COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72546 & 72547 STATE OF OHIO : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION TIMOTHY J. KASZAS : : DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 10, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas, Case Nos. CR-343053 & CR-342331. JUDGMENT: AFFIRMED AS MODIFIED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor John R. Kosko Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Edward A. Sowinski, Jr., Esq. 950 Windham Court, Suite 5 Youngstown, Ohio 44512 -2- SWEENEY, JAMES D., J.: Defendant-appellant Timothy Kaszas appeals from his convictions in appellate case number 72547 (Common Pleas case number 342331) for: count 1) attempted aggravated murder in violation of R.C. 2923.02/2903.01; count 2) felonious assault in violation of R.C. 2903.11; count 3) improper discharge of firearm at or into a habitat in violation of R.C. 2923.161; count 4) having a weapon while under disability in violation of R.C. 2923.13; and count 5) possession of criminal tools in violation of R.C. 2923.24. Counts 1, 2, and 3 each have a one-year, three-year, and five-year firearm specification. The appellant was sentenced to a term of incarceration of eight years on count one; five years on count two; three years on count three; one year on count four; and six months on count five. Counts two, three and five were ordered to run concurrently; counts one and four were given consecutively. Additionally, the appellant was sentenced to a term of incarceration of five years on the firearm specification in count one, three years on the gun specification in count two. The gun specifications were ordered to run consecutively to each other and prior to time and consecutively with counts one and four. The appellant also appeals his convictions in appellate case number 72546 (Common Pleas case number 343053) for: count 1) vandalism in violation of R.C. 2909.05; count 2) intimidation in violation of R.C. 2921.03; and count 3) breaking and entering in violation of R.C. 2911.13. The appellant was sentenced to a term of incarceration of ten months on count one; two years on count -3- two; and ten months on count three. Each count was ordered to run concurrently with each other and count two was ordered to be served consecutively to counts one and four in appellate case number 72547. On August 3, 1996, at approximately 12:20 a.m., the appellant drove past a residence located at 9117 Royalton Road, North Royalton, Ohio, and, from his vehicle, fired shots into the home. Inside the home at the time of the shooting was his son, Anthony, aged two, who was in the care of the appellant's sister in law, Angela Marini. On the date of the shooting, the appellant's wife, Jenny Kaszas, nee Marini, was residing with her sister Angela Marini and her brother Gino Marini at the Royalton Road address, but was attending an Indians game that particular evening. A second incident occurred on August 18, 1996, when the tires and windshield of Gino Marini were damaged. Angela Marini testified that she worked until 5:00 p.m. and then picked Anthony up from her mother's house. Jenny was attending the baseball game and Angela had agreed to babysit for the evening. Angela's white Pontiac Grand Am was parked in a turn- around in front of the bay window located on the front wall of the home. After Anthony went to bed, at approximately 10:00 p.m., Angela watched television in the living room. The curtains were drawn, and she was seated in a recliner, in front of the bay window, the lamp next to her was lit. After the gunshots on the television movie ended, Angela still heard five or six gunshots. The sound came from in front of the -4- house, in the front yard. She heard the glass on her car shatter, ran into the hallway, and tried to determine whether she should first reach for the telephone or for Anthony. As she was standing there, a hole appeared in the wall. She lowered herself to her hands and knees, grabbed the telephone, and crawled into Anthony's room. She placed Anthony on the floor, underneath her body, and telephoned the police. After the shots, Angela heard a boom, or a noise, but no more shots were fired. Angela informed the police that, based upon the marital problems between her sister and the appellant, she believed it was the appellant who fired the shots. Angela testified that her brother Gino Marini had been home earlier in the evening, but left. He returned some time between 1:00 to 1:30 a.m. Her sister, Jenny Kaszas, returned home at approximately 2:30 a.m. The rest of the night was spent at the home of Mr. and Mrs. Marini, the parents of Angela, Gino and Jenny. Based upon their fears of the appellant, after the shooting, the Marini family stayed in various motels until August 11, 1996. At one of the motels, the front desk informed the Marinis that a telephone call had been received inquiring as to whether or not the Kaszases were in the motel. The family packed their belongings and moved to another motel. After August 11, 1996, Angela moved back into the home on Royalton Road. Angela also testified that on the nights of August 17 and 18, Gino Marini's truck, which was parked in front of the Royalton Road home, was vandalized. The tires were slashed and the windows broken. -5- Mr. Leonard Kuhfeld lived next door to the Marini residence on the east side of Royalton Road. In the early morning hours of August 3, Mr. Kuhfeld heard four or five shots fired. He arose from bed, went to the window, and observed a car parked by the apron of the Marini driveway. The vehicle was on the wrong side of the road, it was on the east side of the street, but was pointed west. Mr. Kuhfeld unequivocally testified that he observed a vehicle (T. 244, 255). Mr. Kuhfeld could not tell whether or not the vehicle was moving, he stated that it was very dark and everything happened just so fast. (T. 245.) He could not describe the vehicle, but testified that it looked like a big car. When asked to elaborate, Mr. Kuhfeld stated: Well a four-door Cadillac, Oldsmobile, a Buick, something big. It was no small car. It was something big. I could just see the shadow of it. It was something big. (T. 246.) When asked if the vehicle had its headlights on, Mr. Kuhfeld stated that It did not have nothing on. I could see it moving. A black shadow. That's about it. (T. 249.) The vehicle headed across the right lane and went west toward York Road. On cross examination, Mr. Kuhfeld testified that the vehicle did not speed away, but pulled naturally from the drive (T. 255). Mr. Kuhfeld estimated the time to be 12:30 p.m. because he has a clock with large numbers by his bed. Jenny Kaszas testified that she and the appellant, her husband, have a son, Anthony, born on August 5, 1994. She has three sisters, Angela Marini, Lisa Yates, and Julie Marini; she has one brother Gino Marini, Jr. Prior to her move to the Royalton -6- Road address, the appellant and Mrs. Kaszas lived in a home on Pinehurst Drive, Parma. Mrs. Kaszas testified that the appellant drove a 1988 yellow four-door Cadillac; that he was employed by his father at Expo Packaging building machines, welding, or packaging; that his parents live in Hinckly, Ohio; and that he ceased his employment the day he was in a motorcycle accident, June 10, 1996. Mrs. Kaszas left the appellant on June 20, 1996. She testified that their marriage began to be troubled prior to the birth of their son in 1994. The appellant was drinking, doing drugs, staying out late, and not returning home for days at a time. The appellant used crack, regular powder cocaine, marijuana, acid, and mushrooms. Mrs. Kaszas recalls waiting until the appellant was sober to inform him that she wanted to leave him. Mrs. Kaszas testified that she discussed leaving with the appellant approximately fifteen times. He responded that if she left, he would kill her and her family. He stated that he would hide in the bushes, wait for the family to come out, and get them one by one (T. 321). On one occasion he stated that he would start a fire and that everyone inside would burn (T. 321). She took these threats seriously because the appellant is violent. When he is angry he throws things against the wall, he has been in bar fights, and she observed his reactions to fights between the appellant and his brother. On several occasions he grabbed her neck. Mrs. Kaszas stated that the appellant owned a sawed-off shotgun and there was a Smith & Wesson .38 revolver in the night stand drawer beside the bed. Mrs. Kaszas fired the revolver at -7- shooting ranges and in the appellant's parents' backyard. Prior to the birth of her son, Mrs. Kaszas and the appellant would practice shooting several times a week; subsequent to the birth of her child, Mrs. Kaszas did not participate in these shooting expeditions. Mrs. Kaszas testified that on the day of the motorcycle accident, June 10, 1996, the appellant was drinking with his Uncle Jim. The appellant suffered a head injury in the accident and he was taken to Parma Community Hospital where he stayed until June 13, 1996. He discharged himself against medical advice and returned home. On Sunday he had blood clots in his ears and was taken to Metro Hospital where he was kept for several days. When describing the reasons she left the appellant, Mrs. Kaszas testified that, He walked out [of the hospital] on June 19th in the morning. He was out doing crack all night. Came home June 20th at five o'clock a.m. with his Uncle Jim. I couldn't take it no more. I left. (T. 325.) At work the next morning she called the appellant's Aunt Ellen Stanton, the common-law wife of Jim Bradley. She asked Ms. Stanton to ensure that the appellant would not be home that evening so that she could gather belongings for herself and Anthony. She wanted the appellant out of the house because she was afraid he would hurt her. She retrieved some belongings as planned and moved in with her brother Gino and her sister Angela at their home on Royalton Road. -8- Three days later, Mrs. Kaszas spoke to the appellant to arrange visitation with Anthony. The appellant both cried and yelled at her, requesting that she not leave him. The appellant began to telephone her almost daily alternating between crying and threatening. Early in July, the rest of Mrs. Kaszas' and Anthony's belongings were moved from Pinehurst Drive to the Royalton Road address. On June 23 or 24, Mrs. Kaszas kept an appointment with an attorney to proceed with a divorce. The petition was filed in early July 1996. On July 28, 1996, the appellant, his attorney, Mrs. Kaszas and her attorney met to discuss the divorce and visitation. At the meeting in the attorney's office, the appellant's yellow Cadillac was in the parking lot, and no one seemed to have driven the appellant there (T. 388). On July 7 or 8, 1996, a temporary protection order was issued by the Domestic Relations Court. Mrs. Kaszas sought this order because on June 27, 1996, during a telephone conversation, the appellant had stated that she would `die tonight' and that she would be `visiting the morgue tonight' (T. 333-335). Pursuant to the order, the appellant was not permitted to approach or to telephone her residence. Visitation between Anthony and his father had occurred on several occasions. Three times Mrs. Kaszas took Anthony to the appellant's uncle's home, and twice the appellant's father had picked Anthony up. Mr. Kaszas, the appellant's father, was to have picked Anthony up for an overnight visitation on August 3, 1996. -9- On August 2, 1996, Mrs. Kaszas went to an Indians game with approximately sixty co-workers with tickets purchased by her employer. After the game, the group went to the Flats. Arrangements had been made in advance for Angela to babysit Anthony and Mrs. Kaszas returned home at 2:30 a.m. only to discover that there had been a shooting. After the shooting, she and Anthony stayed at her parents' home. On August 3, 1996, at 10:00 a.m., the appellant telephoned regarding the prearranged visitation. Mrs. Kaszas did not speak to the appellant. The court date for the divorce had been set for February, 1997. After the shooting incident, the family stayed in motel rooms. On August 4, 1996, they were informed about a bomb threat via Ellen Stanton. The first motel was in Middleburg Heights, for one night; the second was in Broadview Heights, for one night; the third was in Strongsville, for a few hours due to an inquiry at the front desk indicating that someone knew where they were. Finally, the family went to a hotel in Akron. The family returned to Mr. and Mrs. Marini's home on August 7, 1996. During this time, the family kept in contact with the police and were aware that he had not been arrested. Once the appellant was arrested on August 11, 1996, the police notified the Marini family. The police also informed the family as to when the appellant was released from jail, August 13 or 14, 1996. On Sunday, after the appellant's release, the truck owned by her brother, Gino, was vandalized while parked outside of the -10- Royalton Road home. The tires were slashed and the windshield broken. Mrs. Kaszas testified that the appellant smokes Marlboro cigarettes, in a box, hard top, and that he drinks any kind of Miller beer. The appellant had been in the Royalton Road home prior to the time Mrs. Kaszas and Anthony moved there because her sister, Lisa Yates, had previously lived there. He was also there once to see Gino. The appellant and his Uncle Jim Bradley went out drinking and doing drugs together several times a week (T. 360). When they went out, Bradley usually drove his Bonneville. Mrs. Kaszas testified that she has seen Bradley driving the appellant's Cadillac. The appellant has a brother named Jim Kaszas and his father's name is Lorenz Kaszas. On cross-examination, Mrs. Kaszas stated that she had not seen the appellant drive a motor vehicle after his motorcycle accident. There were no problems during visitation or in the division of the assets. The gun was given to Mrs. Kaszas by the appellant's father (T. 375). There were occasions on which the appellant threatened Mrs. Kaszas with the gun. In 1995, Mrs. Kaszas informed the appellant that she wished to leave him. He was intoxicated, and he held the gun to her head and stated that if she left she would die. She did not inform the police because, He would have killed me (T. 391). This incident was repeated a second time. In 1994, when Anthony was two weeks old, the appellant held the gun to the baby's -11- head and forced Mrs. Kaszas to leave the room by threatening to shoot the child and himself. Gino Marini testified that at the time of the shooting he was working at Marini and Sons Cement, his father's company. The house on Royalton Road is owned by his father, Gino Marini, Sr. He moved into the home in January, 1996. Angela moved in May, and Jenny and Anthony moved in June 1996. Gino testified that for a short time after his divorce he lived with Jenny and the appellant in their home on Pinehurst Drive. On August 2, 1996, Gino happened to see the appellant at the Inn Between. Gino arrived at 10:00 p.m. for dinner. The appellant walked in by himself, and came over to speak with Gino. They spoke for about an hour, and Gino described the appellant as upset. He wanted Gino to assist him in a reunification with Jenny and Anthony. Gino refused. The appellant stated that he would have Anthony one way or another. At first the appellant was drinking vodka and seven, and then he had a couple of Miller beers. Gino was not drinking. Eventually Gino left because the appellant was aggravating him and he did not want trouble. The appellant was getting angry and being pushy. Gino did not want to have a fight. Gino testified that he left at 11:45 p.m., and the appellant was still at the bar. He noted that the appellant's Cadillac was parked next to his vehicle in the parking lot. Neither Jim Bradley nor Jim Kaszas was at the bar that night. Gino left the Inn Between and went to another bar, Legends. He arrived home at 1:15 a.m. to find the police in his driveway and in the house. He -12- stayed at his mother's house that night. The family stayed in hotels after threats were received. Mike Bradley is Jim Bradley's son, and the appellant's cousin. When the appellant telephoned the next morning regarding visitation with Anthony, Gino spoke with him. When the appellant inquired as to whether or not Gino was going to bring Anthony over, Gino responded in the affirmative. Gino then telephoned the police. On August 17, 1996, Gino parked his work truck in front of the house on Royalton Road. He spent that night at his parents' home. When he returned the next day, at approximately 10:00 a.m., for his truck, he found the windshield smashed and two tires slashed. Gino testified that the truck is a necessary part of his business because it carries most of his tools (T. 598) and because he would not be able to pour any concrete or set up any jobs without the truck (T. 599). The new tires cost around $300 and the windshield about $450. When asked if was intimidated by the vandalism to his truck, Gino stated that he was, he felt it to be a threat. Subsequent to this incident, Gino purchased a gun. The truck is now parked at his parents' house where someone is always home. Gino stated that he and the appellant, got along well. We went out together. We spent a lot of time together. I worked with him in the winter when I was slow. Always went over to his house. (T. 603.) The appellant worked with Gino and his father on construction jobs. Gino knew about the Smith and Wesson .38, and even used it for target practice once. -13- On cross, Gino testified that he went to the Inn Between around 10:00 p.m., and the appellant arrived an hour later. On re- direct, Gino stated that during the discussion with the appellant, the appellant was angry. He wanted to get Jenny and Anthony back, especially Anthony. He wanted Anthony to get back at Jenny, and stated that he would have Anthony forever. The appellant was getting madder, drinking at the same time, and the heat was building (T. 622). Manojle Bjelicic is the owner of the Inn Between lounge on Ridge Road, south of Sprague, in North Royalton. There is a parking lot surrounding the building which will hold twenty to thirty vehicles. On the interior, there is a horseshoe bar. There are two entrances, one in front and one in back. Mr. Bjelicic knows the appellant as a patron of his establishment, and testified that the appellant was present at approximately 11:00 p.m. on the evening of August 2, 1996. There were ten or fifteen people there that evening. The appellant had a few drinks and at some point between 11:30 p.m. and 12:00 a.m. he attempted to walk out holding an open bottle of Miller beer. Mr. Bjelicic stopped the appellant and the appellant handed Mr. Bjelicic the bottle. He does not remember anyone leaving with the appellant, but the appellant had been sitting with two or three people. Mr. Bjelicic left the bar at 12:30 a.m. but returned at about 1:30 a.m. He did not see the appellant the rest of the evening. Mr. Bjelicic testified that he observed Gino Marini in the bar at approximately 10:00 or 10:30 p.m. and observed that he spoke -14- with the appellant for a while. Bjelicic stated that he didn't see anything going on between them guys. (T. 267.) Gino left earlier than the appellant. Doreen York was bartender at the Inn Between during the day. On the evening of August 2, 1996, she attended the Indians game and then went to the Inn Between as a patron. She arrived at approximately 12:15 a.m. Ms. York could not state whether or not the appellant was present in the bar when she entered. She noticed him fifteen to twenty minutes after she arrived. She does remember hearing Mr. Bjelicic talking. Ms. York did not see the appellant leave, but when she left at 2:00 a.m. he was not at the bar. While shortly after she entered the bar she observed Gino say hello to the appellant, she never observed them in any lengthy conversation. Charles Harb is the cook at the Inn Between lounge. He is acquainted with the appellant through the appellant's patronage of his place of employment. Harb worked until 2:30 a.m. on August 3, 1996. At one point that night when he entered the barroom from the kitchen in order to fill food orders, he noticed the appellant sitting at the bar with several other people. Later, in the course of filling more orders, he noted that the appellant was absent from the bar. Harb returned to the kitchen for fifteen or twenty minutes, and on his next trip into the barroom, the appellant had returned. On cross-examination, Harb estimated that he first observed the appellant at the bar at 11:30 p.m. or 12:00 a.m. At the time Robert Schmidt testified at the appellant's trial, he was awaiting sentencing in the County Jail for possession of -15- cocaine. Schmidt wrote to the prosecutor subsequent to obtaining his name from the appellant's bill of discovery. Schmidt, after a series of conversations with the appellant, wrote the letter. In this letter he stated that the appellant requested that Schmidt, after he was released on bond, kill Jenny Kaszas, Gino Marini, and Angela Marini. The appellant's brother was to give Schmidt two pistols, and at the appellant's family's business two silencers would be made. The witness knew that: Angela left for work at 6:00 a.m. and drives a white Pontiac; that Jenny takes Anthony to her mother's; that Jenny drives an Escort; and that Gino drives a blue pickup and a company truck. At the appellant's direction, the adults were to be killed, but Anthony was to be placed in a playpen in another room, with the door closed. After leaving the scene, Schmidt was to call 911. He was to present to the appellant a chain worn by Gino and a triple gold rope necklace worn by Jenny. For this, Schmidt was to receive $5,000. Schmidt testified that the appellant admitted to the drive-by shooting. The appellant described keeping a bullet in his mouth as do survivalists, and stated that he made a mistake by leaving the bullet in the ashtray. Schmidt was told by the appellant that the neighbor was an older man, and the appellant's vehicle was referred to as a big yellow bird. Schmidt testified that although he has been in and out of jail almost all of his life, he has principals (T. 630). He wanted no part of the murder of women. He stated that he pled guilty to his indictment because, I always take my own weight. I was guilty. -16- (T. 631.) Schmidt was facing a sentence of six months to a year, or probation. There was no deal offered by the State, because the appellant had already pled, but the prosecutor did offer to notify Schmidt's judge of his cooperation. Schmidt admitted to his lengthy criminal record. Detective Dave Loeding of the North Royalton Police Department was the lead investigator. He received a call at approximately 12:30 regarding the shooting and fifteen minutes later he was at the scene at 9117 Royalton Road. The uniformed officers were already present and he was briefed by Officer Krejci. Detective Loeding spoke with Angela Marini and observed the physical evidence at the scene. The white Pontiac in front of the house had been damaged and a bullet had pierced the front bay window of the home. A slug was recovered from the passenger side floor of the motor vehicle, one from inside the car, and another projectile was recovered inside the home, in a linen closet in the bathroom. The curtain had a matching hole. This bullet was located by following the path from the front window, through the wall, into the linen closet. Another bullet was found in the driveway. The bullets were collected and secured as evidence. To the best of his ability, Detective Loeding re-enacted the shooting. He went out onto the street around 1:00 a.m. and placed himself on the spot from where he believed the shots originated, right at the end of their driveway berm of the road. (T. 676.) There were new scuff marks in the street. He noted that with the lights on in the house, through the curtain, you could see images -17- of the people inside. The diagram of the scene made by Detective Loeding and Sergeant Krejci was admitted into evidence. During his investigation that night he was given the appellant's name as a suspect and received a description of the vehicle driven by the appellant. An alert was teletyped on the COPS, Caution Ohio Police, system at 1:27 a.m. The alert contained the appellant's name, the address of the shooting, the vehicles owned by the appellant, and an address in Hinkley to which the one vehicle was registered. The North Royalton Police proceeded to the Hinkley address, but failed to locate the vehicle. The Police also searched at the residence of other relatives of the appellant, one on East Linden and one on Gross Drive, both in Parma. The appellant was not found at his home on Pinehurst Drive. These locations were periodically checked, 1:00, 2:30, 4:00 and 7:00 a.m. The police also searched for the appellant at the Inn Between early on the morning of August 3, 1996, approximately 12:45 a.m. The appellant's Cadillac was found at about noon and was being driven by the appellant's uncle, Jim Bradley. The vehicle was towed to the North Royalton Police Station and placed in an indoor secured bay. Pursuant to the search warrant obtained on August 4, 1996, Detective Loeding found a bullet casing and projectile in the open front driver's ashtray. There were no ashes or residue in the ashtray. The bullet was a .38 caliber wad cutter. Jim Bradley was interviewed and released. Detective Loeding testified as to the many and varied attempts to locate the appellant. On August 6, 1996, a warrant was issued -18- for the appellant's arrest. The warrant was entered into the NCIC computer, a network used by police dispatchers. Detective Loeding continued to visit the residences of the appellant's relatives at various addresses in Hinkley and Parma. On August 8, 1996, Detective Loeding spoke with the appellant's brother, Jim Kaszas, who lives on East Linden in Parma. The detective also spoke to the appellant's cousin, Michael Bradley, who along with his girlfriend Deanna Waddell, lives in Hinkley. Detective Loeding spoke four or five times with Ellen Stanton, who lives on Gross Drive in Parma with appellant's uncle, James Bradley. The detective went to Ms. Stanton's place of employment in Medina. He went to the neighbors of the appellant's relatives and handed out business cards and asked for leads and tips. An eye was also kept on the Inn Between Lounge. Friends of the appellant were also contacted to no avail. On August 8 or 9, 1996, Michael Bradley and Deanna Waddell came into the police station and spoke to officers. Deanna Waddell was the bartender on duty at the Inn Between the night of the shooting. On August 9, 1996, a search warrant was issued on the appellant's home on Pinehurst in Parma. No one was found inside, and no weapons or ammunition were found. Throughout this manhunt, Detective Loeding kept in close contact with the Marini family. He visited them at various motels and advised them of the progress on the case. The appellant was apprehended on August 11, 1996, and was released on bond on August 13, 1996. Detective Loeding immediately notified the Marini family. -19- Parma Police Officer Michael Farinacci testified that at roll call on the morning of August 3, 1996, he was informed that the North Royalton Police were looking for a yellow four-door Cadillac listed to the appellant, with an address on Pinehurst in Parma. At 7:30 a.m., after roll call, Officer Farinacci drove past the residence. The vehicle was not present at the home. Later in the day, at approximately 9:00 or 9:30 a.m., the officer again drove past the Pinehurst address and this time the vehicle was in the driveway. He radioed in, and requested that the North Royalton Police be notified. A second Parma Police vehicle was called to assist in the surveillance. Officer Farinacci was on the telephone with the Parma Police Department when the vehicle under observation began to move. The Parma Police requested that the vehicle be stopped. Officer Farinacci stopped the Cadillac as requested. The appellant was not driving the vehicle. Officer Farinacci observed a .38 round sitting in the open ashtray in the front seat. Sergeant Dale Krejci of the North Royalton Police Department testified that he was on duty on the morning of August 3, 1996, and that he received a call from the dispatcher at approximately 12:30 a.m. notifying him of the shooting. He responded by proceeding to the scene of the shooting. Sergeant Krejci testified that the white Pontiac motor vehicle parked in front of the home had a broken driver's side window and that the bay window in the front of the house had a hole. Upon further investigation, Sergeant Krejci found a matching hole in the curtain inside the house. In a direct line from this hole was a hole in the drywall on the south wall of -20- the living room. The bullet came to rest inside the linen closet in the bathroom. An examination of the Pontiac revealed that there was a dent in the door post as though something had impacted it, and a bullet lay on the floor of the passenger side of the vehicle. Based upon information learned from the occupant of the home, an alert was put out for a large Cadillac. For the rest of his shift, Sergeant Krejci unsuccessfully attempted to find this vehicle. North Royalton Police Patrolman Phillip Centorbi stated that on August 11, 1996, at approximately 11:10 p.m. he received a call from the Strongsville Police Department. Subsequently, he proceeded to The Village Inn located at 130th Street and Sprague Road in Strongsville. The information indicated that the appellant was in the establishment. Two North Royalton officers entered the bar, and Officer Centorbi remained outside by the front exit. One Strongsville officer, with a canine, was on the right side of the building, and another was on the left. Several officers entered the tavern. While these officers were still inside, Jim Bradley, the appellant's uncle, exited the front door. Thirty seconds later, the appellant attempted to exit as well. Both men were stopped and asked for identification. The appellant did not respond. The officers who previously entered the tavern exited carrying a black zipper bag which contained the appellant's identification. The appellant was placed under arrest. North Royalton Police Officer John Karl testified that on August 11, 1996 at 11:30 p.m., a call was received from an -21- informant that the appellant was at the Village Inn. He entered the bar and, based upon physical descriptions and age, two people sitting at the bar immediately caught his attention. He later learned that these two men were the appellant and his cousin Jim. Officer Karl approached the men and asked if they knew where Tim Kaszas could be found. The men pointed towards the back of the bar and said he was in the bathroom. Upon entering the bathroom, Officer Karl found another gentlemen inside. He exited in time to observe one man, the appellant, walking towards the side entrance of the building. The appellant was met at the door by two Strongsville police officers. At that point, the appellant turned and walked towards the front door, where he was taken into custody by Patrolman Centobi and other officers. Sergeant John Elek of the North Royalton Police testified that he responded to a vandalism call on August 18, 1996 at 9117 Royalton Road at 11:30 a.m. The front windshield of the red utility work truck in the drive was smashed and two tires were flattened. Sergeant Elek's walked around the outside of the house in search of evidence and the site of the perpetrator's entry was unfruitful. He then drove to a condominium development directly behind the victim's residence. Once Sergeant Elek pulled into the parking area, he noticed a beer bottle and an empty pack of Marlboro cigarettes lying on the ground right behind the eastern boundary of the victim's residence, but on the condominium grounds. These two objects were lying on a freshly mowed lawn, with the cigarette pack located thirty feet south of the beer bottle. When -22- questioned as to the meaning of freshly mowed, the sergeant responded that the tire tracks from the mower were still visible. Once he learned the brand of beer the appellant normally consumed and the brand of cigarettes he smoked, the beer bottle and Marlboro pack were collected as evidence. Charles Snyder of the Ohio Bureau of Criminal Identification and Investigation (BCI) testified that he is assigned to the major crime section, crime scene investigation unit, as a special agent. Prior to his current employment, he was with the Akron Police Department for twenty seven years. Pursuant to a request from the North Royalton Police, Mr. Snyder examined the appellant's vehicle for gunshot residue using the Modified Walker Greiss Test. Mr. Snyder explained in detail the procedure followed. He also testified that residue may be disturbed on the outside of a vehicle from the wind or the elements. He informed the court that when a gun is fired nitrites and lead are expelled as residue. The residue may go up as well as down (T. 424). Richard Turbok testified that he is a firearms examiner employed by the BCI. Mr. Turbok identified exhibit 31 as two fired lead bullets. Based upon his training and experience, Mr. Turbok determined that the bullets were consistent with .38 or .357 Magnum ammunition. Exhibit 32, another bullet, was determined to be the same. Each of the three bullets showed five lands, five grooves, and a right hand twist. It could not be determined whether or not they were all fired from the same gun. The bullets are all a wad cutter style used by target shooters. While the manufacturer could -23- not be determined, Mr. Turbok testified that the bullets were fired from a revolver. State exhibit 33 was identified by Mr. Turbok as an unfired, .38 special, wad cutter style bullet. This particular bullet was manufactured by Remington Peters. Mr. Turbok stated that all four bullets are consistent in diameter and design. Mr. Turbok informed the court that he prepared the Griess test paper for Mr. Snyder. He stated that gunpowder residue is fragile and if it is brushed or if moisture is present, it may be washed away. If the residue is not disturbed, it may stay indefinitely. In analyzing the test results, Mr. Turbok found that: 1) the left front door window trim tested negative for nitrites and lead; 2) the left overhead liner tested positive for nitrites; 3) the left front carpet area tested positive for nitrites; 4) the left front seat tested positive for lead; and, 5) the left front windshield support tested positive for nitrites. On cross-examination, Mr. Turbok was asked whether or not heavy smoking would lead to a positive test for nitrites. He answered that he has found a nitrite reaction on actual bits of tobacco itself (T. 472). Urine, fireworks and fertilizer are also sources of nitrites. When questioned about the lead residue, Mr. Turbok stated weld compound is lead and that possibly transportation of the weld mixture itself could lead to a positive test for lead residue (T. 472, 473). Other sources of lead are leaded paint, lead gasoline. Cheryl Allen, a latent fingerprint examiner employed by the BCI, testified that there was insufficient ridge detail on the -24- submitted Marlboro cigarette box with which to make a comparison. A Miller Genuine Draft beer bottle was also submitted, and Ms. Allen stated that the latent right thumbprint on the bottle is that of the appellant. The appellant presented the alibi testimony of Fredrick Kayo who stated that the appellant was in Espyville, Pennsylvania near Pymatuning Lake on August 16, 17, and 18, 1996. Kathy Abkemeir testified that the appellant did not leave the Inn Between lounge between the hours of 11:00 p.m. on August 2, 1996 and 1:00 a.m. on August 3, 1996. Deanna Waddell, the bartender on duty, testified that the appellant arrived at the Inn Between sometime between 10:00 and 10:30 p.m. on August 2, 1996, and that he did not leave until his father picked him up at approximately 1:30 a.m. on August 3, 1996. Ms. Waddell stated that the appellant did not drive after his motorcycle accident. This testimony was corroborated by Lorenz Kaszas, the appellant's father. Mr. Kaszas also stated that he picked the appellant up at the Inn Between on the morning of August 3, 1996, and that he did not see the appellant's vehicle in the parking lot of the lounge. The appellant's final witness, Lesean Roberts, testified that he was in the county jail on a charge of drug possession. Mr. Roberts indicated that he, Robert Schmidt, and the appellant resided on the same pod. Mr. Roberts testified that Mr. Schmidt looked at the paperwork on the appellant's case and told the appellant that he needed to get rid of his witnesses (T. 933). The appellant responded in the negative and stated that he loved his -25- wife and child. Mr. Roberts never heard the appellant solicit Schmidt to do anything. The appellant sets forth eight assignments of error. The first and second assignments of error will be considered together. The first assignment of error: THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION FOR ACQUITTAL WHEN THE EVIDENCE PRESENTED BY THE STATE WAS INSUFFICIENT TO SUSTAIN A CONVICTION OF ALL COUNTS. The second assignment of error: THE COURT ERRED IN OVERRULING APPELLANT'S MOTION FOR A DIRECTED VERDICT SUBSEQUENT TO THE CLOSE OF APPELLANT'S CASE. In the first assignment of error, the appellant argues that, as to each count charged, the State failed to present sufficient evidence upon which to convict. In the second assignment of error, the appellant asserts that the appellant's witnesses provided an alibi, and that the State failed to present evidence of the appellant's guilt beyond a reasonable doubt. The Supreme Court, in State v. Thompkins (1997), 78 Ohio St.3d 380, held that `sufficiency' is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law. In essence, sufficiency is a test of adequacy. Id. at 386. In State v. Jenks (1991), 61 Ohio St.3d 259, the Ohio Supreme Court set forth the test to be used in determining questions on both the value of circumstantial evidence -26- and on the sufficiency of the evidence presented by the State. The court held at syllabus one and two: Circumstantial evidence and direct evidence inherently possess the same probative value and therefore should be subjected to the same standard of proof. When the state relies on circumstantial evidence to prove an essential element of the offense charged, there is no need for such evidence to be irreconcilable with any reasonable theory of innocence in order to support a conviction. Therefore, where the jury is properly and adequately instructed as to the standards for reasonable doubt a special instruction as to circumstantial evidence is not required. (Holland v. United States [1954], 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150, followed; State v. Kulig [1974], 37 Ohio St.2d 157, 66 O.O.2d 351, 309 N.E.2d 897, overruled.) 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], 433 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.) Beginning with the charges brought for the offenses surrounding the drive-by shooting of the Marini home on Royalton Road, testimony was given by Jenny Kaszas that she had filed for divorce, that the appellant was upset, and that the appellant had previously threatened her with a gun; by Angela Marini that several shots were fired and that the family was also afraid of the appellant; and, by Gino Marini that on the evening of the shooting, the appellant was fixated on the loss of his family, was drinking, was angry, and was `heating up.' Mr. Kuhfeld testified that he -27- heard several shots and then observed a large car at the end of the Marini driveway, facing the wrong direction. Police officers testified as to the bullets recovered from the scene, both inside and outside of the home. The owner of the Inn Between stopped the appellant from leaving the bar with an open container the night of the shooting; the cook noticed that the appellant was absent from the bar for a period of time, but then reappeared. BCI employees stated that the appellant's yellow Cadillac tested positive for nitrites and lead, substances released as gunshot residue. Mr. Turbok, of the BCI, stated that the bullets recovered from the home could be fired from a .38 revolver and were wad cutter style bullets, the type used by target shooters. Mrs. Kaszas testified that the appellant had access to a .38 Smith and Wesson revolver and that the appellant used that gun for target practice. Police officers testified that an unfired wad cutter style bullet was found in the appellant's motor vehicle. Officer Loeding testified as to the many unsuccessful attempts and to locate the appellant subsequent to the shooting. Other officers testified as to the appellant's attempts to evade capture at the Village Inn. Turning to the crimes committed against Gino Marini subsequent to the shooting, evidence was presented that the truck was parked at the Marini home; that the appellant had just been released from jail; that a box of his brand of cigarettes was found on neighboring property on newly-cut grass; that a bottle of his brand of beer, containing the appellant's thumbprint, was also found on -28- neighboring property, relatively near the cigarette box. Gino Marini testified that he felt intimidated by the vandalism to his truck, and that the truck was necessary to him in his work. While all of this evidence is circumstantial, 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 crimes proven beyond a reasonable doubt. Such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The first assignment of error is overruled. As to the second assignment of error where the appellant argues that the appellant presented a defense which precluded the jury from returning a conviction, this court notes that there is no need for the State's evidence to be irreconcilable with any reasonable theory of innocence. The appellant's second assignment of error must be overruled. The appellant's third assignment of error: APPELLANT'S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In this assignment of error, the appellant asserts that because there is no tangible evidence to support his convictions, they are against the manifest weight of the evidence. The appellant argues that in order to convict, the jury must have drawn inferences based upon inferences and not upon proven facts. The Supreme Court has held that weight of the evidence concerns the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue -29- rather than the other. State v. Smith (1997), 80 Ohio St.3d 89, citing to Thompkins, supra. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Thompkins, supra. The weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230. This court will not reverse a verdict where there is substantial evidence upon which a trier of fact could reasonably conclude that all the elements of the offense have been proven beyond a reasonable doubt. State v. Ely (1978), 56 Ohio St.2d 169. The Ohio Constitution seeks to preserve the jury's role with respect to issues surrounding the credibility of witnesses. Thompkins, supra, at 389. After a thorough review of the evidence, transcripts and the record in this case, this court must conclude that a trier of fact could reasonably conclude that all elements of each offense was proven beyond a reasonable doubt. Even though no eyewitness testimony was presented to the jury, and the evidence which was presented was circumstantial, the greater amount of credible evidence sustains the appellant's convictions. Given the testimony of the Marini family, the testimony of the neighbor, the investigationof the police, the evidence found of gunshot residue in the appellant's vehicle, the presence of the cigarette box, and the thumbprint on the Miller beer bottle, it was permissible for -30- the jury to conclude that the appellant was at the scene of the crimes, and that he was the perpetrator. The third assignment of error is overruled. The fourth assignment of error: THE PROSECUTOR'S MISCONDUCT DEPRIVED THE DEFENDANT OF A FAIR AND IMPARTIAL JURY. In this assignment of error, the appellant asserts that the State's closing argument was improper and prejudicial to the appellant. The appellant argues that the prosecutor improperly drew inferences from the testimony and voiced a personal opinion as to the credibility of witnesses. Instances of prosecutorial misconduct can be harmless when they are incidental and isolated. State v. Lorraine (1993), 66 Ohio St.3d 414, 420, citing to State v. Jenkins (1984), 15 Ohio St.3d 164. The conduct of the prosecuting attorney during trial cannot be made a ground of error unless the conduct deprives defendant of a fair trial. State v. Loza (1994), 71 Ohio St.3d 61, 78, and State v. Keenan (1993), 66 Ohio St.3d 402, citing to State v. Apanovitch (1987), 33 Ohio St.3d 19. Errors not objected to are waived, however, the closing argument must be reviewed in its entirety to determine if the prosecutor's remarks were prejudicial. Loza at 78, and Kennan at 410. Parties are granted great latitude in closing arguments, and the question as to the propriety of these arguments is generally considered one falling within the sound discretion of the trial court. Loza, supra, citing to State v. Mauer (198 4), 15 Ohio St.3d 239, 266. If it is clear beyond a reasonable doubt that, absent the prosecutor's comments, the jury -31- would have found appellant guilty, then his conviction will not be reversed. Loza at 78. Here, the prosecutor fairly stated to the jury that it was permissible to draw inferences from the evidence before them. Any other errors committed during closing argument were not such that the appellant was denied a fair trial. The record contains sufficient evidence of the appellant's guilt beyond a reasonable doubt that the jury would have found the appellant guilty absent any error in closing argument. The fourth assignment of error is overruled. The fifth assignment of error: THE TRIAL COURT ERRED IN JOINING THE TWO INDICTMENTS FOR TRIAL. The appellant argues that since the crimes were committed two weeks apart, they were not part of the same act or transaction as required under Crim.R. 13. The appellant posits that these crimes were not a single criminal adventure, bearing a logical relationship to one another, and were not bound together by time, space, and purpose directed to a single objective. Joinder and the avoidance of multiple trials is favored for many reasons, among which are conserving time and expense, diminishing the inconvenience to witnesses and minimizing the possibility of incongruous results. State v. Torres (1981), 66 Ohio St.2d 340. The standard of review is one of abuse of discretion. State v. Schaim (1992), 65 Ohio St.3d 51, 63. The appellant is required to show that the joinder of offenses is prejudicial. Lorraine, supra. -32- Offenses may be joined in a single indictment pursuant to Crim.R. 8: (A) Joinder of offenses. Two or more offenses may be charged in the same indictment, information or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character, or are based on the same act or transaction, or are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan, or are part of a course of criminal conduct. The test for joining two or more indictments at trial is found in Crim.R. 13: The court may order two or more indictments or informations or both to be tried together, if the offenses or the defendants could have been joined in a single indictment or information. The procedure shall be the same as if the prosecution were under such single indictment or information. The court did not err in trying the appellant's indictments together in one trial. The crimes committed by the appellant were intended against the Marini family, were committed at the same place, and were motivated by the same circumstances. Thus, these crimes may be seen as comprising a common scheme or plan, or as being a continuing course of criminal conduct. It must also be noted that many of the same witnesses were needed to prove both cases. The trial court did not abuse its discretion in joining the appellant's indictments for trial. The fifth assignment of error is overruled. The sixth assignment of error: THE COURT ERRED IN SENTENCING THE DEFENDANT CONSECUTIVELYIN REGARD TO GUN SPECIFICATIONS. -33- The appellant argues that the convictions arising from the first indictment must be construed as being the same act or transaction and thus, pursuant to R.C. 2929.14(D)(1)(a)(i), the court erred in imposing two consecutive mandatory sentences on the firearm specifications for attempted murder and felonious assault. R.C. 2929.14(D)(1)(a)(i) states *** A court shall not impose more than one additional prison term on an offender under this division for felonies committed as part of the same act or transaction. *** This court, in State v. Evans (Sept. 3, 1998), Cuyahoga App. No. 73018, unreported, held that the term transaction within the meaning of R.C. 2929.71(B), the predecessor of R.C. 2929.14(D)(1)(a)(i), has been defined as a series of continuous acts bound together by time, space and purpose, and directed toward a single objective. State v. Wills (1994), 69 Ohio St.3d 690, 691. In the case sub judice, the appellant was indicted in count one for the attempted murder of Angela Marini, and in count two for felonious assault on Angela Marini, and in count three for improper discharge of a firearm at or into a habitat. The appellant fired shots into one home, on one occasion, and the indictment lists only one intended victim. The testimony in the record indicates that while the appellant fired multiple shots, he fired them in quick succession. In other words, he did not drive by the house four or five different times, but rather drove past once and fired all at one time. This court is forced to conclude that in this instance the appellant's crimes of attempted murder, felonious assault, and -34- improper discharge of a firearm at or into a habitat, were clearly committed as part of the same transaction. The trial court should have sentenced the appellant to only one five-year prison term for a single firearm specification. The appellant's sixth assignment of error is well taken and his sentence is hereby modified. The appellant's seventh assignment of error: APPELLANT HAD INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL. The appellant asserts that he was rendered ineffective assistance of counsel by counsel's failure to pose enough questions to potential jurors during voir dire; that he was flippant during voir dire; that during his opening statement he alienated the jury with his levity; that during the opening statement he should have dispelled the notion that the evidence was circumstantial; that the cross-examination of witnesses was inadequate; that he was focused on the time factor; that he failed to object to leading questions; that he failed to call witnesses and failed to have the appellant take the stand; and that during final argument he was again fixated on the time question. Ineffective assistance claims are evaluated in a two-step process. First, the defendant must show that counsel's representation fell below an objective standard of reasonableness. State v. Keenan (1998), 81 Ohio St.3d 133, 152, citing to Strickland v. Washington (1984), 466 U.S. 668, 688. Second, the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the -35- proceeding would have been different. Id. See also State v. Davie (1997), 80 Ohio St.3d 311, 331 and State v. Reynolds (1997), 80 Ohio St.3d 670, 674. There is a strong presumption that licensed attorneys are competent and that the challenged action is the product of sound trial strategy. State v. Hamblin (1988), 37 Ohio St.3d 153. Even debatable tactics do not constitute ineffective assistance of trial counsel, for it is obvious that nothing is seen more clearly than with hindsight. State v. Clayton (1980), 62 Ohio St.2d 45, 49. A reviewing court must evaluate trial counsel's performance on the facts of the particular case as of the time of counsel's conduct. Strickland, supra. A review of the testimony and counsel's performance clearly shows that the complained of errors were trial tactics, based upon a sound trial strategy. The appellant's seventh assignment of error is overruled. The eighth assignment of error: THE COURT ERRED IN ITS INSTRUCTIONS TO THE JURY IN REGARD TO CIRCUMSTANTIAL EVIDENCE. The appellant argues that the court's failure to use the jury instructions on circumstantial evidence and on inferences as given in the Ohio Jury Instructions was prejudicial error. Jury charges must be reviewed in the context of the entire instruction. State v. Pool (1996), 116 Ohio App.3d 513, 525, citing to State v. Price (1979), 60 Ohio St.2d 136. A trial court may tailor the language of its instructions to suit the factual circumstances in the case before it, and a reviewing court will -36- reverse only on a showing of an abuse of discretion. Price, supra, citing generally to State v. Scott (1978), 41 Ohio App.3d 313. The entire instruction given by the court gave on direct and circumstantial evidence is as follows: Now evidence may be either direct or circumstantial or a combination of both. Direct evidence is testimony given by a witness who has seen or heard the facts to which he or she has testified. It includes the exhibits accepted as evidence during the trial and any stipulations. If a witness testified from personal knowledge of a fact such as an eyewitness, this is called direct, positive or eyewitness evidence. It is not always possible to ascertain the truth by evidence of this direct character. Therefore, the law permits the introduction and consideration of what is called circumstantial evidence. By circumstantial evidence we mean proof of certain facts and circumstances from which the jury may infer other connected facts which usually and reasonably follow according to the common experience of mankind. A conclusion so deduced or drawn from a proven fact or facts is what we refer to as an inference. In considering the evidence in this case, either direct or circumstantial, you may draw inferences from proven facts. You are instructed, however, that you are not permitted to base one inference upon another inference. Each inference must be predicated or based upon a proven fact or facts. Two or more inferences may be drawn from the same proven fact or additional facts and evidence or circumstances and evidence. If you look outside the window during the night and see the snow following your observation that it is snowing is direct evidence of the fact that it snowed. You heard this example before. Example of the circumstantial evidence is when you retire to go to bed at night, you look outside. The ground is clear but when you wake up in the morning you find a blanket of snow. Now you did not see it snow but from the fact you find a blanket of snow on the ground the next day, you are justified in making the reasonable inference that it snowed during the night. Your conclusion that it snowed during the night is circumstantial evidence of the fact that it snowed. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. The -37- law requires only that after weighing all the evidence, the jury must be convinced of the guilt of the defendant beyond a reasonable doubt. You the jury are the sole judges of the facts, of the credibility of the witnesses, and of the weight to be given to the testimony of each witness. The instructions given in 4 Ohio Jury Instructions (1997), Sections 405.01 on evidence and inferences state as follows: 1. DEFINITION. Evidence is all the testimony received from the witnesses (including depositions) (and the exhibits admitted during the trial) (and facts agreed to by counsel) (and any facts with the court requires you to accept as true). 2. Evidence may be direct or circumstantial, or both. 3.DIRECT EVIDENCE. Direct evidence is the testimony given by a witness who has seen or heard the facts to which he testifies. It includes exhibits admitted into evidence during the trial. 4. CIRCUMSTANTIAL EVIDENCE. Circumstantial evidence is the proof of facts or circumstances by direct evidence from which you may reasonably infer other related or connected facts which naturally and logically follow, according to the common experience of mankind. COMMENT It is a practice of some judges to give an example of this rule as may be appropriate. 5. INFERENCE. To infer, or to make an inference, is to reach a reasonable (conclusion) (deduction) of fact which you may, but are not required to, make from other facts which you find have been established by direct evidence. Whether an inference is make rests entirely with you. 6. EQUAL WEIGHT. Direct evidence and circumstantial evidence are of equal (weight) (probative value). COMMENT See State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, which requires that direct and circumstantial evidence be given the same value. -38- A comparison of the jury instructions as given by the trial court and the instructions as suggested in OJI reveal that the court's instruction was substantially similar to the suggested instruction. The trial court did not abuse its discretion in its choice of words in the instruction as the import of the charge was clear. No prejudice accrued to the appellant from the court instruction on direct and circumstantial evidence. The eighth assignment of error is overruled. The appellant's conviction is affirmed, but sentence is modified. -39- This cause is remanded for modification of appellant's sentence consistent with this opinion. 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 Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOSEPH J. NAHRA, P.J., and, LEO M. SPELLACY, J., CONCUR. ______________________________ JAMES D. SWEENEY JUDGE 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 of decision by the .