State v. Thomas ( 2020 )


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  • [Cite as State v. Thomas, 2020-Ohio-633.]
    IN THE COURT OF APPEALS OF OHIO
    SEVENTH APPELLATE DISTRICT
    MAHONING COUNTY
    STATE OF OHIO,
    Plaintiff-Appellee,
    v.
    KENNETH THOMAS,
    Defendant-Appellant.
    OPINION AND JUDGMENT ENTRY
    Case No. 18 MA 0025
    Criminal Appeal from the
    Court of Common Pleas of Mahoning County, Ohio
    Case No. 16 CR 411
    BEFORE:
    Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.
    JUDGMENT:
    Affirmed.
    Atty. Paul Gains, Mahoning County Prosecutor and Atty. Ralph Rivera, Assistant
    Prosecutor, Mahoning County Prosecutor’s Office, 21 West Boardman Street, 6th
    Floor, Youngstown, Ohio 44503, for Plaintiff-Appellee, and
    Atty. Rhys Cartwright-Jones, 42 North Phelps Street, Youngstown, Ohio 44503, for
    Defendant-Appellant.
    –2–
    February 21, 2020
    DONOFRIO, J.
    {¶1}    Defendant-appellant, Kenneth Thomas, appeals from a Mahoning County
    Common Pleas Court judgment convicting him of 19 counts of rape and sentencing him
    to two consecutive life sentences following a jury trial.
    {¶2}    In 2007, appellant moved in with his girlfriend, A.R., and her son, O.M.,
    who was four or five at the time. Appellant and A.R. had a baby boy together in 2008,
    K.T. Appellant appeared to have a good relationship with both boys and O.M. even called
    appellant “dad.”
    {¶3}    In mid-January 2016, appellant’s and A.R.’s relationship ended. Appellant
    moved out of A.R.’s house. On March 17, 2016, O.M., who was now 13 years old, told
    his mother that appellant had been molesting him. A.R. immediately took O.M. to the
    emergency department. At the hospital, O.M. disclosed that appellant had been anally
    and orally raping him since he was approximately nine years old.
    {¶4}    On April 21, 2016, a Mahoning County Grand Jury indicted appellant on
    16 counts of rape, first-degree felonies in violation of R.C. 2907.02(A)(1)(b)(B), and three
    counts of rape, first-degree felonies in violation of R.C. 2907.02(A)(2)(B).
    {¶5}    The matter proceeded to a jury trial.        The jury heard testimony from
    numerous witnesses including O.M. and appellant. O.M. testified that appellant raped
    him “probably” 100 times. He stated appellant would take him upstairs to the bedroom
    appellant shared with A.R. and order him to take off his clothes. Appellant would then
    have anal or oral sex with him. Appellant denied that these events occurred. The jury
    found appellant guilty of all charges.
    {¶6}    The trial court subsequently held a sentencing hearing. It sentenced
    appellant to mandatory terms of life in prison on counts one through 16. It ordered the
    life sentences on counts one and two to run consecutive to each other and the life
    sentences on counts three through 16 to run concurrent to each other and concurrent to
    the sentences on counts one and two. The court sentenced appellant to 11 years on
    each of counts 17 through 19 to run concurrent to each other and concurrent to the
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    sentences in counts one through 16. Thus, appellant’s total aggregate sentence was two
    consecutive life sentences.
    {¶7}    Appellant filed a timely notice of appeal on March 1, 2018. He now raises
    three assignments of error.
    {¶8}    Appellant’s first assignment of error states:
    IN ERROR, APPELLANT WAS DENIED DUE PROCESS OF LAW
    PURSUANT        TO     BOTH     THE     UNITED      STATES      AND     OHIO
    CONSTITUTIONS, HAD HIS RIGHT TO PROTECTION AGAINST
    DOUBLE JEOPARDY VIOLATED AND WAS FURTHER DEPRIVED HIS
    RIGHT PURSUANT TO ARTICLE I, SECTION 10 OF THE OHIO
    CONSTITUTION AS THE STATE FAILED TO DISTINGUISH THE
    ALLEGED CRIMES THROUGH INDICTMENT, AND/OR THE BILL OF
    PARTICULARS.
    {¶9}    The indictment charged appellant with 16 counts of rape in violation of
    R.C. 2907.02(A)(1)(b)(B), rape of a child under age 13. Each of those counts states: that
    “on or between August 12, 2011 and August 11, 2015,” appellant engaged in sexual
    conduct with O.M.; that O.M. was less than 13 years of age; and that appellant compelled
    O.M. to submit by force or threat of force. The indictment also charged appellant with
    three counts of rape in violation of R.C. 2907.02(A)(2)(B), rape by force or threat of force.
    Each of those counts states: that “on or between August 12, 2015 and February 29, 2016,”
    appellant engaged in sexual conduct with O.M.; and that appellant compelled O.M. to
    submit by force or threat of force.
    {¶10}   Appellant argues that his indictment violated his right to due process
    and/or his right against double jeopardy. He claims that the “carbon copy” charging of
    multiple child rape counts did not put him on notice of the charges against him and does
    not bar any future prosecutions for the same offenses.
    {¶11}   In support of his argument, appellant relies on Valentine v. Konteh, 
    395 F.3d 626
    (6th Cir.2005). In Valentine, the appellant was convicted of 20 counts of child
    rape and 20 counts of felonious sexual penetration of a minor. The victim, the appellant’s
    step-daughter, testified the appellant forced her to perform oral sex in the living room on
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    about 20 occasions, digitally penetrated her in the living room on about 15 occasions,
    engaged in similar incidents in three different bedrooms, and anally penetrated her on
    about 10 occasions.
    {¶12} The appellant filed a petition for a writ of habeas corpus in federal court
    arguing his due process rights were violated when he was convicted on an indictment
    that did not specify a date or distinguish the counts by conduct. The Northern District
    Court of Ohio granted the writ of habeas corpus. The state appealed. The Sixth Circuit
    upheld two convictions, one in each category of offenses. The court found a problem with
    the lack of factual distinctions within each set of 20 counts. It did not find a problem with
    the use of a range of dates in the indictment.
    {¶13} On appeal, the Sixth Circuit found that the prosecution should have
    specifically laid out a separate factual basis for each count and should not have relied on
    the victim outlining the “typical” molestation she suffered or her estimate on the number
    of incidents. 
    Id. at 632-633.
    The court further found the lack of specificity in the indictment
    or in the trial record precluded the appellant from pleading his convictions as a bar to
    future prosecutions. 
    Id. at 634-635.
    The court also considered the possibility that the
    appellant was subject to double jeopardy in his initial trial by being punished multiple times
    for the same offense. 
    Id. {¶14} Appellant
    acknowledges that this court previously declined to follow
    Valentine but urges us to reconsider. See State v. Triplett, 7th Dist. Mahoning No. 17 MA
    0128, 2018-Ohio-5405, ¶ 1, appeal not allowed, 
    155 Ohio St. 3d 1407
    , 2019-Ohio-944,
    
    119 N.E.3d 434
    , ¶ 1 (2019).
    {¶15}    In Triplett, the appellant was indicted on four counts for injuries suffered
    by his four-year-old son occurring between December 6, 2016 and April 5, 2017. The
    first count charged appellant with domestic violence for knowingly causing or attempting
    to cause physical harm to a family or household member, a third-degree felony due to
    two prior domestic violence convictions. The second through fourth counts charged
    appellant with child endangering for recklessly abusing a child under 18, a second-degree
    felony where there was serious physical harm.          The appellant was convicted of all
    charges.
    Case No. 18 MA 0025
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    {¶16}   On appeal, the appellant raised the identical argument appellant now
    raises in this case asserting that his right to due process and his right against double
    jeopardy were violated because the indictment and bill of particulars failed to distinguish
    each crime and instead relied on “carbon copy” charging. 
    Id. at ¶
    73, 78. The appellant
    relied on Valentine in support. This court explained why we do not follow Valentine:
    As we recently stated in Miller, this court does not follow Valentine.
    State v. Miller, 7th Dist., 2018-Ohio-3430, ––– N.E.3d ––––, ¶ 30, citing,
    e.g., State v. Adams, 7th Dist., 2014-Ohio-5854, 
    26 N.E.3d 1283
    , ¶ 36;
    Billman, 7th Dist. Nos. 12 MO 3, 12 MO 5 at ¶ 34-36; State v. Clemons, 7th
    Dist. No. 10 BE 7, 2011-Ohio-1177, 
    2011 WL 861847
    (finding no due
    process violations and opining potential double jeopardy concerns can be
    cured if they arise in the future). This type of argument would improperly
    protect a defendant who committed multiple instances of the same offense
    against a child in his care. Miller, 7th Dist., 2018-Ohio-3430, ––– N.E.3d –
    –––, at ¶ 31, citing Billman, 7th Dist. Nos. 12 MO 3, 12 MO 5 at ¶ 36.
    Contrary to the Valentine majority's claim, there is no indication the jury
    would believe its finding of guilt on one count of child endangering would
    require a conviction on another count of child endangering merely because
    it contained the same elements and the same date range. Furthermore, the
    Sixth Circuit does not rely on Valentine as precedent. Miller, 7th Dist., 2018-
    Ohio-3430, ––– N.E.3d ––––, at ¶ 22, citing Coles v. Smith, 577 Fed.Appx.
    502, 507-508 (6th Cir. 2014) (rejecting this argument by a defendant in a
    case of 43 undifferentiated counts of rape regarding his step-daughter as
    Valentine used an incorrect standard for habeas).
    
    Id. at ¶
    83.
    {¶17} Appellant makes no new arguments in this case and offers no reasons why
    we should not follow Triplett. Because appellant has failed to offer any support for
    overruling our precedent in Triplett, there is no reason for this court to deviate from our
    previous case law.
    Case No. 18 MA 0025
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    {¶18} Moreover, in this case O.M. testified that he did not remember the exact
    number of times appellant raped him because it happened too many times to count. (Tr.
    336). But O.M. was able to testify that during the year that he was nine years old,
    appellant raped him at least once in the fall, at least once in the winter, at least once in
    the spring, and at least once in the summer. (Tr. 338). Thus, O.M. testified to at least
    four rapes when he was nine years old. O.M. went on to testify that appellant also raped
    him at least once during each of the four seasons when he was ten, eleven and twelve
    years old as well. (Tr. 338-339). This testimony would support counts 1 through 16, which
    charged appellant with rape of a child under age 13. O.M. also testified that appellant
    raped him at least once in the summer, fall and winter when he was 13 years old. (Tr.
    339). This testimony would support counts 17 through 19, which charged appellant with
    rape by force or threat of force. Thus, O.M. testified to appellant committing each of the
    19 counts of rape.
    {¶19}   Accordingly, appellant’s first assignment of error is without merit and is
    overruled.
    {¶20}   Appellant’s second assignment of error states:
    IN ERROR, THE TRIAL COURT ERRED IN ALLOWING
    “EXPERTS” TO TESTIFY, ESSENTIAL, TO A WITNESS’ VERACITY.
    {¶21}   Here appellant contends the trial court should not have allowed the nurse
    practitioner and the physician’s assistant who examined O.M. to testify that O.M. was
    telling the truth when he testified. Appellant attempts to support his position by arguing
    that Mark Gorospe and Janet Gorsuch were offered as “truth experts” and, therefore, their
    testimony was required to meet the admissibility requirements of expert testimony.
    {¶22} As the state points out, appellant did not object to either Gorospe’s or
    Gorsuch’s testimony at trial. Failure to object to trial testimony waives all but plain error
    review. State v. Lang, 
    129 Ohio St. 3d 512
    , 2011-Ohio-4215, 
    954 N.E.2d 596
    , ¶ 108.
    Plain error is one in which but for the error, the outcome of the trial would have been
    different. State v. Long, 
    53 Ohio St. 2d 91
    , 97, 
    372 N.E.2d 804
    (1978).
    {¶23}   In this case, physician’s assistant Gorospe testified that he was on duty in
    the emergency department when O.M. came in. (Tr. 429-430). He stated that he took
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    O.M.’s medical history. (Tr. 431). Gorospe testified that O.M.’s mother reported that O.M.
    told her that her boyfriend had been touching him in his genital and buttocks area up until
    a month ago. (Tr. 431). Gorospe testified that O.M. reported that his mother’s boyfriend
    started to touch him three years ago. (Tr. 431). He went on to testify that O.M. stated
    the boyfriend put his penis in O.M.’s rectum, never used a condom, and the boyfriend put
    his mouth on O.M.’s penis. (Tr. 431-432).
    {¶24} Gorospe stated that he also conducted a physical examination of O.M. (Tr.
    432). He stated that O.M. appeared quiet and embarrassed. (Tr. 433). Gorospe stated
    that he did not see any injuries during O.M.’s physical exam and O.M. did not appear to
    be in any pain. (Tr. 433). Gorospe agreed with the prosecutor that this appeared to be
    a case of “delayed disclosure” of sexual assault. (Tr. 434). He stated that the sexual
    assault children’s services and the police were contacted. (Tr. 435).
    {¶25} During cross examination, defense counsel asked Gorospe, “Your result
    here says probably sexual assault?” (Tr. 443). Gorospe responded, “I think my diagnosis
    is alleged sexual assault.”     (Tr. 443).   Gorospe then stated, “I can’t make that
    determination right there and then.” (Tr. 443).
    {¶26} Gorsuch, a nurse practitioner at the Child Advocacy Center at Akron
    Children’s Hospital, testified that she also examined O.M. (Tr. 554). As part of O.M.’s
    examination, he was interviewed by a caseworker. (Tr. 555). Gorsuch, as part of her
    examination, watched the forensic interview via a two-way mirror. (Tr. 555). Gorsuch
    testified that during his interview, O.M. disclosed that starting when he was nine or ten
    years old his mother’s boyfriend would take him upstairs, have him remove his clothing,
    and would either put his mouth on O.M’s penis or he would put his own penis in O.M.’s
    anus. (Tr. 556-557). Gorsuch testified that she did not observe any physical injuries to
    O.M. during his examination. (Tr. 558-559). She stated that in most cases of child sexual
    abuse where there has been anal penetration, the child’s physical examination is normal.
    (Tr. 559). Gorsuch further testified that O.M.’s was a case of delayed disclosure. (Tr.
    562-563). She also stated she learned that O.M. had some bedwetting issues, which she
    testified is a symptom of stress in a child’s life, and which issues ended around the time
    appellant moved out of O.M.’s home. (Tr. 563-564). She also learned that O.M. had a
    history of genital herpes that started around the same time O.M stated the sexual abuse
    Case No. 18 MA 0025
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    started. (Tr. 564-565). After the conclusion of the interview, the physical examination,
    and history report, Gorsuch stated her diagnosis for O.M. was “concerning for sexual
    abuse.” (Tr. 566).
    {¶27} Appellant relies on State v. Schewirey, 7th Dist. Mahoning No. 05 MA 155,
    2006-Ohio-7054. In Schewirey, the appellant was convicted of five counts of rape of his
    step-children. On appeal, the appellant argued, among other things, that the trial court
    erred in allowing the testimony of Dr. Dewar, the physician who examined one of the
    children. Dr. Dewar opined that the child “was a victim of child sexual abuse.” 
    Id. at ¶
    42. Dr. Dewar based her conclusion primarily on the history that the child provided to her.
    The appellant argued that this testimony was the functional equivalent of giving an opinion
    on the child’s veracity.
    {¶28} This court examined two cases. First, we considered State v. Burrell, 
    89 Ohio App. 3d 737
    627 N.E.2d 605 
    (9th Dist.1993). In Burrell, an alleged child victim of
    sexual abuse was examined by a doctor. The physical examination showed nothing, but
    the doctor believed that the child “was sexually assaulted and molested.” On cross-
    examination, the doctor admitted he based his opinion solely on the history the child gave
    him. The Ninth District concluded that this was an improper opinion on the veracity of the
    child. Schewirey, 2006-Ohio-7054, at ¶ 43. The appellate court reversed the conviction
    and remanded the case for a new trial because the expert's opinion that the child was
    abused was based solely on his assessment of the child's veracity. 
    Id. at ¶
    45.
    {¶29} We next examined State v. Muhleka, 2d Dist. Montgomery No. 19827,
    2004-Ohio-1822. Like the doctor in Burrell, the expert opined that the child was a victim
    of sexual abuse despite the fact that there were no physical findings. In this case,
    however, the court found that the opinion was admissible because the expert relied upon
    “the information he received from his examination of the victim, the history of the family
    and the case, information he received from Trula Muhleka and Griesdorn, the interview
    with the victim, the review of the victim's drawing, and his past experience of dealing with
    approximately two hundred physically or sexually abused children” when reaching his
    opinion that the child was sexually abused. Schewirey, 2006-Ohio-7054, at ¶ 49, quoting
    Muhleka at ¶ 39. Because the expert’s findings were “based upon all of the data he had
    Case No. 18 MA 0025
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    in front of him, not just the victim's statements,” his opinion was not just a statement on
    the veracity of the child. 
    Id. {¶30} After
    examining those two cases, this court concluded:
    We agree with both the decisions in Burrell and Muhleka. An expert
    does not need to say, “I believe the child was sexually abused,” in order to
    give an improper opinion on the child's veracity. When an expert bases their
    diagnosis on nothing more than what the child tells them, then their
    “diagnosis” is nothing more than an opinion on the child's veracity. To say
    otherwise would elevate form over substance. However, an expert does not
    need physical findings to reach a diagnosis. If the expert relies on other
    facts in addition to the child's statements, then the expert's opinion will not
    be an improper statement on the child's veracity.
    
    Id. at ¶
    50.
    {¶31}    In this case, Gorospe repeated what O.M. reported to him. He then stated
    that his diagnosis was “alleged sexual assault.” (Tr. 443). He stated that he could not
    make the determination of sexual assault “right there and then.” (Tr. 443). Thus, Gorospe
    never actually offered his opinion on O.M.’s veracity.
    {¶32}    And as for Gorsuch, she stated her diagnosis was “concerning for sexual
    abuse.” (Tr. 566). Thus, she too did not actually vouch for O.M.’s credibility. Moreover,
    Gorsuch relied on much more than O.M.’s statements in reaching her conclusions.
    According to her testimony, she considered O.M.’s interview, her physical examination of
    O.M., O.M.’s medical history including a diagnosis of genital herpes around the time the
    assaults allegedly began, and bedwetting that stopped when appellant moved out.
    Therefore, she clearly relied on other facts in addition to O.M.’s statements, meaning her
    opinion was not an improper statement on O.M.’s veracity.
    {¶33}    Furthermore, in another case from this district, we once again examined
    the question of whether an expert may opine on whether a child victim was telling the
    truth about abuse. In State v. Smith, 7th Dist. Mahoning No. 14 MA 0159, 2016-Ohio-
    3418, 
    66 N.E.3d 279
    , this court stated:
    Case No. 18 MA 0025
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    “[R]ecent case law states that ‘Boston does not apply when the child
    victim actually testifies and is subject to cross-examination.’ ” State v. Hupp,
    3d Dist. No. 1-08-21, 2009-Ohio-1912, 
    2009 WL 1110601
    , ¶ 20, quoting
    State v. Thompson, 5th Dist. No. 06CA28, 2007-Ohio-5419, 
    2007 WL 2938166
    , ¶ 50, quoting State v. Benjamin, 8th Dist. No. 87364, 2006-Ohio-
    5330, 
    2006 WL 2900036
    , ¶ 19 citing State v. Fuson, 5th Dist. No. 97 CA
    000023, 
    1998 WL 518259
    (Aug. 11, 1998). The Third District reasoned that
    “[w]hen the victim testifies, the jury is able to hear the victim's answers,
    witness her demeanor and judge her credibility completely independent of
    the other's testimony concerning the veracity of the victim.” Hupp at ¶ 20,
    citing State v. Amankwah, 8th Dist. No. 89937, 2008-Ohio-2191, 
    2008 WL 1973532
    , ¶ 44. Accordingly, where the victim testifies, other witness
    testimony concerning the victim's veracity can be harmless error.
    Thompson at ¶ 51. Here, even if portions of Dr. Farris' testimony were
    problematic in some way, it was harmless error.
    
    Id. at ¶
    45.
    {¶34}    Thus, based on our most recent statement on the issue, if the child witness
    testifies and is subject to cross examination, any problematic opinion testimony by an
    expert regarding the child’s veracity can be harmless error.
    {¶35}    In this case, appellant took the stand and testified in detail as to what
    appellant had done to him. (Tr. 327-344). Appellant’s counsel then extensively cross
    examined O.M. (Tr. 346-391, 397-398). Therefore, pursuant to Smith, even if there was
    some problem with Gorospe’s or Gorsuch’s testimony, it would be harmless error.
    {¶36}    Accordingly, appellant’s second assignment of error is without merit and
    is overruled.
    {¶37}    Appellant’s third assignment of error states:
    IN   ERROR,     THE    TRIAL     COURT      ERRED      IN    ISSUING
    CONSECUTIVE SENTENCES IN FAILING TO CITE AND SATISFY THE
    ELEMENTS OF R.C. 2929.14(C)(4).
    Case No. 18 MA 0025
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    {¶38}    In his final assignment of error, appellant argues that the trial court failed
    to make the findings necessary to sentence him to consecutive sentences.
    {¶39}    When reviewing a felony sentence, an appellate court must uphold the
    sentence unless the evidence clearly and convincingly does not support the trial court's
    findings under the applicable sentencing statutes or the sentence is otherwise contrary to
    law. State v. Marcum, 
    146 Ohio St. 3d 516
    , 2016-Ohio-1002, 
    59 N.E.3d 1231
    , ¶ 1.
    {¶40} R.C. 2929.14(C)(4) requires a trial court to make specific findings when
    imposing consecutive sentences:
    (4) If multiple prison terms are imposed on an offender for convictions of
    multiple offenses, the court may require the offender to serve the prison
    terms consecutively if the court finds that the consecutive service is
    necessary to protect the public from future crime or to punish the offender
    and that consecutive sentences are not disproportionate to the seriousness
    of the offender's conduct and to the danger the offender poses to the public,
    and if the court also finds any of the following:
    (a) The offender committed one or more of the multiple offenses while the
    offender was awaiting trial or sentencing, was under a sanction imposed
    pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
    was under post-release control for a prior offense.
    (b) At least two of the multiple offenses were committed as part of one or
    more courses of conduct, and the harm caused by two or more of the
    multiple offenses so committed was so great or unusual that no single
    prison term for any of the offenses committed as part of any of the courses
    of conduct adequately reflects the seriousness of the offender's conduct.
    (c) The offender's history of criminal conduct demonstrates that consecutive
    sentences are necessary to protect the public from future crime by the
    offender.
    {¶41} It has been held that although the trial court is not required to recite the
    statute verbatim or utter “magic” or “talismanic” words, there must be an indication that
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    the court found (1) that consecutive sentences are necessary to protect the public from
    future crime or to punish the offender, (2) that consecutive sentences are not
    disproportionate to the seriousness of the offender's conduct and to the danger posed to
    the public, and (3) one of the findings described in R.C. 2929.14(C)(4)(a), (b), or (c). State
    v. Bellard, 7th Dist. Mahoning No. 12-MA-97, 2013-Ohio-2956, ¶ 17. The court need not
    give its reasons for making those findings however. State v. Power, 7th Dist. Columbiana
    No. 
    12 CO 14
    , 2013-Ohio-4254, ¶ 38. A trial court must make the consecutive sentence
    findings at the sentencing hearing and must additionally incorporate the findings into the
    sentencing entry. State v. Williams, 7th Dist. Mahoning No. 13-MA-125, 2015-Ohio-4100,
    ¶ 33-34, citing State v. Bonnell, 
    140 Ohio St. 3d 209
    , 2014-Ohio-3177, 
    16 N.E.3d 659
    , ¶
    37.
    {¶42} In this case, the trial court found that “consecutive sentences in this case
    are necessary to protect the public from future crime and to punish the defendant.”
    (Sentencing Tr. 17). It then found that consecutive sentences “are not disproportionate
    to the seriousness of the defendant’s conduct and the danger the defendant poses to the
    public.” (Sentencing Tr. 17). Finally, the court found “the offenses were committed during
    a course of conduct, and that the harm was so great that a single term does not reflect
    the seriousness of the defendant’s conduct.” (Sentencing Tr. 17-18). Thus, the trial court
    made each of the three required findings at the sentencing hearing. The court also
    reiterated each of these findings in its sentencing judgment entry.
    {¶43} Accordingly, appellant’s third assignment of error is without merit and is
    overruled.
    {¶44} For the reasons stated above, the trial court’s judgment is hereby affirmed.
    Waite, P. J., concurs.
    Robb, J., concurs.
    Case No. 18 MA 0025
    [Cite as State v. Thomas, 2020-Ohio-633.]
    For the reasons stated in the Opinion rendered herein, the assignments of error
    are overruled and it is the final judgment and order of this Court that the judgment of
    the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be waived.
    A certified copy of this opinion and judgment entry shall constitute the mandate
    in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
    a certified copy be sent by the clerk to the trial court to carry this judgment into
    execution.
    NOTICE TO COUNSEL
    This document constitutes a final judgment entry.