State v. Redding , 2019 Ohio 5302 ( 2019 )

[Cite as State v. Redding, 2019-Ohio-5302.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 14-19-01
v.
ANTHONY WAYNE REDDING, OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court
Trial Court No. 2018-CR-0038
Judgment Affirmed
Date of Decision: December 23, 2019
APPEARANCES:
Allen Vender for Appellant
Courtland Perry for Appellee
Case No. 14-19-01
ZIMMERMAN, P.J.
{¶1} Defendant-appellant, Anthony W. Redding (“Redding”), appeals the
September 18, 2018 judgment entry of sentence of the Union County Court of
Common Pleas. For the reasons that follow, we affirm.
{¶2} This case stems from a February 17, 2018 altercation between Redding
and the victim, S.S., during which Redding caused S.S. serious-physical harm by
striking her in the face. Prior to the altercation, Redding and S.S. had been in a
relationship with each other for three years. Redding alleged that he acted in self-
defense. He was previously convicted of felonious assault in 2008.
{¶3} On March 1, 2018, the Union County Grand Jury indicted Redding on
one count of felonious assault in violation of R.C. 2903.11(A)(1), (D)(1)(a), a
second-degree felony, with a repeat-violent-offender specification under R.C.
2941.149(A). (Doc. No. 2). On March 28, 2018, Redding appeared for arraignment
and entered a plea of not guilty. (Doc. No. 7).
{¶4} The case proceeded to a jury trial on September 17, 2018. The jury
found Redding guilty of felonious assault on September 18, 2019. (Doc. Nos. 52,
53). That same day, the trial court determined that Redding is a repeat violent
offender as alleged by the specification in the indictment. (Doc. No. 54). The trial
court sentenced Redding to 8 years in prison on Count One and 10 years in prison
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on the repeat-violent-offender specification, and ordered that Redding serve the
terms consecutively for an aggregate sentence of 18 years. (Id.).
{¶5} After this court granted Redding leave to file a delayed appeal, Redding
filed his notice of appeal on January 4, 2019 and raises three assignments of error.
(Doc. No. 63). We will begin by addressing his first and second assignments
together, followed by his third assignment of error.
Assignment of Error No. I
Anthony Redding received ineffective assistance of counsel
because his attorney failed to object to inadmissible, irrelevant
and prejudicial evidence that Redding had previous arrests. Sixth
and Fourteenth Amendments to the United States Constitution;
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 8 L. Ed. 2d
674 (1984); State v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d 373
(1989); Evid.R. 401, 403(A) 404(b); Volume I, Tr. 87-88; Volume
II, 63, 68-69.
Assignment of Error No. II
Anthony Redding received ineffective assistance of counsel
because his attorney failed to object to inadmissible, irrelevant
and prejudicial evidence that Redding had scratched profane
words into [S.S.’s] door. Sixth and Fourteenth Amendments to
the United States Constitution; Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 8 L. Ed. 2d 674 (1984); State v. Bradley, 42 Ohio
St.3d 136, 538 N.E.2d 373 (1989); Evid.R. 401, 403(A); Volume II,
49-52.
{¶6} In his first and second assignments of error, Redding argues that his
trial counsel was ineffective for failing to object to the admission of evidence of his
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prior arrests and an allegation that he vandalized S.S.’s front door with profane
language.
Standard of Review
{¶7} A defendant asserting a claim of ineffective assistance of counsel must
establish: (1) the counsel’s performance was deficient or unreasonable under the
circumstances; and (2) the deficient performance prejudiced the defendant. State v.
Kole, 92 Ohio St. 3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052 (1984). In order to show counsel’s conduct was deficient or
unreasonable, the defendant must overcome the presumption that counsel provided
competent representation and must show that counsel’s actions were not trial
strategies prompted by reasonable professional judgment. Strickland at 687.
Counsel is entitled to a strong presumption that all decisions fall within the wide
range of reasonable professional assistance. State v. Sallie, 81 Ohio St. 3d 673, 675
(1998). Tactical or strategic trial decisions, even if unsuccessful, do not generally
constitute ineffective assistance. State v. Carter, 72 Ohio St. 3d 545, 558 (1995).
Rather, the errors complained of must amount to a substantial violation of counsel’s
essential duties to his client. See State v. Bradley, 42 Ohio St. 3d 136, 141-42
(1989), quoting State v. Lytle, 48 Ohio St. 2d 391, 396 (1976), vacated in part on
other grounds, 438 U.S. 910, 98 S. Ct. 3135 (1978).
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{¶8} “Prejudice results when ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.’” State v. Liles, 3d Dist. Allen No. 1-13-04, 2014-Ohio-259, ¶ 48, quoting
Bradley at 142, citing Strickland at 691. “‘A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’” Id., quoting Bradley at 142
and citing Strickland at 694.
Analysis
{¶9} On appeal, Redding argues that his trial counsel was ineffective for
failing to object to certain “other acts” evidence that he contends was inadmissible
under the Ohio rules of evidence. Specifically, Redding argues that his trial counsel
was ineffective for failing to object to testimonial evidence presented by Sergeant
Nathan Sachs (“Sergeant Sachs”) and Officer Jacob Smith (“Officer Smith”) of the
Marysville Police Department “suggest[ing] to the jury that [he] had a criminal
history.” (Appellant’s Brief at 6). Redding also argues that his trial counsel was
ineffective for failing to object to irrelevant and prejudicial testimonial evidence
presented by S.S. that he “allegedly scratched profane and misogynistic words into
[her] door * * * .” (Id. at 12).
{¶10} “The ‘failure to object to error, alone, is not enough to sustain a claim
of ineffective assistance of counsel.’” Liles at ¶ 49, quoting State v. Johnson, 112
Ohio St. 3d 210, 2006-Ohio-6404, ¶ 139, citing State v. Holloway, 38 Ohio St.3d
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239, 244 (1988). “To prevail on such a claim, a defendant must first show that there
was a substantial violation of any of defense counsel’s essential duties to his client
and, second, that he was materially prejudiced by counsel’s ineffectiveness.”
Holloway at 244, citing Lytle, 48 Ohio St. 2d at 396-397 and Strickland, 466 U.S. at
668. “Because ‘objections tend to disrupt the flow of a trial, and are considered
technical and bothersome by the fact-finder,’ competent counsel may reasonably
hesitate to object in the jury’s presence.” State v. Campbell, 69 Ohio St. 3d 38, 53
(1994), quoting Jacobs, Ohio Evidence, at iii-iv (1989).
{¶11} “‘Generally, evidence which tends to show that the accused has
committed other crimes or acts independent of the crime for which he stands trial is
not admissible to prove a defendant’s character or that the defendant acted in
conformity therewith.’” State v. Wendel, 3d Dist. Union No. 14-16-08, 2016-Ohio-
7915, ¶ 21, quoting State v. Hawthorne, 7th Dist. Columbiana No. 04 CO 56, 2005-
Ohio-6779, ¶ 24, citing State v. Elliott, 91 Ohio App. 3d 763, 770 (3d Dist.1993) and
Evid.R. 404. “‘However, there are exceptions to the general rule: “It may, however,
be admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.”’” State
v. Bagley, 3d Dist. Allen No. 1-13-31, 2014-Ohio-1787, ¶ 56, quoting State v. May,
3d Dist. Logan No. 8-11-19, 2012-Ohio-5128, ¶ 69, quoting Evid.R. 404(B). See
also R.C. 2945.59. “‘The list of acceptable reasons for admitting testimony of prior
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bad acts into evidence is non-exhaustive.’” Bagley at ¶ 56, quoting State v. Persohn,
7th Dist. Columbiana No. 11 CO 37, 2012-Ohio-6091, ¶ 23, citing State v. Melton,
11th Dist. Lake No. 2009-L-078, 2010-Ohio-1278, ¶ 78, and citing State v. Faye,
3d Dist. Wyandot Nos. 16-99-08 and 16-99-09, 2000 WL 566741, *4 (May 4, 2000).
{¶12} Evidence of other acts is generally admissible if it is offered for a
purpose other than to prove the character of a person in order to show action in
conformity with that character; it is relevant when offered for that purpose; and the
danger of unfair prejudice does not substantially outweigh its probative value. State
v. Kirkland, 140 Ohio St. 3d 73, 2014-Ohio-1966, ¶ 68, citing State v. Williams, 134
Ohio St. 3d 521, 2012-Ohio-5695, ¶ 20 and Evid.R. 401, 403, and 404(B). Evidence
is relevant when it has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than
it would be without the evidence.” Evid.R. 401. “Under Evid.R. 403(A),
‘[a]lthough relevant, evidence is not admissible if its probative value is substantially
outweighed by the danger of unfair prejudice, of confusion of the issues, or of
misleading the jury.’” State v. Velez, 3d Dist. Putnam No. 12-13-10, 2014-Ohio-
1788, ¶ 122, quoting State v. Maag, 3d Dist. Hancock Nos. 5-03-32 and 5-03-33,
2005-Ohio-3761, ¶ 71. “‘Unfair prejudice is that quality of evidence which might
result in an improper basis for a jury decision.’” Id., quoting State v. Calhoun, 11th
Dist. Ashtabula No. 2010-A-0057, 2012-Ohio-1128, ¶ 82.
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{¶13} Even if we assume without deciding that the criminal-history and
door-vandalism evidence was inadmissible, Redding’s ineffective-assistance-of-
trial-counsel argument fails because there is no reasonable probability that, but for
the admission of that evidence, he would have been acquitted on the grounds that
he acted in self-defense. “‘Self-defense is an affirmative defense, which means that
the burden of going forward is on the defendant who must prove each element by a
preponderance of the evidence.’”1 State v. Oates, 3d Dist. Hardin No. 6-12-19,
2013-Ohio-2609, ¶ 10, quoting State v. Kimmell, 3d Dist. Wyandot No. 16-10-06,
2011-Ohio-660, ¶ 19, citing State v. Densmore, 3d Dist. Henry No. 7-08-04, 2009-
Ohio-6870, ¶ 24 and R.C. 2901.05 (2008) (current version at R.C. 2901.05 (2019)).
“Affirmative defenses such as self-defense ‘“do not seek to negate any elements of
the offense which the State is required to prove” but rather they “admit[] the facts
claimed by the prosecution and then rel[y] on independent facts or circumstances
which the defendant claims exempt him from liability.”’” Id. at ¶ 10, quoting State
v. Smith, 3d Dist. Logan No. 8-12-05, 2013-Ohio-746, ¶ 32, quoting State v. Martin,
21 Ohio St. 3d 91, 94 (1986).
1
Subsequent to Redding’s trial, R.C. 2901.05 was amended to require the “the prosecution [to] prove beyond
a reasonable doubt that the accused person did not use the force in self-defense, defense of another, or defense
of that person’s residence, as the case may be.” R.C. 2901.05(B)(1) (Mar. 28, 2019). See State v. Koch, 2d
Dist. Montgomery No. 28000, 2019-Ohio-4099, ¶ 103 (concluding that the defendant was “not entitled to
retroactive application of the burden shifting changes by the legislature to Ohio’s self-defense statute, R.C.
2901.05, as a result of H.B. 228”). See also State v. Crowe, 3d Dist. Allen No. 1-19-12, 2019-Ohio-3986, ¶
15, fn. 1.
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{¶14} “The elements of self-defense differ depending on whether the
defendant used deadly or non-deadly force to defend himself.” Bagley, 2014-Ohio-
1787, at ¶ 15, citing Densmore at ¶ 25. “Deadly force is ‘“any force that carries a
substantial risk that it will proximately result in the death of any person.”’” Id.,
quoting Densmore at ¶ 28, quoting R.C. 2901.01(A)(2) (2017) (current version at
R.C. 2901.01(A)(2) (2019)). A “substantial risk” is “a strong possibility, as
contrasted with a remote or significant possibility, that a certain result may occur or
that certain circumstances may exist.” R.C. 2901.01(A)(8) (2017) (current version
at R.C. 2901.01(A)(8) (2019)).
To establish self-defense through the use of deadly force, an accused
must prove: “(1) the accused was not at fault in creating the situation
giving rise to the affray; (2) the accused had a bona fide belief that he
or she was in imminent danger of death or great bodily harm and that
the only means of escape from such danger was in the use of force;
and (3) the accused must not have violated any duty to retreat or to
avoid the danger.”
Bagley at ¶ 16, quoting State v. Thacker, 3d Dist. Marion No. 9-03-37, 2004-Ohio-
1047, ¶ 14, citing State v. Williford, 49 Ohio St. 3d 247, 249 (1990) and State v.
Robbins, 58 Ohio St. 2d 74 (1979), paragraph two of the syllabus.
{¶15} By contrast, to establish self-defense through the use of non-deadly
force, an accused must prove: (1) the accused was not at fault in creating the
situation giving rise to the affray, (2) the accused (even if mistaken) had a bona fide
belief that he was in imminent danger of any bodily harm; and (3) the only means
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to protect himself from such danger was the use of force not likely to cause death or
great bodily harm. Accord State v. Vu, 10th Dist. Franklin No. 09AP-606, 2010-
Ohio-4019, ¶ 10; State v. Juntunen, 10th Dist. Franklin No. 09AP-1108, 2010-Ohio-
5625, ¶ 21; Ohio Jury Instructions, CR Section 421.21 (Rev. Aug. 16, 2006). See
In re J.J., 5th Dist. Licking No. 16 CA 44, 2016-Ohio-8567, ¶ 14; State v. Koch, 2d
Dist. Montgomery No. 28000, 2019-Ohio-4099, ¶ 62; State. v. Jeffers, 11th Dist.
Lake No. 2007-L-011, 2008-Ohio-1894, ¶ 81. See also State v. Wagner, 3d Dist.
Seneca No. 13-15-18, 2015-Ohio-5183, ¶ 10. “In instances where less than deadly
force is used, the defendant need only show a fear of bodily harm, not of death or
great bodily harm.” State v. Brown, 2d Dist. Montgomery No. 27312, 2017-Ohio-
7424, ¶ 24, citing State v. Gee, 2d Dist. Miami No. 87-CA-22, 1987 WL 20260, *2
(Nov. 17, 1987) and State v. Perez, 72 Ohio App. 3d 468, 472 (10th Dist.1991).
Both versions of self-defense, however, use the term “great bodily
harm”: self-defense involving deadly force uses the term to describe
the level of harm the defendant must perceive before he or she is
justified in using deadly force, while self-defense with non-deadly
force uses the term to describe the level of force a defendant may not
apply.
Juntunen at ¶ 23. See Jeffers at ¶ 68. Likewise, there is no duty to retreat in cases
involving non-deadly force. Brown at ¶ 25, citing State v. Kucharski, 2d Dist.
Montgomery No. 20815, 2005-Ohio-6541, ¶ 21, citing Perez at 472.
{¶16} Moreover, Ohio’s “castle doctrine” creates an exception to the duty to
retreat and provides, in its relevant part, that “a person who lawfully is in that
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person’s residence has no duty to retreat before using force in self-defense, defense
of another, or defense of that person’s residence.” Brown at ¶ 25, citing R.C.
2901.09(B). The legislature extended the castle doctrine under R.C. 2901.05. State
v. Kean, 10th Dist. Franklin No. 17AP-427, 2019-Ohio-1171, ¶ 46, citing State v.
Carosiello, 7th Dist. Columbiana No. 15 CO 0017, 2017-Ohio-8160, ¶ 17. R.C.
2901.05—the statutory presumption of self-defense—provides
that a defendant is entitled to a presumption of self-defense if the
evidence shows that the defendant used defensive force against
another person who was “in the process of unlawfully and without
privilege to do so entering, or ha[d] unlawfully and without privilege
to do so entered” the defendant’s residence.
State v. Dale, 2d Dist. Montgomery No. 2012 CA 20, 2013-Ohio-2229, ¶ 17,
quoting R.C. 2901.05(B)(1) (2008) (current version at R.C. 2901.05(B)(2) (2019)).
“This is a rebuttable presumption and may be rebutted by a preponderance of the
evidence that the victim had a right to be in the residence or the defendant was
unlawfully in the residence.” Id., citing State v. Lewis, 8th Dist. Cuyahoga No.
97211, 2012-Ohio-3684, ¶ 13, State v. Barnette, 12th Dist. Butler No. CA2012-05-
099, 2013-Ohio-990, ¶ 57, and R.C. 2901.05(B)(2), (3) (2008) (current version at
R.C. 2901.05(B)(3), (4) (2019)).
{¶17} “‘The difference between the Castle Doctrine and the rebuttable
presumption of self-defense lies in the legal status of the victim.’” Id. at ¶ 18,
quoting State v. Lewis, 8th Dist. Cuyahoga No. 97211, 2012-Ohio-3684, ¶ 18.
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Specifically, if the victim is lawfully in a residence at the time the defendant used
deadly force, that defendant is not entitled to the statutory presumption of self-
defense. Id., citing Lewis at ¶ 19 and R.C. 2901.05(B)(1), (2) (2008) (current
version at R.C. 2901.05(B)(2), (3) (2019)). However, in those circumstances, the
defendant is entitled to a castle-doctrine instruction—if that defendant is lawfully
occupying the residence at the time he or she used the force. State v. Whitman, 5th
Dist. Stark No. 2017CA00079, 2018-Ohio-2924, ¶ 57, citing Lewis at ¶ 17-19 and
State v. Bushner, 9th Dist. Summit No. 26532, 2012-Ohio-5996, ¶ 16. “Under such
circumstances, the defendant need only establish the two remaining elements of a
valid self-defense claim by a preponderance of the evidence * * * .” Brown at ¶ 25,
citing Dale at ¶ 18 and State v. Johnson, 11th Dist. Lake No. 2005-L-03, 2006-Ohio-
2380, ¶ 21.
{¶18} Because the elements of self-defense are cumulative, a defendant fails
to demonstrate that he or she acted in self-defense if he fails to prove any one of the
applicable elements by a preponderance of the evidence. Bagley, 2014-Ohio-1787,
at ¶ 16, citing Thacker, 2004-Ohio-1047, at ¶ 14, citing State v. Jackson, 22 Ohio
St.3d 281, 284 (1986).
{¶19} In this case, Redding was convicted of felonious assault in violation
of R.C. 2903.11(A)(1), which required the trier of fact to find that he knowingly
caused S.S. serious physical harm. See Jeffers, 2008-Ohio-1894, at ¶ 81, citing R.C.
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2903.11(A)(1). Indeed, at trial, Redding did not dispute that he struck S.S. in her
face one time, resulting in the loss of her left eye. (See Sept. 17, 2018 Tr., Vol. I, at
63); (Sept. 17, 2018 Tr., Vol. II, at 107); (Appellant’s Brief at 1-2). Thus, to succeed
on a defense of self-defense, Redding was required to prove that he acted in self-
defense through the use of non-deadly force because “[a] single punch, standing
alone, may not constitute deadly force.” (Emphasis added.) Jeffers at ¶ 81, citing
Perez, 72 Ohio App. 3d at 470-472. See State v. Davis, 10th Dist. Franklin No.
17AP-438, 2018-Ohio-58, ¶ 25, citing State v. Triplett, 192 Ohio App. 3d 600, 2011-
Ohio-816, ¶ 14 (8th Dist.), State v. Mendoza, 10th Dist. Franklin No. 16AP-893,
2017-Ohio-8977, ¶ 91-94, Perez at 470, State v. Palmer, 10th Dist. Franklin No.
12AP-460, 2013-Ohio-5970, ¶15, and Struthers v. Williams, 7th Dist. Mahoning
No. 07 MA 55, 2008-Ohio-6637, ¶ 14-16. See also In re J.J., 2016-Ohio-8567, at
¶ 14-16.
{¶20} Importantly, Redding cannot demonstrate that he was materially
prejudiced by the admission of any evidence because there is no reasonable
probability that, but for the admission of that evidence, the result of his trial would
have been different. That is, Redding cannot demonstrate that he would have been
acquitted on the grounds that he acted in self-defense. Specifically, for Redding to
succeed on a defense of self-defense through the use of non-deadly force, the trier
of fact would have to find that Redding “‘was justified in using force not likely to
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cause death or great bodily harm.’” (Emphasis added.) Jeffers at ¶ 81, quoting
Ohio Jury Instructions, CR Section 411.33 (Rev. Aug. 16, 2006) (current version at
Ohio Jury Instructions, CR Section 421.21 (Rev. Aug. 16, 2006)). Although the
term “great bodily harm” is not statutorily defined, Ohio courts of appeal have
concluded that the term is substantially similar to “serious physical harm,” which is
statutorily defined. See In re J.J. at ¶ 15, citing Juntunen, 2010-Ohio-5625, at ¶ 22,
Jeffers at ¶ 81, and State v. Herrera, 6th Dist. Ottawa No. OT-05-039, 2006-Ohio-
3053, ¶ 53; R.C. 2901.01(A)(5) (2017) (current version at R.C. 2901.01(A)(5)
(2019)). See also State v. Bennett, 2d Dist. Montgomery No. 27943, 2019-Ohio-
2996, ¶ 48, fn. 6 (Froelich, J., dissenting).
{¶21} Accordingly, if the jury were to find that the force used by Redding
was not likely to cause great bodily harm, that finding would be inconsistent with
its prior determination that Redding knowingly caused S.S. serious physical harm.
See Jeffers at ¶ 81; Triplett at ¶ 17, fn. 3 (Rocco, P.J., concurring in part and
dissenting in part). Therefore, there is no reasonable probability that Redding would
have been able to prove that he acted in self-defense through the use of non-deadly
force because he is unable to prove that he used force not likely to cause death or
great bodily harm. See In re J.J. at ¶ 14-16 (concluding that a defendant fails to
carry his burden of proving that he acted in self-defense through the use of non-
deadly force if he caused the victim serious physical harm). See also Mendoza at ¶
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91-94. Consequently, Redding’s ineffective-assistance-of-counsel argument is
without merit, and his first and second assignments of error are overruled.
Assignment of Error No. III
The cumulative effects of Anthony Redding’s first two
assignments of error denied him a fair trial. State v. Miller, 122
Ohio App. 3d 111, 701 N.E.2d 390 (3d Dist.1997); Stave v.
DeMarco, 31 Ohio ST.3d 191, 509 N.E.2d 1256 (1987); Sixth and
Fourteenth Amendments to the United States Constitution;
Article I, Sections 10 and 16 of the Ohio Constitution; Strickland
v. Washington, 466 U.S., 104 S. Ct. 2052, 8 L. Ed. 2d 674 (1984).
{¶22} In his third assignment of error, Redding argues that the cumulative
effect of the trial court’s errors denied him a fair trial. Specifically, Redding argues
that the cumulative effect of the errors that he alleged in his first and second
assignments of error deprived him of a fair trial.
Standard of Review
{¶23} “Under [the] doctrine of cumulative error, a conviction will be
reversed when the cumulative effect of errors in a trial deprives a defendant of a fair
trial even though each of the numerous instances of trial court error does not
individually constitute cause for reversal.” State v. Spencer, 3d Dist. Marion No. 9-
13-50, 2015-Ohio-52, ¶ 83, citing State v. Powell, 132 Ohio St. 3d 233, 2012-Ohio-
2577, ¶ 222-224 and State v. Garner, 74 Ohio St. 3d 49, 64 (1995). “To find
cumulative error, a court must first find multiple errors committed at trial and
determine that there is a reasonable probability that the outcome below would have
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been different but for the combination of the harmless errors.” State v. Stober, 3d
Dist. Putnam No. 12-13-13, 2014-Ohio-5629, ¶ 15, quoting In re J.M., 3d. Dist.
Putnam No. 12-11-06, 2012-Ohio-1467, ¶ 36.
Analysis
{¶24} Because we found no error as alleged by Redding in his first or second
assignments of error, the doctrine of cumulative error does not apply. State v.
Bertuzzi, 3d Dist. Marion No. 9-13-12, 2014-Ohio-5093, ¶ 110.
{¶25} Redding’s third assignment of error is overruled.
{¶26} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW and WILLAMOWSKI, J.J., concur.
/jlr
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