
    The State of Ohio, Appellee and Cross-Appellant, v. McClendon, Appellant and Cross-Appellee.
    [Cite as State v. McClendon, 128 Ohio St.3d 354, 2011-Ohio-954.]
    (No. 2010-1950
    Submitted February 15, 2011
    Decided March 8, 2011.)
   {¶ 1} The discretionary appeal is not accepted.

{¶ 2} The discretionary cross-appeal is accepted.

{¶ 3} The portion of the judgment of the court of appeals addressing appellant’s second assignment of error below is vacated on the authority of State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, and the cause is remanded to the court of appeals for application of our decision in State v. Johnson.

Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and Carley J. Ingram, Assistant Prosecuting Attorney, for appellee and cross-appellant.

Kyle McClendon, pro se.

O’Connor, C.J., and Pfeifer, Lundberg Stratton, O’Donnell, and Cupp, JJ., concur.

Lanzinger and McGee Brown, JJ., dissent and would not accept the cross-appeal.  