IN THE SUPREME COURT OF OHIO
STATE OF OHIO
ICASE NO.
Plaintiff-Appellee,
IC.A. No. 13CA52
vs.
( T.C.1!'o. Na.12CRB05058
DONOVIN CLARK
Defendant-Appellant.
ON APPEAL FROM THE COURT OF APPEALS
FOR THE SECOND APPELLATE DISTRICT OF OHIO
CLARK COUNTY, OHIO
APPELLANT'S MEMORANDUM IN SUPPORT
OF SUPREME COURT JURISDICTION
JON PAUL RION
NICOLE RUTTER-HIRTH of
RION, RION & RION, L.P.A., INC.
Registration No. 0002228
P.O. Box 10126
130 W. Second St., Suite 2150
Dayton, O1-145402
MARC ROSS
CLARK COUNTY
PROSECUTORS OFFICE
Registration No. 0070446
50 E. CoIumbiaSt.
Springfield, Ohio 45502
(937) 328-3741
(937) 223-9133
Attorney for Defendant-Appellant
Attomey for Plaintiff-Appellee
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TABLE OF CONTENTS
CITES
PAGES
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i-ii
STATEMENT IN SUPPORT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . 1-3
STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . 3-5
PROPOSI'TION OF LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
MERELY TOUCHING THE BUTTOCKS OF ANOTHER, WITHOUT
CORROBORATIVE EVIDENCE OF SEXUAL PURPOSE OR
MOTIVATION, IS INSUFFICIFNT TO SUSTAIN A CONVICTION I+'OR
SEXUAL IMPOSITION
1. The corroboration requireinent of 2907.0 6 requires corroboration of sexual
gratification or purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2. Evidence of an alternate intent negates a finding of sexual gratification or
purpose and the jury must be instructed aecordinlzly . . . . . . . . . . . . . . . . . . . 9
3. The districts are split as to Nvhat behavior constitutes sexual imposition. 10
CONCLUSION ............... ............................... .. 13
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Authorities cited
CASES ( listed alphabetically):
InThe_Mcztterof'N.R,...........
. . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2, 10, 12
3rd Dist. 1-06-09, 2007 Ohio 3125
State v. Cobb . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
81 Ohio App.3d 179, 185 (1991), 610 N.E. 2d 1009
State v. Collins, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-13
8"` Dist. 82200, 2003 Ohio 4817
i
State v.DELuca . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
8`h Dist. 88615, 2007 Ohio 3905
State v. Economo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,9
76 Ohio St.3d 56, 60 (1996)
State v. Fatiwn, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
12 Ohio App.3d 25, 465 N.E.2d 896 (1983)
State v. Gesell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
12"1 ' Dist. CA2005-08-367, 2006 Ohio 3621
. . . . . . . . . . . . . . . . . 11
State v. huritar , . .
...........................................8
2nr Dist. 24875, 2012 Ohio 3849
Stale v. ILferedith, . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
12t'' Dist. 2004-06-062, 2005 Ohio 62
State v. Morr•is, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,7
11`'' Dist. 93-L-157, 1994 Ohio App. LEXIS 5981 (Dec. 30, 1994)
State v. IZobinson, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
83 Ohio St. 136 (1910)
State v. Rossi, . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-9
2na Dist. 22803, 2009 Ohio 1963
Statutes and Other References
(in the order in which they appear in memorandum)
R.C. 2907.06 ............ .... ............................... 5,6,9
R.C.2907.01
................................................. 5-6,11
R.C. 2901.22 .............. ..... .... ..................... 9-10
11
WHY THIS COURT SHOiILD GRANT JURISDICTI(oN
I'llis case involves a misdemeanor offense, however it presents a compelling
set of facts that need to be addressed by this court. Donovin Clark, a high school
student, regularly goofed off with his friends, both male and female. They were all
classmates and engaged in typical teenage banter; giving high-fives in the hallways,
poking each other in class, kicking each other's chairs, and even giving hugs between
classes. This was common behavior among all of the high school students, including
Clark and T.Ff.z, the victim in this matter.
At issue is an incident in their computers graphics class on September 13,
2012. On that day, Clark and T.H. were goofing off. Clark was poking T.H. and
pinching her arms. While she was in front of him grabbing some paper, he grabbed
her buttocks with both hands and laughed. She turned around and said "[seriously did
you] just d[o] that" and left the room. This completely surprised Clark as she had
iiever reacted that way to his jokes. Clark apologized. Several months later, Clark was
charged with sexual imposition. He was brought to trial and convicted of the offense.
He was sentenced to a jail sentence, probation, and was ordered to register as a Tier I
sex offender.
More egregious behavior has been found not to constitute criminal activity. On
appeal, undersigned counsel cited to a case with more severe actions similar, wherein
sexual motivation could easily be presumed, yet the third district reversed the
She was seventeen years old at the time of the offense and thus is designated as T.H.
conviction. Ira 7he Matter ofN.R., 31*a I7ist. 1-06-09, 2007 Ohio 3125. In that case, the
victim and alleged delinquent were high school classmates. While walking down the
hall, he lifted her skirt and touched her pubic region. Later that day he did it again,
touching her thigh. Five fellow classmates testified they saw the incidents. N.R.
testified that he initially thouglit the victim was someone else when touching her the
first time. The second time, he sought her out and touched her thigh, and claimed it
was a joke. In adjuclicating him delinquent, the magistrate held: "this hearing officer
cannot imagine any other purpose motivating a person to touch someone's
reproductive area apart from that person's desire to arouse or gratify himself or the
other person."
The appellate court reversed, holding:
Although the magistrate cannot think of any other reasons for this behavior,
this court can. M.C. testified that she was shocked, upset and embarrassed,
Redmond's intent may have been to shock, upset, and/or embarrass the victim,
particularly when she chastised him after the first incident. He may have been,
trying to make ajoke, albeit a bad one. lie may have been trying to impress his
friends with crass behavior. There are many reasons why Redmond may have
engaged in this behavior other than for sexual arousal or sexual
gratification...Furthermore, unlike many sexual offenses, which occur in private
or semi-private setting, the evidence is clear that Redmond reached under
M.C.'s skirt in the hallways of a public high school between classes and wlien
his friends and her friends were present.
On this record, no reasonable juror could have found the elements of sexual
contact proven beyond a reasonable doubt because there was insufficient
evidence pertaining to Redmond's purpose to sexually arouse or gratify himself
or M.C.
Id at 11.
Thus it appears as though similar, though more egregious, actions are legal in
2
the third district and are illegal in the second. district. Further, regardless of the split
amongst the districts, criminalizing Clark's specific behavior - a slap of the buttocks without evidence of a sexual intent or purpose, subjects many people with innocent
intentions to substantial criminal exposure. Clark knows this first hand, as he had to
serve a jail sentence and now must register as a sex offender for fifteen years.
STATEMENT OF THE CASE AND FACTS
Clark was charged with Sexual Imposition. After ajury trial, he was convicted
of Sexual Imposition against T.H. He was sentenced to sixty days of incarceration
(some of which was suspended), a tenn of probation, and registration as a Tier I sex
offender. A. Notice of Appeal was timely filed and his jail sentence was stayed
pending appeal. The Second District Court of Appeals affirmed his convzction. on
March 7, 2014.
Clark was a student at the Career Technology Center in Springfield. He was
new to the school that year but quickly made friends, both male and female. As is
common with teenagers, he com-iected with several classmates oii Facebook. One
classmate he met and befriended on Facebook was T.H. (Trial, pg. 149). Clark and
T.H. were in a computers graphics class together (Trial, pg. 142). He was close with
his friends and would often hug them, both male and female (Trial, pg. 172, 180, 228).
On Sep 13, 2012, while in class, Clark and several classmates, including T.H.,
were playfully joking around with one another (Trial, pg. 144). Clark was poking T.H.
and pinching her arms (Trial, pg. 145). When she stepped in front of him, he grabbed
3
her buttocks with both hands (Trial, pg. 143, 144). He was laughing at the time (Trial,
pg. 146). T.H. became embarrassed and asked him if he "[seriously] just did tl2at" and
left the room (Trial, pg. 144-145). Her reaction shocked Clark (Trial, pg. 146).
No one saw the incident (Trial, pg. 151-152). Their teacher, Ms. Cabaluna,
came out in the hallway to find out whv T.H. left the room (Trial, pg. 158). T.:[ l. told
her what happeiled but that she did not want Clark in trouble and she was not mad
(Trial, pg. 158, 161). Clark came out in the hallway and apologized to her ("1'ria1, pg.
150). She felt he was sincere (150). He never touched her like that again (Trial, pg.
149). Even T.H. believed he could have been joking when he did it and had no idea if
he did it for sexual gratification(Trial, pg. 152).
When the teacher discussed the incident with Clark, he hung his head low
(Trial, pg. 160). Even Ms. Cabaluna believed he wasjokirtg at the time (160). She
never witrzessed any inappropriate behavior between Clark and T.H. again (Trial, pg.
166). T.H. did not report the incident to any other school authorities until months later
(Trial, pg. 152-153);
On December 7, 2012, Clark was arrested and interviewed by Detective King.
Detective King explained to him that he was being charged with the "unwanted
touching of an erogenous zone" (Trial, pg. 347-348, State's Exhibit 1). When asked
about the incidents, Clark said he was joking with T.H. (Trial, pg. 343). Clark told the
Detective he had no idea T.H. would be so upset when he touched her buttocks, and
said he never did it again. Clark was very upset by the allegations and cried during
parts of the interview (Trial, pg. 342). Detective King told him numerous times during
4
the interview that it was illegal to touch an erogenous zone of a female without consent
(State's Exhibit 1). He told Clark that touching the erogenous zone of a female was
improper even ifjoking, implying it was irrelevant if he was aware that it would be
offensive to her (Id). Clark apologized and wanted to make it right with the females,
begging Detective King to "let [him] fix it" (Id).
PROPOSITION OF LAW
MERELY TOUCHING THE BUTTOCIKS OF ANOTHER, WITHOUT
CORROBORATIVE EVIDENCE OF SEXUAL PURPOSE OR
MOTIVATION, IS INSUFFICIENT TO SUSTAIN A CONVICTION
FOR SEXUAL IMPOSITION
1. The corroboration requirement of 2907.06 requires corroboration of sexual
gratification or purpose.
Because of the severity of the sentence required by a conviction for sexual
imposition, there must be corroboration of the offender's sexual intent. This could.
include any evidence, aside from the victim's testimony, that sexual intent or
motivation is inferred. This is not an impossible burden as there could be several
sources of this evidence; evidence of sexual arousal, eye witness testimony, testimony
or statements from the defendant.
Sexual iniposition, pursuant to R.C. 2907.06, states: "No person shall have
sexual contact with another, not the spouse of the offender, when [] the offender
knows that the sexual contact is offensive to the other person, or is reckless in that
regard." Sexual contact is the touching of an erogenous zone, including the thigh,
genitals, buttock, pubic region or breast (if female) for the purpose of sexually
arousing or gratifying either person. R.C. 2907.01(B). R.C. 2907.06(13) requires
corroborative evidence, stating: "no person shall be convicted of a violation of this
section solely upon the victim's testimony unsupported by other evidence." In creating
the corroboration requirement, the legislature found: "since the offense is of a type
which mav be particularly susceptible to abuse in prosecution, the section specifically
provides that there can be no conviction based solely on the uncorroborated testimony
of the victim." State v. Morris, 1 lth Dist. 93-L-157, 1994 Ohio App. LEXIS 5981
(Dec. 30, 1994), citing Committee Comment to R.C. 2907.06.
"The corroboration requirenlent is a question going to the legal sufficiency of
the evidence, to be determ.ined by the trial judge, not a question of proof, which is the
province of the fact finder." State v. Economo, 76 Ohio St.3d 56, 60 (1996).
Corroboration requires some circumstantial evidence or testitnony of another witness,
other than the accomplice, that connects the defendant vArith the crime charged and
provides some of the material facts. Morris, supra, citing State v. Robinson, 83 Ohio
St. 136 (1910). "The corroboration must `go to the very substance or foundation of the
crime - in effect, the corpus delicti.'s' Morris citing State v. Fawn, 12 Ohio App.3d 25,
465 N.E.2d 896 (1983).
IIere, the trial court found sufficient corroboration for the offense based upon
the testimony of Ms. Cabaluna, who did not see the incident, but merely verified that
she saw T.H. leave the room and Appellant admitted he jokingly touched T.I4.'s
buttocks (Trial, pg. 358). While she may have corroborated the touching, she did not
corroborate sexual intent or purpose. Further, her testimony contradzeted, not
6
corroborated, the other elements of the offense -- sexual gratification and knowledge of
offensiveness. Both T.H. and Ms. Cabaluna testified this was the only incident of
contact, T.H. had never told him previously not to do this, he appeared sincere in his
apology and was surprised when T.1-I. was offended. This testimony not only fails to
corroborate the evidence, it disputes it.
The corroboration requirement has been litigated in Ohio. No case has
specifically held that corroboration must go to the sexual intent or purpose. This is the
missing piece, and Appellant urges this court to address this issue, because what
distiiiguishes ajoking touch from a sexual. touch is the intent. Slapping of a buttocks
is a coinznon sign of "job well done" in society; watch any sporting event. Certainly
athletes don't have sexual motivation. Thus, there is a need for corroborative evidence
of sexual gratification to determine when a touch constitutes a crime.
In State v.DeLuca, 8th Dist. 88615, 2007 Ohio 3905, the evidence presented
did not contain sufficient corroboration to support a conviction for sexual imposition.
The corroborative evidence went to the surrounding facts - the setting where the
incident occurred, the victim's deaneanor following the incident, her appearance. The
court found it was insufficient to sustain a conviction, holding: "here, the trial court
properly deternnined that if a lesser included instruction for sexual imposition were
given, appellant would be entitled to a directed verdict, as there was no corroboration."
Id at 25.
In State v.1loYris, supra, the court found there was insufficient corroboration
of sexual gratification. As it relates to that particular count, the victim claimed her
7
boss, a physician, touched her breast while examining her for scoliosis. There were
several other incidents of sexual contact, for which convictions were affirmed by the
court, however the evidence of the other acts did not provide sufficient corroboration
as to the purpose ofthzs act.
However, as to C'.ount 2 of the indictment, which. involved appellant's touching
of Jones' breast during the scoliosis exam, there is only corroboration that the
contact with Jones' breast occurred. There is no evidence to corroborate that
this contact was for the purpose of sexually arousing or gratifying either
appellant or Jones as required by R.C. 2907.01(B). Consequently, [the state]
has only presented some independent evidence supporting the material
substance of the crime, sexual contact, as to Counts 1 and 3. The corroboration
requirement...has not been met as to Count 2.
In State v. Kuritar, 2nd Dist. 24875, 2012 Ohio 3849, the Second District
found corroboration of every element of the offense was not required, but implied that
minimal corroboration was insufficient. In that decision, the court stated:
there is no way to corroborate a victim's testimony that she was, in fact,
offended by a sexual contact. Only the victim has access to that fact. 13ut, even
if there was no independent corroboration of a victim's testimony that a sexual
contact was offensive to the victim, we do not conclude that corroboration of
that particular element of the offense is require, when the victim's testimony as
to all other elements has been corroborated. (Emphasis added).
In another recent Second District opinion, State v. Rossi, 2nd Dist. 22803, 2009
Ohio 1963, the dissentin.g opinion of Judge Grady argues corroboration of several
elements, or at least the elements in dispute, should be required for a conviction of
sexual imposition. In Rossi, at issue was not whether there was sexual contact, but
whether the defendant knew or should have known it was offensive. T'he defense
presented in court was that the sexual encounter was consensual. Judge Grady
dissented in the opinion, arguing minimal corroboration was insufficient and there
8
should be corroboration on the disputed elements of the offense.
The fact at issue in Economo was whether the sexual contact concerning which
the victim testified had taken place. The state introduced other evidence in the
form of the defendant doctor's office records to show that he and the victim
had an appointment that day. The victim's sister also testified and said that
when the victim left the doctor's examining room she was `on the verge of
crying.' These circumstances were sufficient to corroborate the victim's
testimony that the doctor engaged in sexttal conduct during his examination of
her. The fact that such conduct occurred in the course of a doctor/patient
relationship supported an independent inference that the defendant knew it was
unwelcome to the victitn/patient or was reckless in that regard...
Unlike in Econorno, sexual contact, as that is defined...is not in issue in the
present case.
Economo does not, as the majority holds, stand for the proposition that R.C.
2907.06(B) is satisfied when corroborating evidence is offered concerning any
one element of an alleged [] sexual imposition offense. We should not read the
holding in Econorno as doing that when the majority in that case did not
expressly state that intention...
[Here],[t]he fact that the alleged victim subsequently complained to [law
enforcement] is not probative of Defendant's knowledge when the sexual
contact took place that it was unwelcome to the victim.
Id.
Finally, because corroboration of sexual gratification should be required,
likewise a jury instruction regarding the sanae is required.
2_ Fvidence of an alternate intent negates a finding of sexual gratification or
pumose and the rury must be instructed accordingly.
Evidence of another purpose for the touch negates sexual gratifcation. The
jury should also be instructed as to this. To sustain a conviction for sexual imposition,
the offender must have known the contact was offensive to the other person, or tvas
reckless in that regard. R.C. 2907.06(A). A person acts knowingly when they are
9
aware that their conduct will probably cause a certain result or will be of a certain
nature. R.C. 2901.22(B). A person acts recklessly when, "with heedless indifference
to the consequences, he perversely disregards a known risk that his conduct is likely to
cause a certain result or is likely to be of a certain nature." R.C. 2901.22(C).
The testimony here was that T.H. and Appellant were joking around, which
was conunon amongst them. Appellant had poked and pinched her minutes before he
grabbed her buttocks with both hands. The victim and witness believed he may have
been joking when he touched her. The evidence was that her strong reaction surprised
Appellant. According to the victim, he gave her a sincere apology and never touched
her again. Thus, there was evidence that his touch was for another puipose and the
jury should have been instnxcted that evidence of another purpose negates sexual
gratification.
Additionally, as argued above, in his dissenting opinion in Rossi, Judge Grady
would hold that corroboration of this element is necessary. Again, the issue in Rossi
was whether the contact was consensual. Judge Grady expressed a strong opinion that
corroboration of that element was necessary for that conviction. Under that argument,
corroborative evidence was necessary that Appellant knew touching T.H.'s buttocks
while joking around with her offensive.
3. The districts are split as to what behavior constitutes sexual imposition .
The actions of Clark were similar, though less severe, than the defendant in 'I'he
Matter ofN.R., supra. llowever, the conviction was reversed in N.R., and Appellant's
10
conviction was affirmed. For this reason, Appellant alleges there is a split amongst the
districts as to what behavior constitutes sexual imposition, and what evidence is
necessary to sustain a conviction. Because of the severe sentence that is required to be
imposed by law, Appellant urges this court to accept this matter to reconcile the split
amongst the appellant districts.
Again, sexual contact is the touching of an erogenous zone, including the thigh,
genitals, buttock, pubic region or breast (if female) for the purpose of sexually
arousing or gratifying either person. R.C. 2907.01(Q). Thus it has three components touching, erogenous zone, and sexual arousal or gratification. 5exual gratification and
sexual arousal are not defined, and to determine if this was the purpose of the alleged
offender, "the proper method is to permit the trier of fact to [make interences] from the
evidence presented at trial." State v. Cobb, 81 Ohio App.3d 179, 185 (1991), 610 N.E.
2d 1009. Whether a defendant acted with the intent to sexually arouse or gratify is a
question of fact to be inferred from the type, nature, and circumstances of the contact.
State v. Itleredith, 12th Dist. 2004-06-062, 2005 Ohio 62. The trier of fact may also
consider the personality of the defendant to determine if their motivation for the
touching was for sexual gratification. State v. Gesell, 12`h Dist. CA2005-08-367, 2006
Ohio 3621.
In this case, there was evidence simply that Appellant touched T.H.'s buttocks.
There was no evidence of sexual gratification. In fact, the evidence was that the
touching was for another purpose - they were joking around. Thus the conviction was
improper.
11
In In The Matter af11-'.R., 3ra Dist. 1-06-09, 2007 Ohio 3125, multiple touches
were made, one of which was in the most private area of the victim's body, her pubic
region. "This behavior is more severe than Clark's behavior. Here, the allegations
involved on touch of the victim's buttocks. Touching of the buttocks, as previously
argued, is a common occurrence for non-sexual reasons. Touching of the pubic area is
rarely done for a non-sexual purpose, and undersigned can think of only one example,
for medical purposes. Despite this, the Third District reversed, firnding the touch was a
joke.
There are many reasons why Redmond may have engaged in this behavior
other than for sexual arousal or sexual gratification...Furthermore, unlike many
sexual offenses, which occur in private or semi-private setting, the evidence is
clear that Redmotid reached under M.C.'s skirt in the hallways of a public high
school between classes and when his friends and her frieiids were present.
On this record, z-io reasonable juror could have found the elements of sexual
contact proven beyond a reasonable doubt because there was insufficient
evidence pertaining to Redmond's purpose to sexually arouse or gratify himself
or M.C.
Id at 11.
Further, in State v. Collins, 8`h Dist. 82200, 2003 Ohio 4817, a conviction for
sexual imposition was reversed by the eighth district. In that case, Collins met the
victim at a friend's house. T'he first contact was when he touched the victim's thigh as
he stood up off the groxind. Later that night he touched her two additional times; once
on the breast and once on the vagina. His convictions for those two later touches were
upheld, however the conviction for touching her thigh was reversed. The court found
there was no evidence that the touching of her thigh was for sexual gratification. The
12
court also found that the sexual gratification found for the two additional touches - the
breast arid vagina - could not be transferred as to his purpose for touching her thigh.
The touching of the thigh occurred inside the residence separate from the
subsequent contact at the vehicle. In light of the victim's statement and the
absence of any evidence other than the subseauent "touchinLs" that occurred
later at the vehicle, there is insufficient evidence to establish that the touching
of the thigh was intended for the purpose of Collins' sexual arousal or
gratification.
Idat 12.
CONCLUSION
For the reasons state above, Appellant respectfully requests this honorable
court accept jurisdiction in this matter.
Respectfully Submitted,
1 Ri4n (#0067020)
!utter-Ifirth (#0081004)
tION & RION, LPA, Inc.
13
CERI'IFICATE OFSERVIC'L
I. the undersigned, do hereby certify that a copy of the foregoing was forwarded
to the office of Attorney for Appellee on the same day as filing.
ON P'AVL PdON of
,
:ION, I^ON & RION, L.P.A., INC.
14
IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO
STATE OF OHIO
Piaintiff-Appellee
C.A. CASE NO. 2013 CA 52
V.
T.C. NO. 12CRB5058
DONOVIN W. CLARK
FINAL ENTRY
Defendant-Appellant
Pursuant to the opinion of this court rendered on the 7th day of March , 2014,
the judgment of the trial court is affirmed.
Costs to be paid as stated in App.R. 24.
Pursuant to Ohio App.R. 30(A), it is hereby ordered that the Clerk of the Clark County
Court ofiAppeals shall immediately serve notice of this judgment upon all parties and make
a note in the docket of the mailing.
q-r
L^
.
MIKE FAIN, Judge
MA E. D NOVAN, Judge
JEFFREY M. WELBAUM, Judge
TIIf: CO(.IRT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
2
Copies mailed to:
Marc T. Ross
City of Springfield Prosecutor's Office
50 E. Columbia Street, 4t" Floor
Springfield, Ohio 45502
John Paul Rion
Nicole Rutter-Hirth
1301N. Second Street, Suite 2150
P. O. Box 1262
Dayton, Ohio 45402
Hon. Thomas E. Trempe
Clark County Municipal Court
50 E. Columbia Street
Springfield, Ohio 45502
THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO
STATE OF OHIO
Plaintiff-Appellee
C.A. CASE NO. 2013 CA 52
V.
T.C. NO. 12CRB5058
DONOVIN W. CLARK
(Criminal appeal from
Municipal Court)
Defendant-Appellant
OPIN1ON
Rendered on the 7th day of March , 2014.
MARC T. ROSS, Atty. Reg. No. 0070446, City of Springfield Prosecutor's Office, 50 E.
Columbia Street, 4 th Floor, Springfield, Ohio 45502
Attorney for Plaintiff-Appetlee
JOHN PAUL RION, Atty. Reg. No. 0067020 and NICOLE RUTTER-HIRTH, Atty. Reg. No.
0081004, 130 W. Second Street, Suite 2150, P. U. Box 1262, Dayton, Ohio 45402
Attorneys for Defendant-Appellant
DONOVAN, J.
{¶ 1} Defendant-appellant Donovin Clark appeals his conviction and sentence for
one count of sexual imposition, in violation of R.C. 2907.06(A)(1), a misdemeanor of the
THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
2
third degree. Clark filed a timely notice of appeal with this Court on June 17, 2013.
{¶ 2} During the fall of 2012, Clark began taking classes at Career Technology
Center (CTC) located in Clark County, Ohio. The evidence adduced at trial suggested that
shortly after starting classes, Clark began making unwanted and repeated physical contact
with several female students also enrolled at CTC. Specifically, Clark was accused of
touching the girls' buttocks, breasts, thighs, and stomachs without permission and after
repeatedly being told to stop.
113) On November 19, 2012, a group of female students approached Ms. Amy
Schakat, the Director of Student Services and Academics at CTC, in order to discuss
Clark's continued inappropriate touching. Schakat is one of:three "principals" at CTC who
oversee student conduct and handle student disciplinary matters. The group of female
students, T.H., C.M., J.C., K.B., B.E., and E.H., informed herthat since the fall term began,
Clark had touched each of them inappropriately at various times. Schakat wrote down the
girls' allegations during the brief meeting. The allegations were reported to the school
superintendent who advised Schakat to bring Clark in for a discussion.
(14) During the meeting with Schakat on November 26, 2012, Clark denied that he
inappropriately touched J.C. Clark further informed Schakat that he did not remember any
of the incidents involving C.M., K.B., or B.E. Clark admitted that he grabbed T.H.'s
buttocks during a graphic arts class in the middle of September for which he received a
one-day in school suspension. Schakat explained to Clark that the touching and grabbing
was inappropriate and pointed out that he had repeatedly been told to stop by the girls he
targeted. Clark responded to Schakat by saying that he does not "hear no or stop" when
he is in a"zone." After the meeting, Schakat spoke with the school superintendent, and
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Clark received a ten-day suspension for his conduct.
(15) On November 27, 2012, Schakat contacted the Spdngfield Police Department
regarding the allegations against Clark. Springfield Police Detective Trent King of the
Crimes Against Persons Unit, Juvenile Division, was subsequently assigned to oversee the
case. On November 30, 2012, Det. King separately interviewed each of the female victims
at the CTC. Afiter the interviews, Det. King filed warrants for the arrest of Clark for six
counts of sexual imposition. Det. King arrested Clark on December 7, 2012, on the
outstanding warrants and transported him to Springfield Police headquarters. Det. King
questioned Clark regarding the victims' allegations. Clark admitted to grabbing T.H.'s
buttocks, stating that he "Went too far." Clark further admitted that he smacked K.B. on the
buttocks on tvs'rb separate occasions, but he said he was only joking. Clark admitted to
touching B.E. o'ri her thighs, and that E.H. slapped his hand away when he touched her.
During the interview, Clark did not deny that he grabbed C.M.'s buttocks nor that he tried
to bury his facb betweert her breasts. While acknowledging that his conduct was
inappropriate, tClark stated that he "meant nothing by it and was just joking around." Clark
additionally stated that although he knew that the girls told him repeatedly to stop the
unwanted touching, he explained that he "zones out" and the girls' pleas to stop simply
don't "register" witti him.
{¶ 6} Clark was subsequently charged in six separate criminal complaints, each
containing one count of sexual imposition corresponding to the six individual female
victims. At the concfusion of his jury trial on June 13, 2013, Clark was found guilty of one
count of sexua1 impositian against the complainant, T.H. Clark was acquitted of the
remaining five c®unts of sexual imposition. The trial court sentenced Clark to sixty days
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in jail with forty-five days suspended. Clark was placed on probation for one year, ordered
to undergo a mental health assessment, and instructed to complete any recommended
follow-up treatment. Clark was also designated a Tier I sex offender. The imposition of
Clark's sentence was stayed pending the outcome of his appeal.
{171 It is from this judgment that Clark now appeals.
(18) Ciark's first assignment of error is as follows:
"THERE1I1lAS INSIJFFICIENT EVIDENCE PRESENTED AT TRIAL TO SUPPORT
A CONVICTION FOR SEXUAL IMPOSITION."
(191 In his first as^ignment, Clark contends that the State adduced insufficient
evidence at trial to support his conviction for sexual imposition. Specifically, Clark argues
that the evidence was instifl:<cient to establish: 1) that the touching was for the purpose of
sexual arousai or gratifica-fion in order to constitute "sexual contact" under R.C. 2907.01 (B);
2) corroboratirin pursuant to R.C. 2907.06(B); and 3) that he knew his conduct would be
offensive, or was reckless in that regard.
z:.
{I 101 When a defehdant challenges the sufficiency of the evidence, he is arguing
that the State presented inadequate evidence on an element of the offense in order to
sustain the vercliet as amatter of law. State v. Hawn, 138 Ohio App.3d 449, 471, 741
N.E.2d 594 (2d Dist.2000). "An appellate court's function when reviewing the sufficiency
of the evidence to support a crimiriai conviction is to examine the evidence admitted at trial
to determine wrhether 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 alements of the crime proven beyond a reasonable doubt." State
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v. Jenks, 61 (Jhio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶ 11} Ohio's sexual imposition statute, R.C. 2907.06(A)(1) provides, in part: "[n]o
person shall havo sexual contact with another, not the spouse of the offender, when [t]he
offender knows that the sexual contact is offensive to the other person, *** or is reckless
in that regard." Sexual contact means "any touching of an erogenous zone of another,
including with'out lirilitation the thigh, genitals, buttock, pubic region, or if the person is a
female, a breast, for the purpose of sexually arousing or gratifying either person." R.C.
2907.01(B). (Erriphasis added.)
{¶ 12} Inifiialfy, we note that evidence was adduced from which the jury could have
concluded thait, lark had sexual contactwith T. H. because there was undisputed evidence
that he grabbed her buttcicks with both hands. See R.C. 2907.01(B). Further, there was
evidence that ffie sexual contact was made for the purpose of sexually arousing or
gratifying Clark. The Ohio Revised Code does not define "sexual arousal" or "sexual
gratification." ,State v. .Gese!!, 12th Dist. Butler No. CA200.5-08-367, 2006-Ohio-3621, %23.
However, "R C. 2967.01(b) `contemplate[s] any touching of the described areas which a
{
reasonable perso'ii vvould perceive as sexually stimulating or gratifying."' State v. Astley,
36 Ohio App ^ci 247, 25b, 523 N.E.2d 322 (10th Dist.1987). In addition, "[w]hile the
purpose of sexual arousal or gratification is an essential element of the offense of **^
sexual impositidiri, there is no requirement that there be direct testimony regarding sexual
arousal or grati#"ieation." Gesefl, at ¶ 25. "[T]he proper method is to permit the trier of fact
to infer from the evidence presented at trial whether the purpose of the defendant was
sexual arousal odr gratification by his contact with those areas of the body described in R.C.
2907.01. In rnaking its decision, the trier of fact may consider the type, nature, and
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circumstances of the contact, along with the personality of the.defendant.l=rom these facts,
the trier of facts may infer what the defendant's motivation was in making the physical
contact with the victim. If the trier of fact determines, that the defendant was motivated by
desires of sexual arousal br gratification, and thatthe contact occurred, then the trier of fact
may conclude that the object of the defendant's motivation was achieved.' " State v.
Mundy, 99 Ohio App.3d 275, 288-289, 650 N.E.2d 502, 510 (2d Dist.1994), quoting State
a
v. Cobb, 81 Ohio App.3d 179, 185, 610 N.E.2d 1009, 1013 (9th Dist.1991).
(113) In the instant case, sufficient evidence was adduced at trial whereby the jury
could find that Clark's purpose in grabbing T.H.'s buttocks was for sexual gratification or
arousal. Initially, we note that Clark limited his inappropriate touching to female students.
Significantly, when Clark was accused of inappropriately touching his female classmates,
it was almost always in an erogenous zone as defined in R.C. 2907.01(B). The evidence
established that Clark grabbed T.H. when she had her back turned to him and was
completely unaware of his intentions. Upon realizing what Clark had just done to her, T.H.
yelled out and imrnediately left the classroom. T.H. testified that there was no history of
touching or horseplay bet^iveen she and Clark. Additionally, Clark admitted to both Schakat
and Det. King that when he inappropriately touched the females, he "zones out" and the
girls' pleas to stop simply don't "register" with him. Det. King testified that Clark
acknowledged that when he grabbed T.H.'s bu#tocks, he "went too far." The trier of fact
was not required to accept Clark's explanation to Schakat and Det. King that he was
merely "joking around." State v. Bragg, 2d Dist. Montgomery No. 19491, 2004-Ohio-659,
at¶ 11. Thus, we find that a rational trier of fact could conclude that Clark grabbed T.H.'s
buttocks for sexual gratification.
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{¶ 14} R.C. 2907.06(B) provides that "[n]o person shall be convicted of a violation
of this section [Sexual Imposition) solely upon the victim's testimony unsupported by other
evidence." Clark argues that the corroboration required by R.C. 2907.06(B) is not present
in this case because there is no evidence that he knew that his conduct was either
offensive to T.H., or that he was reckless in this regard.
{¶ 15) The Supreme Court of Ohio has addressed the corroboration requirement
set forth in R.C. 2907.06.(S) in State v. Economo, 76 Ohio St.3d 56, 666 N.E.2d 225
(1996). "Although one can make a reasoned argument that the corroboration required by
the statute ought to touch upon the knowiedge-that-ones-conduct-is-offensive element of
Sexual lmposition, that argument was clearly rejected in Economo. The opinion in that
case clearly holds that corroboration, which can be slight, need only touch upon any
element of Sexual Imposition." State v. Rossi, 2d Dist. Montgomery No. 22803, 2009-Ohio1963, ¶ 37.
(116) In Economo, the only evidence corroborating any elemenf of the offense was
that the alleged victim promptfy reported the incident to the authorities, appeared to be
upset, and did not want fo be alone with the alleged perpetrator of the offense. These
circumstances vvere deemed to constitute sufficient corroboration. In the instant case, T.H.
yelled loudly and stormed out of the classroom immediately after being grabbed on her
buttocks by Clark. T.H.'s teacher, Ms. Cabaluna, testified that she heard a commotion and
observed T.H. walk out of the classroom. Cabaluna further testified that.T.H.'s face was
"bright red," and she appeared very anxious. Cabaluna then followed T.H. into the hallway.
Thereupon, T.H. informed Cabaluna that "[Clark] grabbed my butt."
(117) Upon being confronted by Caba[una aboutthe incident, Clark acknowledged
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that his behavior was inappropriate and stated that "I know; I get worked up, and I don't
think about what I am doing." Moreover, Clark admitted that he grabbed T.H.'s buttocks
when he was later confronted by Schakat about the incident. Clark also admitted to Det.
King that he grabbed T.H.'s buttocks when he was interviewed at the Springfield Police
Department. Lastly, we note that corroboration is a question of sufficiency to be determined
by the trial court in considering a Crim. R. 29 motion for acquiftal. Contrary to Clark's
assertion, it is not a question of fact to be determined. by the jury. State v. Burns, 2d Dist.
Montgomery No. 24174, 2012-Ohio-2536, ¶ 29, citing Economo, 76 Ohio St.3d 56, 60.
(118) Lastly, the evidence adduced by the State was sufficient to establish that
Clark knew that his conduct was offensive to T.H., or that he acted recklessly when he
touched her inappropriately. A person acts "knowingly" when he is aware that his conduct
will probably cause a certain resu(t or will probably be of a certain nature. See R.C.
2901.22(B). A person acts recklessly "when, with heedless indifference to the
consequences, he perversely disregards a known risk that his conduct is likely to cause a
certain result or is likely to be of a certain nature." See R.C. 2901.22(C).
{¶ 19} At the time of the incident, Clark and T.H. had only known each other for
approximately three weeks. Moreover, there was no history of flirting or touching between
the two of them that would provide Clark with a reasonable basis for believing that grabbing
T.H.'s buttocks would be acceptable to her. After grabbing T.H.'s buttocks and witnessing
her instant, volatile reaction, Clark admitted that he "went too far" and that he does not
"think about what he is doing." In State vVesser, 2d Dist. Montgomery No. 23779, 2011Ohio-129, the defendant, who was convicted of sexual imposition and sexual battery, told
a detective that "he knew what he did was wrong" after engaging in sexual activity with the
THE COURT OF APPEALS OF f)HIO
SECOND APPELLATE DISTRIC'r
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victim. Accordingly, we find that the jury could have reasonably concluded that Clark knew
the sexual contact was offensive to T. H., or that he acted recklessly in regards to whether
it was offensive to her. Accordingly, we conclude that the trial court did not err when it
overruled his Crim. R. 29 motions for acquittal made at the close of the State's case.
(1201 Clark's first assignment of error is overruled.
{¶ 21) Clark's second assignment of error is as follows:
"THE TRIAL COURT ERRED IN EXCLUDING EVIDENCE BY THE DEFENSE
THAT THE"DETECTIVE MISSTATED WHAT CONSTITUTES SEXUAL iMPOSTION,
PROVIDING THE JURORS WITH CONFLICTING INSTRUCTIONS OF LAW AS TO THE
CRIME FOR WHICH APPELLANT WAS CHARGED."
(122) In his second assignment, Clark argues that the trial court erred when it
limited defense counsel from cross-examining Det. King regarding his purported
misstatement of the eiements of R.C. 2907.06(A)(1) during his recorded interview of the
appellant. During the interview, Det. King told Clark that the offense of sexual.imposition
was the unwa'nted touching of the erogenous zones of another, When defense counsel
attempted to cross-examine Det. King regarding this purported misstatement of law, the
trial court sustained the Sfate's objection and excluded the testimony. Thus, Clark asserts
that the trial court denied him the opportunity to correct Det. King's purported
mischaracterization, and as a result, the jury was likely confused, thereby prejudicing him.
{¶ 23) Initially, we note that counsel failed to object to the admission of the
------ -------- ------ recorded interview conducted by Det. King, wherein he made the alleged misstatement of
law. Absent an objection or a request for a limiting instruction, Clark has waived all but
plain error. An appelfate court has the discretion to notice plain error under Crim. R. 52(B)
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"with the utmost caution, under exceptional circumstances, and only to prevent a manifest
miscarriage of justice." State v. Long, 53 Ohio St.2d 91, 372 N.E2d 804 (1978), ¶ 3 of the
syllabus. Plain error does not exist unless, but for the error, the outcome of the
proceedings would have been different. State v. Moreland, 50 Ohio St.3d 58, 552 N.E.2d
894(1990).
(124) The following exchange occurred during the cross-examination of Det. King:
Defense Counsel: Okay. Now when you interviewed Mr. Clark you
kind of explained to him what he was charged with and what the sexual
imposition was correct?
Det. King: Yes sir.
Q: And were you truthful when you told him that?
A: Yes sir.
Q: Are you familiar with the statute that you were quoting?
A: Yes I'm familiar with.....
Q: Okay.
A: ... ,the sexual imposition statutes.
Q: And you said that it's illegal to touch the erogenous zone of
another, is that what you told Mr. Clark?
A: I, among other things, yes sir.
Q: Okay and I assume you're familiar with the law?
A: Yes sir.
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Q: Okay. ! have before..........
The State: I don't know what he's showing him.
Defense Counsel: Oh 1'm sorry, the statute. I apologize.
The Court: May I may I look?
Defense Counsel: Could you read for me the statute for sexual
imposition according to the Ohio Revised Code?
The State: I'm going to object. The instruction should come from the
Court I would think.
Defense Counsel: The instructions already came from the witness. I
need to clarify Your Honor.
The Court: Well if I could have counsel approach.
*** SIDEBAR
The Court: What's the purpose of this?
Defense Counsel: The purpose Your Honor is he says it's just
unwanted touching [of] the erogenous zone. It's not sexual contact. And I
think that's a key distinction.
The Court: Uh but it's the Court's function to advise the jury (inaudible)
what what (inaudible).
Defense Counsel: Because he's a very credible witness Your Honor
and they can assume that he knows and that's the reason why.
The Court: You're saying that he misquoted the statute.
Defense Counsel: Yes,
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The Court: *** why is that relevant?
Defense Counsel: Because Your Honor it's relevant because if he
didn't violate the statute then he shouldn't be charged.
The State: Well we're a little late for that but (inaudible).
Defense Counsei: Well I attempted to do that in my opening.
The State: Instructions of law come from the Court. They're finders of
fact whether it meets the of the [sic] law is given to them. They're the finders
of fact.
The Court: The objection's sustained.
*** END OF SIDEBAR
Defense Counsei: Isn't it true that sexual contact is required? Is that
permittabie [sic] Your Honor?
The Court: Well you asked a question so it's pending.
Det. King: Yes sir.
Defense Counsel: Okay. And what is your definition of sexual contact?
The State: Objection.
Defense Counsel: .....as an officer?
The Court: Sustained. The Court will instruct the}ury as to the law that
it must apply to the facts as they find them to be when they are deliberating.
(Emphasis added).
(125) Upon review, we find that Clark's argument that he was prevented from
cross-examining Det. King regarding his alleged misstatement of law misconstrues the
record. The record establishes that defense counsel was properly prevented from
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introducing a copy of R.C. 2907.06 into evidence through Det. King's reading of the statute
to the jury. Defense counsel was also properly prevented from questioning Det. King
regarding his personal definition of "sexual contact." This line of questioning was improper,
and the trial court did not err when it sustained the State's objections.
(126) Instructions regarding the pertinent law must come from the court. We note
that Clark does not argue on appeal that the trial court's instructions to the jury regarding
the necessary elements of sexual imposition were incorrect. We further note that it is
generally accepted that the jury is presumed to follow the instructions of law given to it by
the court. State v. Raglin, 83 Ohio St.3d 253, 264, 699 N.E,2d 482,492 (1998). If defense
counsel had simply wanted to emphasize that Det. King had not advised Clark of all of the
elements of sexual imposition, he was free to cross-examine Det. King regarding what he
said, or more specifically, what was omitted during the interview regarding sexual
gratification. However, permitting Det. King to read R.C. 2907.06 to the jury or testify
regarding his own definition of "sexual contact" would have invaded the province of the trial
court to instruct on the law applicable to the case, and would therefore have been error.
(127) Clark's second assignment of error is overruled.
(1281 Clark's third and final assignment of error is as follows:
"APPELLANT'S SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF
COUNSEL WAS VIOLATED WHEN COUNSEL FAILED TO FILE A MOTION TC.^
SUPPRESS, WHICH LIKELY WOULD HAVE RESULTED IN SUPPRESSION OF HIS
FORCED INCULPATORY STATEMENTS."
{¶ 29} In his third and final assignment, Clark argues that his trial counsel was
ineffective for failing to file a motion to suppress the statements he made to Det. King
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SECOND APPELLATE DISTRICT
14
during the recorded interview. Specifically, Clark argues that because he was improperly
advised of the elements of sexual imposition by Det. King, his inculpatory statements were
induced by misstatements of law and would have been suppressed had his counsel
properly filed a motion to suppress.
{¶ 30} To reverse a conviction based on ineffective assistance of counsel, an
appellant must demonstrate both that trial counsel's conduct fell below an objective
standard of reasonableness and that the errors were serious enough to create a
reasonable probability that, but for the errors, the result of the trial would have been
different. Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). Trial counsel is entitled to a strong presumption that his or her conduct falls within
the wide range of reasonable assistance. Strickland, 466 U.S. at 688. Deficient
performance means that claimed errors were so serious that the defense attorney was not
functioning as the "counsel" that the Sixth Amendment guarantees. State v. Cook, 65 Ohio
St.3d 516, 524, 605 N.E.2d 70 (1992).
{¶ 31 }"The failure to file a suppression motion is not per se ineffective assistance
of counsel. State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52, 2000-Ohio-448.
Rather, trial counsel's failure to file a motion to suppress constitutes ineffective assistance
of counsel only if the failure to file the motion caused Defendant prejudice; that is, when
there is a reasonable probability that, had the motion to suppress been filed, it would have
been granted." (Citations omitted.) State v. Wilson, 2d Dist. Clark No. 08CA0445, 2009Ohio-2744, ¶11. See, also, State v. Nields, 93 Ohio St.3d 6, 34, 752 N.E.2d 859 (2001).
{¶ 32} Clark argues that if Det. King had properly informed him of all of the
elements of the offense of sexual imposition, he would not have admitted to grabbing
THE COURT' OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
15
T.H.'s buttocks. Thus, Clark asserts that his inculpatory admission to Det. King could not
have then been used to corroborate T.H.'s testimony regarding the incident. However,
Clark ignores the fact that priorto making admissions to Det. King, he had already admitted
to Cabaluna and Schakat that he had grabbed T.H.'s buttocks, an act for which he
received a one-day in-school suspension. Clark also acknowledged to Schakat that he did
"not hear no or stop" when he is in a "zone." On the date of the incident involving T.H.,
Clark told Cabaluna, "! know I get worked up." Clark never denied touching T.H.'s
buttocks, and his defense attrial merely consisted of the assertion that he was "just joking"
and "meant nothing by it." Accordingly, Clark was not prejudiced by counsel's failure to file
a motion to suppress the statements he made to Det. King since he had already admitted
to the inappropriate conduct prior to the interview.
(1331 Additionally, we note that defense counsel's failure to file a motion to
suppress Clark's statements to Det. King may have been a matter of reasonable trial
strategy, which does not constitute deficient performance. State v. King, 2d Dist.
Montgomery No. 18463, 2002-Ohio-2929. Simply put, filing a motion to suppress is not
without risks, and the likelihood of success of such a motion was not a given in this case.
State v. Brovirn,.115 Ohio St.3d 55, 69, 2007-Ohio-4837, 873 N.E.2d 858.
{¶ 34} Moreover, even if defense counsel had filed a motion to suppress Clark's
inculpatory statements and the trial court had granted the motion, we cannot find that the
result of the trial would have been any different because the State adduced a substantial
amount of evidence establishing Clark's guilt with respect to the incident involving T.H.
Accordingly, given the substantial amount of additional testimony from Cabaluna and
Schakat which corroborated T.H.'s testimony, aside from Clark's statements to Det. King,
THE COUR"I' OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
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we cannot say that had defense counsel filed a motion to suppress, there is a reasonable
probability that Clark would have been acquitted.
{l 35} Clark's third and final assignment of error is overruled. Judgment affirmed.
FAIN, J. and WELBAUM, J., concur.
Copies mailed to:
Marc T. Ross
Jon Paul Rion
Nicole Rutter-Hirth
Hon. Thomas E. Trempe
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