People v. Davis , 2017 Colo. App. LEXIS 391 ( 2017 )

COLORADO COURT OF APPEALS 2017COA40
Court of Appeals No. 14CA0842
Mesa County District Court No. 13CR443
Honorable Valerie J. Robison, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Kelly Gene Davis,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division II
Opinion by JUDGE J. JONES
Dailey and Berger, JJ., concur
Announced April 6, 2017
Cynthia H. Coffman, Attorney General, Brock J. Swanson, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Anne Stockham, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Kelly Gene Davis, appeals the judgment of
conviction entered on a jury verdict finding him guilty of conspiracy
to distribute a schedule II controlled substance and court verdicts
finding him guilty on several habitual criminal charges. His
primary contention on appeal is that the People were required to
prove, and the jury was required to find, that he committed a
particular overt act in furtherance of the alleged conspiracy. We
hold, however, that where the People properly charge a single
conspiracy, they are required to prove only that the defendant
committed an overt act in furtherance of the conspiracy; that is, the
jury must agree unanimously that the defendant committed such
an overt act, but it need not agree unanimously that the defendant
committed a particular overt act. It follows that the district court
did not err in failing to require the prosecution to elect a particular
overt act on which it was relying to prove the charge or in failing to
give the jury a special unanimity instruction. Because we also
reject defendant’s other contentions of error, we affirm the
judgment of conviction.
1
I. Background
¶2 In January 2013, the Grand Junction Police Department and
a Drug Enforcement Agency Taskforce began investigating the
activities of Leonel Gonzalez-Gonzalez. The investigation entailed
wiretapping several of Mr. Gonzalez-Gonzalez’s telephones from
February 2013 through April 2013. Police recorded several
telephone calls between him and defendant during that time.
¶3 As a result of the investigation, the People charged defendant
with one count of conspiracy to distribute a schedule II controlled
substance (methamphetamine) and several habitual criminal
counts.
¶4 At trial, Deziree Fisher, a named co-conspirator, testified to
participating in and witnessing drug transactions involving
defendant. She said that she provided defendant with drugs, which
he would then sell, using the money he made to pay her back. Ms.
Fisher also said that she had been convicted of intent to distribute
a controlled substance for her role in drug sales involving defendant
and other co-conspirators, and that she was testifying in the hope
of receiving a sentence reduction.
2
¶5 Terry Lawrence testified that he was present in January or
February 2013 when Mr. Gonzalez-Gonzalez and his associate
delivered an ounce or more of methamphetamine to defendant and
collected money from him. At the time of the trial, Mr. Lawrence
had been charged with racketeering and conspiracy to distribute
drugs. He testified that he had not yet been convicted or entered
into a plea agreement, and that he was testifying in the hope of
receiving a favorable plea offer.
¶6 Detective Jason Sawyer testified that in phone calls recorded
in February through April 2013, Mr. Gonzalez-Gonzalez agreed to
supply defendant with methamphetamine to sell. He also testified
that a series of recorded calls from April 1, 2013, showed Mr.
Gonzalez-Gonzalez and defendant planning to rent a car to use to
pick up drugs. Police officers watched the car rental franchise
where the two had arranged to meet and identified one of the people
who arrived at the meeting as defendant.
¶7 A jury convicted defendant of the conspiracy charge, and the
district court, after finding that defendant was a habitual criminal,
sentenced him to forty-eight years in the custody of the Department
of Corrections.
3
II. Discussion
¶8 Defendant contends that the district court erred in (1) not (a)
requiring the prosecution to elect the overt act on which it was
relying to prove the conspiracy charge or (b) giving the jury a
special, modified unanimity instruction regarding the particular
overt act; (2) not providing a limiting instruction to preclude the
jury from considering witnesses’ guilty pleas or desires to plead
guilty as evidence of his guilt; and (3) imposing an aggravated
sentence based on its own findings of prior criminality. We address
and reject each contention in turn.
A. Unanimity
1. Preservation and Standard of Review
¶9 The parties agree that this issue was not preserved: defense
counsel never requested that the prosecution elect a particular
overt act, nor did counsel request a special unanimity instruction.
Because of this, the People argue that defendant waived his
contention. That is so, they say, because defendant didn’t make a
multiplicity challenge under Crim. P. 12(b).1 But the supreme court
1The Double Jeopardy Clauses of the United States and Colorado
Constitutions protect “against multiple punishments for the same
4
recently rejected this argument in People v. Zadra, 2017 CO 18,
¶ 17, and Reyna-Abarca v. People, 2017 CO 15, ¶¶ 38-45.
¶ 10 Reviewing defendant’s contention requires us to determine
whether the court erred and, if so, whether the error requires
reversal.
¶ 11 Determining whether to require the prosecution to elect a
particular act on which it is relying to prove a charge involves an
exercise of the district court’s discretion, see Thomas v. People, 803
P.2d 144, 154 (Colo. 1990), as does determining whether to give a
particular jury instruction, People v. Marks, 2015 COA 173, ¶ 53.
offense.” Woellhaf v. People, 105 P.3d 209, 214 (Colo. 2005)
(quoting Whalen v. United States, 445 U.S. 684, 688 (1980)).
“Multiplicity” — the charging of multiple counts and the imposition
of multiple punishments for the same offense — is a way of running
afoul of this prohibition. See Quintano v. People, 105 P.3d 585, 589
(Colo. 2005); Woellhaf, 105 P.3d at 214. Crim. P. 12(b)(2) provides,
in relevant part, as follows:
Defenses and objections based on defects in
the institution of the prosecution or in the
indictment or information or complaint, or
summons and complaint, other than that it
fails to show jurisdiction in the court or to
charge an offense, may be raised only by
motion. . . . Failure to present any such
defense or objection constitutes a waiver of it,
but the court for cause shown may grant relief
from the waiver.
5
So in reviewing both decisions for error, we must decide whether
the district court abused its discretion.
¶ 12 But where the court did not have the opportunity to exercise
discretion because the defendant did not move for an election or
request the instruction now claimed to have been required, how can
we even determine whether the court abused its discretion? We can
do so by framing the inquiry in a slightly different way: had the
defendant timely moved for an election or asked for the instruction,
would the court have abused its discretion in refusing either of
those requests?
¶ 13 If, in this case, we answer that question “yes” with respect to
either requiring an election or instruction, because defendant did
not timely move for an election or ask for an instruction, we must
then determine whether the error was plain. Under that standard,
we will reverse only if the error is obvious and so undermined the
fundamental fairness of the trial as to cast serious doubt on the
reliability of the judgment of conviction. People v. Miller, 113 P.3d
743, 750 (Colo. 2005).
6
2. Analysis
¶ 14 In Colorado, jury verdicts in criminal cases must be
unanimous. § 16-10-108, C.R.S. 2016; Crim. P. 23(a)(8), 31(a)(3);
People v. Durre, 690 P.2d 165, 173 (Colo. 1984). To ensure jury
unanimity, when the prosecution offers “evidence of multiple acts,
any one of which would constitute the offense charged, the People
may be compelled to elect the acts or series of acts on which they
rely for a conviction.” Melina v. People, 161 P.3d 635, 639 (Colo.
2007) (citing Laycock v. People, 66 Colo. 441, 182 P. 880 (1919)).
But when the People charge a defendant with crimes occurring in a
single transaction, they do not have to elect among the acts that
constitute the crime, and a special unanimity instruction — that is,
one telling the jury that it must agree unanimously as to the act
proving each element — need not be given. Id. at 639-42. The first
issue before us, then, is what constitutes a single transaction in the
context of a conspiracy charge.
¶ 15 The General Assembly’s enactments necessarily inform our
inquiry. Section 18-2-204(1), C.R.S. 2016, provides that
“[c]onspiracy is a continuing course of conduct which terminates
when the crime or crimes which are its object are committed.”
7
(Emphasis added.) Another statute also specifies that “[i]f a person
conspires to commit a number of crimes, he is guilty of only one
conspiracy so long as such multiple crimes are part of a single
criminal episode.” § 18-2-201(4), C.R.S. 2016. Read together, the
applicable statutes make clear that a defendant can participate in a
number of crimes or events to accomplish a single conspiracy. Put
another way, committing a number of crimes, or engaging in a
number of noncriminal overt acts, does not necessarily mean there
is more than one conspiracy.
¶ 16 Accordingly, we must determine how broadly the prosecution
may define a conspiracy without the charge encompassing multiple
criminal episodes, consequently requiring either an election or a
special unanimity instruction.
¶ 17 We begin with the principle that a single conspiratorial
agreement may not be divided into multiple charges. E.g., United
States v. Papa, 533 F.2d 815, 820 (2d Cir. 1976); United States v.
Young, 503 F.2d 1072, 1075 (3d Cir. 1974); United States v.
Palermo, 410 F.2d 468, 470 (7th Cir. 1969). The Supreme Court
explained this principle in Braverman v. United States, 317 U.S. 49,
53-54 (1942):
8
Whether the object of a single agreement is to
commit one or many crimes, it is in either case
that agreement which constitutes the
conspiracy which the statute punishes. The
one agreement cannot be taken to be several
agreements and hence several conspiracies
because it envisages the violation of several
statutes rather than one.
. . . Since the single continuing agreement,
which is the conspiracy here, thus embraces
its criminal objects, it differs from successive
acts which violate a single penal statute and
from a single act which violates two statutes.
See also Model Penal Code § 5.03(3) (Am. Law Inst. 1985) (“If a
person conspires to commit a number of crimes, he is guilty of only
one conspiracy so long as such multiple crimes are the object of the
same agreement or continuous conspiratorial relationship.”). As
the above-quoted statutes indicate, Colorado has adopted this
approach as it pertains to conspiracy charges. See also People v.
Brown, 185 Colo. 272, 277, 523 P.2d 986, 989 (1974) (noting that
Colorado has adopted the above-quoted language from Braverman),
overruled on other grounds by Villafranca v. People, 194 Colo. 472,
573 P.2d 540 (1978); People v. Bradley, 169 Colo. 262, 265-66, 455
P.2d 199, 200 (1969) (adopting the above-quoted language from
Braverman).
9
¶ 18 The supreme court has indicated that the following factors
tend to show a single criminal episode: the acts alleged occurred
during the same period, the type of overt act alleged is the same,
the unlawful objective of the conspiracy is the same, the modus
operandi is the same, and the same evidence would be relevant to
the charges. Pinelli v. Dist. Court, 197 Colo. 555, 558, 595 P.2d
225, 227 (1979). Conversely, factors that may suggest that the
People have charged multiple criminal episodes are that the
defendant is “charged with conspiring (1) with different parties; (2)
in different counties; (3) in different agreements; and [4] with
allegations of different overt acts.” Id.¶ 19 Federal courts employ a similar multi-factor test to determine
whether there was only one agreement, and thus only one
conspiracy. See, e.g., United States v. Rigas, 605 F.3d 194, 213 (3d
Cir. 2010) (en banc) (considering whether the locations of the
alleged conspiracies were the same; whether there was a significant
degree of temporal overlap between the conspiracies charged;
whether there was an overlap of personnel between the conspiracies
(including unindicted as well as indicted co-conspirators); the
10
nature of the overt acts charged; and whether the role played by the
defendant was similar).
¶ 20 Applying the relevant factors, we conclude that the evidence
presented in this case shows one criminal episode, and hence one
conspiracy. First, the actions occurred in a relatively short time
frame — from February 21, 2013, to April 8, 2013 — and in one
county. Cf. People v. Rivera, 56 P.3d 1155, 1160 (Colo. App. 2002)
(noting the two-year period over which the alleged crimes occurred
as one factor showing multiple conspiracies). Second, evidence of
defendant’s phone conversations with one person (Mr. Gonzalez-
Gonzalez) primarily established the conspiracy.2 Third, all the overt
acts on which the jury could have relied — defendant ordering
drugs from Mr. Gonzalez-Gonzalez, accepting drugs from Ms. Fisher
and Mr. Gonzalez-Gonzalez, and showing up to the car rental
franchise at Mr. Gonzalez-Gonzalez’s request — were done in
furtherance of the same unlawful objective — to distribute one type
2 Ms. Fisher testified that in January or February 2013, Mr.
Gonzalez-Gonzalez supplied drugs to someone who then sold them
to her. She sold those drugs to defendant, who then sold them to
others. She stopped selling drugs to defendant after about a month
and a half, after which Mr. Gonzalez-Gonzalez supplied defendant
directly.
11
of drug supplied by one co-conspirator. Though some of these acts
were not crimes,3 they were all a part of a single course of conduct
in which Mr. Gonzalez-Gonzalez would regularly supply
methamphetamine to defendant to sell. A single crime of
conspiracy can be defined this broadly. See Commonwealth v.
Albert, 745 N.E.2d 990, 997 (Mass. App. Ct. 2001) (“No unanimity
instruction was required because a conspiracy refers to a
continuing course of conduct, rather than a succession of clearly
detached incidents.”). And given the nature and limited scope of
defendant’s arrangement with Mr. Gonzalez-Gonzalez, it is clear
that “[n]o danger exists that some jurors would think [defendant]
was guilty of one conspiracy and others would think []he was guilty
of a different one.” People v. Russo, 25 P.3d 641, 647-48 (Cal.
2001).
¶ 21 Though the prosecution alleged numerous overt acts in
furtherance of the single conspiracy, that did not require
unanimous agreement by the jurors as to the precise overt act
defendant committed. This is so because the Colorado Supreme
3See Braverman v. United States, 317 U.S. 49, 53 (1942) (“The overt
act . . . need not be itself a crime.”).
12
Court has held that “unanimity is required only with respect to the
ultimate issue of the defendant’s guilt or innocence of the crime
charged and not with respect to alternative means by which the
crime was committed.” People v. Taggart, 621 P.2d 1375, 1387 n.5
(Colo. 1981). Indeed, it has long been established that a jury need
not unanimously decide “which of several possible sets of
underlying brute facts make up a particular element,” or “which of
several possible means the defendant used to commit an element of
the crime.” Richardson v. United States, 526 U.S. 813, 817 (1999);
see also Schad v. Arizona, 501 U.S. 624, 631 (1991) (plurality
opinion) (“[A]n indictment need not specify which overt act, among
several named, was the means by which a crime was committed.”);
United States v. Griggs, 569 F.3d 341, 343 (7th Cir. 2009) (“The law
distinguishes between the elements of a crime, as to which the jury
must be unanimous, and the means by which the crime is
committed.”) (jury not required to agree unanimously on particular
overt act taken in support of conspiracy).
¶ 22 In United States v. Gonzalez, 786 F.3d 714, 718 (9th Cir.
2015), the Ninth Circuit, addressing the overt act element of
conspiracy specifically, reasoned as follows:
13
To be sure, because the instruction for the
overt-act element requires the jury to find
merely “[a]n overt act” committed by a person
who has agreed and intended to commit a
particular murder, it is possible that, although
the jury unanimously agreed that an overt act
was taken with respect to the unanimously
agreed-upon murder conspiracy, different
jurors may have concluded that different
particular overt acts satisfied this element.
Even if this occurred, however, [the
defendant’s] right to a unanimous jury verdict
was not violated because, so long as the jurors
unanimously agreed that the overt-act element
was satisfied, it was not necessary for them to
agree on which overt act satisfied this element.
¶ 23 Courts in other jurisdictions have also applied this principle to
the overt act requirement of conspiracy charges. The California
Supreme Court, for example, has explained that the element of an
overt act “consists of an overt act, not a specific overt act.” Russo,
25 P.3d at 647; see also United States v. Kozeny, 667 F.3d 122, 132
(2d Cir. 2011) (“[W]hich overt act among multiple such acts
supports a proof of a conspiracy conviction is a brute fact and not
itself an element of the crime.”); Griggs, 569 F.3d at 343; State v.
Ayala-Leyva, 848 N.W.2d 546, 553-54 (Minn. Ct. App. 2014) (the
jury was not required to unanimously agree on which of twenty
overt acts had been committed in furtherance of drug conspiracy;
14
distinguishing between unanimity on the elements of a crime and
unanimity as to the facts establishing each element of a crime).
Colorado’s statute criminalizing conspiracy reflects this approach.
§ 18-2-201(2) (“No person may be convicted of conspiracy to commit
a crime, unless an overt act in pursuance of that conspiracy is
proved . . . .”) (emphasis added).
¶ 24 In sum, courts agree that “a special unanimity instruction is
not necessary where an indictment charges a single conspiracy
because ‘the crux of a conspiracy charge . . . [is] [t]he defendant’s
voluntary agreement with another or others to commit an offense.’”
United States v. Dvorin, 817 F.3d 438, 447 (5th Cir. 2016)
(alterations in original) (quoting United States v. Dillman, 15 F.3d
384, 391 (5th Cir. 1994)); see also United States v. Cromer, 436 F.
App’x 490, 493 (6th Cir. 2011) (“[T]he jury need only unanimously
decide that there was an agreement to violate drug laws . . . .”).
¶ 25 People v. Rivera, on which defendant relies, is distinguishable.
In that case, the prosecution presented evidence of securities
transactions “involving at least twenty-five investors, concerning
two proposed daycare facilities in different cities, and spanning a
two-year period.” 56 P.3d at 1160. Further, there was substantial
15
variety in the defendant’s involvement in the various acts:
“Defendant took part in soliciting some investors, but not others,
and as to at least one transaction there was no evidence that she
had any direct contact with the investor.” Id. The division therefore
concluded that “[u]nder these circumstances, there is a reasonable
likelihood that the jury could have disagreed concerning the act or
acts defendant committed.” Id. In essence, there were multiple
conspiracies.
¶ 26 As discussed above, the conspiracy in this case occurred over
only a few months in one county. There is also a uniformity of
defendant’s involvement in the acts that was lacking in Rivera —
defendant was convicted based on ongoing phone calls and
transactions with one person ordering methamphetamine in similar
quantities. See United States v. Sutherland, 656 F.2d 1181, 1202
(5th Cir. 1981) (“[T]he evidence as to each [of the overt acts] is
remarkably similar. Therefore this series of alleged acts comprises
one ‘conceptual group’ and the jury need not have unanimously
agreed as to which was proven.”).
¶ 27 We therefore conclude that the People charged only one
criminal episode. It follows that the district court did not err, much
16
less plainly err, in failing to require an election or to give the jury a
special unanimity instruction.4
B. Limiting Instruction
¶ 28 We also reject defendant’s contention that the district court
erred by failing to provide a limiting instruction telling the jurors
they could not consider Ms. Fisher’s guilty plea and Mr. Lawrence’s
desire to receive a favorable plea offer as evidence of defendant’s
guilt.
¶ 29 Because defendant did not request a limiting instruction, we
review for plain error. People v. Griffin, 224 P.3d 292, 298 (Colo.
App. 2009).
4 Given the abundance of authority holding that no special
instruction is required in comparable circumstances, any error was
certainly not “so clear cut and so obvious that a trial judge should
have been able to avoid it without benefit of the objection.” People
v. Conyac, 2014 COA 8M, ¶ 54. “Generally, an error is obvious
when the action challenged on appeal contravenes (1) a clear
statutory command; (2) a well-settled legal principle; or (3) Colorado
case law.” People v. Dinapoli, 2015 COA 9, ¶ 30; accord People v.
Pollard, 2013 COA 31M, ¶ 40; see also People v. Valdez, 2014 COA
125, ¶ 27 (where case law on an issue is unsettled, an error is not
obvious); Dougherty v. State, 21 A.3d 1, 6-7 (Del. 2011) (“Several
state and federal courts have concluded that a trial judge does not
commit plain error where defense counsel fails to request, and the
trial judge does not give sua sponte, a specific unanimity
instruction on the overt act requirement of a conspiracy count.”).
17
¶ 30 Pursuant to CRE 105, where there is evidence that is
admissible for one purpose but not for another, “the court, upon
request, shall restrict the evidence to its proper scope and instruct
the jury accordingly.” And, “[a]s a general rule, defense counsel is
charged with the task of deciding whether a limiting instruction is
desirable,” Griffin, 224 P.3d at 298, because “for strategic or tactical
reasons, [defense counsel] may consider that such an instruction
would be more harmful than beneficial.” People v. Gladney, 194
Colo. 68, 72, 570 P.2d 231, 234 (1977) (A limiting instruction
“might tend to draw special attention to the evidence, thus giving it
greater emphasis and jury impact than it would have had if left
alone.”).
¶ 31 Thus, absent a special statutory duty, a trial court has no
duty to give a limiting instruction sua sponte. See, e.g., Davis v.
People, 2013 CO 57, ¶ 21 (“Unless a limiting instruction is either
required by statute or requested by a party, a trial court has no
duty to provide one sua sponte.”). Defendant does not point to any
such statutory duty applicable in this case.
¶ 32 Defendant’s reliance on People v. Brunner, 797 P.2d 788, 789
(Colo. App. 1990), is misplaced. In that case, the division held that
18
a trial court “should normally instruct the jury that [an
accomplice’s guilty plea] may be used only for limited purposes and
may not be used as substantive evidence of another’s guilt.” Id.But in this case, because defense counsel failed to request such an
instruction, “appellate review is limited to determining whether
plain error occurred.” People v. Shepherd, 43 P.3d 693, 696 (Colo.
App. 2001). And numerous cases hold that a trial court’s failure to
give a limiting instruction sua sponte does not constitute plain
error. See, e.g., People v. Montalvo-Lopez, 215 P.3d 1139, 1145
(Colo. App. 2008) (failure to request a limiting instruction on how
the jury should consider an accomplice’s guilty plea did not place a
duty on the trial court to give one sua sponte). None of the cases
defendant cites says otherwise.
¶ 33 Further, there was no obvious error. The testimony was
relevant for two reasons. First, it allowed the People to “blunt an
expected attack on the credibility of the accomplice as a witness.”
Brunner, 797 P.2d at 789. Second, it “show[ed] acknowledgement
by the accomplice of participation in the offense,” id., which is
particularly relevant in establishing a conspiracy. And defendant
19
took strategic advantage of the witnesses’ plea and potential plea,
using the testimony to undermine their credibility.
¶ 34 Given all this, the district court “did not commit the kind of
obvious error that may lead to reversal under the plain error
doctrine.” Griffin, 224 P.3d at 299; see also People v. Pollard, 2013
COA 31M, ¶ 40 (for an error to be obvious, it must contravene a
clear statutory command, a well-settled legal principle, or Colorado
case law).
C. Judicial Determination of Habitual Criminality
¶ 35 Lastly, defendant contends that his rights to a trial by a jury
and to due process of law were violated when the judge, instead of a
jury, found that he had been convicted of three prior felonies.
¶ 36 As the law stands today, “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt.” Apprendi v. New Jersey,
530 U.S. 466, 490 (2000) (emphasis added); see also Blakely v.
Washington, 542 U.S. 296, 301 (2004) (applying this rule). The
Colorado Supreme Court, in applying this rule, has held that the
fact of a prior conviction, called a “Blakely-exempt” fact, “is
20
expressly excepted from the jury trial requirement” for aggravated
sentencing. Lopez v. People, 113 P.3d 713, 723 (Colo. 2005); see
also People v. Huber, 139 P.3d 628, 630 (Colo. 2006). The court has
said that, “[a]lthough there is some doubt about the continued
vitality of the prior conviction exception, we conclude that it
remains valid after Blakely.” Lopez, 113 P.3d at 723 (footnote
omitted); see also Huber, 139 P.3d at 631.
¶ 37 Defendant argues that Lopez was wrongly decided or that
developments after Lopez indicate that the “prior conviction
exception” is no longer valid. Specifically, he asserts that, “[w]hile it
has not been expressly overruled,” the case from which the prior
conviction exception arose — Almendarez-Torres v. United States,
523 U.S. 224 (1998) — has been called into question and will be
overturned by the United States Supreme Court when the
opportunity arises. See Apprendi, 530 U.S. at 488-90; Misenhelter
v. People, 234 P.3d 657, 660 (Colo. 2010).
¶ 38 But because the Supreme Court has not overruled the prior
conviction exception recognized in Apprendi and Blakely, those
authorities continue to control our resolution of defendant’s
argument. See People v. Hopkins, 2013 COA 74, ¶ 25; see also
21
People v. Gladney, 250 P.3d 762, 768 n.3 (Colo. App. 2010) (“[W]e
are bound to follow supreme court precedent.”). “We do not have
the power to ignore those precedents based on speculation of how
the Court might rule in a future case.” Hopkins, ¶ 25. Therefore,
defendant’s argument fails.
III. Conclusion
¶ 39 The judgment is affirmed.
JUDGE DAILEY and JUDGE BERGER concur.
22