State v. Koran ( 2022 )

[Cite as State v. Koran, 2022-Ohio-2410.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110923
v. :
KIM KORAN, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 14, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-20-652696-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Fallon Radigan, Assistant Prosecuting
Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Robert McCaleb, Assistant Public Defender, for appellant.
LISA B. FORBES, J.:
Kim Koran (“Koran”) appeals his convictions of attempted unlawful
sexual conduct with a minor, importuning, disseminating matter harmful to
juvenile, and possessing criminal tools. After reviewing the facts of the case and
pertinent law, we affirm the trial court’s decision.
I. Facts and Procedural History
On August 26, 2020, law enforcement agents from the Ohio Internet
Crimes Against Children Task Force (“ICAC”) conducted an undercover operation
targeting individuals interested in sexual activity with minors. Koran and an ICAC
agent, who was posing as a young male, exchanged messages on Grindr, a social
networking app geared toward males engaging in same-sex relationships. Koran
and the undercover agent agreed to meet at a predetermined location to engage in
sex. One of the messages the undercover agent sent to Koran stated, “im 15 that
cool?” Ultimately, Koran drove to the predetermined location and was arrested on
the spot.
On August 27, 2020, Koran was charged with the following offenses:
One count of attempted unlawful sexual conduct with a minor in
violation of R.C. 2923.02 and 2907.04(A);
One count of importuning in violation of R.C. 2907.07(D)(2);
Five counts of disseminating matter harmful to juveniles in violation of
R.C. 2907.31(A)(1) and;
One count of possessing criminal tools in violation of R.C. 2923.24(A).
In September 2021, Koran’s case was tried to the bench, and the court
found him guilty as indicted. On September 29, 2021, the court sentenced Koran to
six months in prison for each count, to run concurrently. The court also determined
that Koran was a Tier II “sex offender/child offender registrant.” It is from these
convictions that Koran appeals.
A. Operation Moving Target and the Grindr Messages
According to the record, the August 26, 2020 undercover
investigation at issue in the case at hand was part of “Moving Target,” which was “a
four-day undercover operation in Newburgh Heights.” ICAC worked with the
Newburgh Heights Police Department and used, as the predetermined meeting
spots, vacant, city-owned properties “on dead-end streets so it allows us to safely
bring an individual in.”
It is undisputed that Koran began a conversation with Streetsboro
Police Sergeant Stanley Siedlecki (“Sgt. Siedlecki”), an undercover ICAC officer who
was posing as “Jay.”
Koran’s “cell phone dump” from August 26, 2020, was admitted into
evidence. Koran stipulated to the 30-page printout of all the electronic messages he
sent from or received on his cell phone that day. The instant messages on Grindr at
issue are between Koran, who went by the username “Fill ur GUTS” and had no
photo attached to his account, and “Jay,” who had a photo attached to his account
of a young male of an unidentified age, are as follows:
4:22:29 Koran: Hey Jay what you got going on
4:23:44 Jay: nothing at rn u
4:24:38 Koran: Just doing s*** around the house getting ready to
smoke a blunt and take a break.
[4:25:23-4:25:27 Koran sent three sexually explicit photos]
4:25:32 Koran: You looking
4:25:52 Jay: sure
4:26:05 Jay: hot pic
4:26:09 Jay: face tho?
4:26:11 Koran: I’m total top
[4:26:20-4:27:13 Koran sent three photos, one of which is sexually
explicit]
4:27:34 Koran: Definitely got good d*** make you cream hard
4:29:48 Jay: hot af but prob too young for u lolol
4:31:18 Koran: Lol you mean I’m to old for you. Np enjoy, but you
missing good d*** and omg do I eat a**
4:34:07 Jay: nah i trust oldr its cool wit me
4:34:08 Jay: bet
4:36:02 Koran: Well if you get bored look me up
4:39.34 Jay: im bored lol
4:41:29 Koran: Then what you got to loose but your mind. I didn’t even
ask are you a bottom, love taking d***
[4:41:42 Koran sent one sexually explicit photo]
4:42:15 Koran: If you got time I can beat it up good
5:06:39 Jay: ive never done anything tbh
5:26:12 Koran: Fr…maybe it would be helpful to have a daddy help
guide you through this rather than someone in your Peer group. Do
you know what it is you want, are you submissive or dominant? We
need to hangout see if we have a good vibe or not.
5:29:58 Jay: ya i have no idea yet lol stuff sounds hot tho
5:30:03 Jay: im 15 that cool?
5:31:59 Koran: Can I see a couple pics? You are very handsome — FYI
be careful a lot of idiots.
[5:32:12 Jay sent two photos of the young unidentified man. One of
these photos is the same photo as Jay’s user profile]
5:32:50 Koran: Cute boy — do you smoke weed, drink, party
5:34:08 Jay: ya i would fr
5:34:19 Jay: so like whats up
5:34:23 Jay: im home alone
5:34:36 Koran: Where do you stay
5:34:59 Jay: cle by the steelyard u
5:35:06 Jay: steelyard commons i guess
5:36:54 Koran: Ok you only host
5:37:09 Jay: ya since i cant drive
After “Jay” sent the message that he “cant drive” at 5:37 p.m., Koran
and “Jay” exchanged over 60 additional messages prior to Koran’s arrest. According
to Koran’s cell phone records, the messages between him and “Jay” were sent over
a two-hour period from 4:22 p.m. to 6:21 p.m. on August 26, 2020. Prior to 5:30
p.m., Koran was messaging ten other users on Grindr, in addition to one other
person on another social media app. From 5:30 p.m. until 6:07 p.m., Koran was
engaged in a continuous electronic conversation only with “Jay”; he ceased all other
texting conversations.
B. Trial Testimony
1. ICAC Commander David Frattare
David Frattare (“Cmdr. Frattare”) testified that he is the commander
for ICAC. Frattare testified that one type of investigation that ICAC conducts is
“where investigators would pose * * * as minor children * * * in an effort to identify
and then arrest offenders who would travel to a physical location to engage in sexual
activity with those minors.”
According to Cmdr. Frattare, before ICAC targets a particular suspect,
certain “guidelines that were drafted and authored by the U.S. Department of Justice
in concert with the ICAC Task Force program” must be followed. “One, that we don’t
initiate conversations with potential offenders or targets; and number two, we don’t
escalate those conversations only doing so once the offender or the target has
indicated specific things that they’re interested in or specific types of discussions
they would like to engage in.”
We basically have been trained to go out and sit on the internet to wait
for offenders to approach us. A number of these chat rooms, social
networking sites, mobile applications will allow us to create a profile
and then insert ourselves into that app or that site and basically wait to
be contacted by the target or the offender of the investigation.
Cmdr. Frattare further testified that “we always let the target or the
suspect of the investigation bring [the] subject [of sex] up first. * * * We want to
make sure we’re differentiating between individuals who are interested in minor
children as opposed to those who may be online for adults.” Cmdr. Frattare testified
that his investigators “would pull back” on the conversation if the guidelines were
not met. “I look for the mention of the age of the child during the conversation. We
look for the elements as far as what the offender has talked about in terms of the
sexual activity and whether he or she understands why they’re traveling to that
location to meet that child.”
2. ICAC Agent Sergeant Stanley Siedlecki
Sgt. Siedlecki testified that ICAC agents primarily conduct their
investigations on social media apps including Grindr, Tinder, Instagram, and
Facebook. He further testified about the requirements the agents must follow when
engaging in a sting operation:
There are a number of requirements put in by the Department of
Justice. We do not initiate conversations with people online. We wait
for people online to contact us. We do not make any sexual suggestions.
We only agree to them once the topic is brought up by the other person.
***
I am able to ask questions and agree to things that the people that I’m
talking to bring up.
Photos that are used are not of actual children. It has to be a photo of
someone that works in the law enforcement realm with their
permission and understanding of what the photo is going to be used
for.
Sgt. Siedlecki testified that the apps differ as to the requirements to
become a user. For example, Grindr requires people to enter their age to become
users. Sgt. Siedlecki typically enters 18 as the age of his ICAC investigation profiles.
Because people filter the results of the people that they see by the
number of different filters, age being one of them. There’s also height
and weight and ethnicity. All types of different factors that people are
able to filter the results of what they see. So I put my age as the
minimum age that I can put on there on Grinder [sic] is 18.
According to Sgt. Siedlecki, other social media apps do not require
that users enter an age. “It’s about 50/50 between people that don’t have an age out
and people that do display an age.”
Sgt. Siedlecki testified that users can report other users for violating
the app’s requirements:
There are — on Grinder [sic] they give multiple reasons to report. It
can be for underage. It can be for impersonating * * * someone else. It
can be for soliciting sex for money and prostitution. Cyberbullying.
There’s a section for spam if people are just sending out
advertisements. Those are the number of reasons people can be
reported.
Sgt. Siedlecki further explained how some social media users
reported other users for being “underage.”
On most apps, there’s usually a setting that is easily accessible by the
user that would report an underage user. It’s typically — in the apps
that I use, it’s not hard to find. It’s within the home page so to speak.
It’s not a setting that you have to keep clicking and clicking and clicking
to get to. * * * The social media applications that I use, the profiles
typically change very frequently because of people reporting my profile
to the parent company as somebody being underage.
According to Sgt. Siedlecki, Grindr’s messaging format “mimics the
normal text message,” so that each conversation is in its own separate thread. To
toggle from one conversation to another, a user “would have to click a separate
thread and the profile name would change just like it would if you are texting a
person and you are texting a different person * * *.”
Sgt. Siedlecki testified that, as part of operation Moving Target on
August 26, 2020, he was chatting with Koran on Grindr. Koran’s Grindr profile had
no photograph or age associated with it, and according to Sgt. Siedlecki, the
username was “Fill ur GUTS.” Sgt. Siedlecki testified that “Jay’s” profile included a
photo of another ICAC agent when he was 15 years old.
According to Sgt. Siedlecki, he sent Koran “indicator” messages prior
to the message stating that “Jay” was 15 years old, “[b]ecause I am articulating
myself as an unexperienced minor on Grinder [sic].” For example, Sgt. Siedlecki
stated that “Jay” was “prob too young for” Koran, that “Jay” has “never done
anything [to be honest],” and that “Jay” has “no idea yet * * *” if he is dominant or
submissive.
According to Sgt. Siedlecki, “Jay’s” next message stated, “I’m 15. That
cool?” Koran responded as follows: “Can I see a couple of pics? You are very
handsome. FYI, be careful, a lot of idiots.”
In reference to Koran’s response, Sgt. Siedlecki testified that
I interpret that as he read my messages and saw my age. And the
reason I say that is the thousands of conversations I’ve had with people
on apps, including Grinder [sic], when I throw my age out there, 14, 15,
a very common response is, * * * you have to be careful out there, there
are a lot of creeps out there, you shouldn’t be on this app. That’s a very
typical response. So when I received, “FYI, be careful, a lot of idiots,”
based on my experience with the conversations with other people, I
took that as an interpretation of I’m 15, that cool.
After sending the message that “Jay” was 15 years old, Sgt. Siedlecki
sent Koran other messages indicating that “Jay” was a minor, including that “Jay”
“can’t drive” and is “home alone.” Sgt. Siedlecki testified that it was his
“interpretation” and “belief” that Koran saw the message that “Jay” was 15 years old.
3. Secret Service Agent Jeffrey Casey
Jeffrey Casey (“Casey”) testified that he is an agent with the U.S.
Secret Service, and he is a member of ICAC. Typically, his role is to interview the
“child exploitation” suspects. In his career, Casey has interviewed 400-500 such
suspects. “Suspects will oftentimes have a predisposed or rehearsed type reaction
just in case when they show up to meet what they know to be a minor child, they will
have those already in their mind and express those.” Casey testified that “it’s about
50/50” as far as suspects admitting “knowing the age or admit to trying to meet a
child.”
On August 26, 2020, Casey interviewed Koran subsequent to Koran’s
arrest. The interview took place at the police station, which is located approximately
one-quarter mile from the house at which Koran was arrested. Koran agreed to
speak with Casey, who showed Koran a printout of the messages Koran and “Jay”
exchanged that day. Koran acknowledged the authenticity of the conversation with
the exception of one message — the message that “Jay” sent to Koran stating that
“Jay” was 15 years old. According to Casey, Koran “kept saying that he didn’t see it
or something to that effect, he never saw that message or never saw that particular
line.”
Casey testified that Koran first said he did not see that particular
message because “he was busy driving.” At some point during his interview, Koran
also claimed that he did not see that message for the following reasons: “he was not
wearing glasses”; he was chatting with three or four people during the same
timeframe he was chatting with “Jay”; and Grindr is sometimes slow as far as
sending and receiving messages.
4. Kim Koran
Koran testified that he is a gay male who usually meets his partners
through Grindr. Asked if he looks for “people that are underage to have sex with,”
Koran answered, “No, I don’t look for underage people at all. Usually people have
in their profile that they’re looking for a daddy type situation. Generally younger
guys, 25 to 35 years old.” Asked if he was aware of an age requirement to be on
Grindr, Koran stated, “[a]bsolutely. I’ve turned in guys for that before, but they
didn’t look 25. They looked 12 and 13 years old.”
Asked if he ever saw the message stating that “Jay” was 15 years old,
Koran testified as follows: “Absolutely not. If I would have, I would have turned
him in and deleted them in my phone. It’s not my thing. I don’t want a 15-year-old.”
According to Koran the first time he saw that message was “[w]hen they showed it
to me and had me initial. When they were having me initial the texts, I think I might
not have initialed that because I wasn’t going to claim that I saw it because I didn’t
see it.”
Asked if he had “some preplanned reaction of how you were going to
handle being caught with an alleged 15-year-old,” Koran answered, “I couldn’t
preplan something I wasn’t aware of.”
Koran sent a message to “Jay” approximately two minutes after “Jay”
sent “I’m 15, that cool,” stating “FYI be careful a lot of idiots.” According to Koran,
he meant the following by that message:
Well, you can get beat up. You go to meet somebody and they’re not
what they say they are. * * * There’s been a lot of gay bashing, especially
on sites. I know especially on Grinder [sic].
***
The response was only to tell him to be careful. It had nothing to do
with an age disclosure. I didn’t see an age disclosure. That was just
letting him know because he said he’s new. But just general, people
when they end a conversation, they’ll tell you, be safe, be careful, to
remind you that it’s not what it appears to be out there sometimes.
Koran explained the terminology “daddy” and “boy” within the
Grindr culture. “The boy is generally younger, submissive. Generally a passive or
bottom. The daddy is older, dominant, a top. * * * There’s guys on there that are 40
years old that refer to themselves as a boy looking for a daddy.”
Koran testified that on his iPhone, the Grindr messages are “about as
small as a postage stamp.” According to Koran, he typically wears glasses “if I have
something to read.”
Asked if he had “a belief as to the general age” of the person depicted
in “Jay’s” Grindr profile, as well as the second picture of the same person that “Jay”
sent to Koran, Koran responded, “23 to 25, 26. Looked like college age or just out of
college.”
Asked if “Jay’s” message that “he didn’t have a license” was associated
with “Jay’s” age, Koran answered: “That had absolutely no bearing at all. Just
because you don’t have a license or you don’t have a car — I cart around most of my
friends. They don’t have a car.”
Koran testified that he told the law enforcement officers “several
possibilities as to why” he did not see the message about “Jay’s” age, “after I was
asked the same questions ten times.” Koran testified that it might have been because
he was not wearing his glasses; he was driving in “rush hour traffic. It was fivish”;
he was chatting with multiple people at the same time; or there is a lag-time as to
when messages “come through” on Grindr. Asked how he could have missed Jay’s
message that he was 15 years old, Koran stated, “If I’m texting with the other
gentleman, his box is open, not Jay’s at this point. And I wouldn’t see Jay’s until I
opened the box back up. I wouldn’t be aware it was there.”
Koran testified that he has been using Grindr for seven to eight years
and has turned users in to Grindr in the past if he believed they were underage.
“Probably four, maybe five in the whole time I’ve been on there, but I mean, they
look 10, 11 years old.”
Asked if he has “ever actively pursued or looked for a relationship, a
sexual relationship, with somebody under the age of consent,” Koran answered,
“No.”
II. Law and Analysis
Koran assigns two errors for our review, and we address them
together because they are interrelated.
The convictions in this case were obtained against the manifest weight
of the evidence.
There was insufficient evidence to permit the trier of fact to find beyond
a reasonable doubt that Mr. Koran committed the offense of possessing
criminal tools.
A. Standard of Review — Sufficiency and Manifest Weight of the
Evidence
“[A]n appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
mind of defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d
259, 273, 574 N.E.2d 492 (1991). “In essence, sufficiency is a test of adequacy.
Whether the evidence is legally sufficient to sustain a verdict is a question of law.”
State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).
A manifest weight of the evidence challenge “addresses the evidence’s
effect of inducing belief. * * * In other words, a reviewing court asks whose evidence
is more persuasive — the state’s or the defendant’s?” State v. Wilson, 113 Ohio St.3d
382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25. “When a court of appeals reverses a
judgment of a trial court on the basis that the verdict is against the weight of the
evidence, the appellate court sits as the ‘thirteenth juror’ and disagrees with the
factfinder’s resolution of the conflicting testimony.” Thompkins at 387. Reversing
a conviction under a manifest weight theory “should be exercised only in the
exceptional case in which the evidence weighs heavily against the conviction.” State
v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
B. Koran’s Convictions
1. Attempted Unlawful Sexual Conduct with a Minor
Unlawful sexual conduct with a minor is defined in R.C. 2907.04(A)
in part as follows: “No person * * * shall engage in sexual conduct with another * * *
when the offender knows the other person is” 13-15 years old “or the offender is
reckless in that regard.”
Criminal attempt is defined in R.C. 2923.02(A) in part as follows: “No
person, purposely or knowingly, * * * shall engage in conduct that, if successful,
would constitute or result in the offense.”
2. Importuning
Importuning is defined in R.C. 2907.07(D)(2) in part as follows: “No
person shall solicit another by means of a telecommunications device * * * to engage
in sexual activity with the offender when * * * [t]he other person is a law enforcement
officer posing as a person” 13-15 years old, and “the offender believes that the other
person is” 13-15 years old “or is reckless in that regard * * *.”
3. Disseminating Matter Harmful to Juveniles
Disseminating matter harmful to juveniles is defined in
R.C. 2907.31(A)(1) in part as follows: “No person, with knowledge of its character
or content, shall recklessly * * * deliver, furnish, disseminate, [or] provide * * * a law
enforcement officer posing as a juvenile * * * any material * * * that is obscene or
harmful to juveniles * * *.”
4. Possessing Criminal Tools
Possessing criminal tools is defined in R.C. 2923.24(A) in part as
follows: “No person shall possess * * * any substance [or] device * * * with purpose
to use it criminally.”
C. Mens Rea
The mens rea at issue in Koran’s convictions for attempted unlawful
sexual conduct with a minor, importuning, and disseminating matter harmful to
juveniles is knowledge or recklessness.
Pursuant to R.C. 2901.22(B), a
person acts knowingly, regardless of purpose, when the person is aware
that the person’s conduct will probably cause a certain result or will
probably be of a certain nature. A person has knowledge of
circumstances when the person is aware that such circumstances
probably exist. When knowledge of the existence of a particular fact is
an element of an offense, such knowledge is established if a person
subjectively believes that there is a high probability of its existence and
fails to make inquiry or acts with a conscious purpose to avoid learning
the fact.
Pursuant to R.C. 2901.22(C), a
person acts recklessly when, with heedless indifference to the
consequences, the person disregards a substantial and unjustifiable
risk that the person’s conduct is likely to cause a certain result or is
likely to be of a certain nature. A person is reckless with respect to
circumstances when, with heedless indifference to the consequences,
the person disregards a substantial and unjustifiable risk that such
circumstances are likely to exist.
The mens rea at issue in Koran’s possessing criminal tools conviction
is purposeful. Pursuant to R.C. 2901.22(A), a
person acts purposely when it is the person’s specific intention to cause
a certain result, or, when the gist of the offense is a prohibition against
conduct of a certain nature, regardless of what the offender intends to
accomplish thereby, it is the offender’s specific intention to engage in
conduct of that nature.
D. Analysis
The gist of Koran’s argument on appeal in his first assignment of error
is that his convictions are against the weight of the evidence because of “his sworn
testimony that he simply did not see the one and only text message sent by ‘Jay’
concerning his claimed age.” Additionally, in his second assignment of error, Koran
argues that there was insufficient “evidence adduced at trial * * * to prove beyond a
reasonable doubt that [he] possessed an iPhone and some ‘plant-like material’ with
the purpose to use it criminally, and whether these items were intended for use in
the commission of a felony.”1
The crux of the case at hand is whether Koran knew, or acted
recklessly in that regard, that “Jay” was allegedly 15 years old. The state put forth
evidence showing that “Jay” sent Koran a message that “Jay” was 15 years old.
Koran does not dispute this. Rather, Koran argues that he did not see the message
and, therefore, had no knowledge of “Jay’s” purported age and did not act recklessly
in that regard.
Whether Koran knew or acted recklessly turns on the credibility of the
witnesses and evidence presented at the bench trial. Ohio courts have uniformly
held that “the weight to be given the evidence and the credibility of the witnesses are
1 According to Koran’s indictment, he was charged with possessing criminal tools,
“to wit: cell phones and equipment * * *.” Koran was not charged with possessing “plant-
like material” with the purpose to use it criminally.
primarily for the trier of the facts.” State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d
212 (1967). The factfinder “is in the best position to observe the witnesses’
demeanor, voice inflection, and mannerisms, in order to determine the credibility
of each witness.” State v. Dowd, 8th Dist. Cuyahoga No. 80990, 2002-Ohio-7061,
¶ 23. “Furthermore, a trier of fact is free to believe all, some, or none of the testimony
of each witness appearing before it.” State v. Williams, 2019-Ohio-794, 132
N.E.3d. 1233,¶ 28 (8th Dist.).
Having reviewed the record in the case at hand, we cannot say that
the trial court, acting as the factfinder, lost its way by convicting Koran of the
offenses with which he was charged. The trial court heard the state’s evidence, as
well as the state’s position that Koran knew “Jay’s” age or acted recklessly in that
regard. The trial court also heard Koran’s testimony that he did not know “Jay’s”
age, because he did not see the message at issue, and Koran’s explanation of why he
may not have seen this message. This is not the exceptional case, which creates
“such a manifest miscarriage of justice that the conviction must be reversed and a
new trial ordered.” Thompkins, 78 Ohio St.3d at 547, 678 N.E.2d 541.
As to the possessing criminal tools conviction, we likewise find that
the state presented legally sufficient evidence to sustain a guilty verdict. It is
undisputed that Koran used his iPhone to engage in criminal conduct by exchanging
messages that were sexual in nature with an undercover law enforcement agent
purporting to be 15 years old. What Koran disputed was whether he did so
purposefully. The evidence admitted at trial included the message “Jay” sent to
Koran that “Jay” was 15 years old, in addition to the “indicator” messages signaling
“Jay’s” youth. This evidence, if believed, is sufficient to convince the average mind
that Koran purposely used his phone to engage in criminal conduct.
Accordingly, Koran’s first and second assignments of error are
overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending is terminated. Case remanded to
the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
LISA B. FORBES, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
EILEEN A. GALLAGHER, J., CONCUR