State v. Young , 2017 Ohio 7162 ( 2017 )

[Cite as State v. Young, 2017-Ohio-7162.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104627
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
GEORGE YOUNG
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-573242-A
BEFORE: Kilbane, P.J., E.T. Gallagher, J., and Stewart, J.
RELEASED AND JOURNALIZED: August 10, 2017
ATTORNEY FOR APPELLANT
Susan J. Moran
55 Public Square, Suite 1616
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
Denise J. Salerno
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, P.J.:
{¶1} Defendant-appellant, George Young (“Young”), appeals from his
convictions for rape and kidnapping. For the reasons set forth below, we affirm.
{¶2} This appeal arises from an incident that occurred in 1993. On April 21,
1993, K.A., who was 13 years old at the time, stayed home unbeknownst to her mother,
who had left for work that morning. K.A. and her mother lived on Central Avenue in
Cleveland, Ohio. At approximately 2:30 p.m., K.A. heard someone using a key to enter
the home. She hid in her closet, thinking it was her mother. Mother had given her
boyfriend, who K.A. knew by the name of “Randy,” a key to the house. Randy was later
identified as the defendant, George Randy Young.
{¶3} Young came upstairs with a little boy who began playing video games with
K.A. in her bedroom. Thereafter, K.A. decided to change her clothing so she could play
outside. Young was in her mother’s bedroom, when she went in there to get some socks.
While K.A. was standing by the dresser, Young grabbed her from behind and pushed her
onto the bed. He punched her in the head and forcefully performed oral sex on her. He
then penetrated her vagina with his penis. K.A. was able to grab something from the
headboard and hit Young with it, which allowed her to jump up and run out of the house.
She ran to a neighbor’s house and told her neighbor that she had been raped. Her
neighbor called the police, and K.A. was taken to the hospital by ambulance. A sexual
assault examination was performed at the hospital.
{¶4} K.A. gave a statement to Cleveland Police on May 1, 1993. In the
statement, her assailant is identified as “Randy Spivey,” but K.A. had no recollection at
trial of making the statement or how the name “Spivey” became associated with Randy.
Mother also testified that she was not sure how the name “Spivey” came to be associated
with Randy. She did not know Young’s last name or where he lived. Mother testified
that she was surprised to see investigators in 2013 because she thought the case was
closed.
{¶5} Investigators contacted K.A. and her mother because the evidence from the
rape kit was tested by the Bureau of Criminal Investigation (“BCI”) as part of the
Attorney General’s incentive to have the BCI test its backlog of untested rape kits. In
November 2012, an unknown male DNA profile was developed that matched two
different rape kits.
{¶6} In response to the November 2012 notification, Cleveland police reopened
their investigation and attempted to locate and identify “Randy Spivey.” In March 2013,
investigators showed K.A. and her mother a “Randy Spivey” photo lineup. Neither K.A.,
nor her mother were able to identify anyone from the array. During this same time,
Young was incarcerated as a result of an unrelated case in the Cuyahoga County Common
Pleas Court.
{¶7} On April 9, 2013, which was prior to the expiration of the 20-year statute of
limitations, the state indicted John Doe #1, Unknown Male, and identified John Doe #1
only by his DNA profile for the rape and kidnapping of K.A. A warrant for John Doe’s
arrest was issued the same day.
{¶8} Thereafter, in June 2013, Young’s DNA sample was entered into the
CODIS system, which revealed a possible match between Young and the DNA profile in
K.A.’s rape kit. The BCI informed Cleveland police of the “hit notification” and
requested another sample from Young to properly confirm the match. On September 12,
2013, investigators obtained a buccal swab from Young, who was in prison for charges in
the unrelated case. On September 17, 2013, the BCI generated a lab report identifying
Young as the subject, instead of “Randy Spivey.” The BCI matched Young’s DNA to
that of the unknown male in K.A.’s vaginal swabs at the frequency of occurrence of 1 in
35,750,000,000,000,000,000 unrelated individuals.
{¶9} The state did not move to amend the indictment to change the name from
John Doe #1 to George Randy Young until January 31, 2014. A warrant was issued on
that same day and Young was arraigned on February 11, 2014. After several motions
and pretrials, the matter proceeded to a bench trial on April 25, 2016.
{¶10} Prior to trial, the defense filed several motions and numerous pretrials were
conducted. A few weeks before trial, the trial court held a hearing on several of these
motions. During the hearing, it was noted that Young’s mother’s name was written on a
police report, but Young admitted that his mother would not have known who “Randy
Spivey” was and would not have identified him as such. Young’s name did not appear
anywhere on the report. After the conclusion of the hearing, the trial court denied
Young’s motion to suppress, motion to dismiss for statute of limitations, motion to
dismiss and objection to amended indictment, motion to dismiss for retroactive statute of
limitations, and motion to dismiss for lack of speedy trial.
{¶11} Then on April 25, 2016, after numerous pretrials, defense motions (several
of which were pro se), and several different attorneys, the matter proceeded to a bench
trial. Before trial, Young renewed his motion to dismiss for preindictment delay. He
argued that he suffered actual prejudice because he was not able to locate a witness who
would be able to testify as to his whereabouts on April 21, 1993, at approximately 2:00
p.m. The trial court denied the motion, stating that
[t]he Court has considered the arguments of counsel, but I do find that
under Ohio law, the passage of time itself doesn’t create the prejudice and
the Court’s finding is that no actual prejudice has been demonstrated.
And even if there was, that the delay was justified by the State in bringing
the indictment. So I’m going to deny that motion, and we can proceed to
trial.
{¶12} After the conclusion of trial, the court found Young guilty of rape and
kidnapping. The court sentenced him to a total of 11 years in prison, to be served
consecutive to his other case.
{¶13} Young now appeals, raising the following five errors for our review, which
shall be discussed out of order for ease of analysis.
Assignment of Error One
The trial court erred when it failed to dismiss [Young’s] indictment due to
pre-indictment delay.
Assignment of Error Two
The trial court erred in failing to dismiss the indictment as having been
time-barred by the six year statute of limitations in violation of his due
process rights.
Assignment of Error Three
The trial court erred in failing to dismiss the indictment as having been
time-barred by the [20-year] statute of limitations.
Assignment of Error Four
The trial court erred by allowing the state to amend the indictment by
adding [Young’s] name after the expiration of the statute of limitations had
expired, and thereby denying [Young] his right to presentation to the grand
jury.
Assignment of Error Five
The trial court erred in denying [Young’s] motion to dismiss for lack of
speedy trial.
Statute of Limitations
{¶14} In the second and third assignments of error, Young argues the trial court
should have dismissed the indictment because the statute of limitations expired prior to
the date the charges were brought against him.
{¶15} Young first argues that the six-year statute of limitations for rape applies to
his case. He further argues that the retroactive application of the 20-year statute of
limitations for rape is an unconstitutional absurdity. We disagree.
{¶16} By an amendment effective March 9, 1999, the Ohio General Assembly
extended the statute of limitations for rape from 6 years to 20 years. R.C.
2901.13(A)(3)(a). The amendment applies retroactively to offenses committed prior to
the effective date of the amendment, provided that the statute of limitations for such
offenses had not yet expired by March 9, 1999. State v. Pluhar, 8th Dist. Cuyahoga No.
102012, 2016-Ohio-1465, ¶ 5-6; State v. Copeland, 8th Dist. Cuyahoga No. 89455,
2008-Ohio-234, ¶ 11.
{¶17} In the instant case, the criminal conduct occurred on April 21, 1993. The
six-year statute of limitations at the time had not yet expired when the General
Assembly’s amendment of R.C. 2901.13 became effective in March 1999. As a result,
the 20-year statute of limitations applies to Young’s case.
{¶18} Young next argues that if the 20-year statute of limitations applies, it also
expired because the state did not exercise reasonable diligence when executing the John
Doe indictment.
{¶19} R.C. 2901.13(A)(1) provides that a prosecution shall be barred unless it is
commenced within the applicable limitations period. The state bears the burden of
establishing that prosecution was commenced within the applicable limitations period.
State v. Gulley, 8th Dist. Cuyahoga No. 101527, 2015-Ohio-3582, ¶ 14, discretionary
appeal not allowed, 144 Ohio St.3d 1505, 2016-Ohio-652, 45 N.E.3d 1050, citing State v.
King, 103 Ohio App.3d 210, 212, 658 N.E.2d 1138 (10th Dist.1995).
{¶20} In the instant case, the applicable limitations period is 20 years. If
reasonable diligence was used by law enforcement in its attempts to identify the
defendant, and all attempts have failed, a John Doe-DNA indictment or warrant can toll
the statute of limitations. Gulley at ¶ 15, citing State v. Danley, 138 Ohio Misc.2d 1,
2006-Ohio-3585, 853 N.E.2d 1224 (C.P.); State v. Younge, 2013 UT 71, 321 P.3d 1127;
Commonwealth v. Dixon, 458 Mass. 446, 938 N.E.2d 878 (2010); People v. Robinson, 47
Cal.4th 1104, 104 Cal.Rptr.3d 727, 224 P.3d 55 (2010); State v. Burdick, 395 S.W.3d 120(Tenn.2010); People v. Martinez, 52 A.D.3d 68, 855 N.Y.S.2d 522 (2008); State v. Davis,
2005 WI App. 98, 281 Wis.2d 118, 698 N.W.2d 823; State v. Dabney, 2003 WI App. 108,
264 Wis.2d 843, 663 N.W.2d 366; See also Bieber, Meeting the Statute or Beating It:
Using “John Doe” Indictments Based on DNA to Meet the Statute of Limitations, 150
U.Pa.L.Rev. 1079, 1081-1086 (2002). “Black’s Law Dictionary, (5[th] Ed.1979), at
412, defines ‘reasonable diligence’ as ‘[a] fair, proper and due degree of care and activity,
measured with reference to the particular circumstances; such diligence, care, or attention
as might be expected from a [person] of ordinary prudence and activity.’” Sizemore v.
Smith, 6 Ohio St.3d 330, 332, 453 N.E.2d 632 (1983). “[W]hat constitutes reasonable
diligence will depend on the facts and circumstances of each particular case.” Id.{¶21} In the instant case, the grand jury indicted John Doe #1 on April 9, 2013,
based on a specific DNA profile related to an unknown male that was obtained from BCI
and a warrant was issued. Prior to the indictment, the case was stagnant from May 1,
1993 (when K.A. gave her statement to the police) until August 3, 2011 (when K.A.’s
rape kit was submitted to BCI for testing). On November 27, 2012, the BCI found a
match with the DNA profile in K.A.’s rape kit and another rape kit, but did not have a
named suspect for that DNA profile. The Cleveland Police Department reopened the
case in December 2012. Investigators attempted to locate and identify “Randy Spivey,”
but neither K.A. nor her mother could identify anyone in the photo array presented to
them in March 2013.
{¶22} Meanwhile Young was incarcerated on March 28, 2013, as a result of a
separate criminal case. On June 13, 2013, Young’s DNA was entered into the CODIS
system. This prompted a “hit notification” letter to be sent to the Cleveland Police
Department that informed them of a possible investigative lead. The June 18, 2013 letter
instructed that any possible connection or involvement of Young to the case must be
determined through further investigation. On June 21, 2013, investigators met with K.A.
and presented a photo lineup containing Young’s photo. K.A. was unable to identify him
as her assailant. On June 28, 2013, investigators met with K.A.’s mother and presented a
photo lineup containing Young’s photo. She was also unable to identify him.
{¶23} On September 12, 2013, an investigator met with Young. The investigator
advised Young of his rights and told him that the DNA found in K.A.’s rape kit appeared
to match him. Young signed a waiver and verbally agreed to speak without an attorney
present. The investigator advised Young that an indictment naming a DNA profile had
already been filed. Young denied knowing the name “Spivey.” Young was shown a
photograph of K.A. He responded that he had never seen her before in his life. The
investigator took a buccal swab from Young during their meeting.
{¶24} At this point in time, investigators had three possible suspects: Young,
“Randy Spivey,” and an unknown male. Young’s DNA sample was submitted to BCI to
be compared to the forensic samples in the rape kit. On September 17, 2013, a lab report
was generated that changed the subject’s name from “Randy Spivey” to George Young.
Young could not be excluded as the source of semen. The expected frequency of
occurrence of Young’s DNA from the vaginal swabs was 1 in
35,750,000,000,000,000,000 unrelated individuals. On January 31, 2014, the state then
moved to amend the indictment from John Doe #1 to George R. Young, a.k.a. Randy
Spivey, and issued a warrant the same day.
{¶25} While there was a near 20-year delay between the incident and the
indictment, the record demonstrates that law enforcement used reasonable diligence in its
attempts to identify the assailant based on the information it received. K.A. immediately
reported the incident and identified the perpetrator as Randy. Cleveland police’s
attempts to locate Randy Spivey were unsuccessful. Once police received notice from
BCI through the Attorney General’s incentive to have the BCI test its backlog of untested
rape kits that there was a match on K.A.’s rape kit, investigators again attempted to
identify the assailant. The state then brought forth the charges against John Doe #1 on
April 9, 2013, which was before the 20-year statute of limitations expired.
{¶26} Accordingly, the second and third assignments of error are overruled.
Preindictment Delay
{¶27} In the first assignment of error, Young argues he suffered actual prejudice
when the state indicted him nearly 20 years after the incident occurred.
{¶28} We note that courts reviewing a decision on a motion to dismiss for
preindictment delay afford deference to the trial court’s findings of fact, but engage in a
de novo review of the trial court’s application of those facts to the law. Copeland, 8th
Dist. Cuyahoga No. 89455, 2008-Ohio-234, at ¶ 10, citing State v. Henley, 8th Dist.
Cuyahoga No. 86591, 2006-Ohio-2728. The statute of limitations provides the “primary
guarantee against bringing overly stale criminal charges.” Henley at ¶ 5, citing United
States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977).
{¶29} The delay between the commission of an offense and an indictment can
constitute a violation of due process of law guaranteed by the federal and state
constitutions. State v. Luck, 15 Ohio St.3d 150, 153-154, 472 N.E.2d 1097 (1984), citing
Lovasco. Courts apply a two-part test to determine whether preindictment delay
constitutes a due process violation. The defendant has the initial burden to show
substantial and actual prejudice as a result of the delay. Luck at 157-158. If the
defendant meets the initial burden, then the second part of the test “requires that there be
no justifiable reason for the delay in prosecution that caused this prejudice.” Id. at 158,
citing Lovasco.
{¶30} “[P]roof of actual prejudice, alone, will not automatically validate a due
process claim” as “the prejudice suffered by the defendant must be viewed in light of the
state’s reason for the delay.” Id. at 154, citing Lovasco. Prejudice is not presumed
solely because of a lengthy delay. Copeland at ¶ 13. “The determination of ‘actual
prejudice’ involves ‘a delicate judgment based on the circumstances of each case.’”
State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 52, quoting United
States v. Marion, 404 U.S. 307, 325, 92 S.Ct. 455, 30 L.Ed. 2d 468 (1971).
{¶31} This court has previously required a defendant to also establish that any
missing evidence, lost witnesses, or physical evidence, adversely affected his ability to
defend himself. Specifically, this court requires a defendant to demonstrate that missing
evidence was nonspeculative and exculpatory. State v. McFeeture, 2015-Ohio-1814, 36
N.E.3d 689, ¶ 142 (8th Dist.); State v. Clemons, 2013-Ohio-5131, 2 N.E.3d 930, ¶ 15 (8th
Dist.).
{¶32} In determining whether Young has demonstrated actual prejudice, we must
look at the evidence that was unavailable as a result of the delay. State v. Smith, 8th Dist.
Cuyahoga No. 104203, 2016-Ohio-8043, ¶ 13. Young claims that he was unable to find
an alibi witness at the time of the rape. He was not able to show that could have been
working on the day of the incident because his former employer is now closed and “no
one [has] been able to articulate what [he] was doing on April 21, 1993, since so much
time had passed.” Young also argues the police investigation was insufficient. He
claims the police did not follow up with determining the true identity of “Randy Spivey,”
in light of the name “Loreen Young” handwritten in the margin of an old copy of the
police report. Loreen Young is the name of Young’s mother.
{¶33} Young’s claims are insufficient to establish substantial and actual prejudice.
“[G]eneralized claims that witnesses’ memories had faded over time is insufficient to
establish actual prejudice.” Henley, 8th Dist. Cuyahoga No. 86591, 2006-Ohio-2728, at
¶ 9, citing State v. Cochenour, 4th Dist. Ross No. 98CA2440, 1999 Ohio App. LEXIS
1054 (Mar. 8, 1999); State v. Metz, 4th Dist. Washington No. 96CA48, 1998 Ohio App.
LEXIS 1874 (Apr. 21, 1998); State v. Glasper, 2d Dist. Montgomery No. 15740, 1997
Ohio App. LEXIS 583 (Feb. 21, 1997).
{¶34} Moreover, the record reflects that the police attempted to locate Randy
Spivey throughout the investigation to no avail. It was not until Young’s DNA was
entered into the database that the police were able to locate K.A.’s assailant. The record
is void of any evidence that the police ceased the investigation only to later resume
prosecution on the same evidence that was available to it in 1993. As a result, Young
fails to demonstrate that the state delayed the indictment to gain a tactical advantage.
{¶35} The evidence does demonstrate, however, that Young’s DNA was in K.A.’s
rape kit. The expected frequency of occurrence of Young’s DNA from the vaginal
swabs was 1 in 35,750,000,000,000,000,000 unrelated individuals. Therefore, based on
the foregoing, we find that the trial court did not err when it denied his motion to dismiss
for preindictment delay.
{¶36} Accordingly, the first assignment of error is overruled.
Amendment of the Indictment
{¶37} In the fourth assignment of error, Young argues that the John Doe
indictment itself and the amendment of the indictment was erroneous. Relying on
Gulley, he also argues he was a known suspect at the time of the filing of the indictment.
{¶38} John Doe indictments are typically used where the state has the DNA profile
of the suspect, but has not yet determined the source of the DNA profile. The Ohio
Supreme Court has stated:
An indictment * * * is an accusation * * * against a person, and not against
a name. A name is not of the substance of an indictment. And a person
may be * * * indicted, without the mention of any name, and designating
him as a person whose name is to the grand jurors unknown. Or a person
may be indicted by a name wholly imaginary and fictitious, as John Doe or
Richard Doe[.]
Lasure v. State, 19 Ohio St. 43, 50, 1869 Ohio LEXIS 117 (1869).
{¶39} In the instant case, the state did not know who the DNA profile belonged to
until June 2013, when Cleveland police received a hit notification letter from the BCI that
Young was a possible match. The assailant was originally identified as “Randy Spivey.”
Prior to the hit notification letter, law enforcement was never able to match the DNA
profile in K.A.’s rape kit to “Randy Spivey.” Since the state was aware of the DNA
profile of the suspect, but had not yet determined who the DNA profile belonged to, its
use of the John Doe indictment itself was not erroneous.
{¶40} Young next contends that the state waited to amend the John Doe indictment
to gain a tactical advantage. Crim.R. 7(D) permits a court to amend an indictment so
long as there is no change to the name or identity of the crime charged. Here, the state
confirmed that the DNA found in the rape kit belonged to Young and changed the name
on the indictment well before trial. The name or identity of the crimes originally charged
never changed.
{¶41} Furthermore, the state was not required to amend the indictment
immediately upon finding out Young’s DNA was a potential match to K.A.’s rape kit.
As the United States Supreme Court stated:
[P]rosecutors are under no duty to file charges as soon as probable cause
exists but before they are satisfied they will be able to establish the
suspect’s guilt beyond a reasonable doubt. To impose such a duty “would
have a deleterious effect both upon the rights of the accused and upon the
ability of society to protect itself.”
Lovasco, 431 U.S. at 791, 97 S.Ct. 2044, 52 L.Ed.2d 752, quoting United States v. Ewell,
383 U.S. 116, 120, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966).
{¶42} Young also argues that he was a known suspect in 1993, and under Gulley
the indictment should have been dismissed. The dismissal in Gulley is distinguishable
from the instant case because Young was not a known suspect at the time of the filing of
the indictment. In Gulley, the defendant’s correct name was given to the police at the
time of the crime and the victim identified the defendant in a photo array prior to
indictment. Id. at ¶ 3, 5. Here, unlike Gulley, K.A. and her mother did not know
Young’s true name in 1993 or any time thereafter, and neither K.A. nor her mother picked
him out of a photo array. Therefore, Young was not a known suspect and the dismissal
in Gulley is inapplicable to the matter before us.
{¶43} Accordingly, the fourth assignment of error is overruled.
Speedy Trial
{¶44} In the fifth assignment of error, Young argues the trial court erred when it
denied his motion to dismiss for lack of speedy trial. Young’s speedy trial concerns
focus on the time frame of April 9, 2013 to January 1, 2014.
{¶45} When an appellate court reviews an allegation of a speedy trial violation, it
“should apply a de novo standard of review to the legal issues but afford great deference
to any findings of fact made by the trial court.” State v. Barnes, 8th Dist. Cuyahoga No.
90847, 2008-Ohio-5472, ¶ 17.
{¶46} Ohio’s speedy trial statute, R.C. 2945.71(C)(2), states that “[a] person
against whom a charge of felony is pending * * * [s]hall be brought to trial within [270]
days after the person’s arrest.” In accordance with the speedy trial provisions, the
statutory time period begins to run on the date the defendant is arrested; however, the date
of arrest is not counted when computing the time period. State v. Jenkins, 8th Dist.
Cuyahoga No. 95006, 2011-Ohio-837, ¶ 15, citing State v. Masters, 172 Ohio App.3d
666, 2007-Ohio-4229, 876 N.E.2d 1007 (3d Dist.), discretionary appeal not allowed,
2007-Ohio-6803, 878 N.E.2d 33, citing State v. Stewart, 12th Dist. Warren No.
CA98-03-021, 1998 Ohio App. LEXIS 4384 (Sept. 21, 1998). If the defendant is
incarcerated following his arrest, each day spent in jail “on a pending charge” acts as
three days toward speedy trial time. R.C. 2945.71(E).
{¶47} If the defendant is not arrested for the offense, speedy trial time begins on
the day he is served with the indictment. Id. at ¶ 16, citing State v. Pirkel, 8th Dist.
Cuyahoga No. 93305, 2010-Ohio-1858. If a capias must be issued for the accused,
speedy trial time is tolled for this time period. Id., citing State v. Ennist, 8th Dist
Cuyahoga No. 90076, 2008-Ohio-5100. See also Marion, 404 U.S. 307 at 313, 92 S.Ct.
455, 30 L.Ed.2d 468 (recognizing that the speedy trial guarantee under the federal
constitution has no applicability to preindictment delays); see also Ennist at ¶ 19, citing
State v. Davis, 7th Dist. Mahoning No. 05MA235, 2007-Ohio-7216; State v. Weiser, 10th
Dist. Franklin No. 03AP-95, 2003-Ohio-7034.
{¶48} Here, the period of time between the John Doe indictment and the state’s
motion to amend was almost nine months. During that time, Young was incarcerated on
March 28, 2013, for his convictions in a separate case. Then, four months passed from
the time the state was able to identify Young as the source of the DNA to when the state
amended the indictment to include Young’s name as the offender. On January 31, 2014,
a warrant was issued, which was the same day the indictment was amended to include
Young’s name. Young was in custody for this case on February 7, 2014, and was
arraigned on February 11, 2014. Since his speedy trial time began to run in February
2014, and not April 2013, we do not find that Young’s rights to a speedy trial were
violated during the time frame he challenges.
{¶49} Therefore, the fifth assignment of error is overruled.
{¶50} Judgment is affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY EILEEN KILBANE, PRESIDING JUDGE
EILEEN T. GALLAGHER, J., and
MELODY J. STEWART, J., CONCUR