He became a United States citizen in 1966. Appellant is a veteran who had served in Vietnam. After serving in the war, appellant returned home and obtained a mechanical engineering degree as well as a master's degree in business administration. He was last laid off in 1982 and has since been self-employed, although he continues to seek employment. Appellant also testified regarding his many activities in which he works to obtain recognition for veterans. He further testified regarding many community projects with which he is involved. Appellant also testified that his family was very important to him; for instance, he had stayed up the entire previous night helping his daughter with a science project. Appellant stated that in the morning of the day on which the eviction was scheduled, he had turned off the gas to the furnace, the hot water heater and the stove to avoid any potential problems in case the movers accidentally knocked into any of these appli- ances when they were removing his belongings. He testified that he believed he had fallen asleep when the deputies arrived and remembered feeling light-headed. He was in the basement, at his computer, when he heard them knocking. Appellant further testified that he always has matches in his basement because he does a lot of work there and uses matches when making electrical connections. He had tried to repair a camera the previous day and had used matches. -8- Appellant stated that he did not remember turning on the pro- pane tank and that he had a black-out. He testified that something brought him out of his black-out, and he was attempting to turn the tank off when he heard the sheriffs' voices. He does not remember how he got the matches in his hand. He testified that he never intended to harm either the deputies or his home. Appellant also testified that he was disoriented and had trouble speaking once the deputies got him outside of the house. Numerous witnesses then testified regarding appellant's extensive involvement with many community projects. They all testified that appellant was very honest and truthful and that appellant had an excellent reputation. On August 29, 1996, the jury returned a verdict of guilty on both counts. On November 7, 1996, appellant was sentenced to the Lorain Correctional Institution for a term of eight to fifteen years. Appellant's sentence was suspended, and he was placed on five years probation. Appellant's subsequent motion for a delayed appeal was granted. Appellant, through his attorney, states three assignments of error for our review. Appellant has also filed a supplemental pro se brief, which this court has fully considered. -9- APPELLANT'S FIRST APPELLATE BRIEF Appellant's first assignment of error contends: THE TRIAL COURT ERRED WHEN IT OVERRULED THE APPELLANT'S MOTION FOR DISCHARGE BASED ON THE STATE'S FAILURE TO ABIDE BY SPEEDY TRIAL REQUIREMENTS. Appellant argues that his rights to a speedy trial were violated. Pursuant to R.C. 2945.71: (C) A person against whom a charge of felony is pending: * * * (2) Shall be brought to trial within two hundred seventy days after his arrest. Furthermore, pursuant to the triple count provision, R.C. 2345.71(E), each day that the accused is held in jail in lieu of bail on the pending charge shall be counted as three days. R.C. 2945.72 provides possible extensions of time for trial, including: * * * (B) Any period during which the accused is mentally incompetent to stand trial or during which his mental competency to stand trial is being determined, or any period during which the accused is physically incapable of stand- ing trial; (C) Any period of delay necessitated by the accused's lack of counsel, provided that such delay is not occasioned by any lack of dili- gence in providing counsel to an indigent accused upon his request as required by law; (D) Any period of delay occasioned by the neglect or improper act of the accused; * * * -10- (H) The period of any continuance granted on the accused's own motion, and the period of any reasonable continuance granted other than upon the accused's own motion; * * * The dates relevant to appellant's contention are as follows: February 9, 1996 - Appellant was arrested. February 15, 1996 - Appellant was arraigned on two counts of Attempted Aggravated Arson in violation of R.C. 2923.02 and 2909.02. Appel- lant pled not guilty, and bond was set at $100,000. Public Defender Michael Bancroft was assigned as counsel. March 8, 1996 - Attorney Michael Bancroft filed a motion for bond reduction. March 18, 1996 - Following the recusal of the assigned judge, appellant's case was re- assigned to Judge Daniel O. Corrigan. In addition, Attorney Michael Bancroft withdrew, and Attorney John Parker was appointed by the court. March 22, 1996 - Attorney Lee Koosed filed his notice of appearance. A pre-trial was con- ducted, and Attorney John Parker appeared for appellant. An additional pre-trial was set for April 3, 1996. April 3, 1996 - The pre-trial was reset at appellant's request for April 15, 1996. Attorney John Parker was granted leave to withdraw because Attorney Lee Koosed had been retained by appellant. The court also con- ducted a hearing on appellant's motion to reduce bond and reserved ruling on the motion. Appellant was referred to the Court Psychiat- ric Unit to determine whether he was sane at the time of the act. May 17, 1996 - Appellant's motion to reduce bond was granted. Appellant was ordered re- leased, as he had complied with the reduced bond. Trial was set for June 10, 1996. May 30, 1996 - The court determined appellant was sane at the time of the act. -11- June 6, 1996 - At appellant's request, the trial was re-set for July 22, 1996. Appellant also waived speedy trial, in writing, until August 31, 1996. July 10, 1996 - A pre-trial was re-set at appellant's request. July 3, 1996 - The trial was re-set for August 26, 1996, as the court was unavailable on July 22, 1996. August 26, 1996 - The trial court held a hearing on appellant's motion to dismiss and denied the motion. Case proceeded to trial. Appellant argues that he was denied his right to a speedy trial since, applying the triple count provision, appellant was held in jail in lieu of bail for a total of two hundred ninety-four days. Appellant argues that he was incarcerated from his arrest on February 9, 1996 until he was released on May 18, 1996 after he was able to post bail, for a total of ninety-eight days.1 Once an accused demonstrates a prima facie case for discharge pursuant to the statute, the state is then obligated to produce evidence demonstrating the accused was not entitled to be brought to trial within the limits of R.C. 2945.71(C) or (E). State v. Baker (1993), 92 Ohio App.3d 516, 526 citing State v. Butcher (1986), 27 Ohio St.3d 28. Following the state's presentation, the lower court determined that appellant's right to a speedy trial was not violated. 1 Appellant properly computed his time in jail from February 10, 1996, per State v. Steiner (1991), 71 Ohio App.3d 249, (the day of arrest is not to be included in the computation of time for purposes of the speedy trial provision.) -12- The trial court found that the four-day delay from March 18 through March 22 was chargeable to appellant due to his change in counsel.2 Furthermore, it found that the twelve-day delay from April 3 through April 15 was also attributable to appellant due to his request to continue the pre-trial. The court also determined that the thirty-two-day period while the psychiatric evaluation was being prepared was a reasonable delay pursuant to R.C. 2945.72(H). Thus, the lower court determined that appellant's right to a speedy trial was not violated. The standard of review in a speedy trial case is simply to count the days as directed in R.C. 2945.71, et seq. State v. DePue (1994), 96 Ohio App.3d 513, 516; see, also, State v. Gabel (Oct. 31, 1996), Cuyahoga App. No. 69607, unreported. Our review of the record in this case indicates that the trial court correctly denied appellant's motion for discharge. This court's computation of time is as follows: Feb. 10, 1996 - March 17, 1996, applying the triple count provision = 108 days. March 18, 1996 - March 21, 1996 = excused per R.C. 2945.72(C). March 22, 1996 - April 2, 1996, applying the triple count provision = 36 days. April 3, 1996 - April 14, 1996 = excused per R.C. 2945.72(H). 2 Appellant does not dispute that the time period from March 18 through March 22 was attributable to him. -13- April 15, 1996 - May 17, 1996 = excused per R.C. 2945.72(H).3 May 18, 1996 - June 6, 1996 = 20 days. June 6, 1996 - August 28, 1996 = excused per appellant's written waiver. TOTAL: 164 days This court's computation of time indicates that appellant's right to a speedy trial was not violated. Appellant's first assignment of error is overruled. Appellant's second assignment of error contends: THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANT'S MOTION FOR JUDGMENT OF ACQUITTAL UNDER CRIMINAL RULE 29(A) WHEN THE EVIDENCE WAS SUCH THAT REASONABLE MINDS COULD NOT FAIL TO FIND REASONABLE DOUBT. Appellant contends the trial court erred when it denied his motion to dismiss brought pursuant to Crim.R. 29(A). Appellant was charged with attempted aggravated arson in violation of R.C. 2909.02. Attempt is defined in R.C. 2923.02(A) as: No person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct that, if successful, would consti- tute or result in the offense. 3 The trial court determined that the delay while the psychiatric report was being prepared was a reasonable delay. Even if this court were to disagree with this specific finding, allowing for the additional thirty-two days and applying the triple-count provision, the total reaches two hundred sixty days, still within the permissible time frame. -14- R.C. 2909.02 defines Aggravated Arson as: (A) No person, by means of fire or explosion, shall knowingly: (1) Create a substantial risk of serious physical harm to any person; (2) Cause physical harm to any occupied structure; * * * Crim.R. 29 provides, in pertinent part: (A) Motion for judgment of acquittal. The court on the motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. * * * The proper standard of appellate review is whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Statev. Jenks (1991), 61 Ohio St.3d 259, 273.4 The court in Jenks, therefore, modified the standard previously established in State v. Bridgeman (1978), 55 Ohio St.2d 261 at the syllabus, wherein the court held that an entry of a judgment of acquittal was improper where the evidence was such that reasonable 4 The Jenkscourt, in reaching its decision, first determined that circumstantial evidence inherently holds the same probative value as direct evidence. Jenks, supra at 272. Thus, the jury's only responsibility is to weigh all of the evidence, whether direct or circumstantial, against the beyond a reasonable doubt standard of proof. Id. The court, therefore, overruled State v. Kulig (1974), 37 Ohio St.2d 157, to the extent that it is inconsistent with its decision in Jenks. Id. at 273. -15- minds could reach different conclusions as to whether each material element of a crime had been proven beyond a reasonable doubt. The relevant inquiry does not involve how the appellate court might interpret the evidence. Rather the inquiry is, after viewing the evidence in the light most favorable to the prosecution, whether any reasonable trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jenks, supra at 273, citing Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. Thus, a trial court, when ruling on a motion brought pursuant to Crim.R. 29(A), must view the probative evidence in a light most favorable to the state and determine whether the state presented sufficient evidence on each of the essential elements of the offense charged. State v. Perkins (1994), 93 Ohio App.3d 672, 680, citing State v. Martin (1983), 20 Ohio App.3d 172, 20 OBR 215, 485 N.E.2d 717. Importantly, the verdict will not be disturbed unless the appellate court finds that reasonable minds could not reach the conclusion reached by the trier of facts. Jenks, supra, citing Jackson v. Virginia, supra. A criminal attempt was defined by the court in State v. Woods (1976), 48 Ohio St.2d 127, vacated on other grounds (1978), 438 U.S. 910, 98 S.Ct. 3133, 57 L.Ed.2d 1153. The Woods court determined that criminal attempt is *** when one purposely does or omits to do anything which is an act or omission consti- tuting a substantial step in a course of conduct planned to culminate in his commission of the crime. To constitute a substantial step, the conduct must be strongly corrobora- tive of the actor's criminal purpose. (R.C. 2923.02[A] construed.) -16- Id. at paragraph one of the syllabus. Neither intent nor mere preparation is sufficient to constitute attempt. Id. at 131. The substantial step standard directs attention to overt acts of the accused which demonstrate a firm purpose to commit a crime ***. Id. at 132. The record indicates that appellant had turned on the propane tank and did not answer the door for thirty minutes while the deputies continued to knock on the door and to identify themselves. Both experts who testified at trial agreed that the tank had been open a sufficient amount of time so that an explosion was possible if there were a source of ignition. Appellant was found with a book of matches in his hand and other matches nearby. Appellant's conduct was strongly corroborative of a criminal purpose. See Woods, supra. The trial court did not err when it denied appellant's motion for an acquittal. Appellant's second assignment of error is overruled. Appellant's third assignment of error states: THE APPELLANT'S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. It is appellant's contention that the jury's verdict was against the manifest weight of the evidence. When determining whether a decision of a trial court is against the manifest weight of the evidence, the following factors should be considered: 1. The reviewing court is not required to accept as true the incredible; 2. Whether the evidence is uncontradicted; -17- 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. State v. Mattison (1985), 23 Ohio App.3d 10. Furthermore: Weight of the evidence concerns the inclina- tion of the greater amount of credible evi- dence, offered in a trial, to support one side of the issue rather than the other. *** Weight is not a question of mathematics, but depends on its effect in inducing belief. (Emphasis in original.) State v. Thompkins (1997), 78 Ohio St.3d 380, 387, quoting Black's Law Dictionary (6 Ed.1990) 1433. It is undisputed that appellant had turned on the propane tank and was found with a book of matches in his hand. Applying the factors set forth in Mattison, this court finds that the jury's determinationwas not against the manifest weight of the evidence. Mattison, supra. Appellant's third assignment of error is over- ruled. APPELLANT'S PRO SE SUPPLEMENTAL BRIEF5 5 Although appellant's brief fails to conform with the requirements of App.R. 16, this court will nevertheless address -18- Appellant essentially argues two additional assignments of error. He first alleges that the trial court erred when it allowed itself and the jury to be prejudiced by the prosecution's refer- ences to the fact that appellant was a Vietnam veteran and therefore had a preponderance for violence ***. Additionally, he argues that his rights to due process were denied due to liberty granted by the court to the prosecution to lecture appellant, insinuate behavior without proof, use information obtained in psychiatric report even though it was ruled not admissible, and prejudice jury because of their ignorance of the appellant and prejudicial knowledge of other high profile prosecution cases of veterans ***. Thus, appellant's first assignment of error apparently alleges prosecutorial misconduct. Generally, this court will not consider any alleged error that was not brought to the attention of the trial court at the time the alleged error is said to have occurred. State v. Slagle (1992), 65 Ohio St.3d 597, 604. An appellate court may consider a trial error that was not objected to only when it is plain error. Id. The reviewing court must examine the asserted error in light of all the evidence properly admitted at trial to determine whether the jury would have convicted the defendant if the alleged error had not occurred. Id. at 605. Appellant's status as a Vietnam veteran was introduced by his own attorney on his direct examination of appellant. Moreover, appellant fails to specifically identify the comments of the appellant's contentions. -19- prosecutor to which he is referring, and this court's review of the transcripts in the action sub judice does not reveal any comments by the prosecution that support appellant's contention. The prose- cutor did not make any negative comments regarding appellant's veteran status nor did he imply that, as a veteran, appellant was prone to violence. Our review of the record does not reveal that any plain error occurred. Furthermore, even if appellant had objected in the lower court, the record does not demonstrate prosecutorial misconduct. The test for prosecutorial misconduct is whether remarks are improper and, if so, whether they prejudicially affected substan- tial rights of the accused. State v. Lott (1990), 51 Ohio St.3d 160, 164, citing State v. Smith (1984), 14 Ohio St.3d 13, 14-15, 14 OBR 317, 318-319, 470 N.E.2d 883, 885-886; United States v. Dorr (C.C. 5, 1981), 636 F.2d 117, 120, citing United States v. Garza (C.A. 5, 1979), 608 F.2d 659, 663. The record does not demonstrate that any remarks made were improper or that appellant's rights were affected. Appellant's first pro se assignment of error is overruled. Appellant next contends that he was denied due process starting from appellant's arrest, no medical help provided *** and continuous questioning without medically establishing cognitive state; through extended detention with extreme prejudice and without evidence; unreasonable bond ***. Appellant's second assignment of error appears to allege a violation of his rights to due process. -20- Initially, appellant's motion for a reduction of bond was granted; thus, this contention is moot. Furthermore, appellant's contention that he suffered extended detention was addressed above in response to the assignment of error alleging appellant was denied his right to a speedy trial. Thus, appellant's remaining unaddressed contention is that he was taken into and remained in custody without being provided medical help. There is no evidence in the record to indicate appellant required medical help at the time of his arrest or at any time during his confinement. Appellant testified that he had come out of that like blackout or whatever and realized he smelled gas and attempted to turn off the propane tank. Furthermore, appellant's expert testified that to alleviate the symptoms from inhaling propane, a person who had inhaled it would need to be taken to an area where they could get fresh oxygen. Appellant testified that the deputies did take him outside and that his head eventually cleared. There is no evidence in the record to indicate that a lack of medical care deprived appellant of his right to due process. Appellant's second pro se assignment of error is overruled. Appellant's appeal is not well-taken and is overruled. Judgment affirmed. -21- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the 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 M. PORTER, P.J. and ANN DYKE, J. CONCUR JUDGE KENNETH A. ROCCO 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 decison 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 of decision by the .