COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 72302 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-appellee : : AND vs. : : OPINION GERALD LOOMER : : Defendant-appellant : : : DATE OF ANNOUNCEMENT : MAY 14, 1998 OF DECISION : : CHARACTER OF PROCEEDINGS : Criminal appeal from : Court of Common Pleas : Case No. CR-307700 : JUDGMENT : Affirmed DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES, ESQ. CATHERINE KISIL HAYES, ESQ. Cuyahoga County Prosecutor P.O. Box #1 MARK J. MAHONEY, ESQ. North Olmsted, OH 44070 Assistant County Prosecutor 8th Floor, Justice Center 1200 Ontario Street Cleveland, OH 44113 PATTON, J. Defendant-appellant Gerald Loomer appeals the jury verdict finding him guilty of murder. The crime was alleged to have been committed on or about April 28, 1981. Defendant entered a plea of -2- not guilty at his arraignment and filed a motion to dismiss arguing his right to due process was violated by prejudicial pre-indictment delay. His motion to dismiss was granted and the State of Ohio timely appealed the trial court's dismissal. This court reversed the trial court and remanded the matter for further proceedings. State v. Loomer (Sept. 28, 1995), Cuyahoga App. No. 68103, unreported. The victim's body was discovered at a nearby slag yard on May 22, 1981. A Cleveland police officer testified the victim's nude body was found badly decomposed with the hands tied behind the back and bound with a bra. The body contained multiple stab wounds including perforations of the heart and left lung. The coroner determined she died as a result of these stab wounds. A detective stated he initially took into custody the victim's husband, James Spearow, because he received information the victim was leaving him and a knife was found in his car. The knife was examined by the coroner and excluded as the murder weapon. Spearow was released from custody. The investigation was temporarily closed until new evidence surfaced twelve years later which resulted in defendant being indicted and tried for the murder. At trial a Cleveland Police detective testified he arrested defendant based upon defendant's denial that he had a knife in his car when in fact defendant's wife contradicted defendant and revealed defendant carried a knife in his car. Mrs. Loomer retrieved a knife for the detective but the knife was never linked to the murder. The detective stated defendant's arrest was also -3- based on defendant's statements that he and the victim were just friends. The victim's sister-in-law, Sharon Frohman, also testified. Frohman related that defendant and the victim were both involved in a community action group called the Citizens to Bring Back Broadway ( CBBB ). She stated the victim and defendant were conducting an assignment for CBBB on the night of April 28, 1981. Frohman testified the two arrived at her house at around 11:00 p.m. She said it appeared defendant had been drinking and he was served coffee in an attempt to sober him up. Frohman stated the defendant and the victim stayed for two hours and then left around 1:00 a.m. in defendant's station wagon. She said this was the last time she saw the victim. Frohman stated further that within a day she saw defendant. She testified defendant had scratch marks on his neck and arms and he also had a shirt which had blood on it. She said she washed the shirt for defendant and he informed her that he had been shot and needed to make a police report. Rick Spearow, Frohman's husband, related to the jury that he also observed scrape marks and small cuts on defendant's arms. The officer who processed defendant after the arrest testified he made a notation on the processing sheet that defendant had slight scratch marks outer fore-arm. Frohman completed her testimony by stating defendant was at her house a few days after she cleaned his shirt when she exited the house and noticed defendant's car running in the driveway with loud music playing. She stated she approached the car to turn the -4- ignition off when she observed the victim's purse and notebook inside the car. She then removed these items from defendant's car and gave them to the police. Frohman later confronted defendant about these items and she said his response was that the victim must have snuck back and put the purse in the car and left it there. Frohman's testimony was corroborated by Rick Spearow. Spearow stated he recalled defendant and the victim at his house on the night of April 28, 1981. He testified the two stayed for a while and left after midnight in defendant's station wagon. Spearow also indicated this was the last time he saw the victim. Defendant's neighbor, Ms. Betty Howard, testified. She stated she lived downstairs from defendant during this time frame and saw defendant and the victim together on more than twenty occasions. On April 28, 1981 at around 8:00 p.m., she saw defendant arrive home intoxicated. She related that defendant proceeded upstairs and an argument ensued among defendant, his wife, and the victim. Howard testified defendant was yelling and screaming and had grabbed [the victim] by the shirt and pulled back to hit her but was stopped by Howard's husband. Howard said defendant then calmed down and she saw defendant and the victim leave in his car around 10:00 or 10:30 that night. Howard stated she saw defendant early the next morning and he was drunk, his hair was a mess, his shirt was stained with either mud or blood, and his face had scratch marks on it. A week after this incident, Howard said she noticed -5- a foul smell emanating from the basement but could not locate the source of the odor, although she thought it was a dead rodent. Sam Frye Jr., testified he was a high school student in 1981 and that on May 18, 1981 defendant asked for help in moving a carpet from a landing on defendant's house into defendant's car. Frye stated there were two other men helping defendant. Frye described the carpet as eight to ten feet long, rolled up and tied, with one end bigger than the other, weighing approximately two- hundred pounds, and having an extremely foul odor. Frye's father then testified that on this same day he saw defendant washing his car, both the exterior and interior, and that he had never seen defendant wash his car before. Next, the victim's son, Fred Workman testified. He stated he was twelve years old at the time of his mother's death and on the night of the murder his mother took him to Howard's home to stay the night. He corroborated Howard's testimony, testifying he also saw defendant and his mother engaged in an argument. Workman said the last time he saw his mother was when she left with defendant. Regarding defendant, Workman stated he saw him later that morning between midnight and 2:00 a.m. and he had scratch marks on his chest. Workman said he first saw defendant when defendant came and took him and his sister upstairs to stay with him that night. Workman related to the jury that defendant informed him that his mother was all right. Later that night, Workman said he was awakened by running water and entered the kitchen where he observed defendant drunk, sitting at the table mumbling. Workman then -6- walked through the kitchen to the bathroom and on his way back through the kitchen, he noticed a knife and a staple remover in the kitchen. Workman further described defendant as having heavy scratches on his arms and chest, a ripped shirt, and torn pants. He testified that he did not tell any law enforcement officers what he saw and was never questioned by the police. Workman explained that due to his age he never came forward and it was not until December 13, 1993 when he sent a letter to the Cleveland Homicide Unit that the police contacted him. Detective Leo Allen testified he reviewed Workman's letter, phoned Workman, and consequently reopened the criminal investiga- tion. This resulted in defendant being indicted and charged with the crime. Allen stated that upon arresting defendant, defendant said he did not kill the victim and he last saw her at the Cherry Blossom bar where she grabbed his keys and left while he remained inside. In his case in chief, defendant did not testify on his own behalf but in his closing argument he claimed there was no physical evidence linking him to the crime and the husband, James Spearow, had a much more likely motive to murder the victim in light of the fact that she informed him she was leaving him. On appeal defendant submits five assignments of error. In his first assignment of error he states as follows: MR. LOOMER'S PREINDICTMENT DELAY VIOLATED THE DUE PROCESS CLAUSE IN THAT LENGTHY DELAY RESULTED IN ACTUAL PREJUDICE TO HIM AND THE REASON FOR THE DELAY WAS TO INTENTIONALLY GAIN TACTICAL ADVANTAGE OR WHEN THE STATE EFFECTIVELY CEASED ACTIVE INVESTIGATION OF THE CASE, AND LATER DECIDES TO COMMENCE PROSECUTION UPON THE SAME EVIDENCE -7- THAT WAS AVAILABLE TO IT AT TIME THAT ITS ACTIVE INVESTI- GATION WAS CEASED IN VIOLATION OF THE APPELLANT'S FOURTEENTH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION. Defendant argues the delay between the date of the offense and his indictment resulted in actual prejudice and violated his right to due process. Defendant supports this argument by claiming the delay prejudiced him because valuable evidence has been lost or destroyed. He submits a bartender who could have provided him with an alibi has died, the victim's notebook and clothes have been lost, and the house where he and Howard resided has burned down. Moreover, defendant contends any trace evidence from the scene or from the victim's body is undiscoverable. In addition, defendant claims the state acted in bad faith by not fully interviewing all potential witnesses such as the victim's parents and children or other possible suspects such as Howard's son. Plus, he claims the state did not inspect his home or the basement, where the victim's body allegedly was for a short period. Lastly, defendant complains the state gained an unfair advantage with Workman's testimony because he has now matured and his testimony would have lacked credibility if he testified back in 1981 as twelve year old. In Loomer, supra, defendant presented the same argument to this court in his motion to dismiss the indictment. We reversed the trial court's decision to grant defendant's motion, holding: We conclude based upon the record before us and applica- ble case law that appellee has not demonstrated actual prejudice as a result of the death of the alleged alibi witness and, therefore, the trial court erred in making such a finding. We further conclude the delay in prosecution was justified because it was based upon newly discovered evidence from a witness in the case. -8- We cited several cases which contravened defendant's arguments and held the death of a witness alone is insufficient to establish actual prejudice arising from pre-indictment delay. U.S. v. Muniz (1988), 690 F.Supp. 482 and United States v. Solomon (1982), 688 F.2d 117. Additionally, we determined the record was devoid of any suggestion that the State intended to gain a tactical advantage by delaying appellee's indictment. Loomer, supra, at 6. Defendant's arguments in Loomer are the same as those presented in the instant case. Therefore, we hold defendant has not demonstrated actual prejudice as a result of any lost, destroyed, or unobtainable testimony or evidence. Furthermore, we conclude the state did not gain a tactical advantage as a result of the delay in prosecution because the newly discovered evidence was not available until twelve years after the indictment was issued. Thus, during the delay the state did not pursue the case and gain an advantage but rather the case was reopened as a result of the newly discovered evidence. The state did nothing during the delay to further its case against defendant. Defendant's first assign- ment of error is overruled. Defendant's second assignment of error states as follows: THE PROSECUTOR'S MISCONDUCT VIOLATED MR. LOOMER'S RIGHTS 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. Defendant argues the prosecutor's misconduct deprived him of a fair trial and violated his right to due process. First, he -9- complains the prosecutor failed to disclose the history of potential witnesses such as Ms. Howard's two sons, Ed and Ted Cetner, and the fact that Ed had been charged with killing someone. Second, defendant claims the prosecutor committed prejudicial error when he stated James Spearow had been cleared of murder when in fact nothing was done to clear him. Defendant argues this comment prejudiced him in front of the jury. Third, defendant contends it was prosecutorial misconduct to call Officer Tim Moran as a witness when he admitted he did not remember defendant and his memory was not refreshed by the processing statement he was shown from defendant's arrest. Lastly, defendant argues the prosecutor committed misconduct by objecting to evidence that defendant wanted to take a polygraph test and by knowingly allowing Howard to lie on the stand without objecting. A prosecutor's misconduct is reversible error if the miscon- duct deprives the defendant of a fair trial. State v. Apanovitch (1987), 33 Ohio St.3d 19. In determining whether reversal is justified, the prosecutorial misconduct must be viewed in light of the entire case, State v. Maurer (1984), 14 Ohio St.3d 239, and there must be a showing of prejudice to the defendant. State v. DePew (1988), 38 Ohio St.3d 275. We believe the prosecutor's conduct did not deprive defendant of a fair trial and there is no evidence that defendant was prejudiced by any acts of the prosecutor. Addressing defendant's first claim, a prosecutor has the duty to furnish any prior criminal convictions of a witness the prosecutor intends to call at -10- trial. See Crim.R. 16(B)(1)(e). In the instant case, Howard's sons were not called as witnesses so the prosecutor had no duty to disclose their criminal histories. Defendant next argues the prosecutor should not have said James Spearow was cleared of murder. According to App.R. 16(A)(7) defendant's arguments have to be supported with citations to that portion of the record on which he relies. Here, defendant does not cite to any part of the record where the prosecutor said James Spearow had been cleared of this crime. Our review of the record and transcript also does not reveal the prosecutor ever made this statement, thus this argument is without merit. Defendant's third argument concerns the processing of defendant by Officer Tim Moran and the fact that a processing sheet indicated defendant had scratch marks on his outer arm. Also, defendant claims the testimony of Moran about the questions and procedure used when processing a defendant inflamed the jury and prejudiced him. Moran testified he signed defendant's processing sheet and indicated defendant had scratch marks on his arm. Moran stated he did not remember processing defendant but it is a procedural question to ask those arrested about any physical characteristics they have. We do not see how this testimony, elicited by the prosecutor, prejudiced defendant or deprived him of a fair trial. Moran merely testified regarding the notations made on the processing sheet and the procedure used by the police department to process those arrested. Moran specifically testified he did not remember defendant. -11- Additionally, defendant argues the prosecutor committed prejudicial error by objecting to testimony that defendant initially agreed to take a polygraph test and James Spearow refused to take a polygraph. Defendant submits that Evid.R. 404(B) permits such testimony to be admitted because it is proof of other acts. Plus, defendant complains the prosecutor knowingly allowed Howard to lie while she testified. Again, defendant fails to provide citations in the record alluding to testimony about a polygraph test or Howard's testimony where she allegedly lied. A review of the record indicates the polygraph testimony was elicited while Detective James Svekric was testifying and the trial court sustained the state's objection to Svekric's testimony about whether defendant would take a polygraph test. Defendant's argument is illogical in several respects. First, this assignment of error pertains to alleged prosecutorial misconduct yet this court is not aware of any precedent holding a prosecutor's objection to testimony is misconduct per se. Second, if defendant is complaining about the objection he should argue the trial court erred in sustaining the state's objection not that the prosecutor's conduct was improper. Third, defendant gives no explanation in support of how a police officer's hearsay testimony regarding defendant taking a polygraph test satisfies the other acts exception under Evid.R. 404(B). Lastly, defendant contends the prosecutor knowingly allowed Howard to lie while testifying. This argument concerns Howard's testimony on cross-examination that she did not remember signing -12- any statements for the police in 1981. When a few minutes later, after making that statement, she was asked whether she reviewed any statements before testifying and she answered yes. Defendant claims this testimony shows the prosecutor knew Howard was lying when she denied signing a police statement in 1981. However, a distinction can be made between the two questions Howard was asked. First, she was asked whether she remembered signing a police statement in 1981 and Howard said she did not remember signing a statement in 1981. Then she was asked whether she made a statement in 1981, to which Howard replied she did. The distinc- tion is first she was asked whether she remembered signing the statement and then she was asked whether she made a statement in 1981. There is a difference between signing a statement and making one. There is no evidence that Howard lied while testifying or that the prosecutor was aware that she may be lying. Based on the above analysis, defendant's second assignment of error is over- ruled. Defendant's third assignment of error states as follows: MR. LOOMER'S RIGHTS UNDER ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED WHEN HIS CONVICTIONS WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE. Defendant argues the evidence was insufficient to convict him of murder. He claims there were no witnesses to the crime, no exact cause of death, no exact time of death, thus there was no proof as to when murder actually occurred. Defendant also complains there is no physical evidence linking him to the crime. -13- No blood, semen, weapons, fibers, were ever produced by the State. Alternatively, defendant submits the evidence implicates the victim's husband, James Spearow, who became intoxicated on the night of the murder after the victim advised him she was leaving him and she then accused him of masturbating in front of a child. Lastly, defendant claims the jury failed to consider that James Spearow had a great deal to lose if his community-activist wife pursued criminal charges against him for child molestation. R.C. 2903.02(A) codifies the crime of murder as: (A) No person shall purposely cause the death of another. The sufficiency of the evidence standard on appellate review was articulated as follows in State v. Jenks (1991), 61 Ohio St.3d 259: 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 the 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, followed.) We now apply this standard to the instant case. A review of the transcript indicates the State presented thirteen witnesses and thirty-three exhibits. Four witnesses testified they saw defendant and the victim together on the night the victim was last seen. Betty Howard testified she saw defendant arrive home intoxicated from an AA meeting and immediately engage the victim in an -14- argument. She stated she saw defendant grab the victim's shirt in anticipation of striking the victim. Howard then stated she saw defendant and the victim leave the premises around 10:00 - 10:30 p.m. Sharon Frohman testified defendant and the victim arrived at her house around 11:00 p.m. She stated she gave defendant some coffee in an attempt to sober him up. Frohman related defendant and the victim talked to her and her husband, Rick Spearow until approximately 1:00 a.m. and then left in defendant's car. Rick Spearow corroborated his wife's testimony. Betty Howard also testified she saw defendant early in the morning the following day and his hair was messed up, his pants were torn, he was muddy, and it looked like he had red paint on him. The victim's son, Fred Workman, stated back in 1981 he was twelve years old and he remembered defendant arriving home early in the morning and getting he and his sister to stay the night with him. Workman stated he was awakened by the sound of running water and went into the kitchen where he saw defendant sitting alone mumbling to himself. He walked by the sink and noticed a knife and a staple remover sitting in the sink. After this night, Howard testified she smelled a horrible smell, like a dead rodent, emanating from the basement. Then Sam Frye, Jr. testified he helped defendant move a two-hundred pound rolled-up carpet from the landing of defendant's house into the trunk of his car. Sam Frye, Sr. testified he saw defendant wash the inside and outside of his car for the very first time ever following the moving of the carpet. The body of the victim was -15- found three weeks later. Frohman, Rick Spearow, Howard, and Officer Moran, all testified defendant had cuts and scratches on either his hands, arms, or chest after the night the victim was last seen. In addition, Frohman and Rick Spearow both stated James Spearow came to their house on the night in question, intoxicated, and spent the night sleeping. This is both direct and circumstantial evidence indicating defendant's guilt. Based on the foregoing we believe there was sufficient evidence offered by the state which after viewing it in a light most favorable to the state, would convince any rational trier of fact that the essential elements of murder were proven beyond a reasonable doubt. Defendant's third assignment of error is overruled. Defendant's fourth assignment of error states as follows: MR. LOOMER WAS DENIED HIS RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. Defendant complains he was denied effective assistance of counsel because of defense counsel's inadequate investigation and trial preparation. He claims defense counsel failed to impeach the testimony of the State's witnesses and failed to call any witnesses on defendant's behalf, including defendant. In addition, defendant claims defense counsel was ineffective because he failed to request a mistrial regarding a juror who was familiar with the court reporter, who allegedly made a derogatory comment before trial began. -16- There is no evidence in the record that defense counsel inadequately investigatedor prepared this case for trial. A close inspection of the trial transcript indicates defense counsel vigorously cross-examinedall the State's witnesses. Regarding the failure to call witnesses, this is often a trial strategy and cannot be the basis of a claim of ineffective assistance of counsel. State v. Hunt (1984), 20 Ohio App.3d 310, 312. Moreover, defendant does not demonstrate how any potential witnesses would provide beneficial testimony. Defendant's final claim concerns juror improprieties and the failure to request a mistrial. The transcript indicates a juror spoke with a member of the court's staff about the use of wrong dates by one of the attorneys. The staff member stated she could not comment on the trial and the trial court subsequently admon- ished the jury regarding their duty not to speak to anyone about the case. Defendant does not reveal how this event established the basis for a mistrial or how it was prejudicial to him and neither do we. To prevail on a claim of ineffective assistance of counsel, a defendant must show both deficient performance and resulting prejudice. Strickland v. Washington (1984), 466 U.S. 668. Under the performance inquiry, this court must determine, considering all of the circumstances, whether counsel's representation fell below an objective standard of reasonableness. State v. Campbell (1994), 69 Ohio St.3d 38, 43. Trial counsel is entitled to a strong presumption that his or her conduct falls within the wide -17- range of reasonable assistance. Strickland, supra, at 688. The prejudice inquiry involves a determination of whether there is a reasonable probability that, absent the errors, the fact finder would have acquitted the defendant. Id. at 694. In the instant case, we do not believe defense counsel's performance fell below an objective standard of reasonableness nor do we find there is a reasonable probability that absent defen- dant's alleged errors the trier of fact would have acquitted defendant. Therefore, defendant's fourth assignment of error is overruled. Defendant's fifth assignment of error states as follows: VIEWING THE PROPERLY ADMITTED EVIDENCE IN LIGHT MOST FAVORABLY TO THE VERDICT AND BY DRAWING ALL CREDIBILITY DETERMINATIONS IN FAVOR OF THE VERDICT, THE IMPROPERLY ADMITTED EVIDENCE WAS SO INFLAMMATORY THAT IT PROMPTED THE JURY AT THE OUTSET TO WEIGH PROPERLY ADMITTED EVIDENCE IN THE GOVERNMENT'S FAVOR IN VIOLATION OF DEFENDANT'S DUE PROCESS RIGHTS TO BE TRIED BY AN IMPAR- TIAL JURY. Defendant argues the improperly admitted evidence was so inflammatory that it mandated a reversal. Defendant claims the following evidence was improperly admitted: his knife, which the state failed to prove was the murder weapon; a purse with no chain of custody; Sharon Frohman's reconstruction of her testimony; Howard's perjured testimony; and gruesome pictures. A trial court has broad discretion in the admission or exclusion of evidence, and so long as such discretion is exercised in line with the rules of procedure and evidence, its judgment will not be reversed by a reviewing court absent a clear showing of an -18- abuse of discretion with attendant material prejudice to defendant. Rigby v. Lake Cty. (1991), 58 Ohio St.3d 269, 271; State v. Hennessee (1984), 13 Ohio App.3d 436, 437 (standard of review for chain of custody determination is abuse of discretion). The trial court did not abuse its discretion in admitting any of the evidence defendant complains of. Regarding the knife, Detective Svekric testified he was given the knife by defendant's wife who stated defendant carried a knife in his car. This was relevant evidence because it established a basis for arresting defendant who had earlier told Svekric that he did not carry a knife. The purse was identified by Frohman as the same purse she retrieved from defendant's car a few days after the victim was reported missing. Frohman stated exactly where she found the purse in the car and identified the purse and its contents as belonging to the victim. Frohman's testimony about the events which transpired in 1981 were corroborated by her husband and other witnesses. Plus, police statements she made in 1981 and 1994 supported her testimony, although she did confuse some of the dates. Howard's testimony was earlier determined not to be perjured testimony. When considering the admissibility of photographic evidence under Evid.R. 403, the question is whether the probative value of the photographic evidence is substantially outweighed by the danger of unfair prejudice to the defendant. State v. Morales (1987), 32 Ohio St.3d 252, 257. -19- The allegedly gruesome pictures shown the jury were illustra- tive of the condition of the victim's body when found relative to determining exactly when she was murdered. Also, the pictures depict the position and manner in which her body was bound by the use of her bra. For these reasons the picture's probative value outweighed their potential for prejudice and they were not cumulative or repetitive in nature. Evid.R. 403(A). Based on the foregoing, the trial court did not abuse its discretion in admitting the challenged evidence and defendant's fifth assignment of error is overruled. Judgment affirmed. -20- 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. PORTER, P.J. SPELLACY, J., CONCUR JUDGE JOHN T. PATTON 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 reconsidera-tion 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 .