State of Arizona v. Travis Hamilton Nereim , 234 Ariz. 105 ( 2014 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
THE STATE OF ARIZONA,
Appellee,
v.
TRAVIS HAMILTON NEREIM,
Appellant.
No. 2 CA-CR 2012-0501
Filed January 28, 2014
Appeal from the Superior Court in Pima County
No. CR20120499001
The Honorable Deborah Bernini, Judge
AFFIRMED IN PART; VACATED IN PART
COUNSEL
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By David A. Sullivan, Assistant Attorney General, Tucson
Counsel for Appellee
Manch Law Firm, PLLC, Tucson
By Eric S. Manch
Counsel for Appellant
STATE v. NEREIM
Opinion of the Court
OPINION
Judge Espinosa authored the opinion of the Court, in which
Presiding Judge Kelly and Judge Eckerstrom concurred.
E S P I N O S A, Judge:
¶1 After a jury trial, Travis Nereim was convicted of two
counts of driving under the influence of an intoxicant (DUI), several
counts of aggravated DUI, and one count of child abuse. The trial
court imposed concurrent, mitigated, and maximum prison
sentences totaling three years’ imprisonment and entered a criminal
restitution order (CRO). On appeal, Nereim argues the court erred
by denying his motion for judgment of acquittal and by failing to
adequately instruct the jury on the state’s burden. Although we are
unpersuaded by Nereim’s arguments, we vacate three of his
convictions as violative of double jeopardy and vacate the CRO as
unauthorized by the applicable statute. Nereim’s remaining
convictions and sentences are affirmed.
Factual and Procedural Background
¶2 “On appeal, we view the facts in the light most
favorable to upholding the verdict and resolve all inferences against
the defendant.” State v. Klokic, 219 Ariz. 241, n.1, 196 P.3d 844, 845
n.1 (App. 2008). One evening in January 2012, Nereim was driving
west on a Tucson road when he sideswiped a Pima County Sheriff’s
vehicle that was parked on the shoulder. A sheriff’s deputy who
had been standing near the car was knocked to the ground by the
impact. The deputy was able to get in his car and give chase and he
eventually caught up to Nereim and pulled him over. Nereim
stumbled when the deputy initially ordered him out of his vehicle,
and later fell to one knee as he was turning around for a weapons
check. The deputy then looked in Nereim’s vehicle and saw a young
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STATE v. NEREIM
Opinion of the Court
girl who appeared to be “ten or [eleven]” sitting in the passenger
seat. The deputy directed her to exit the truck and sit on the tailgate
while he proceeded with Nereim’s arrest.
¶3 Nereim exhibited watery, bloodshot eyes and a heavy
odor of intoxicants, and the investigating deputy administered a
horizontal gaze nystagmus test that revealed six out of six ocular
signs of intoxication. When the deputy attempted to employ other
field tests, Nereim was unable to maintain his balance long enough
to safely perform them. Another deputy who had arrived on the
scene conducted a blood draw with Nereim’s consent, which
ultimately revealed a blood alcohol concentration (BAC) of .346.
Nereim was arrested and charged with child abuse, criminal
damage, and multiple counts of aggravated DUI and aggravated
DUI with an elevated BAC.1
¶4 A jury convicted Nereim as charged on counts two
(child abuse), four (aggravated DUI while a minor is present), five
(aggravated DUI with a BAC of .08 or more while a minor is
present) and seven (aggravated DUI with a BAC of .20 or more
while a minor is present). 2 As to charges one and three, which
alleged aggravated DUI with a suspended license and aggravated
DUI with a BAC of .20 or more and a suspended license,
respectively, the jury convicted Nereim of the lesser included
offenses of DUI and DUI with a BAC of .20 or more. See A.R.S.
§§ 28-1381(A)(1); 28-1382. We have jurisdiction over this appeal
pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
1In Arizona, a DUI charge involving alcohol may be premised
on impairment, see A.R.S. § 28-1381(A)(1), or blood alcohol
concentration (BAC), see A.R.S. § 28-1381(A)(2). For the sake of
clarity, we refer to the first offense as “DUI” and the second as “DUI
with an elevated BAC” or “DUI with a BAC of [relevant statutory
minimum] or more.”
2Counts six and eight were dismissed pursuant to a Rule 20,
Ariz. R. Crim. P., motion for reasons that do not affect our analysis
of the remaining charges.
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Opinion of the Court
A. Rule 20 Motion
¶5 Nereim first argues the trial court committed reversible
error by denying his Rule 20 motion as to the count of child abuse,
the count of aggravated DUI with a minor present, and the counts of
aggravated DUI with an elevated BAC and a minor present. He
contends the state failed to present sufficient evidence that the minor
was under the relevant age limits and that she had been
“endangered” as that term is used in the statute defining the crime
of child abuse, A.R.S. § 13-3623(B)(2). In response, the state argues
the testimony regarding the child’s age and the evidence Nereim
was driving while inebriated were sufficient to support his
convictions on these counts.
¶6 Although we review the trial court’s ruling on a Rule 20
motion de novo, State v. West, 226 Ariz. 559, ¶¶ 14-15, 250 P.3d 1188,
1191 (2011), we will reverse only if we find no substantial evidence
to warrant conviction, State v. Sullivan, 187 Ariz. 599, 603, 931 P.2d
1109, 1113 (App. 1996). “Substantial evidence . . . is such proof that
‘reasonable persons could accept as adequate and sufficient to
support a conclusion of defendant’s guilt beyond a reasonable
doubt.’” State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990),
quoting State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980). Such
evidence may be direct or circumstantial. State v. Pena, 209 Ariz. 503,
¶ 7, 104 P.3d 873, 875 (App. 2005).
Evidence of the Minor’s Age
¶7 The age of the child in Nereim’s truck was a critical
component of several charges alleged by the state. See A.R.S.
§ 13-3623 (“child abuse” includes endangerment of person under
eighteen years of age); A.R.S. § 28-1383(A)(3) (classifying the
presence of a “person under fifteen years of age” as an aggravator
for DUI). The state acknowledges that its proof on this issue was
limited to the testimony of two sheriff’s deputies. Nereim argues
that a layperson’s observations and opinion regarding a minor’s age
may not properly be characterized as “substantial” pursuant to
Rule 20.
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Opinion of the Court
¶8 The state relies on State v. Olquin, 216 Ariz. 250, 165 P.3d
228 (App. 2007), a case featuring similar facts. 3 In Olquin, the
defendant was convicted of aggravated DUI for driving with an
elevated BAC while his three children were in the vehicle. Id. ¶¶ 3,
6, 8, 165 P.3d at 229-30. As at Nereim’s trial, the only evidence of the
childrens’ ages was testimony from law enforcement officers. Id.
¶ 18. Although the specific challenge was to the sufficiency of the
state’s evidence on the victim’s identities, as opposed to their ages,
we were nevertheless required to assess the adequacy of the state’s
evidence on this point. We concluded the officers’ testimony was
“more than sufficient to permit the jury to find beyond a reasonable
doubt that Defendant committed DUI while a person under the age
of fifteen was in the vehicle.” Id. ¶ 28.
¶9 Nereim argues that Olquin’s reasoning should not be
extended to this case because that decision is distinguishable on its
facts. Specifically, he points out that two of the children in Olquin
were in car seats and one child was an infant. We noted in Olquin,
however, that the officers’ testimony regarding three children—“one
an infant . . . the other a toddler between two and four years old”
and one who “appeared to be between ages five and nine”—
demonstrated that “all [were] under the age of ten.” Id. ¶¶ 3, 28.
We are not persuaded by Nereim’s factual distinctions and the
narrow interpretation he advances. Instead, we view Olquin as
instructive on this issue.
¶10 Nereim primarily relies on State v. May, where this issue
arose in the context of a challenge to the trial court’s ruling
admitting hearsay testimony about a man arriving at the scene of the
3The state also cites State v. Conn, 137 Ariz. 152, 669 P.2d 585
(App. 1982), which involved a challenge to a victim’s testimony that
her attacker sounded older than seventeen. Id. at 155, 669 P.2d at
588. However, we do not find that decision persuasive in the
current context. While we can infer from Conn that lay testimony of
an individual’s age is both relevant and admissible, see Ariz. R. Evid.
701, the case does not establish that such testimony alone may be
considered “substantial” for purposes of a Rule 20 review.
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STATE v. NEREIM
Opinion of the Court
defendant’s DUI stop and identifying a minor in the car as his
thirteen-year-old son. 210 Ariz. 452, ¶¶ 1-3, 13, 112 P.3d 39, 40-41, 43
(App. 2005). The state did not produce the boy or the man at trial,
relying instead on the arresting officer’s testimony of what the man
had said. Id. ¶ 11. We deemed the admission of the hearsay
testimony erroneous. Id. ¶ 22.
¶11 May, however, is distinguishable: Not only is the
hearsay problem at issue there not present in the case at hand, but
the officer in that case testified that the boy in the vehicle “was
under eighteen.” Id. ¶ 12. As noted above, § 28-1383(A)(3) defines
aggravated DUI as the commission of DUI with “a person under
fifteen years of age” in the vehicle. That the testimony could not
sustain defendant’s conviction turned not on its source, as Nereim
suggests, but on its content. See id. ¶ 22 (“Here, the state had to
prove that the male passenger in May’s car was under the age of
fifteen . . . . The only other evidence of that passenger’s age was the
arresting officer’s testimony that the passenger had exhibited certain
physical attributes shared by other individuals under the age of
eighteen.”). The officer’s failure to describe the minor’s age as
falling below the relevant statutory threshold rendered his
testimony ineffective and, by implication, insufficient on the issue of
the minor’s age.
¶12 Here, in contrast, the arresting deputy described the
passenger as “[a] young female” he believed to be “ten or [eleven].”
A second deputy, who had driven the minor home and spent “quite
a bit of time with her,” concurred in that estimation, describing the
girl as “[a] short, young Hispanic female about ten years of age,
thin.” The second deputy testified he had based his opinion on the
fact that the girl “was a little bit bigger” than his own eight-year-old
daughter.
¶13 We find the testimony of the deputies constituted
substantial evidence for purposes of Rule 20 and was sufficient to
support a jury’s conclusion that the child was under fifteen and that
Nereim was guilty beyond a reasonable doubt of child abuse,
aggravated DUI with a minor, aggravated DUI with a BAC of .08 or
more while a minor is present, and aggravated DUI with a BAC of
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STATE v. NEREIM
Opinion of the Court
.20 or more while a minor is present. See Mathers, 165 Ariz. at 67, 796
P.2d at 869. The evidence came from more than one source and, in
the case of the deputy who drove the girl home, was based on
relatively significant contact. Moreover, the second deputy’s
reference to the basis for his opinion established that he had a
reasoned and reliable ground for his conclusion. Under these
circumstances, the trial court could properly find the officers’
testimony as to the minor’s age substantial evidence on that element
of the offenses.
Evidence of Reckless Endangerment
¶14 Nereim next contends the state failed to present
substantial evidence that the minor was “endangered” as that term
is used in the statute defining the crime of child abuse. Pursuant to
§ 13-3623, a person is guilty of child abuse if, while “having the care
or custody of a child or vulnerable adult,” he “causes or permits the
person or health of the child or vulnerable adult to be injured” or
“causes or permits a child or vulnerable adult to be placed in a
situation where the person or health of the child or vulnerable adult
is endangered.” § 13-3623(B)(2). Nereim urges us to read this
statute as requiring proof that the victim “was placed in actual
substantial risk of imminent death or physical injury,” and cites
multiple decisions interpreting the term “endangered” in the context
of what he terms “traditional” endangerment prosecutions. See State
v. Doss, 192 Ariz. 408, ¶ 11, 966 P.2d 1012, 1015 (App. 1998)
(defendant commits crime of endangerment pursuant to A.R.S.
§ 13-1201 if he places victim in “actual substantial risk”), citing State
v. Morgan, 128 Ariz. 362, 367, 625 P.2d 951, 956 (App. 1981)
(emphasis in Doss). The state responds that Nereim’s argument runs
counter to case law interpreting the term “endangered” as it is used
in § 13-3623.
¶15 Statutory terms must be interpreted with reference to
the surrounding language. State v. Pena, 233 Ariz. 112, ¶ 11, 309 P.3d
936, 940 (App. 2013) (“principle of ‘noscitur a sociis . . . dictates that
a statutory term is interpreted in context of the accompanying
words’”), quoting Estate of Braden ex rel. Gabaldon v. State, 228 Ariz.
323, ¶ 13, 266 P.3d 349, 352 (2011); State v. Gray, 227 Ariz. 424, ¶ 9,
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Opinion of the Court
258 P.3d 242, 245 (App. 2011) (“[B]ecause ‘context gives meaning,’
statutory terms should not be considered in isolation.”), quoting
United States v. Santos, 553 U.S. 507, 512 (2008).
¶16 This court has already examined the meaning of
“endangered” in the context of § 13-3623(B). As the state points out,
in State v. Mahaney, we interpreted “endanger” to mean “subject to
potential harm,” and contrasted its meaning in § 13-3623(B) with its
use in § 13-1201. 4 193 Ariz. 566, ¶¶ 16-18, 975 P.2d 156, 159 (App.
1999). In doing so, we expressly rejected an argument—similar to
the one advanced by Nereim here—that endangerment under
§ 13-3623 “does not encompass ‘potential harm,’ but rather refers
only to ‘actual danger.’” Id. ¶¶ 11, 18. Nereim attempts to
distinguish Mahaney on grounds that the defendant there “argued
only that her act did not actually result in harm,” and contrasts that
argument with his claim that proof of driving while impaired with a
passenger does not, in itself, constitute substantial evidence that the
passenger was endangered. But we cannot discern what type of
evidence would constitute substantial evidence under Nereim’s
theory besides proof of actual harm; we thus find this distinction
illusory.
¶17 Nereim also suggests that because some evidence at
trial showed the passenger “was unharmed and unrattled,” the state
failed to meet its burden. We reject this argument, however, for
several reasons. First, in this context, whether or not a child is
frightened is of no consequence; the statute omits any mention of the
victim’s state of mind, and we are unaware of any such
requirement.5 See § 13-3623. It also would conflict with the purpose
4 The subsections referred to in Mahaney as (B) and (C) of
§ 13-3623 became current subsections (A) and (B) following a 2000
amendment to the statute. See 2000 Ariz. Sess. Laws, ch. 50, § 4.
5Such a heightened standard of proof is likewise inconsistent
with the case law involving traditional endangerment prosecutions
that Nereim has urged us to apply; as he acknowledges in his
opening brief, the state is not required to prove the victim was
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STATE v. NEREIM
Opinion of the Court
of § 13-3623, which is intended to protect individuals who might be
“unable to protect [themselves] from abuse, neglect or exploitation
by others.” § 13-3623(F)(6) (encompassing within the protection of
child abuse statute “vulnerable adults” as so defined). It is certainly
conceivable that some individuals entitled to protection under
§ 13-3623 would be unable to recognize when a defendant’s conduct
poses a threat to their safety. Indeed, this characteristic is likely
shared by the most vulnerable individuals covered by the statute.
But under Nereim’s proposed theory, a defendant would evade
culpability if his victim did not identify the threat posed by his
conduct. Accordingly, we will not read into the statute an
interpretation of the term “endangered” that contravenes its
purpose and intent. See Parker v. City of Tucson, ___ Ariz. ___, ¶ 12,
314 P.3d 100, 106 (App. 2013) (primary purpose in interpreting
statute to give effect to legislature’s intent).
¶18 In sum, we find there was ample evidence to support
the jury’s conclusion that Nereim had endangered the minor
pursuant to § 13-3623. Not only did he fail three sobriety tests and
have a BAC over four times the legal limit, 6 but before being
arrested he had collided with a parked car. These facts do not
demonstrate that the risk of harm created by Nereim’s conduct was
merely “hypothetical,” as he contends. On the contrary, his
behavior translated into real risks for his passenger. Accordingly,
we find no error in the trial court’s denial of Nereim’s motion for a
judgment of acquittal on count two. See Mathers, 165 Ariz. at 67, 796
P.2d at 869.
aware of the endangerment. See Morgan, 128 Ariz. 362, 367, 625 P.2d
951, 956.
Pursuant to A.R.S. § 28-1381(G)(3), a defendant will be
6
presumed to be under the influence of intoxicating liquor if he is
shown to have had a BAC of .08 or more.
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Opinion of the Court
B. Jury Instructions
¶19 Nereim challenges the trial court’s jury instruction on
the child abuse charge (Instruction No. 16), relying on the same
interpretation of the term “endangered” that we have already
considered and rejected in the context of his motion for judgment of
acquittal. Specifically, he contends the court erred by failing to
instruct the jury on “the state’s burden to prove . . . beyond a
reasonable doubt that Nereim placed [the minor] in actual
substantial risk of imminent physical injury.” But as we have
discussed above, Nereim’s interpretation of § 13-3623 is inconsistent
with the statute’s purpose and established case law. See Mahaney,
193 Ariz. 566, ¶¶ 14-17, 975 P.2d at 158-59. In upholding the
rejection of Nereim’s proposed instruction, we simply reiterate our
conclusion that the state was not required to show an “actual
substantial risk” in order to meet its burden under § 13-3623. See
State v. Hussain, 189 Ariz. 336, 337, 942 P.2d 1168, 1169 (App. 1997)
(trial court does not err in refusing to give jury instruction that is
incorrect statement of law).
¶20 We also briefly address Nereim’s claim that Instruction
No. 16, which required the state to prove “the defendant acted
under circumstances other than [those] likely to cause death or
serious physical injury,” was both misleading and confusing.
According to Nereim, the foregoing statement was “so broad and
unintelligible that it encompasse[d] nearly all of human behavior,”
and may have led the jury to conclude that the state “merely had to
prove that Nereim acted.” Because Nereim did not object to this
instruction at trial, we review for fundamental error. See, e.g., State
v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005).
¶21 Viewed in isolation, the challenged statement may
indeed be susceptible to multiple interpretations, including the
broad one advanced by Nereim. But on appeal, “we do not review a
single sentence of jury instructions out of context; rather we view the
jury instructions in their entirety in determining whether they
adequately reflect the law.” State v. Rutledge, 197 Ariz. 389, ¶ 15,
4 P.3d 444, 448 (App. 2000). Although the portion of Instruction
No. 16 cited by Nereim may arguably set a low bar for the state, the
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STATE v. NEREIM
Opinion of the Court
remainder of the instruction plainly required the state to establish,
inter alia, that Nereim had endangered the minor and acted
recklessly.7 The language, “circumstances other than [those] likely
to cause death or serious physical injury,” merely echoes the
distinction drawn by the statute between the two categories of
felony child abuse defined therein.8 Accordingly, we find no error,
fundamental or otherwise, in the trial court’s use of this instruction.
C. Double Jeopardy
¶22 While Nereim has failed to raise this issue at trial or on
appeal, we find it necessary to consider whether his convictions and
sentences on counts one, three, and five violate constitutional
principles of double jeopardy. See State v. Fernandez, 216 Ariz. 545,
¶ 32, 169 P.3d 641, 650 (App. 2007) (“Although we do not search the
record for fundamental error, we will not ignore it when we find
it.”); see also State v. Millanes, 180 Ariz. 418, 421, 885 P.2d 106, 109
(App. 1994) (“prohibition against double jeopardy is a fundamental
right that is not waived by the failure to raise it”). The protection
7In its entirety, Instruction No. 16 reads:
The crime of child abuse, non-death or serious
physical injury as alleged in count two requires proof of
the following:
1. The defendant acted under circumstances other
than is likely to cause death or serious physical injury;
and
2. The defendant, having care or custody of a child,
under eighteen years of age, caused or permitted the
child to be placed in a situation where the person or
health of the child was endangered; and
3. The defendant acted recklessly.
8Section13-3623(A) defines the more serious offense of child
abuse involving a risk of serious physical injury or death.
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Opinion of the Court
against double jeopardy is an issue of law that we review de novo.
See State v. Powers, 200 Ariz. 123, ¶ 5, 23 P.3d 668, 670 (App. 2000).
¶23 “A defendant’s right not to be subjected to double
jeopardy is violated if he is convicted of both a greater and lesser-
included offense.” State v. Becerra, 231 Ariz. 200, ¶ 20, 291 P.3d 994,
999 (App. 2013), review granted (Ariz. May 29, 2013). A lesser
included offense is one “composed solely of some but not all of the
elements of the greater crime so that it is impossible to have
committed the crime charged without having committed the lesser
one.” State v. Celaya, 135 Ariz. 248, 251, 660 P.2d 849, 852 (1983).
¶24 Our supreme court has held that a defendant arrested
for DUI may be convicted for both forms of DUI—impairment
pursuant to § 28-1381(A)(1) and elevated BAC pursuant to
§ 28-1381(A)(2)—without offending principles of double jeopardy.
See Anderjeski v. City Court, 135 Ariz. 549, 550-51, 663 P.2d 233, 234-35
(1983) (construing statutory predecessor to § 28-13819 and holding
that each form of DUI represents a “separate and distinct offense[]”).
However, when the only difference between two DUI charges is the
BAC threshold, a court cannot allow a conviction on the lesser
charge to stand. See Merlina v. Jejna, 208 Ariz. 1, n.1, 90 P.3d 202, 204
n.1 (App. 2004). Likewise, we have determined under analogous
circumstances that a conviction for misdemeanor DUI violates
principles of double jeopardy if the defendant has also been
convicted of the same form of aggravated DUI. Cf. Becerra, 231 Ariz.
200, ¶ 20, 291 P.3d at 999 (defendant cannot be convicted of both
aggravated driving under the influence of a prohibited drug and
misdemeanor driving under the influence of a prohibited drug).
9Anderjeski analyzed this issue in the context of former A.R.S.
§ 28-692, which has since been renumbered as A.R.S. § 28-1381. See
1983 Ariz. Sess. Laws, ch. 279, § 6; 1995 Ariz. Sess. Laws, ch. 132, § 3;
1996 Ariz. Sess. Laws, ch. 76, § 3. While former § 28-692 provided a
threshold BAC of .10 rather than .08, compare 1983 Ariz. Sess. Laws,
ch. 279, § 6, with 2007 Ariz. Sess. Laws, ch. 219, § 1, that distinction
does not affect our analysis.
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Opinion of the Court
¶25 Therefore, as the state concedes, Nereim’s convictions
for driving with a BAC of .20 or more and aggravated driving with a
BAC of .08 or more while a minor is present should not have been
permitted because they constitute lesser-included offenses of the
aggravated DUI offense in count seven, a crime for which he also
was convicted. See Merlina, 208 Ariz. 1, ¶ 15, 90 P.3d at 204; cf.
Becerra, 231 Ariz. 200, ¶ 20, 291 P.3d at 999. Similarly, Nereim’s
conviction for misdemeanor driving under the influence of
intoxicating liquor cannot be sustained alongside his felony
conviction for aggravated driving under the influence of intoxicating
liquor while a minor is present. See A.R.S. §§ 28-1381(A)(1),
28-1383(A)(3).10 Accordingly, we find that Nereim’s convictions and
sentences as to counts one, three, and five must be vacated. See State
v. Jones, 185 Ariz. 403, 407, 916 P.2d 1119, 1123 (App. 1995) (lesser
conviction vacated when double jeopardy violated).
D. Criminal Restitution Order
¶26 Finally, we address that portion of the trial court’s
sentencing minute entry that reduces “all fines, fees and
assessments” to a CRO. We have previously held that A.R.S.
§ 13-805 does not authorize the imposition of a CRO before the
expiration of a defendant’s sentence 11 and such an order
“’constitutes an illegal sentence, which is necessarily fundamental,
reversible error.’” State v. Lopez, 231 Ariz. 561, ¶ 2, 298 P.3d 909, 910
(App. 2013), quoting State v. Lewandowski, 220 Ariz. 531, ¶ 15, 207 P.
3d 784, 789 (App. 2009). Therefore, that part of the sentencing order
cannot stand.
10Although the misdemeanor count was charged to the jury as
aggravated DUI with a suspended license, see A.R.S.
§§ 28-1381(A)(1), 28-1383(A)(1), our focus is on the jury’s ultimate
verdict, not the state’s charge. See Merlina, 208 Ariz. 1, ¶ 15, 90 P.3d
at 205.
11 Section13-805, A.R.S., has since been amended. See 2012
Ariz. Sess. Laws, ch. 269, § 1.
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Opinion of the Court
Disposition
¶27 For the foregoing reasons, we vacate Nereim’s
convictions and sentences as to counts one, three, and five. We also
vacate the portion of the sentencing order that imposes an
unauthorized CRO. In all other respects, Nereim’s convictions and
sentences are affirmed.
14