State v. Harris , 243 N.C. App. 728 ( 2015 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-214
Filed: 3 November 2015
Wake County, No. 12 CRS 224667, 13 CRS 9780
STATE OF NORTH CAROLINA,
v.
RODERICK DEAN HARRIS, Defendant.
Appeal by defendant from Judgment and Orders entered 13 August 2014 by
Judge Paul C. Ridgeway in Wake County Superior Court. Heard in the Court of
Appeals 24 August 2015.
Attorney General Roy Cooper, by Assistant Attorney General Margaret A. Force,
for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate Defender
Barbara S. Blackman, for defendant.
ELMORE, Judge.
Roderick Dean Harris (defendant) appeals from a judgment of conviction for
sexual offense with a child in violation of N.C. Gen. Stat. § 14-27.4A(a), and from
accompanying orders requiring him to register as a sex offender and enroll in
satellite-based monitoring (SBM) for life. On appeal, defendant principally argues
that the trial court committed plain error by instructing the jury on section 14-
27.4A(a) because he was indicted for violating a separate statute, section 14-
27.4(a)(1). Therefore, defendant claims, the judgment of his conviction for section 14-
STATE V. HARRIS
Opinion of the Court
27.4A(a) was improperly entered against him. Because we are bound by this Court’s
decision in State v. Hicks, ____, N.C. App. ____, 768 S.E.2d 373 (Feb. 17, 2015) (No.
COA14-57), we vacate the judgment and remand for entry of judgment and
resentencing on the charge of first-degree sexual offense in violation of section 14-
27.4(a)(1). We find no other error.
I. Background
This case arises out of defendant’s alleged sexual abuse of his step-daughter,
Kathy.1 After Kathy’s parents separated, defendant became romantically involved
with Kathy’s mother. He moved in with the family and married Kathy’s mother
several years later. The family moved around frequently, and Kathy’s mother and
defendant fought, separated, and reconciled a number of times.
Defendant began sexually abusing Kathy just after her tenth birthday. The
first instance of sexual misconduct occurred when the family lived in Raleigh.
Defendant came into Kathy’s room and “wrestled” with her while they were alone.
As Kathy was lying on her bed, defendant got on top of her and touched her vaginal
area outside of her clothes, toying with her using his finger. The touching occurred
multiple times while they lived there. On later occasions, defendant touched Kathy
under her shorts but outside of her underwear.
1 Kathy is a pseudonym used to protect the identity of the minor.
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When the family moved into a larger house in Louisburg, Kathy had her own
room and the sexual misconduct happened more often. On more than one occasion,
defendant touched Kathy under her underwear, putting his finger inside her vagina,
and also touched her breasts. The touching continued after the family moved to
Knightdale. When Kathy was in seventh grade, defendant continued to touch her
vaginal area and her breasts but did not put his finger inside her vagina.
In October 2012, Kathy reported defendant’s misconduct to Jan Gibson, a
school guidance counselor. Gibson, in turn, filed a report with Child Protective
Services (CPS). Kim Franklin, an investigator with CPS, was assigned to the case
and interviewed Kathy. Kathy was also interviewed and examined by Holly Warner
at the SAFEchild Advocacy Center, a nonprofit organization that provides medical
evaluations for children who are suspected to be victims of child abuse or neglect.
Following the examination at SAFEchild, Kathy was treated by Alison Burke,
a therapist who specializes in working with children who have been sexually abused.
Burke performed an assessment and used trauma-focused cognitive behavioral
therapy (TFCBT) to help treat Kathy. During treatment, Kathy talked about the
sexual misconduct, how she felt, and wrote a “trauma narrative” describing what had
happened.
The first of three warrants for defendant’s arrest was issued on 30 October
2012 in Wake County. Defendant was interviewed by Kim Franklin and Knightdale
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Police that same day. The Wake County Grand Jury returned two separate bills of
indictment: one on 26 November 2012, charging defendant with one count of sexual
offense with a child and two counts of indecent liberties with a child; and another on
25 February 2013, charging defendant with one count of first-degree sexual offense
and one count of indecent liberties with a child. On 30 September 2013, the Franklin
County Grand Jury also returned a bill of indictment against defendant, charging
him with first-degree sexual offense in violation of N.C. Gen. Stat. § 14-27.4(a)(1).2
The case out of Franklin County was then transferred to Wake County by
agreement, and the three cases were joined and tried before a jury on 11 August 2014
in Wake County Superior Court. The court dismissed the two sex offense charges
from Wake County at the close of the evidence. The only remaining charges left to be
submitted to the jury, therefore, were the sex offense arising out of Franklin County
and the three indecent liberty offenses. The jury found defendant guilty of one count
of sexual offense with a child in violation of section 14-27.4A(a) and two counts of
indecent liberties with a child. The court arrested judgment on the third count of
indecent liberties with a child.
2 The caption on the left side of the indictment lists “14-27.4(a)(1)” as the “Offense in Violation,” and
on the right side the indictment reads, “INDICTMENT FIRST DEGREE STATUTORY SEXUAL
OFFENSE (FEMALE OR MALE CHILD UNDER 13) (1116).” The text in the body of the indictment
alleges the following:
The jurors for the State upon their oath present that on or about the
date(s) of offense shown and in the county named above the defendant
named above unlawfully, willfully and feloniously did engage in a sex
offense with [Kathy], a child under the age of 13 years.
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Opinion of the Court
Based on his prior record level IV, defendant was sentenced to a minimum of
365 and a maximum of 447 months for his conviction under section 14-27.4A(a). The
two indecent liberties offenses were consolidated for sentencing, and the court
sentenced defendant to a minimum of 24 and maximum of 29 months, set to begin at
the expiration of the first sentence. The court also ordered defendant to register as a
sex offender and enroll in SBM for life upon release from imprisonment.
Defendant gave oral notice of appeal in open court. He also filed a petition for
writ of certiorari to this Court, since the sex offender registration and SBM are civil
in nature and thus require written notice of appeal. N.C.R. App. P. 3(a) (2013); Hicks,
____ N.C. App. at ____, 768 S.E.2d at 375–76; State v. White, 162 N.C. App. 183, 190–
98, 590 S.E.2d 448, 453–58 (2004). In our discretion, we allow defendant’s petition
and review the merits of his appeal.
II. Analysis
A. Standard of Review
We note at the outset that defendant failed to preserve at trial any of the issues
he raises on appeal. See N.C.R. App. P. 10(a)(1) (2013) (“In order to preserve an issue
for appellate review, a party must have presented to the trial court a timely request,
objection, or motion, stating the specific grounds for the ruling the party desired the
court to make if the specific grounds were not apparent from the context.”).
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Nevertheless, defendant contends that the alleged instructional and
evidentiary errors committed by the trial court amount to plain error. See N.C.R.
App. P. 10(a)(4) (“In criminal cases, an issue that was not preserved by objection noted
at trial and that is not deemed preserved by rule or law without any such action
nevertheless may be made the basis of an issue presented on appeal when the judicial
action questioned is specifically and distinctly contended to amount to plain error.”);
State v. Lawrence, 365 N.C. 506, 516, 723 S.E.2d 326, 333 (2012) (“[P]lain error review
in North Carolina is normally limited to instructional and evidentiary error.”) (citing
State v. Wiley, 355 N.C. 592, 615, 565 S.E.2d 22, 39–40 (2002), cert. denied, 537 U.S.
1117, 154 L. Ed. 2d 795 (2003)).
We review for plain error those issues now before us on appeal.
For error to constitute plain error, a defendant must
demonstrate that a fundamental error occurred at trial.
See Odom, 307 N.C. at 660, 300 S.E.2d at 378. To show
that an error was fundamental, a defendant must establish
prejudice that, after examination of the entire record, the
error “had a probable impact on the jury’s finding that the
defendant was guilty.” See id. (citations and quotation
marks omitted); see also Walker, 316 N.C. at 39, 340 S.E.2d
at 83 (stating “that absent the error the jury probably
would have reached a different verdict” and concluding
that although the evidentiary error affected a fundamental
right, viewed in light of the entire record, the error was not
plain error). Moreover, because plain error is to be “applied
cautiously and only in the exceptional case,” Odom, 307
N.C. at 660, 300 S.E.2d at 378, the error will often be one
that “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings,” Odom, 307 N.C. at 660,
300 S.E.2d at 378 (quoting McCaskill, 676 F.2d at 1002).
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Opinion of the Court
Lawrence, 365 N.C. at 518, 723 S.E.2d at 334.
B. The Indictment and Charge to the Jury
First, defendant argues that his conviction of sexual offense with a child and
accompanying sentence was improperly entered against him. Specifically, defendant
contends that the trial court committed plain error by instructing the jury on “sexual
offense with a child; adult offender” in violation of N.C. Gen. Stat. § 14-27.4A(a) where
the indictment charged defendant pursuant to N.C. Gen. Stat. § 14-27.4(a)(1), “first-
degree sexual offense.”
“A valid bill of indictment is essential to the jurisdiction of the Superior Court
to try an accused for a felony and have the jury determine his guilt or innocence, ‘and
to give authority to the court to render a valid judgment.’ ” State v. Moses, 154 N.C.
App. 332, 334, 572 S.E.2d 223, 226 (2002) (quoting State v. Ray, 274 N.C. 556, 562,
164 S.E.2d 457, 461 (1968)). An indictment or other criminal pleading must contain
the following:
A plain and concise factual statement in each count which,
without allegations of an evidentiary nature, assert facts
supporting every element of a criminal offense and the
defendant’s commission thereof with sufficient precision
clearly to apprise the defendant or defendants of the
conduct which is the subject of the accusation.
N.C. Gen. Stat. § 15A-924(a)(5) (2013). “A defendant may not be lawfully convicted
of an offense which is not charged in an indictment; if a defendant is found guilty of
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Opinion of the Court
an offense for which he has not been charged, judgment thereon is properly arrested.”
Moses, 154 N.C. App. at 334, 572 S.E.2d at 226.
N.C. Gen. Stat. § 14-27.4(a)(1) (2013), titled, “First-degree sexual offense,”
provides in pertinent part as follows:
(a) A person is guilty of a sexual offense in the first degree
if the person engages in a sexual act:
(1) With a victim who is a child under the age of 13
years and the defendant is at least 12 years old and
is at least four years older than the victim;
....
N.C. Gen. Stat. § 14-27.4A(a) (2013), titled, “Sexual offense with a child; adult
offender,” provides in pertinent part as follows:
(a) A person is guilty of sexual offense with a child if the
person is at least 18 years of age and engages in a sexual
act with a victim who is a child under the age of 13 years.
N.C. Gen. Stat. § 14-27.4(a)(1) is a lesser included offense of section 14-
27.4A(a). N.C. Gen. Stat. § 14-27.4A(d) (2013). Both statutes require the State to
prove that the defendant engaged in a sexual act with a victim who was a child under
the age of thirteen. The difference between the two statutes concerns the defendant’s
age: section 14-27.4(a)(1) requires the State to prove that the defendant was at least
twelve years old and at least four years older than the victim, whereas section 14-
27.4A(a) requires the State to prove that the defendant was at least eighteen years
old. See Hicks, ____ N.C. App. at ____, 768 S.E.2d at 379 (explaining the difference
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Opinion of the Court
between section 14-27.4(a)(1) and section 14-27.4A(a)); see also id. at ____, 768 S.E.2d
at 381 (urging the North Carolina General Assembly “to consider reorganizing,
renaming, and renumbering the various sexual offenses to make them more easily
distinguishable from one another”); 2015 N.C. Sess. Laws 2015-181 (H.B. 383). In
addition, while each offense is punishable as a Class B1 felony, a conviction under
§ 14-27.4A(a) carries an active punishment of no less than 300 months’ imprisonment.
N.C. Gen. Stat. §§ 14-27.4(b), 14-27.4A(b) (2013).
In support of his argument, defendant relies almost exclusively on this Court’s
decision in State v. Hicks. In Hicks, the defendant was indicted for violating N.C.
Gen. Stat. § 14-27.4(a)(1). Hicks ____ N.C. App. at ____, 768 S.E.2d at 379. The trial
court, however, instructed the jury on section 14-27.4A(a), the crime for which the
defendant was ultimately convicted. Id. at ____, ____, 768 S.E.2d at 374, 379. This
Court explained, “In essence, the trial court submitted to the jury an additional
element that the State was not required to prove: that defendant was at least 18, an
adult, at the time he committed the offense.” Id. at ____, 768 S.E.2d at 379. Because
the indictment did not allege that the defendant was at least eighteen years old, an
essential element of section 14-27.4A(a), this Court vacated the judgment and
remanded for sentencing and entry of judgment of conviction of section 14-27.4(a)(1),
the lesser-included offense. Id. at ____, 768 S.E.2d at 379–81 (citing State v. Williams,
318 N.C. 624, 628, 350 S.E.2d 353, 356 (1986); State v. Bullock, 154 N.C. App. 234,
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245, 574 S.E.2d 17, 24 (2002)); see also State v. Jones, 317 N.C. 487, 495, 346 S.E.2d
657, 661 (1986) (vacating judgment of conviction for first-degree rape and remanding
for entry of judgment of conviction for second-degree rape and resentencing because
“[i]n finding the defendant guilty of first-degree rape, the jury necessarily found the
existence of all the necessary elements of second-degree rape, a lesser-included
offense”); State v. Miller, 137 N.C. App. 450, 458–59, 528 S.E.2d 626, 631 (2000)
(“[O]ur Supreme Court has held it to be a basic violation of due process, amounting
to plain error, where a jury is instructed as to an offense which is not charged in the
bill of indictment.” (citation omitted)).
Despite the State’s position to the contrary, we are unable to distinguish the
present case from Hicks. We are bound by Hicks and apply it here.3 In re Appeal
from Civil Penalty Assessed for Violations of Sedimentation Pollution Control Act, 324
N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“Where a panel of the Court of Appeals has
decided the same issue, albeit in a different case, a subsequent panel of the same
court is bound by that precedent, unless it has been overturned by a higher court.”).
Accordingly, the judgment entered on defendant’s conviction under section 14-
3 While it may be implicit in the decision, Hicks does not explicitly address whether the text of
the short-form indictment is sufficient in law under N.C. Gen. Stat. § 15-144.2(b) (2013) to sustain a
conviction under either section 14-27.4A(a) or section 14-27.4(a)(1). We do note, however, that our
Supreme Court has previously alluded to this issue. See State v. Jones, 317 N.C. 487, 492, 346 S.E.2d
657, 660 (1986) (“[W]hether the fundamental concerns expressed in Sills are protected when the
caption of a short-form indictment specifies an offense less serious than the maximum offense
supported by the indictment and the defendant is nevertheless ultimately convicted of the maximum
offense is a question not heretofore addressed by this Court.”).
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Opinion of the Court
27.4A(a) is vacated. We remand for entry of judgment of conviction for the lesser-
included offense, section 14-27.4(a)(1), and appropriate resentencing.
C. The School Counselor’s Testimony
Second, defendant argues that the trial court committed plain error by
allowing Jan Gibson’s testimony which, according to defendant, implied that DSS had
substantiated Kathy’s claim that defendant sexually abused her.
“[A] witness may not vouch for the credibility of a victim.” State v. Giddens,
199 N.C. App. 115, 121, 681 S.E.2d 504, 508 (2009) (citations omitted), aff’d per
curiam, 363 N.C. 826, 689 S.E.2d 858 (2010); see also N.C. Gen. Stat. § 8C-1, Rules
608(a), 701–03 (2013). In Giddens, this Court concluded that it was plain error for a
DSS investigator to testify that DSS had “substantiated” the defendant as the
perpetrator and believed the abuse did occur based on the evidence DSS had gathered
where, absent the testimony, “the jury would have been left with only the children’s
testimony and the evidence corroborating their testimony.” Giddens, 199 N.C. App.
at 119–23, 681 S.E.2d at 507–09; see also State v. Couser, 163 N.C. App. 727, 731, 594
S.E.2d 420, 423 (2004) (“Thus, the central issue to be decided by the jury was the
credibility of the victim.”). In contrast, even where testimony that sexual abuse had
occurred was improperly admitted, we have found that the error did not rise to plain
error where the evidence against the defendant amounted to something more than
just the victim’s testimony and corroborating evidence. State v. Sprouse, 217 N.C.
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App. 230, 242, 719 S.E.2d 234, 243 (2011) (finding no plain error because “[u]nlike
Giddens, absent the challenged testimony, the present case involved more evidence
of guilt against the defendant than simply the testimony of the child victim and the
corroborating witnesses”); State v. Stancil, 146 N.C. App. 234, 240, 552 S.E.2d 212,
216 (2001) (finding no plain error where the jury had before it evidence of victim’s
symptoms and two experts’ conclusions that victim’s actions and statements were
consistent with abuse), modified and aff’d, 355 N.C. 266, 267, 559 S.E.2d 788, 789
(2002).
In the present case, even assuming arguendo that Gibson’s testimony was
improper, our review of the record on appeal leads us to conclude that it was not
received in plain error. Gibson testified on direct examination that she reported
Kathy’s allegations to DSS, as mandated by law. Gibson then testified as follows:
Q. Have you had occasion in the past to make reports to the
Department of Social Services?
A. Many times.
Q. And to your knowledge, are they required to follow up
on all the calls that are made?
A. They are not. They decide at the intake unit if that is a
substantiated report, if they can substantiate it or not; and
if they do, then they follow up on it.
Q. And with respect at least to the allegations of stepfather
and child, did you believe that someone would follow up
with [Kathy]?
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A. Yes, they told me they would.
Q. Okay.
A. And I received a letter to that effect.
....
Q. Okay. And you said at some point later, you found out
that CPS had investigated the case?
A. Yes, they sent me a letter saying that—
MR. KELLY: Objection.
Q. Let me make sure.
THE COURT: Sustained. Go ahead.
Q. They followed up with you that they had done an
investigation?
A. Yes, I received a letter saying—
MR. KELLY: Objection.
THE COURT: Sustained.
Although Gibson is not employed by DSS and did not testify directly as to the
conclusion reached by DSS investigators, defendant insists that we apply Giddens to
these facts. Unlike Giddens, however, where the sole issue to be decided was the
victims’ credibility, here the evidence against defendant did not solely consist of
Kathy’s allegations and corroborative testimony. The jury heard audio from
defendant’s interview with DSS and Knightdale Police, in which he admitted that he
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Opinion of the Court
had been touching Kathy and that “it turned corrupt.” In the same interview,
defendant told a Knightdale police detective that he had become “aroused by the
stimulation.” Defendant also said, “We played a lot. You know, and . . . I just don’t
know how it could turn like this—how I could turn like this.” Furthermore, the jury
heard audio from a phone call made by defendant to his wife, Kathy’s mother, from
jail. As he was crying, defendant told her that he was sorry for what he had done and
he would “accept the consequences.”
In light of defendant’s incriminating statements and the evidence
corroborating Kathy’s allegations, we conclude that Gibson’s testimony was not
received in plain error. Even if we accept the premise that Gibson’s testimony was
erroneous, defendant has failed to show that, absent the error, the jury probably
would have reached a different verdict.
D. Expert Testimony From Child’s Therapist
Third, defendant argues that the trial court committed plain error by
admitting Allison Burke’s testimony regarding Kathy’s placement in TFCBT and the
therapy process in general. Defendant claims that this portion of Burke’s testimony
constituted impermissible vouching for Kathy’s credibility.
“Expert opinion testimony is not admissible to establish the credibility of the
victim as a witness.” State v. Dixon, 150 N.C. App. 46, 52, 563 S.E.2d 594, 598 (2002)
(citing State v. Kim, 318 N.C. 614, 350 S.E.2d 347 (1986)), aff’d per curiam, 356 N.C.
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428, 571 S.E.2d 584 (2002). “In a sexual offense prosecution involving a child victim,
the trial court should not admit expert opinion that sexual abuse has in fact occurred
because, absent physical evidence supporting a diagnosis of sexual abuse, such
testimony is an impermissible opinion regarding the victim’s credibility.” State v.
Stancil, 355 N.C. 266, 266–67, 559 S.E.2d 788, 789 (2002) (citations omitted).
“However, those cases in which the disputed testimony concerns the credibility of a
witness’s accusation of a defendant must be distinguished from cases in which the
expert’s testimony relates to a diagnosis based on the expert’s examination of the
witness.” State v. Bailey, 89 N.C. App. 212, 219, 365 S.E.2d 651, 655 (1988). “[A]n
expert witness may testify, upon a proper foundation, as to the profiles of sexually
abused children and whether a particular complainant has symptoms or
characteristics consistent therewith.” Stancil, 355 N.C. at 267, 559 S.E.2d at 789
(citations omitted); see also State v. Hall, 330 N.C. 808, 821, 412 S.E.2d 883, 890
(1992) (concluding that evidence of PTSD should not be admitted substantively to
prove that a rape has in fact occurred, but allowing such evidence for certain
corroborative purposes). “The fact that this evidence may support the credibility of
the victim does not alone render it inadmissible.” State v. Kennedy, 320 N.C. 20, 32,
357 S.E.2d 359, 367 (1987).
Defendant maintains that Burke’s testimony amounted to an expert opinion
that Kathy was credible and that defendant was guilty as charged, but fails to point
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to any portion of Burke’s testimony where she opined that Kathy was sexually abused
by defendant or stated that sexual abuse did in fact occur. Burke explained how
TFCBT is used to help treat victims in cases of sexual abuse and described
therapeutic techniques that she employs in her treatment. She testified that Kathy
had symptoms consistent with trauma, and explained the purpose and process of
writing a “trauma narrative.” Her explanation laid the foundation for the State to
introduce Kathy’s “trauma narrative,” which included Kathy’s written statement
about what happened to her. The narrative itself was introduced solely for the
purpose of corroborating Kathy’s testimony. The mere fact that Burke’s testimony
supports Kathy’s credibility does not render it inadmissible. Accordingly, we find no
error—and certainly no plain error—in the trial court’s receipt of Burke’s testimony.
E. Expert Testimony From Nurse Practitioner
Finally, defendant argues that the trial court committed plain error by
permitting Holly Warner to testify that she recommended Kathy for therapy despite
finding no physical evidence of abuse, and that she referred to Kathy’s mother as the
“non-offending” caregiver. Warner’s testimony, defendant argues, “impermissibly
bolstered Kathy’s credibility and constituted opinion evidence as to guilt.”
Defendant relies principally on State v. Towe, 366 N.C. 56, 62, 732 S.E.2d 564,
568 (2012), in support of his argument. In Towe, an expert testified at trial that
“approximately 70 to 75 percent of children who have been sexually abused have no
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abnormal findings, meaning that the exams are either completely normal or [sic] very
non-specific findings, such as redness.” Id. at 60, 732 S.E.2d at 566. The expert went
on to testify that she would place the victim in that category of children who had been
sexually abused but showed no physical symptoms of abuse. Id. Our Supreme Court
concluded that the expert’s testimony was received in plain error:
In the absence of physical evidence of sexual abuse in this
case, the only bases for [the expert’s] conclusory assertion
that the victim had been sexually abused were the victim’s
history as relayed to [the expert] by the victim’s mother
and the victim’s statements to [the social worker] that were
observed by [the expert]—evidence that, standing alone, is
insufficient to support an expert opinion that a child was
sexually abused.
Id. at 62, 732 S.E.2d at 568.
The facts in Towe are easily distinguishable from those in the present case.
Most notably, while Warner testified that she recommended Kathy be referred for
therapy, Warner never asserted that Kathy had been sexually abused or explicitly
commented on Kathy’s credibility. Rather, the challenged portion of Warner’s
testimony was nothing more than a recitation of facts as to what she did at the
conclusion of her examination and was within “the permissible range of expert
testimony in child sexual abuse cases.” Towe, 366 N.C. at 64, 732 S.E.2d at 569. In
addition, Warner explained that the Center uses the term “non-offending caregiver”
in reference to the person with whom the child will be going home, and that “any
parent or caregiver who is suspected of being an offending caregiver is not allowed in
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Opinion of the Court
the center.” Warner never testified that defendant was an “offending caregiver” and
even if she had, her testimony makes clear that the term does not mean that
defendant is guilty. Accordingly, we find no error or plain error in the trial court’s
admission of Warner’s testimony.
III. Conclusion
In accordance with Hicks, ____ N.C. App. at ____, 768 S.E.2d at 379–81, we
vacate the judgment of defendant’s conviction for sexual offense with a child in
violation of N.C. Gen. Stat. § 14-27.4A(a). The case is remanded for entry of judgment
of conviction for first-degree sexual offense in violation of section 14-27.4(a)(1) and for
appropriate resentencing.
NO ERROR in part; VACATED AND REMANDED in part; NEW
SENTENCING.
Chief Judge McGEE and Judge DAVIS concur.
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