19CA0108 Peo v Miranda 01-27-2022
COLORADO COURT OF APPEALS
Court of Appeals No. 19CA0108
City and County of Denver District Court No. 17CR2725
Honorable, John W. Madden IV, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Daniel Estrada Miranda,
Defendant-Appellant.
JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS
Division V
Opinion by JUDGE WELLING
Dunn and Yun, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 27, 2022
Philip J. Weiser, Attorney General, Jennifer L. Carty, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Nathaniel E. Deakins, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
1
¶ 1
Defendant, Daniel Estrada Miranda, appeals his judgment of
conviction for sexual assault on a child by one in a position of trust,
sexual assault on a child as part of a pattern of abuse, and sexual
assault on a child. We affirm the judgment but remand for
correction of the mittimus.
I. Background
¶ 2
The victim lived with her father, her primary parent, but
spent weekends with her maternal grandmother and Miranda, her
grandmother’s boyfriend. In 2017, the victim told her father that
Miranda had touched her inappropriately when she was between
the ages of eight and eleven. The victim testified about three
separate incidents where Miranda had touched her inappropriately
— the couch incident, the bedroom incident, and the living room
incident.
¶ 3
Following a jury trial, Miranda was found guilty on seven
separate counts:
Count 1: Sexual assault on a child - pattern of abuse
(couch incident) (class 3 felony);
Count 2: Sexual assault on a child - position of trust (couch
incident) (class 3 felony);
2
Count 3: Sexual assault on a child - position of trust
(bedroom incident) (class 3 felony);
Count 4: Sexual assault on a child - position of trust (living
room incident) (class 3 felony);
Count 5: Sexual assault on a child (bedroom incident) (class
4 felony);
Count 6: Sexual assault on a child (living room incident)
(class 4 felony); and
Count 7: Sexual assault on a child (couch incident) (class 4
felony).
II. Discussion
¶ 4
On appeal, Miranda contends that the trial court erred when it
excluded, under the rape shield statute, relevant defense
evidence offered to show the victim’s bias and motive to
fabricate sexual abuse allegations;
quashed Miranda’s subpoena duces tecum to inspect the
victim’s school records;
refused all defense attempts to obtain and use evidence to
impeach the victim regarding a “sexting” incident; and
3
entered judgments for the class 3 felony versions of sexual
assault on a child by one in a position of trust when the
jury verdicts reflected convictions only for the class 4 felony
versions of that offense.
¶ 5
Miranda also contends that this court should remand for
correction of the mittimus to vacate count 7 because it’s the same
crime as count 1, and to correct the mittimus to specify the length
of parole term for each sentence.
¶ 6
We affirm the judgment but remand for correction of the
mittimus to (1) vacate count 7, because it is the same crime as
count 1, (2) to reflect a controlling mandatory parole period of
twenty years to life, and (3) to remove the use of the word “merge”
and clarify which sentences run concurrently to one another.
A. Rape Shield — Witness Testimony
¶ 7
Miranda first contends that the trial court erred when it
excluded witness testimony under the rape shield statute, section
18-3-407, C.R.S. 2021.
1. Additional Facts
¶ 8
Miranda sought to introduce the victim’s mother’s testimony
regarding a discussion she had with the victim when the victim was
4
ten years old (before the outcry). The discussion was about
inappropriate touching, and during the conversation the mother
revealed to the victim that she too was molested when she was eight
or nine years old. The trial court denied Miranda’s request to admit
evidence of the mother’s sexual abuse, finding as follows: the victim
was thirteen when she outcried, and therefore the evidence wasn’t
probative for demonstrating an alternate source of the victim’s
sexual knowledge; the evidence wasn’t probative of motive; and the
victim’s description of her abuse wasn’t particularly similar to the
mother’s description of her abuse. For these reasons, the trial
court found that the evidence wasn’t sufficiently relevant to pierce
the rape shield.
¶ 9
The trial court allowed the mother to testify at trial that she
had discussed with the victim “stranger danger” and inappropriate
touching, but the mother was precluded from testifying about her
own victimization and subsequent sharing of that story with the
victim.
2. Standard of Review
¶ 10
We review a trial court’s determination of the admissibility of
evidence under the rape shield statute for an abuse of discretion.
5
People v. Marx, 2019 COA 138, ¶ 40. “A trial court abuses its
discretion when its ruling is (1) manifestly arbitrary, unreasonable,
or unfair or (2) based on an erroneous understanding or application
of the law.” People v. Casias, 2012 COA 117, ¶ 17.
3. Analysis
¶ 11
Miranda contends that the trial court erred by excluding the
mother’s testimony regarding her own victimization because the
victim’s story of her own abuse and the mother’s story of her abuse
have similarities, indicating that the victim used the mother’s story
as a basis for fabricating the abuse by Miranda. We disagree.
¶ 12
Evidence of the mother’s prior sexual abuse falls squarely
within the purview of the rape shield statute because it concerns a
witness’s prior sexual conduct. One purpose of the rape shield
statute is to protect sexual assault victims and witnesses from
humiliating public “fishing expeditions” into their sexual histories.
People v. MacLeod, 176 P.3d 75, 79 (Colo. 2008) (citation omitted).
The presumption of irrelevance of sexual conduct evidence applies
regardless of the purpose for which the proponent seeks its
admission. See id. at 76 (the rape shield applies to evidence of a
victim’s or witness’s prior or subsequent sexual conduct no matter
6
the purpose for which the proponent intends to introduce the
evidence at trial). The trial court’s finding that Miranda didn’t
overcome the presumption of irrelevance and inadmissibility is
supported by the record because there is no nonspeculative
connection to the victim’s allegation and the mother’s prior sexual
conduct. People v. Salazar, 2012 CO 20, ¶ 17 (a trial court may
exclude evidence which only has minimal probative value and
which requires the jury to engage in undue speculation as to the
probative value). We can find no compelling reason — and Miranda
provides none — showing why or how the mother’s story motivated
the victim to fabricate a sexual assault. As the trial court observed,
because there was a gap of at least three years since the mother
shared her story with the victim, any connection between the two
accounts was remote at best, and therefore the mother’s testimony
regarding her prior sexual abuse was properly excluded. See
Fletcher v. People, 179 P.3d 969, 974 (Colo. 2007) (evidence which is
too remote either in time or logical relation to a matter in dispute
should not be admitted). Additionally, the victim’s mother wasn’t
precluded from testifying altogether — she was still permitted to
7
testify regarding having a conversation with the victim about
inappropriate touching and “stranger danger.”
¶ 13
For the above reasons, the trial court didn’t abuse its
discretion by precluding the victim’s mother’s description of her
own abuse and subsequent sharing of her victimization with the
victim.
B. The Victim’s School Records
¶ 14
Miranda next contends that the trial court erred in quashing
Miranda’s subpoena duces tecum to inspect the victim’s school
records.
1. Additional Facts
¶ 15
Before trial, Miranda served a Crim. P. 17(c) subpoena on the
custodian of records at the victim’s school compelling production of
all school records pertaining to the victim, including: attendance
records, disciplinary records, and performance records. The
prosecution moved to quash the subpoena and the trial court
granted the prosecution’s request. In its order, the trial court
stated:
The subpoena was issued in early November
2017 — shortly after [Miranda] pled not guilty,
six months before the first trial date in this
8
case, and even before the trial date had been
set. The scope of the request, the timing of the
subpoena, and other circumstances show that
it was issued as means of conducting discovery
(to look through all of the victim’s school
records to see what might be there) rather
than to secure production of specific
documents for use at trial.
2. Legal Principles and Analysis
¶ 16
Miranda contends that the trial court abused its discretion
when it failed to conduct an in camera review of the records before
quashing the subpoena. We disagree.
¶ 17
We review a trial court’s refusal to disclose or inspect a
victim’s education records for an abuse of discretion. People v.
Bachofer, 192 P.3d 454, 461 (Colo. App. 2008).
¶ 18
Crim. P. 17(c) gives counsel in criminal cases the right to
compel attendance of witnesses, as well as to compel a witness to
produce documents by way of subpoena. Crim. P. 17(c) permits
pretrial inspection of documentary evidence under the supervision
of the court to “facilitate and expedite trials involving voluminous
documents, not to grant additional discovery.” People v. Spykstra,
234 P.3d 662, 668 (Colo. 2010).
9
¶ 19
The trial court has the responsibility of balancing the
defendant’s need for the information with the privacy interests of
the student and her parents. Bachofer, 192 P.3d at 461; People v.
Wittrein, 221 P.3d 1076, 1085 (Colo. 2009). Among the factors the
court should consider are: “(1) the nature of the information sought,
(2) the relationship between this information and the issue in
dispute, and (3) the harm that may result from disclosure.”
Bachofer, 192 P.3d at 461 (citing Zaal v. State, 602 A.2d 1247,
1261-62 (Md. 1992)).
¶ 20
If the trial court determines that the defendant’s need
outweighs any privacy interests, then it should review the records
in camera. Wittrein, 221 P.3d at 1085. The trial court, however,
isn’t required to conduct an in camera review of the victim’s school
records; to warrant an invasion of a student’s privacy, even by an in
camera review, there must be a showing that the need for the
information outweighs the victim’s right to privacy. Id. at 1079.
¶ 21
Here, Miranda made no proffer of need directly related to the
victim’s school records. Instead, Miranda argues that the trial court
should have looked through the entirety of the victim’s school
records to determine the existence of any material required to be
10
produced under Brady v. Maryland, 373 U.S. 83 (1963), without
articulating, “in good faith, a specific need for the information
contained in the records.” Wittrein, 221 P.3d at 1085.
¶ 22
The trial court determined that the scope and timing of the
subpoena demonstrated that it was being used as a discovery tool
rather than a method for securing specific documents for trial. The
trial court didn’t abuse its discretion in reaching this conclusion.
The trial court found that Miranda didn’t provide any specific need
for the victim’s school records, and, based on the timing and scope
of the subpoena, it was being used as a fishing expedition rather
than a way to secure specific documents.
¶ 23
Accordingly, the trial court acted within the bounds of its
discretion in declining to conduct an in camera review of these
records.
C. Sexting Incident
¶ 24
Miranda next contends that the trial court erred in refusing all
defense attempts to obtain and use evidence to impeach the victim
regarding a “sexting” incident.
11
1. Additional Facts
¶ 25
In October 2016, before the victim’s February 2017 outcry, the
victim was involved in a sexting incident where she was texting
sexually explicit pictures — “butt pictures,” “boob pictures,” and
“down below” pictures — to five different children. All six of the
children admitted their involvement. The victim wasn’t criminally
charged, but as a result of her involvement, she was required to
complete a diversion program, which she finished in October 2017.
¶ 26
Before and during trial, the parties litigated the admissibility
of the evidence of the victim’s involvement in the sexting incident
and with law enforcement. First, prior to trial, the prosecution
disclosed to the court documents regarding the sexting incident.
Following an in camera review, the trial court declined to release
the documents to the defense.
¶ 27
Second, Miranda sought permission to cross-examine the
victim’s father about the extent to which the victim got in trouble
with him and law enforcement based on the sexting incident.
Miranda argued that the evidence was relevant because “claiming to
have been sexually abused is uniquely effective at diverting any
negative attention” from the sexting incident. Miranda also
12
requested to introduce evidence that the victim was in trouble with
the police at the time of her outcry, without introducing the reason
for the trouble. The trial court excluded the evidence under the
rape shield statute and CRE 403.
¶ 28
Finally, during trial Miranda moved to obtain evidence relating
to benefits or inducements sought by or provided to the victim by
the prosecution. Specifically, the defense sought to inspect an
email exchange between one of the prosecuting attorneys and the
prosecutor overseeing the victim’s compliance under the
requirements of the diversion program.
2. Analysis
¶ 29
We will first address the use of the sexting incident to show
motive to fabricate, then we will address the use of the victim’s
involvement with law enforcement to show motive to fabricate, and,
last, we will address the use of evidence of the prosecutor’s email
exchange as evidence of bias.
a. Evidence of Sexting Offense to Show Motive
¶ 30
The trial court declined to release documents to Miranda’s
defense counsel that pertained to the victim’s involvement in the
sexting incident and subsequent diversion program. The trial court
13
found that disclosure of the records wasn’t necessary for the
“resolution of an issue pending in the case.”
¶ 31
Because this was an evidentiary ruling by the trial court, we
will review for an abuse of discretion. See Marx,, ¶ 40. The trial
court excluded the evidence because admission would violate the
protections afforded by the rape shield statute. Miranda argues
that evidence that the victim was facing discipline for the sexting
incident when she outcried established her motive to fabricate and
deflect negative attention. Miranda argues that he was denied his
constitutional right to a meaningful opportunity to present a
complete defense, resulting in constitutional error by the trial court.
¶ 32
Because the record supports the trial court’s conclusion that
Miranda’s argument for admitting evidence of the sexting incident
didn’t overcome the protections of the rape shield statute, we
conclude that the trial court didn’t abuse its discretion. The rape
shield protections apply no matter the purpose for which the
defendant intended to introduce evidence at trial. MacLeod, 176
P.3d at 78. The evidence of the sexting incident, Miranda argues,
goes to his theory of defense — that the victim was lying and the
sexting incident bears on her credibility. The evidence is
14
presumptively irrelevant, however, because it falls squarely under
the rape shield:
Evidence of specific instances of the victim’s or
a witness’s prior or subsequent sexual
conduct, opinion evidence of the victim’s or a
witness’s sexual conduct, and reputation
evidence of the victim’s or a witness’s sexual
conduct may be admissible only at trial and
shall not be admitted in any other proceeding
except at a proceeding pursuant to paragraph
(c) of subsection (2) of this section. At trial,
such evidence shall be presumed to be
irrelevant . . . .
§ 18-3-407(1).
¶ 33
The trial court determined that the time gap between the
sexting incident (October 2016) and the outcry (February 2017)
made any causal link speculative at best. Additionally, the trial
court determined that Miranda failed to provide any reason why the
victim would wait five months to “divert any negative attention that
may be on her for engaging in her own sexual misconduct.” Thus,
the trial court found that the sexting incident wasn’t probative of
the victim’s motive to make allegations against Miranda. These
reasons and findings are supported by the record. Accordingly, the
trial court’s decision to preclude the introduction of evidence of the
sexting incident wasn’t an abuse of discretion.
15
b. Evidence of Being in Trouble with Law Enforcement to Show
Motive
¶ 34
Second, the trial court precluded Miranda’s counsel from
cross-examining the victim’s father regarding the extent to which
the victim was in trouble with him and with law enforcement
regarding the sexting incident. The trial court also declined to
permit the introduction of a sanitized version of the sexting incident
— one that didn’t reveal the nature of the offense and would,
instead, just tell the jury generally that the victim had been in
trouble with law enforcement and her father.
¶ 35
In a pre-trial hearing, the victim’s father testified that the
victim was never punished for using her cellphone or social media
inappropriately. Finding the victim’s father’s testimony credible,
the trial court concluded that cross-examining the father about his
daughter being in trouble for the sexting incident would be of
minimal probative value and that the father’s indication that the
victim wasn’t in trouble at the time of the outcry mitigated any
probative value.
¶ 36
Additionally, the trial court found that telling the jury that the
victim had been in trouble for some unknown reason would
16
potentially confuse the issues and would possibly require that the
reason for the trouble be revealed, which would ultimately
circumvent the ruling that the rape shield statute barred evidence
of the sexting incident.
¶ 37
Because this was an evidentiary ruling by the trial court, we
will again review for an abuse of discretion. See Marx, ¶ 40. We
conclude that the trial court didn’t abuse its discretion in
precluding Miranda from asking the victim’s father about whether
she was in trouble with him or law enforcement at the time of the
outcry. Its findings — that (1) disclosing the victim had been in
trouble even without including the nature of the offense could lead
to the rape shield being circumvented; (2) the temporal delay
between being in trouble and the victim’s outcry (five months)
makes any link between the two speculative; and (3) Miranda failed
to show why the victim would fabricate an allegation five months
after being in trouble, and why, five months later, the victim would
feel the need to divert attention from herself — are all supported by
the record and provide a sound basis for excluding the evidence
under the rape shield statute and CRE 403. Accordingly, the trial
court didn’t abuse its discretion.
17
c. Evidence of Email Exchange Regarding Diversion Program to
Show Bias
¶ 38
Miranda next contends that an email between a prosecutor in
this case and the prosecutor supervising the victim’s diversion
program should have been disclosed to the defense because it may
have related to providing the victim with a benefit in exchange for
her testimony, which, in turn, could have been used to show bias.
¶ 39
The email at issue was filed with this court under seal, and we
have reviewed it in camera in order to exercise our independent
judgment. See People in Interest of A.D.T., 232 P.3d 313, 319-20
(Colo. App. 2010) (“[I]n a case like this, in which the juvenile court
has performed an in camera review and made disclosure
determinations that are properly being challenged on appeal, the
right to meaningful appellate review necessitates our performing an
independent in camera review.”). In the email, the prosecutor in
this case doesn’t ask the prosecutor in the diversion case to relieve
the victim of any requirement of the diversion program, just that
she not be subject to or provided with duplicate or conflicting
services.
18
¶ 40
Based on our independent in camera review, we conclude that
the email exchange wasn’t probative of bias and, even if provided to
the defense, nothing about it would’ve been relevant or otherwise
admissible. The prosecution in this case wasn’t asking that the
victim be relieved of any requirement under the diversion program.
¶ 41
Simply put, even if the email exchange had been provided to
the defense, nothing about it would’ve been admissible for
impeachment purposes or otherwise. Accordingly, there’s no basis
for reversal.
D. Jury Instructions
¶ 42
Next, Miranda contends that the trial court erred when it
entered convictions for the class 3 felony versions of sexual assault
on a child by one in a position of trust when the jury verdicts
reflected convictions only for the class 4 felony versions of that
offense. We aren’t persuaded.
1. Additional Facts
¶ 43
The jury was provided with the following elemental instruction
for the three sexual assault on a child charges:
The elements of the crime of Sexual Assault on
a Child are:
1. That the Defendant,
19
2. in the State of Colorado, between and
including January 1, 2011 and February 23,
2017,
3. knowingly,
4. subjected [the victim] who was not his
spouse to any sexual contact, and
5. [the victim] was less than fifteen years of
age, and
6. The Defendant was at least four years older
than [the victim].
(Emphasis added.)
¶ 44
The jury was provided with the following elemental instruction
for the three sexual assault on a child by one in a position of trust
charges:
The elements of the crime of Sexual Assault on
a Child by One in a Position of Trust are:
1. That the Defendant,
2. in the State of Colorado, between and
including approximately January 1, 2011, and
February 23, 2017,
3. knowingly,
4. subjected [the victim], under eighteen years
of age, who was not his spouse to any sexual
contact, and
5. the Defendant was in a position of trust
with respect to [the victim].
(Emphasis added.)
¶ 45
Miranda didn’t object to the jury instructions, and the jury
returned guilty verdicts on all three of the sexual assault on a child
20
charges and all three of the sexual assault on a child by one in a
position of trust charges.
2. Analysis
¶ 46
Sexual assault on a child by one in a position of trust is a
class 4 felony, but it becomes a class 3 felony if the prosecution
proves, and the jury finds, that the victim was less than fifteen
years old. § 18-3-405.3(1)-(3), C.R.S. 2021.
¶ 47
Miranda contends that because the jury instructions for the
sexual assault on a child by one in a position of trust charges didn’t
require the jury to find that the victim was less than fifteen, he can
only suffer convictions for the class 4 felony version of the offense,
rather than the class 3 felony convictions that were entered.
¶ 48
Miranda relies on Medina v. People, 163 P.3d 1136, 1140
(Colo. 2007), to support his argument on appeal. We aren’t
persuaded that Medina controls the outcome here.
¶ 49
In Medina, the defendant was charged with accessory for
unlawfully assisting the escape of one who had committed first or
second degree murder, a class 4 felony. Medina, 163 P.3d at 1136.
One of the elements of the class 4 felony version of that offense is
knowingly rendering assistance to someone who had committed first
21
or second degree murder. Id. at 1139. The jury instructions at
trial, however, only required that the jury find that the defendant
knowingly rendered assistance to someone who was suspected of
first degree or second degree murder. Id. Although the jury
returned a verdict for the class 5 felony version of the offense, the
trial court entered a conviction for the class 4 felony version of the
offense. Id. Our supreme court reversed, concluding it was
structural error to enter the class 4 felony conviction when the jury
verdicts only supported the class 5 felony conviction. Id. at 1140.
¶ 50
There is a critical distinction between this case and Medina.
Here, unlike in Medina, we do have a jury finding on the supposedly
missing element. Specifically, the elemental instructions for the
sexual assault on a child charges (couch incident, bedroom
incident, and living room incident) contained the element that the
child was under the age of fifteen.
¶ 51
Put another way, there were three incidents — couch,
bedroom, and living room. For each incident, there were two
charges — sexual assault on a child and sexual assault on a child
by one in a position of trust. For each incident, the jury found
beyond a reasonable doubt that Miranda had committed sexual
22
assault on a child and that the child was less than fifteen at the
time of each event. So, there is a corresponding jury finding that
the victim was under fifteen at the time of each of the three
incidents, and therefore no structural error because Miranda
(unlike the defendant in Medina) wasn’t deprived of a jury finding
on the supposedly missing element.
¶ 52
Unlike Medina, where the jury rendered no finding of an
element required for a more serious conviction, here, the under
fifteen element was proved to and found by the jury beyond a
reasonable doubt, albeit in its verdict on another charge. See
People v. Hoggard, 2017 COA 88, ¶ 52 (looking to other portions of
the jury’s verdicts that were untainted by the identified error to
conclude that the instructional error did not contribute to the
conviction), aff’d on other grounds, 2020 CO 54. Therefore, the
error was harmless beyond a reasonable doubt.
E. Correction of the Mittimus
¶ 53
Lastly, we address the correction of the mittimus. Miranda
argues that this court should remand for correction of the mittimus
for two reasons. First, to vacate count 7, because it’s the same
crime as count 1, and, second, to reflect a controlling mandatory
23
parole period of twenty years to life because the mittimus currently
doesn’t specify the length of the parole term for each prison
sentence, merely stating that the “parole period is discretionary.”
The Attorney General concedes, and we agree, that remand for
correction of the mittimus is required.
¶ 54
Miranda was charged with seven counts based on three
incidents, but the jury was only provided with six verdict forms.
The jury returned six guilty verdicts. Count 1 on the mittimus is
the same as count 7, except that count 1 reflects the sentence
enhancer found by the jury. Therefore, the mittimus must be
modified to reflect this.
¶ 55
We also agree that the mandatory parole period statutorily
required as part of the sentence should be reflected on the
mittimus. See Crim. P. 36; Craig v. People, 986 P.2d 951, 966
(Colo. 1999) (trial court’s failure to specify the term of defendant’s
mandatory parole in mittimus was error, capable of and requiring
correction by the sentencing court). The mittimus must be
corrected to reflect the statutory parole period of twenty years to
life.
24
¶ 56
In addition to Miranda’s contentions, the Attorney General
argues that the mittimus must also be amended to correct the trial
court’s improper merger of certain counts (and that the mittimus as
prepared by the court didn’t accurately reflect the concurrent
sentences that it intended to impose). The Attorney General bases
this argument on the court’s use of the word “merge” on the
mittimus. Specifically, the mittimus says:
“C[OUN]T 2 MERGES INTO C[OUN]T 1 FOR
SENTENCING”;
“C[OUN]T 5 MERGES INTO C[OUN]T 3 FOR
SENTENCING”;
“C[OUN]T 6 MERGES INTO C[OUN]T 4 FOR
SENTENCING”; and
“C[OUN]T 7 MERGES INTO C[OUN]T 1 FOR
SENTENCING.”
Miranda argues that the use of the word “merge” simply indicates
which sentences run concurrently, not which convictions merged
together, so no correction is required.
¶ 57
We, however, don’t know what the trial court meant when it
used the word “merge” on the mittimus. If it’s as Miranda
25
contends, then the mittimus should be corrected to say as much.
In any event, the mittimus must be corrected to accurately reflect
the convictions it entered and sentences it imposed, including
clarifying which sentences run concurrently to one another.
¶ 58
For the reasons stated above, we remand only for correction of
the mittimus to (1) vacate count 7, because it is the same crime as
count 1, (2) reflect a controlling mandatory parole period of twenty
years to life, and (3) remove the use of the word “merge” and clarify
which sentences run concurrently to one another.
III. Conclusion
¶ 59
We affirm the judgment of conviction and remand only for the
correction of the mittimus.
JUDGE DUNN and JUDGE YUN concur.
