State v. Wilkinson , 2019 Ohio 1199 ( 2019 )

[Cite as State v. Wilkinson, 2019-Ohio-1199.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO, :
Appellant, : CASE NO. CA2018-08-087
: OPINION
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:
DONALD E. WILKINSON, :
Appellee. :
CRIMINAL APPEAL FROM WARREN COUNTY COURT
Case No. 2018TRC000414
David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice
Drive, Lebanon, Ohio 45036 for appellant
The Law Offices of Steven R. Adams, LLC, Steven R. Adams, 8 West Ninth Street,
Cincinnati, Ohio 45202 for appellee
S. POWELL, J.
{¶ 1} Appellant, the state of Ohio, appeals from the decision of the Warren County
Court granting a motion to suppress filed by appellee, Donald E. Wilkinson. For the reasons
outlined below, we reverse the trial court's decision and remand this matter for further
proceedings.
Warren CA2018-08-087
Wilkinson's Arrest
{¶ 2} On the evening of February 4, 2018, Officer Joseph Smith with the Hamilton
Township Police Department arrested Wilkinson on suspicion that he had operated a
vehicle while under the influence of alcohol. It is undisputed that the arrest occurred outside
the home where Wilkinson then resided. It is also undisputed that at the time of his arrest
a maroon Honda belonging to Wilkinson was parked in the driveway.
Motion to Suppress
{¶ 3} On February 13, 2018, Wilkinson filed a motion to suppress. In support,
Wilkinson alleged his arrest was not supported by probable cause, thereby violating his
constitutional rights. The trial court held a hearing on the motion on April 24, 2018. The
lone witness to testify at the suppression hearing was Officer Smith. The following is a
recitation of facts taken from Officer Smith's testimony.
Officer Smith's Testimony
{¶ 4} At 6:28 p.m. on the evening in question, a dispatch was issued for officers to
be on the lookout ("BOLO") for a maroon Honda near the intersection of Foster-Maineville
Road and Sibcy Road. The dispatch was issued after a concerned citizen called 9-1-1 to
report what he believed to be an intoxicated driver driving a maroon Honda. It is undisputed
that the caller's name and phone number were provided to the 9-1-1 operator and thereafter
provided to Officer Smith.
{¶ 5} The concerned citizen called 9-1-1 after seeing the driver of the maroon
Honda committing "some marked lane violations" and a "wide enough turn" to where "the
vehicle nearly drove up on the curb." The caller's observations of the maroon Honda
occurred while the vehicle was turning onto Ravenwood Lane from Foster-Maineville Road.
Although snowing intermittently that evening, the record indicates the roads, driveways, and
sidewalks were not snow covered
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{¶ 6} At 6:38 p.m., approximately 10-minutes after the BOLO was issued, Officer
Smith was traveling on Willow Ridge Circuit when he noticed a "gentleman that was
somewhat on his hands and knees, appeared to be in the position of trying to get up from
the ground." It is undisputed that the individual rising up was Wilkinson. It is also
undisputed that where Wilkinson was seen getting up from the ground was near the
driveway leading to the home where Wilkinson then resided. Parked in the driveway was a
maroon Honda.
{¶ 7} Officer Smith testified the distance between Maineville-Foster Road and Sibcy
Road (where the maroon Honda was last seen by the concerned citizen) and the home on
Willow Ridge Circuit (where he observed Wilkinson getting up from the ground) was "[l]ess
than a mile probably."
{¶ 8} Upon seeing Wilkinson getting up, Officer Smith turned his cruiser around and
parked at the end of the driveway. After parking, Officer Smith walked down the driveway
towards Wilkinson. Wilkinson was at that time standing near the garage door attempting to
input the garage door access code. Officer Smith explained his observations upon parking
his cruiser and approaching Wilkinson as follows:
[OFFICER SMITH]: So I went down and turned around on
Willow Ridge and came back to the driveway. Which at that
point is when I started to walk up the driveway and I noticed a
gentleman trying to enter a code into a garage door pad.
[THE STATE]: Okay. And what happened after that point?
[OFFICER SMITH]: I observed the gentleman prior to making
contact. Sometimes that gives us clues as to what potentially is
going on. I was concerned there might be a medical situation
occurring. So I realized he struggled to enter that code to get
into the garage door – I approached and made contact with that
gentleman.
{¶ 9} As Officer Smith approached Wilkinson, Officer Smith observed "multiple
sequences of presses, multiple attempts" for Wilkinson to enter the correct garage door
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access code. Wilkinson, however, was not successful in his efforts to open the garage
door.
{¶ 10} After approaching Wilkinson, Officer Smith identified himself by stating "hello,
hey." Officer Smith then stated, "Hey, are you okay? Hey. Hello. That type of thing."
Wilkinson did not immediately respond to Officer Smith's questions nor did Wilkinson look
up toward Officer Smith to acknowledge his presence. Officer Smith then again asked
Wilkinson if he was okay; "I asked if he was okay after seeing him get up from the concrete
driveway just minutes earlier." Officer Smith's main concern at that time was to check
Wilkinson's well-being since he had just seen Wilkinson getting up from the ground.
{¶ 11} Not receiving any response from Wilkinson, Officer Smith made "a couple of
attempts at least" to where it was "noticeable" that Wilkinson "wasn't hearing what I was
saying." But, as Officer Wilkinson testified, "[a]t some point it obviously worked." Wilkinson
was at that time carrying a bag of groceries and had with him a "suitcase cart" or "rolling
cart" by his side. Wilkinson also had "wet spots" on the knees of his pants.
{¶ 12} Upon finally receiving a response from Wilkinson, Officer Smith immediately
detected a strong odor of an alcoholic beverage on his person, "not just when he spoke."
Officer Smith also noticed Wilkinson had "very watery" eyes and "some degree" of "garbled"
and slurred speech. Wilkinson's "responses were also delayed." This made it "[a] little bit
more difficult to understand than a normal speech pattern." Officer Smith was at that time
"almost touching distance, you know, less than three feet" from Wilkinson.
{¶ 13} Not wanting Wilkinson to merely set his groceries down on the ground, Officer
Smith asked Wilkinson if anybody was at home to take his belongings inside. Wilkinson
responded that there was. Officer Smith and Wilkinson then walked down the sidewalk to
the front door. While walking to the door, Officer Smith noticed Wilkinson had "balance
issues" and was unsteady on his feet. Explaining further, Officer Smith testified:
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More focus it appears on each step. It wasn't a normal paced
walk. Other than seeing the balance issues, swaying when he
was walking, it was a – more of a[n] effort for him to walk forward
as opposed to what you would expect.
Officer Smith also noticed that Wilkinson was "swaying" even when he was standing still.
{¶ 14} Once Wilkinson's belongings were safely inside, Officer Smith and Wilkinson
walked back to the garage door access pad. Officer Smith then testified:
[THE STATE]: So what do you do at this point?
[OFFICER SMITH]: We go back to the front of the garage door.
The garage door was still closed at that time. And I began to
ask Mr. Wilkinson about, do you have any medical issues,
anything going on? I see that you fell. Normal contact in the
beginning, making sure that there wasn't a reason why we
needed to dispatch a squad or anything like that.
[THE STATE]: Did he indicate that he had any medical issues?
[OFFICER SMITH]: I don't believe he did at the time. A lot of
the questions in the beginning when I was asking – either the
answers were delayed or some of the questions just weren't
answered. I had to ask a lot of those questions multiple times.
So as I went through the entirety of this investigation you'll see
that that's a pattern. But when he didn't indicate that there were
medical issues and the strong odor of alcohol and the other
things we've discussed, at that point I believed that we were
going to be looking into a possible OVI.
{¶ 15} Now believing Wilkinson may have been the person driving the maroon
Honda subject to the BOLO, Officer Smith asked Wilkinson if he had consumed any
alcoholic beverages earlier that evening. Wilkinson responded that he "had one beer a long
time ago. He indicated the time frame was a while. * * * [A] long time ago. That's the best
I can recall." Wilkinson made this statement despite him just being seen by Officer Smith
getting up from the ground while at the same time exhibiting a strong order of an alcoholic
beverage on his person, "balance issues," "very watery" eyes, and "some degree" of
"garbled" and slurred speech.
{¶ 16} At 6:42 p.m., four minutes after Officer Smith arrived at the scene, Officer
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Smith's partner, Officer Kaufholz, also arrived at the scene. Furthering their inquiry, Officers
Smith and Kaufholz asked Wilkinson about where he worked, where he was coming from,
and how far he had driven that evening. Wilkinson responded that he had come home from
work, "that he was already home, [and] that he just wanted to go inside." During this
questioning, Wilkinson "eventually admitted to driving home" and confirmed that the maroon
Honda parked in the driveway belonged to him. Wilkinson also reiterated that "he had only
had one beer, that he was already home, [and] that I didn't see him driving."
{¶ 17} Following this questioning, Officer Smith returned to his cruiser to verify
Wilkinson's information and his identity. After confirming Wilkinson's identity, Officer Smith
telephoned the concerned citizen who had called 9-1-1 to report the maroon Honda. During
this conversation, the caller and Officer Smith "cover[ed] what he witnessed."1 Officer Smith
then went back to the house where Wilkinson and Officer Kaufholz were still standing.
{¶ 18} Upon Officer Smith's return, Wilkinson began "purposefully not answering
questions when they clearly were heard." Shortly thereafter, and based on "the totality of
everything going on," Officer Smith requested Wilkinson to submit to the standardized field
sobriety tests. But, as Officer Smith testified, he "had to ask [Wilkinson to submit to the
standard field sobriety tests] several times. He would not answer the question. Eventually
he indicated he wasn't going to."
{¶ 19} Officer Smith then testified:
Based upon everything we determined that we were going to
place Mr. Wilkinson under arrest and at the time we went to
handcuff Mr. Wilkinson [but] he tried to go through the garage,
which the garage door was now opened without his influence,
and tried to go into the garage door in the house.
1. The concerned citizen also provided a written statement to police. According to Officer Smith, the statement
comported with the information provided to him during this call.
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{¶ 20} Officer Smith thereafter testified regarding Wilkinson's conduct:
[OFFICER SMITH]: He pulled away and tried to go into the
house?
[WILKINSON'S DEFENSE COUNSEL]: Like how?
[OFFICER SMITH]: Pulled his arms away from our actual grasp
and tried to go along side the car and into the house.
[WILKINSON'S DEFENSE COUNSEL]: And how far did he
walk?
[OFFICER SMITH]: Six, seven, eight feet. I don't know exactly.
{¶ 21} Continuing, when asked why he allowed Wilkinson to get several feet away
instead of immediately apprehending Wilkinson, Officer Smith testified:
One hand would have already been on and he tried to pull away.
A[nd] he pulled away, as you described with his elderly, I
apologize, but described as elderly, with his medical situations
that you've now described, it doesn't necessarily require that we
immediate (sic) escalate force if we don't determine that it's
necessary.2 So he was able to get some feet away from the
spot in which he was standing based upon the fact that two
officers were on the scene and that we were able to grab his
other arm at that time and place him in handcuffs.
{¶ 22} Despite Wilkinson's attempts to retreat into the house, Officer Smith was able
to detain Wilkinson and secure him in handcuffs. Officer Smith made the decision to arrest
Wilkinson after finding him to be "obviously impaired." This, as noted above, was based on
Officer Smith having just seen Wilkinson getting up from the ground, as well as the strong
odor of alcoholic beverage on Wilkinson's person, Wilkinson's "very watery" eyes, "some
degree" of "garbled" and slurred speech, and Wilkinson's "balance issues" causing him to
be unsteady on his feet both while walking and standing still.
{¶ 23} After placing Wilkinson under arrest, Officer Smith read Wilkinson his Miranda
2. At the time of his arrest, Wilkinson was 58 years old and, according to his defense counsel, was then
scheduled to have hip replacement surgery.
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rights and placed Wilkinson in the back of his police cruiser. Upon being placed in the
cruiser, Wilkinson refused to acknowledge whether he understood his Miranda rights or
"cooperate at any point" thereafter. This includes Wilkinson's refusal to read and sign the
BMV Form 2255, a form that explains and provides information to individuals regarding the
impact of an administrative license suspension.
{¶ 24} Wilkinson was then transferred to the Warren County Jail. During this time,
Wilkinson continued to argue with Officer Smith. Wilkinson also refused to provide Officer
Smith with his telephone number "[s]aying that, because I didn't answer his questions, he
wasn't going to answer mine." But, upon arriving at the jail, Wilkinson nevertheless told the
jail intake officer that he had consumed two beers earlier that day.
{¶ 25} Concluding, when asked if he felt that he had sufficient information to provide
him with probable cause to effectuate Wilkinson's arrest for operating a vehicle while under
the influence of alcohol, Officer Smith testified "Yes." Officer Smith reached this decision
despite him not ever personally witnessing Wilkinson operate any vehicle that evening. This
includes the maroon Honda belonging to Wilkinson parked in the driveway.
Trial Court's Decision
{¶ 26} On August 2, 2018, the trial court issued a decision granting Wilkinson's
motion to suppress. In so holding, the trial court initially stated:
After reviewing the evidence presented and the testimony of
Officer Smith, this Court finds the motion is well taken. There
was a "BOLO" for a maroon Honda that was called in by a citizen
concerned about a possible OVI. Officer Smith did not observe
any driving, but stumbled upon the maroon Honda when he
observed Defendant in a position that gave Officer Smith cause
for concern.
{¶ 27} Continuing, the trial court stated:
While there were some indications of possible impairment, there
were not enough indicators that Defendant was driving, was
driving erratically, or that Defendant's vehicle was the vehicle
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that was called into dispatch. There was not enough testimony
or evidence that Defendant should have been asked to submit
to field sobriety tests, chemical analysis, or arrested for
suspicion of OVI.
{¶ 28} Concluding, although granting Wilkinson's motion to suppress, the trial court
commended Officer Smith for his actions that evening. As the trial court stated:
It should be noted that Officer Smith took appropriate action
when observing Defendant in position that indicated to Officer
Smith [that] Defendant could have been in distress. Officer
Smith should be commended for his actions that day.
Appeal
{¶ 29} Upon the authority granted by R.C. 2945.67(A) and Crim.R. 12(K), the state
appeals from the trial court's decision granting Wilkinson's motion to suppress. In support
of its appeal, the state argues the trial court erred by finding Officer Smith lacked sufficient
probable cause to arrest Wilkinson on suspicion of operating a vehicle while under the
influence of alcohol. We agree.
Standard of Review
{¶ 30} Appellate review of a ruling on a motion to suppress presents a mixed
question of law and fact. State v. Gray, 12th Dist. Butler No. CA2011-09-176, 2012-Ohio-
4769, ¶ 15, citing State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, ¶ 8. When
considering a motion to suppress, the trial court, as the trier of fact, is in the best position
to weigh the evidence to resolve factual questions and evaluate witness credibility. State
v. Vaughn, 12th Dist. Fayette No. CA2014-05-012, 2015-Ohio-828, ¶ 8. Therefore, when
reviewing the denial of a motion to suppress, this court is bound to accept the trial court's
findings of fact if they are supported by competent, credible evidence. State v. Durham,
12th Dist. Warren No. CA2013-03-023, 2013-Ohio-4764, ¶14. "An appellate court,
however, independently reviews the trial court's legal conclusions based on those facts and
determines, without deference to the trial court's decision, whether as a matter of law, the
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facts satisfy the appropriate legal standard." State v. Cochran, 12th Dist. Preble No.
CA2006-10-023, 2007-Ohio-3353, ¶ 12.
Probable Cause for Warrantless Arrest
{¶ 31} "For a warrantless arrest to be lawful, the arresting officer must have probable
cause that the individual had committed an offense." State v. Watson, 12th Dist. Warren
CA2014-08-110, 2015-Ohio-2321, ¶ 14. "Probable cause is generally defined as a
reasonable ground of suspicion supported by facts and circumstances sufficiently strong in
themselves to warrant a prudent person in believing an accused person has committed or
was committing an offense." State v. Christopher, 12th Dist. Clermont No. CA2009-08-041,
2010-Ohio-1816, ¶ 16. "Probable cause to arrest for OVI exists when, at the moment of
arrest, the arresting officer had sufficient information, derived from a reasonably trustworthy
source of facts and circumstances, to cause a prudent person to believe the accused was
driving under the influence of alcohol." State v. Way, 12th Dist. Butler No. CA2008-04-098,
2009-Ohio-96, ¶ 30. A court makes this determination based on the totality of the facts and
circumstances surrounding the arrest. State v. Aslinger, 12th Dist. Preble No. CA2011-11-
014, 2012-Ohio-5436, ¶ 13, citing State v. Homan, 89 Ohio St. 3d 421, 427 (2000).
Analysis
{¶ 32} After a thorough review of the record, we agree with the state and find there
was ample evidence to support Officer Smith's decision to arrest Wilkinson on suspicion of
operating a vehicle while under the influence of alcohol. The trial court's decision granting
Wilkinson's motion to suppress must therefore be reversed.
{¶ 33} As noted above, after dispatch issued a BOLO for a maroon Honda that had
last been seen near the intersection of Foster-Maineville Road and Sibcy Road, Officer
Smith observed a gentleman getting up from the ground in front of a home located on Willow
Ride Circuit. This gentleman, as noted above, was Wilkinson. Officer Smith's observations
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of Wilkinson occurred approximately ten minutes after the BOLO was issued at a home that
was approximately one mile away from where the maroon Honda was last seen turning
onto Ravenwood Lane from Foster-Maineville Road. In the driveway of this home was a
maroon Honda.
{¶ 34} Concerned for Wilkinson's well-being, Officer Smith turned his cruiser around
and parked at the end of the driveway. Officer Smith then approached Wilkinson as he
struggled to enter the garage door access code. Upon his approach, Officer Smith
announced himself and thereafter attempted to get Wilkinson's attention. This was, as
Officer Smith testified, to determine whether Wilkinson was then suffering from a medical
emergency for which he needed immediate medical care.
{¶ 35} After several attempts, Officer Smith was finally able to get Wilkinson's
attention. However, even prior to getting Wilkinson's attention, Officer Smith detected a
strong odor of alcoholic beverage on Wilkinson's person, "not just when he spoke." Officer
Smith also noticed Wilkinson had "very watery" eyes and "some degree" of "garbled" and
slurred speech. Wilkinson's "responses were also delayed" and was "[a] little bit more
difficult to understand than a normal speech pattern." At this time Officer Smith was "almost
touching distance, you know, less than three feet" from Wilkinson.
{¶ 36} Despite just being seen by Officer Smith getting up from the ground, Wilkinson
denied that he had any medical issues or that he was then suffering from a medical
emergency for which he needed immediate medical care. After learning Wilkinson was not
then suffering from some medical condition, and considering a maroon Honda matching the
BOLO was then parked in the driveway just a short distance away, Officer Smith asked
Wilkinson if he had consumed any alcoholic beverages earlier that evening. To this, Officer
Smith testified that Wilkinson admitted he "had one beer a long time ago. He indicated the
time frame was a while. * * * [A] long time ago. That's the best I can recall."
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{¶ 37} Upon further inquiry, which included Officer Smith telephoning the concerned
citizen who initially called 9-1-1 to report what he believed to be a possible intoxicated driver,
Officer Smith placed Wilkinson under arrest. Officer Smith made the decision to arrest
Wilkinson after finding him to be "obviously impaired." Officer Smith reached this decision
after considering the totality of the circumstances. This includes, as noted above, the fact
that he had just seen Wilkinson getting up from the ground next to a maroon Honda, as well
as the strong odor of alcoholic beverage on Wilkinson's person, Wilkinson's "very watery"
eyes, "some degree" of "garbled" and slurred speech, and Wilkinson's "balance issues"
causing him to be unsteady on his feet both while walking and standing still.
{¶ 38} The trial court granted Wilkinson's motion to suppress upon finding that
although there were some indications that Wilkinson was possibly impaired, "there were not
enough indicators that Defendant was driving, was driving erratically, or that Defendant's
vehicle was the vehicle that was called into dispatch." The trial court's decision, however,
was not based on whether there was probable cause for Officer Smith to effectuate
Wilkinson's arrest. Rather, the trial court's decision was based on whether there was
sufficient evidence to prove Wilkinson's guilt beyond a reasonable doubt. "That the state
may fail to prove an offense by proof beyond a reasonable doubt does not mean that the
much lower standard of probable cause did not exist to support the offense in the first
instance." State v. Mansour, 12th Dist. Warren No. CA2015-06-051, 2016-Ohio-755, ¶ 26.
{¶ 39} Contrary to the trial court's holding, the fact that there was no direct evidence
to prove Wilkinson was the same person driving the maroon Honda observed by the
concerned citizen who called 9-1-1 is immaterial. Applying the applicable probable cause
standard, and when considering the totality of the circumstances, there was sufficient
information available to Officer Smith at the time of Wilkinson's arrest to cause a prudent
person to believe Wilkinson had just minutes prior been operating a vehicle while under the
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influence of alcohol. Much of this evidence was circumstantial. But, even then,
"circumstantial evidence and direct evidence inherently have the same probative value, and
in some instances, certain facts can only be established by circumstantial evidence." State
v. Wright, 12th Dist. Fayette No. CA2017-10-021, 2018-Ohio-1982, ¶ 32, citing State v.
Jenks, 61 Ohio St. 3d 259, 272 (1991).
{¶ 40} As noted above, Wilkinson was seen by Officer Smith just getting up from the
ground nearby to a maroon Honda. Minutes prior and approximately one mile away, a
maroon Honda was observed by a concerned citizen committing "some marked lane
violations" and a "wide enough turn" to where "the vehicle nearly drove up on the curb."
Upon his approach, Officer Smith noticed Wilkinson struggling to input the garage door
access code. Wilkinson was carrying a bag of groceries and had with him a "suitcase cart"
or "rolling cart" by his side. The logical inference being that Wilkinson, exhibiting multiple
clues of impairment, had just arrived home via the maroon Honda parked in the driveway.
{¶ 41} Again, when viewed under the totality of the circumstances, we find this to be
ample evidence to support Officer Smith's decision to arrest Wilkinson on suspicion of
operating a vehicle while under the influence of alcohol. That is, stated differently, ample
evidence to support a finding of probable cause to effectuate Wilkinson's arrest. Yet,
although there was probable cause to effectuate Wilkinson's arrest, it is the trier of fact at
trial, not the trial court in ruling on a motion to suppress, that must determine whether the
evidence elicited at trial was sufficient to prove Wilkinson's guilt beyond a reasonable doubt.
{¶ 42} In so holding, we note that "[t]he totality of facts and circumstances can
support a finding of probable cause to arrest for DUI even in the absence or exclusion of
field sobriety tests." State v. Crotty, 12th Dist. Warren No. CA2004-05-051, 2005-Ohio-
2923, ¶ 14; see, e.g., State v. Minton, 12th Dist. Warren No. CA2017-08-132, 2018-Ohio-
2142, ¶ 14-15 (probable cause to arrest existed where officer detected odor of alcoholic
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beverage coming from inside the vehicle, appellant admitted to consuming alcohol, refused
to submit to field sobriety testing, and exhibited bloodshot and glassy eyes, sluggish and
slurred speech, and was unsteady on his feet); City of Wilmington v. Taylor, 12th Dist.
Clinton No. CA2009-11-018, 2010-Ohio-3255, ¶ 20 (probable cause to arrest existed where
officer detected moderate to strong odor of alcoholic beverage coming from inside the
vehicle and on person, appellant had bloodshot and glassy eyes, slow and pertinent
speech, and refused to submit to field sobriety testing).
{¶ 43} That is certainly the case here when considering, once again, Officer Smith
had just seen Wilkinson getting up from the ground next to a maroon Honda, the strong
odor of alcoholic beverage on Wilkinson's person, Wilkinson's "very watery" eyes, "some
degree" of "garbled" and slurred speech, and Wilkinson's "balance issues" causing him to
be unsteady on his feet both while walking and standing still.
Conclusion
{¶ 44} The trial court erred by granting Wilkinson's motion to suppress. As discussed
more fully above, when considering the totality of the circumstances, there was ample
evidence to support Officer Smith's decision to arrest Wilkinson on suspicion of operating a
vehicle while under the influence of alcohol. Therefore, because we find Officer Smith acted
lawfully at all times relevant, including his decision to approach Wilkinson after just seeing
him getting up from the ground in close proximity to the home where he then resided, the
trial court's decision granting Wilkinson's motion to suppress was improper and must be
reversed. Accordingly, finding merit to the state's single assignment of error, we hereby
sustain the same and reverse and remand this matter to the trial court for further
proceedings.
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{¶ 45} Judgment reversed and remanded.
HENDRICKSON, P.J., and PIPER, J., concur.
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