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Date: 04-24-2022
Case Style:
STATE OF OHIO vs. AARON BANKS
Case Number: C-200395, C-200396
Judge: Marilyn Zayas
Court:
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
On appeal from The Hamilton County Municipal Court
Plaintiff's Attorney: Andrew Garth, City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and
Jon Vogt, Assistant Prosecuting Attorney
Defendant's Attorney:
Description:
Cincinnati, Ohio - Criminal Defense lawyer represented defendant with two counts of cruelty against a companion anima charges.
{¶2} Aaron Banks was charged with two counts of cruelty against a
companion animal in violation of R.C. 959.131(B), misdemeanors of the second
degree. Banks pleaded not guilty, and the case proceeded to a bench trial on October
27, 2020. The trial court found Banks guilty and sentenced him to 180 days on each
count—suspended 150 days, committed 30 days—to be served concurrently, and
three years of community control. The trial court also ordered that both dogs be
forfeited to Cincinnati Animal Care with reimbursement for necessary costs, ordered
that Banks not own any companion animals for 15 years, and ordered Banks to
undergo a psychological evaluation and treatment as recommended.
Factual Background
Objection to Use of Zoom Technology
{¶3} At the start of trial, counsel for Banks addressed the court and
expressed an objection to any testimony by Zoom technology, arguing that
unavailability of a witness due to a subpoena not being served was insufficient
grounds to dispense with Bank’s right to face-to-face confrontation. The state
asserted that a witness, Mark Curnutte, did not receive the subpoena and could only
OHIO FIRST DISTRICT COURT OF APPEALS
3
be available by Zoom, and argued that he is a critical witness and should be allowed
to testify by Zoom, as it has become a normal occurrence with the COVID-19
pandemic. Alternatively, the state asked the court to hear the case in its entirety and
then continue the case in progress for in-person testimony at a later date. The court
responded as follows:
This court was just put under a joint administrative order,
Judge Kubicki and Judge Russell filed October 26th, 2020, we were
one of the numerous counties in a red alert level 3 emergency due to
Covid. They asked us to try to limit in person interactions, gatherings,
try to conduct hearings when possible, using technology. Ohio
Supreme Court has given similar instructions due to Covid. So, I will
allow both direct and cross-examination to be conducted by Zoom
technology for this witness.
Testimony of Diana Lara Curnutte
{¶4} Diana Lara Curnutte is a neighbor of Banks. On August 2, 2020, she
heard “yelping and the screaming of dogs” on the balcony just behind her. She also
heard a man’s voice. She then went up to the top level of her house, the fourth floor,
where her husband was. She pulled out her phone and started videotaping from that
point “where the dogs were scurring [sic] around the deck.” She testified, “I then saw
the defendant, and heard him, but he had taken a giant crate and threw it right at the
dogs. The dogs were then yelping again, and this just went on for – I videotaped it
and was very upset.” The incident went on for around eight to ten minutes before
she started recording, and for “probably 10 minutes” once she started recording.
OHIO FIRST DISTRICT COURT OF APPEALS
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Testimony of Mark Curnutte via Zoom Technology
{¶5} On August 2, 2020, Mark Curnutte was at home with his wife. At
around 9:30 a.m., he was alerted to look out an open window after hearing dogs
barking, yelping, and crying. Out of the fourth-floor window, he observed Banks
“beating two dogs.” Banks was “beating the larger dog repeatedly with what
appeared to be a stick or a rod,” and the smaller dog was “cowering in the corner
behind the protection of the larger dog.” The larger dog was absorbing most of the
blows. He did not count how many strikes occurred on the dogs, but “it wasn’t just
one or two.” He believed it to be around ten to 15 strikes. His wife videotaped the
“second beating” which occurred roughly 20 to 30 minutes later. During this second
incident, he saw Banks throw a crate at one of the dogs but could not tell if the crate
hit the dogs because of the railing. When asked how hard Banks hit the dogs, he
replied, “It appeared to be out of anger and with the defendant’s full strength.” The
strikes were on the side of the dog, but not on the head.
{¶6} He testified that, during the course of this case, Banks hung “some sort
of screen, whether it was a sheet or curtain.” He believed it was to shield the view or
prevent them from seeing the deck. The statement on the screen was, “Racist, Liars,
Mazola.” Mazzola is another neighbor.
{¶7} When asked where he was during his remote testimony, he said he was
at home in Mount Adams. He stated, “I had grading to do, and I did not receive a
summons from the Court, and I had other arrangements, including web office hours
with students this morning because that is how we are required to do our office hours
because of the pandemic.” When asked if his work was the only thing keeping him
from being present in court, he responded, “I did not receive a summons from the
OHIO FIRST DISTRICT COURT OF APPEALS
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court,” and “I was not showered or shaved, and I did not have a chance to come to
court appropriately dressed.”
Testimony of Samantha Lakamp
{¶8} Samantha Lakamp was at her boyfriend’s house on August 2, 2020.
She could see Banks’s balcony from their balcony. She was in bed and “woke up to
the sound of dogs yelping and crying.” At first, she dismissed the noise, but it kept
going on “excessively for I would say 10 to 15 minutes.” At that point, she went out
on the balcony and saw Banks holding what looked like a “tennis ball thrower,” or a
three-foot-long plastic object. He raised the object and hit the dog with it. The dog
ran around to the other corner of the deck. Then Banks picked up a plastic dog crate
and threw it at the dog. She saw two dogs that day. She described the strike as
Banks raising the object “about to his head” and then bringing it down on the dog.
After the strike, the dogs yelped, had their tails between their legs and ran to the
other side of the deck. She did not know how long this was going on before she woke
up. She could not see the dog when the crate hit it. She did not have any reason to
believe that the crate did not actually hit the dog. After the crate hit the dog, she saw
the dog run out from under the crate.
Testimony of Melissa Mazzola
{¶9} Melissa Mazzola’s house is down a hill, two houses to the right of
Banks’s apartment. Part of her view was obstructed by trees and greenery, but “not
tall enough to hide the entire balcony.” Early in the morning on August 2, 2020, her
dogs alerted her by whining and barking. She then heard “this familiar whining and
yelping of these dogs, and barks, behind my house, and I said ‘not again.’ ” She then
went outside on her back deck and heard the dogs continuously crying. She then
called for her husband and said, “Randy, it’s happening again.” She heard dogs
OHIO FIRST DISTRICT COURT OF APPEALS
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crying and yelping for 15 minutes, saw a crate being thrown at the whimpering dogs,
and saw the dogs “scurring [sic] away from the crate that was being thrown at them
in a corner.” The man she saw on the balcony was Banks. She testified that, the next
day, “there was a sign that was hanging in the back of his deck that was directed to
me, it said ‘Racist, Liars, Mazzola,’ misspelled, but I mean, obviously it was
directed—my last name is Mazzola.”
Testimony of Lieutenant William Allen
{¶10} Lieutenant William Allen is with the Hamilton County Dog Warden’s
office. He investigated a claim of dogs being beaten on the back or rear balcony. He
arrived shortly after 10 a.m. on August 2, 2020, and spoke with Banks directly.
Banks kept trying to make him believe that the dogs were well cared for and that the
dogs meant everything to Banks. When he asked Banks about the beating, Banks
said, “Well, what are you supposed to do when they shit everywhere.” Lieutenant
Allen testified that while Banks did not admit to it, “he didn’t outright deny it either.”
Banks was defensive and upset.
{¶11} Lieutenant Allen found the dogs on the rear balcony. When he got
there, the dogs were terrified. He testified, “When they saw me they retreated,
screaming, went to get away from him.” He explained, “There was [sic] feces on the
deck, and I was trying to earn the dog’s trust at the time.” The dogs tried to get as far
away from him as possible when he approached them. He was able to walk them out
on leashes. He removed the dogs for their safety and their welfare because he
believed what he was told to be true. He saw the video and talked to the witnesses at
the scene who described what they saw. He testified that because dogs have fur, you
cannot see bruising. The dogs appeared healthy and did not show any obvious
injuries.
OHIO FIRST DISTRICT COURT OF APPEALS
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Testimony of Albert Federman
{¶12} Albert Federman is Banks’s landlord and neighbor. He lives directly
above him. He denied being friends with Banks. On the morning of August 2, 2020,
he “heard a couple dogs yelping for a matter of moments.” He testified that it was
probably somewhere around five to ten seconds. He came to court because he told
Banks he did not think he abused his animals and offered to testify if Banks needed
him to. He did not see anything that day. He remembers letting the lieutenant into
the complex. He then went right back to his apartment.
The Trial Court’s Ruling
{¶13} The court stated:
In this day and age people are often reluctant to call the police
on their neighbors, and it’s got to be pretty significant usually for
multiple neighbors to all become alarmed and call over to people about
it, call the police, and that’s exactly what this was. The state proved
beyond a reasonable doubt that the defendant knowingly, cruelly beat
these two dogs, repeatedly striking the dogs with this stick, also
throwing the crate on the dogs for extended beating, according to
multiple witnesses, and there’s no question in my mind that the
defendant is guilty of both charges.
Law and Analysis
First Assignment of Error
{¶14} In his first assignment of error, Banks asserts that he was denied the
right to confront witnesses against him in violation of the Sixth Amendment to the
United States Constitution and Section 10, Article 1 of the Ohio Constitution. “While
admission of testimony is generally reviewed for an abuse of discretion, the question
OHIO FIRST DISTRICT COURT OF APPEALS
8
of whether a criminal defendant’s rights under the Confrontation Clause have been
violated is reviewed de novo.” In re H.P.P., 8th Dist. Cuyahoga Nos. 108860 and
108861, 2020-Ohio-3974, ¶ 19, citing State v. Smith, 162 Ohio App.3d 208, 2005-
Ohio-3579, 832 N.E.2d 1286, ¶ 8 (8th Dist.).
{¶15} “Under both the federal and Ohio constitutions, a criminal defendant
has a right to confront witnesses.” Id. at ¶ 20. The Sixth Amendment to the United
States Constitution requires that, “[i]n all criminal prosecutions the accused shall
enjoy the right * * * to be confronted with the witnesses against him.”
Section 10, Article I of the Ohio Constitution provides that ‘the
party accused shall be allowed * * * to meet the witnesses face to face *
* *; but provision may be made by law for the taking of the deposition
by the accused or by the state, to be used for or against the accused, of
any witness whose attendance can not be had at trial, always securing
to the accused means and the opportunity to be present in person and
with counsel at the taking of such deposition, and to examine the
witness face to face as fully and in the same manner as if in court. * * *’
(Ellipses sic.) State v. Self, 56 Ohio St.3d 73, 76, 564 N.E.2d 446 (1990).
{¶16} “The Confrontation Clauses were written into our Constitutions ‘to
secure for the opponent the opportunity of cross-examination. The opponent
demands confrontation, not for the idle purpose of gazing upon the witness, or of
being gazed upon by him, but for the purpose of cross-examination, which cannot be
had except by the direct and personal putting of questions and obtaining immediate
answers.’ ” (Emphasis in original.) Id., quoting 5 Wigmore, Evidence 150, Section
1395 (1974).
OHIO FIRST DISTRICT COURT OF APPEALS
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{¶17} “[T]here is something deep in human nature that regards face-to-face
confrontation between accused and accuser as ‘essential to a fair trial in a criminal
prosecution.’ ” Coy v. Iowa, 487 U.S. 1012, 1017, 108 S.Ct. 2798, 101 L.Ed.2d 857
(1988). “A witness ‘may feel quite differently when he has to repeat his story looking
at the man whom he will harm greatly by distorting or mistaking facts.’ ” Id. at 1019.
{¶18} “The central concern of the Confrontation Clause is to ensure the
reliability of the evidence against a criminal defendant by subjecting it to rigorous
testing in the context of an adversary proceeding before the trier of fact.” Maryland
v. Craig, 497 U.S. 836, 845, 110 S.Ct.3157, 111 L.Ed.2d 666 (1990). The
Confrontation Clause guarantees not only the right to a personal examination, but
also ensures that witness statements are given under oath, that the witness submits
to cross-examination, and that the trier of fact is able to observe the witness’s
demeanor and assess his or credibility. Id. at 845-846. “The combined effect of
these elements of confrontation – physical presence, oath, cross-examination, and
observation of demeanor by the trier of fact – serves the purposes of the
Confrontation Clause by ensuring that evidence admitted against an accused is
reliable and subject to the rigorous adversarial testing that is the norm of AngloAmerican criminal proceedings.” (Citations omitted.) Id. at 846.
{¶19} However, “[t]he Confrontation Clause does not guarantee criminal
defendants an absolute right to a face-to-face meeting with the witness against them
at trial.” Id. at the syllabus. The right “ ‘must occasionally give way to considerations
of public policy and the necessities of the case.’ ” Id. at 849, citing Mattox v. United
States, 156 U.S. 237, 243, 15 S.Ct. 337, 39 L.Ed. 409 (1895). “[A] defendant’s right to
confront accusatory witnesses may be satisfied absent a physical, face-to-face
confrontation at trial only where denial of such confrontation is necessary to further
OHIO FIRST DISTRICT COURT OF APPEALS
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an important public policy and only where the reliability of the testimony is
otherwise assured.” Id. at 850. “[T]he presence of [the] other elements of
confrontation—oath, cross-examination, and observation of the witness’ demeanor—
adequately ensures that the testimony is both reliable and subject to rigorous
adversarial testing in a manner functionally equivalent to that accorded live, inperson testimony.” Id. at 851. When determining whether dispensing with the faceto-face requirements is necessary to further an important public policy, the trial
court must hear evidence and make a case-specific finding of necessity. Id. at 855.
{¶20} The Supreme Court of Ohio has stated, “Our interpretation of Section
10, Article I [of the Ohio Constitution] has paralleled the United States Supreme
Court’s interpretation of the Sixth Amendment: the primary purpose of our
Confrontation Clause ‘is to provide the accused an opportunity for crossexamination.’ ” Self, 56 Ohio St.3d at 78, 564 N.E.2d 446, citing Henderson v.
Maxwell, 176 Ohio St. 187, 188, 198 N.E.2d 456 (1964).
Though our Constitution uses the specific phrase ‘face to face,’
that phrase has not been judicially interpreted at its literal extreme.
This is because the purpose of the ‘face to face’ clause of the Ohio
Constitution (as well as the parallel provision of the Sixth
Amendment) is to guarantee the opportunity to cross-examine and the
right to observe the proceeding. Taking the phrase ‘face to face’ to its
outer limits, one could argue that a witness who looks away from the
defendant while testifying is not meeting the defendant ‘face to face.’
As we have indicated, a criminal defendant is ordinarily entitled to a
physical confrontation with the accusing witnesses in the courtroom.
Yet, the value which lies at the core of the Confrontation Clauses does
OHIO FIRST DISTRICT COURT OF APPEALS
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not depend on an ‘eyeball to eyeball’ stare-down. Rather, the
underlying value is grounded upon the opportunity to observe and
cross-examine. The physical distance between the witness and the
accused, and the particular seating arrangement of the courtroom, are
not at the heart of the confrontation right.
(Citation omitted.) Id. at 79.
{¶21} Thus, the face-to-face language in the Ohio Constitution has not been
interpreted as literal but has instead been read as requiring the opportunity to
observe and cross-examine. See id. Therefore, under our current precedent,
“ ‘Section 10, Article I provides no greater right of confrontation than the Sixth
Amendment.’ ” Id.; see State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, 933
N.E.2d 775, ¶ 12.
{¶22} Accordingly, Ohio has established a two-part test “for determining
whether an alternative to face-to-face confrontation qualifies as an exception to the
Confrontation Clause”:
the procedure must (1) be justified, on a case-specific finding, based on
important state interests, public policies, or necessities of the case and (2)
must satisfy the other three elements of confrontation – oath, crossexamination, and observation of the witness’s demeanor.
State v. Howard, 2020-Ohio-3819, 156 N.E.3d 433, ¶ 53 (2d Dist.), citing State v.
Marcinick, 8th Dist. Cuyahoga No. 89736, 2008-Ohio-3553, ¶ 14.
{¶23} Banks argues that the trial court’s decision to allow Mark Curnutte to
testify via Zoom technology was not based on an important state interest, public
policy, or necessities of the case because, while the trial court relied on an
administrative order to limit in-person appearances due to the COVID-19 pandemic,
OHIO FIRST DISTRICT COURT OF APPEALS
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the witness himself did not express any concerns about COVID-19 nor was there any
evidence that the witness was in a high-risk group for exposure to COVID-19.
{¶24} Preventing the spread of COVID-19 is an important public policy that
may warrant an exception to face-to-face confrontation under the appropriate
circumstances. See United States v. Donziger, S.D.N.Y. Nos. 19-CR-561 and 11-CV691, 2020 WL 5152162, *2 (August 31, 2020) (“With respect to the Craig standard,
there is no question that limiting the spread of COVID-19 and protecting at-risk
individuals from exposure to the virus are critically important public policies.”). The
Ohio Supreme Court has acknowledged the importance of preventing the spread of
COVID-19 and found that, “[d]uring this public-health emergency, a judge’s priority
must be the health and safety of court employees, trial participants, jurors, and
members of the public entering the courthouse.” In re Disqualification of Fleegle,
161 Ohio St.3d 1263, 2020-Ohio-5636, 163 N.E.3d 609 ¶ 8 (Finding that, “[b]y failing
to follow the Ohio Department of Health and Governor DeWine’s directives, a judge
endangers the health of those who enter the courthouse and their families,” and
disqualification of a judge may be sought if, “attorneys or litigants believe that judges
are not taking seriously recommendations from this court, the governor, or other
public-health officials, and that as a result the health of trial participants, jurors, or
the public is at risk.”).
{¶25} There is no question that the witness’s expressed justifications alone
are inadequate to warrant an exception to the face-to-face requirement in this case.
However, the trial court permitted the remote testimony, not because of the excuses
of the witness, but in order to limit in-person contact and interactions and comply
with the judicial administrative order put in place in response to the heightened
pandemic status at the time of trial in order to protect everyone who enters the
OHIO FIRST DISTRICT COURT OF APPEALS
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courthouse. Thus, the question in this case is about more than just witness
convenience. The question is whether the circumstances are appropriate to warrant
an exception to the face-to-face requirement where the trial occurs in the middle of a
public-health emergency due to COVID-19, in a county on red-alert level three,
where the trial court has been issued orders to limit in-person appearances as much
as possible and to instead utilize technology, and where the trial court relies on these
circumstances when making a case-specific decision to allow a witness, who did not
receive a subpoena and who the state characterizes as a critical witness, to testify
remotely, even though the witness himself did not express any COVID-19 concerns.
Put another way, must the witness have expressed COVID-19 concerns in the context
of the surrounding global pandemic occurring at the time of trial in order to warrant
an exception to the face-to-face requirement or was the trial court permitted to rely
on the specific circumstances of the case beyond the witness himself?
{¶26} We reserve this question for another day as we find that, even if there
was a violation of the confrontation clause, any error was harmless error. “A
reviewing court may overlook an error where the remaining admissible evidence,
standing alone, constitutes ‘overwhelming’ proof of a defendant’s guilt.” State v.
Oliver, 2018-Ohio-3667, 112 N.E.3d 573, ¶ 25 (8th Dist.), citing State v. Williams, 6
Ohio St.3d 281, 290, 452 N.E.2d 1323 (1983). Even without considering Mark
Curnette’s testimony, there was additional testimony from another witness that
Banks struck one of his dogs. Also, multiple witnesses testified that he threw a crate
at both dogs. The video in evidence shows Banks throwing a large crate at the dogs
and shows the crate hit both of the dogs. Further, multiple witnesses testified that
the dogs were yelping and crying when this was occurring. Finally, the lieutenant
with the dog warden’s office testified that, when asked about the abuse allegations,
OHIO FIRST DISTRICT COURT OF APPEALS
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Banks replied, “Well, what are you supposed to do when they shit everywhere.” This
evidence alone is sufficient to support the convictions. See State v. Miner, 2020-
Ohio-5600, 164 N.E.3d 512, ¶ 31 (5th Dist.) (Finding evidence that the appellant
punched a dog sufficient to support a finding that the appellant knowingly
committed an act of cruelty against a companion animal.). Accordingly, this
assignment of error is overruled.
Second Assignment of Error
{¶27} In his second assignment of error, Banks challenges the sufficiency
and manifest weight of the evidence and argues that there was insufficient evidence
to prove beyond a reasonable doubt that he was guilty of cruelty against a companion
animal.
{¶28} “In a challenge to the sufficiency of the evidence, the question is
whether after reviewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found all of the essential elements of the crime
beyond a reasonable doubt.” State v. Hill, 1st Dist. Hamilton Nos. C-190638, C190639, C-190640 and C-190641, 2021-Ohio-294, ¶ 11, citing State v. Jenks, 61 Ohio
St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. “In contrast, when
considering a challenge to the weight of the evidence, the court must examine the
entire record, weigh all the evidence and all reasonable inferences, consider the
credibility of the witnesses, and determine whether, in resolving conflicts in the
evidence, the court clearly lost its way and created a manifest miscarriage of justice.”
Id., citing State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
{¶29} R.C. 959.131(B) provides, “No person shall knowingly torture, torment,
needlessly mutilate or maim, cruelly beat, poison, needlessly kill, or commit an act of
cruelty against a companion animal.” R.C. 959.131(A)(2) provides, “ ‘Cruelty,’
OHIO FIRST DISTRICT COURT OF APPEALS
15
‘torment,’ and ‘torture’ have the same meanings as in section 1717.01 of the Revised
Code.” R.C. 1717.01 (B) provides, “ ‘Cruelty,’ ‘torment,’ and ‘torture’ include every
act, omission, or neglect by which unnecessary or unjustifiable pain or suffering is
caused, permitted, or allowed to continue, when there is a reasonable remedy or
relief.”
{¶30} Banks argues that the evidence fails to show that he needlessly beat his
dogs, as alleged in the complaints. However, two separate witnesses testified that
Banks struck his dogs with a stick-like object and multiple witnesses testified that he
threw the crate at the dogs. The video in evidence also shows Banks throwing the
crate at the dogs and shows the crate hitting the dogs. Additionally, multiple
witnesses testified that the dogs were yelping and crying when this was occurring.
Finally, the lieutenant with the dog warden’s office testified that, when asked about
the abuse allegations, Banks replied, “Well, what are you supposed to do when they
shit everywhere.” Viewing the evidence in a light most favorable to the state, a
rational trier of fact could have found all the elements proven beyond a reasonable
doubt. See Miner, 2020-Ohio-5600, 165 N.E.3d 512, at ¶ 31 (Finding evidence that
the appellant punched a dog sufficient to support a finding that the appellant
knowingly committed an act of cruelty against a companion animal.).
{¶31} Banks alternatively argues that his convictions were against the
manifest weight of the evidence. The only contradictory testimony presented by
Banks was the testimony of his landlord. While Bank’s landlord did testify that the
barking or yelping only lasted a few seconds, several witnesses for the state testified
that the barking or yelping lasted for over 15 minutes. No other evidence was
contradicted. Thus, when viewing and weighing all the evidence, it cannot be
determined that the trial court clearly lost its way and created a manifest miscarriage
OHIO FIRST DISTRICT COURT OF APPEALS
16
of justice. Having concluded that the convictions are based on sufficient evidence
and not against the manifest weight of the evidence, we overruled this assignment of
error.
Outcome: Having considered and overruled Banks’s two assignments of error, we
affirm the judgment of the trial court.
Judgment affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: