State v. Benjamin Jerome Blake ( 2024 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
v.
Benjamin Jerome Blake, Appellant.
Appellate Case No. 2018-001943
Appeal From Hampton County
Kristi F. Curtis, Circuit Court Judge
Opinion No. 6045
Heard December 7, 2021 – Filed January 17, 2024
AFFIRMED
Appellate Defender Kathrine Haggard Hudgins, of
Columbia, for Appellant.
Attorney General Alan McCrory Wilson and Assistant
Attorney General Ambree Michele Muller, both of
Columbia; and Isaac McDuffie Stone, III, of Bluffton, for
Respondent.
MCDONALD, J.: Benjamin Jerome Blake appeals his convictions for attempted
murder, assault and battery of a high and aggravated nature (ABHAN), and
possession of a weapon during the commission of a violent crime, arguing the
circuit court erred in allowing the State to question him about an unrelated prior
bad act and in failing to conduct a proper Batson 1 analysis. We affirm.
Facts and Procedural History
On November 7, 2015, Blake shot at Jeantaviene "Chabby" Dobson but missed.
The errant shot struck Dobson's pregnant sister, Tiffany Lakes. A Hampton
County Grand Jury indicted Blake for three counts of attempted murder and
possession of a weapon during the commission of a violent crime. At Blake's
subsequent jury trial, Blake and three family witnesses testified Blake was at the
hospital on the morning of November 7 and later at his mother's house recovering
from a sickle cell episode on the night of the shooting.2 The jury rejected this alibi
testimony and found Blake guilty of attempted murder as to Dobson and guilty of
the lesser included offense of ABHAN as to Lakes and her unborn child. Blake
was also convicted on the accompanying weapons possession charge. The circuit
court sentenced Blake concurrently to fifteen years for attempted murder, fifteen
years on the two ABHAN counts, and five years on the weapons charge.
Analysis
I. Batson Challenge
Blake argues the circuit court erred in in failing to conduct the third step of the
Batson analysis when considering the State's explanations for using four of its five
peremptory challenges to strike black jurors. Blake contends the State's reasons for
the strikes were pretextual and asserts at least one of the strikes amounted to
purposeful racial discrimination. We find no abuse of discretion.
"The trial court's findings regarding purposeful discrimination are accorded great
deference and will be set aside on appeal only if clearly erroneous." State v.
Weatherall, 431 S.C. 485, 493, 848 S.E.2d 338, 343 (Ct. App. 2020) (quoting State
v. Blackwell, 420 S.C. 127, 148, 801 S.E.2d 713, 724 (2017)). "This standard of
1
Batson v. Kentucky, 476 U.S. 79, 92–95 (1986) (holding racial discrimination in
jury selection violates the Equal Protection Clause of the Fourteenth Amendment
and outlining the process for a challenge).
2
Although Blake testified he had medical records to prove he was at the hospital
with a sickle cell crisis on the day of the shooting, he did not provide any such
records to his attorney and claimed he was unaware that he needed them for court.
review, however, is premised on the trial court following the mandated procedure
for a Batson hearing." State v. Cochran, 369 S.C. 308, 312, 631 S.E.2d 294, 297
(Ct. App. 2006). "[W]here the assignment of error is the failure to follow the
Batson hearing procedure, we must answer a question of law." Id. "When a
question of law is presented, our standard of review is plenary." Id. at 312–13, 631
S.E.2d at 297.
"Other than voting, serving on a jury is the most substantial opportunity that most
citizens have to participate in the democratic process." Flowers v. Mississippi, 139
S. Ct. 2228, 2238 (2019). In Batson, the United States Supreme Court found the
Equal Protection Clause of the Fourteenth Amendment prohibits the prosecution
from striking potential jurors on the basis of race. 476 U.S. at 89; see also State v.
Shuler, 344 S.C. 604, 615, 545 S.E.2d 805, 810 (2001) ("The Equal Protection
Clause of the Fourteenth Amendment to the United States Constitution prohibits
the striking of a venire person on the basis of race or gender."). The Court
subsequently held a criminal defendant may not exercise peremptory strikes in a
racially discriminatory manner, explaining that "denying a person participation in
jury service on account of his race unconstitutionally discriminates against the
excluded juror." Georgia v. McCollum, 505 U.S. 42, 48 (1992). And, in J.E.B. v.
Alabama ex rel. T.B., the Court held litigants may not strike potential jurors solely
on the basis of gender. 511 U.S. 127, 143 (1994). The Court found,
"Discrimination in jury selection, whether based on race or on gender, causes harm
to the litigants, the community, and the individual jurors who are wrongfully
excluded from participation in the judicial process." Id. at 140. "The 'Constitution
forbids striking even a single prospective juror for a discriminatory purpose.'"
Foster v. Chatman, 578 U.S. 488, 499, (2016) (quoting Snyder v. Louisiana, 552
U.S. 472, 478, (2008)).
Trial courts conduct a three-step inquiry when evaluating "whether a party
executed a peremptory challenge in a manner which violated the Equal Protection
Clause." State v. Inman, 409 S.C. 19, 26, 760 S.E.2d 105, 108 (2014). Our
supreme court summarized the inquiry in State v. Giles:
First, the opponent of the peremptory challenge must
make a prima facie showing that the challenge was based
on race. If a sufficient showing is made, the trial court
will move to the second step in the process, which
requires the proponent of the challenge to provide a race
neutral explanation for the challenge. If the trial court
finds that burden has been met, the process will proceed
to the third step, at which point the trial court must
determine whether the opponent of the challenge has
proved purposeful discrimination. The ultimate burden
always rests with the opponent of the challenge to prove
purposeful discrimination.
407 S.C. 14, 18, 754 S.E.2d 261, 263 (2014).
"Under Batson, once a prima facie case of discrimination has been shown by a
defendant, the State must provide race-neutral reasons for its peremptory strikes.
The trial judge must determine whether the prosecutor's stated reasons were the
actual reasons or instead were a pretext for discrimination." Flowers, 139 S. Ct. at
2241; see also State v. Cochran, 369 S.C. at 314, 631 S.E.2d at 297–98 ("Once a
peremptory challenge is opposed, the trial court must, upon request, conduct a
Batson hearing and adhere to the procedures set forth in Purkett v. Elem, 514 U.S.
765, 767 (1995), and adopted by our Supreme Court in State v. Adams, 322 S.C.
114, 124, 470 S.E.2d 366, 372 (1996))."
Our supreme court has further explained:
We likewise find, based on a harmonization of Batson,
Purkett and Miller-El,[3] that in order for the explanation
provided by the proponent of a peremptory challenge at
the second stage of the Batson process to be legally
sufficient and not deny the opponent of the challenge, as
well as the trial court, the ability to safeguard the right to
equal protection, it need not be persuasive, or even
plausible, but it must be clear and reasonably specific
such that the opponent of the challenge has a full and fair
opportunity to demonstrate pretext in the reason given
and the trial court to fulfill its duty to assess the
plausibility of the reason in light of all the evidence with
a bearing on it. Reasonable specificity is necessary
because comparison to other members of the venire for
purposes of a disparate treatment analysis, which is often
used at the third step of the Batson process to determine
if purposeful discrimination has occurred, is impossible if
the proponent of the challenge provides only a vague or
3
Miller-El v. Dretke, 545 U.S. 231 (2005).
very general explanation. The explanation given may in
fact be implausible or fantastic, as noted in Purkett, but it
may not be so general or vague that it deprives the
opponent of the challenge of the ability to meet the
burden to show, or the trial court of the ability to
determine whether, the reason given is pretextual. The
proponent of the challenge must provide an objectively
discernible basis for the challenge that permits the
opponent of the challenge and the trial court to evaluate
it. The trial judge need not proceed to step three of the
Batson process when no constitutionally permissible
reason has been proffered at step two.
Giles, 407 S.C. at 21–22, 754 S.E.2d at 265.
While "[s]tep two of the analysis is perhaps the easiest step to meet as it does not
require that the race-neutral explanation be persuasive, or even plausible[,]" step
three "requires the court to carefully evaluate whether the party asserting the
Batson challenge has proven racial discrimination by demonstrating that the
proffered race-neutral reasons are mere pretext for a discriminatory intent." Inman,
409 S.C. at 26–27, 760 S.E.2d at 108. "During step three, the party asserting the
Batson challenge should point to direct evidence of racial discrimination, such as
showing that the opponent struck a juror for a facially neutral reason but did not
strike a similarly-situated juror of another race." Id. at 27, 760 S.E.2d at 108–09.
"In doing so, the party proves that the 'originally neutral reason was . . . a pretext
because it was not applied in a neutral manner.'" Id. at 27, 760 S.E.2d at 109(quoting State v. Oglesby, 298 S.C. 279, 281, 379 S.E.2d 891, 892 (1989)).
Here, the State used four of its five peremptory challenges to strike black jurors.
The impaneled jury was composed of six black jurors and six white jurors. At the
conclusion of jury selection, Blake made a Batson motion noting, "The State struck
all black jurors, Your Honor. My client is a black male, I think that is [a] due
process violation, Your Honor, and I would ask that you elicit race neutral reasons
for that being done."
When the circuit court addressed the State, the assistant solicitor responded:
Thank you, Your Honor. I did also seat a number of
black jurors, both male and female. The first black juror
that I struck[,] number 18, he was a black male. He had a
history of traffic charges, i.e., not following the rules and
he seemed a little jokey and laughey during
qualifications. The second person that I struck was
number 73, a black female, college student. I do not
have a good experience with college students. Those
jurors, I find them a little young and liberal and she was
also very attractive, batting her eyelashes. And I thought
perhaps she would take pity on the Defendant. Again,
the next strike was juror 130, black female, also a college
student. Again, I find college students to be liberal, I
have not had a good experience with them on [juries].
And then finally number 4, number 164, a black female.
I was informed that she actually knows a number of
people in the Fairwood Apartments which is the incident
location. I don't know what she has heard on the street, it
has been three years, the streets talk. And that could
swing either way but I just, just looking for a fair trial[,] I
struck her.
In response, Blake asserted:
Yes, Your Honor. Number 18 is 31-years-old, Judge.
The fact that he is jokey and laughey, I just don't see that
[as] a race neutral reason. He was no more social or less
social. You had a chance to observe the jurors during
voir dire as the Defense and the State did. He was no
more, the behavior was nothing to be noted. That is
obviously a pretextual reason. In regards to number 73,
Your Honor, I would like to point out that number 73 is
25-years-old, Your Honor. And this batting eye-lashing
thing sounds like shucking and jiving which we have
already got case law on. So I mean, that is certainly not a
race neutral reason. In regards to number 130, let me
turn to that. She is 21-years-old, Judge. And we have
other young people that are servers in such that, she
readily put on the jury who would not have the maturity
of a college student or the intelligence [sic] perhaps to
get into college. The fact that they put the Wild Wing
server on, of course she may not be interested in higher
education, I think that belittles the statement that she
made to the Court and I believe that was obviously
pretextual and they were all emotional[ly] motivated,
Your Honor. And I would ask that you strike a new jury.
The circuit court denied Blake's motion, stating:
I am going to deny your motion, [counsel]. I do find that
these are race neutral reasons. The history of traffic
charges, and two being college students, the Wild Wing
server who was seated and is 19-years-old is not a
college student. And number 164, I do find that it has a
race neutral reason given her potential knowledge of or
having heard something about these events from the folks
that live in that area. So thank you, your motion is
respectfully denied.
Blake satisfied Batson's first step by making the necessary prima facie showing
that the challenges were based on race—four of the State's five peremptory
challenges were used to strike black jurors, and Blake is also black. In addressing
the second step of the Batson inquiry, the State explained its reasons for each of
the four strikes. Blake then properly argued the State's explanations for striking
jurors 18, 73, and 130 were pretextual. In denying Blake's motion, the circuit court
addressed the reasons the State provided for striking each of the four challenged
jurors and considered whether the reasons were pretextual based on Blake's claim
that the State sat at least one similarly situated white juror. This is exactly what the
third step of the Batson procedure necessitates. See Giles, 407 S.C. at 18, 754
S.E.2d at 263 ("If the trial court finds that burden has been met, the process will
proceed to the third step, at which point the trial court must determine whether the
opponent of the challenge has proved purposeful discrimination. The ultimate
burden always rests with the opponent of the challenge to prove purposeful
discrimination.").
As to the specifics of each of the four strikes, once the State explained that it struck
Juror 164 because she knew and was familiar with several people from the
apartment complex in the area of the shooting, Blake made no further argument as
to Juror 164. And, Blake did not challenge the State's first reason for striking Juror
18—his history of traffic offenses. However, Blake did argue the "jokey and
laughey" behavior referenced by the State was not a proper basis for a strike. But
see State v. Wilder, 306 S.C. 535, 538, 413 S.E.2d 323, 325 (1991) ("A Solicitor
may strike veniremen based on their demeanor and disposition."). Thus, the circuit
court clearly acted within its discretion in accepting the State's race-neutral reasons
for striking Jurors 18 and 164.
As for Jurors 73 and 130, while Blake makes a strong argument that the age of the
college students matches the young age of the seated white Wild Wing server,
youth was not the primary reason the assistant solicitor gave to support the State's
striking of the two college students. The assistant solicitor was quite specific in
her reasoning, explaining she found college students to be liberal, she had "not had
a good experience with them" as jurors, and she was concerned the juror "batting
her eyelashes" might take pity on Blake. See Wilder, 306 S.C. at 538, 413 S.E.2d
at 325 (holding a party may strike a potential juror "based on their demeanor and
disposition"); People v. Perez, 29 Cal.App.4th 1313, 1328, 35 Cal.Rptr.2d 103,
111 (1994) (finding limited life experience of prospective jurors who were college
students justified prosecutor's exercise of peremptory challenges, rather than the
prospective jurors' Hispanic origin). Mindful of our standard of review, we find
the circuit court did not abuse its discretion in accepting the solicitor's explanations
for striking the two college students. Still, as to Juror 73, while we fail to see how
batting one's eyelashes equates to the clearly repugnant reference to "shucking and
jiving," we acknowledge striking a juror because of her physical appearance could
suggest purposeful discrimination in other contexts. See State v. Tomlin, 299 S.C.
294, 299, 384 S.E.2d 707, 710 (1989) (reversing defendant's conviction upon
finding trial court failed to inquire into the State's explanation that the juror was
struck because he "shucked and jived," which demonstrated the prosecutor's
subjective intent to discriminate and clearly violated Batson)), holding modified by
State v. Adams, 322 S.C. 114, 470 S.E.2d 366 (1996). But Blake did not challenge
the strike on the basis of Juror 73's gender; thus, we need not further examine this
aspect of the strike. See Shuler, 344 S.C. at 615, 545 S.E.2d at 810 (referencing
prohibition of strikes based on race or gender."); but see Wilder, 306 S.C. at 538,
413 S.E.2d at 325 (noting a proper strike may be based on "demeanor and
disposition.").
Notably, the jury impaneled here was composed of six black jurors and six white
jurors. See Shuler, 344 S.C. at 621, 545 S.E.2d at 813 ("[T]he composition of the
jury panel is a factor that may be considered when determining whether a party
engaged in purposeful discrimination pursuant to a Batson challenge."). Other than
as discussed above, Blake failed to provide examples of seated jurors similarly
situated to those the State excused. Accordingly, we find no error in either the
circuit court's conducting of the Batson procedure or its finding that Blake did not
demonstrate purposeful discrimination.
II. Opening the Door
Blake next argues the circuit court erred in allowing the State to cross-examine him
about an unrelated domestic violence incident during which an investigator saw
Blake dragging Dobson's older sister—the mother of Blake's child—from the
woods by her hair.
"The admission or exclusion of evidence is a matter within the trial court's sound
discretion, and an appellate court may disturb a ruling admitting or excluding
evidence only upon a showing of 'a manifest abuse of discretion accompanied by
probable prejudice.'" State v. Dennis, 402 S.C. 627, 635, 742 S.E.2d 21, 25 (Ct.
App. 2013) (quoting State v. Douglas, 369 S.C. 424, 429, 632 S.E.2d 845, 847–48
(2006)). An appellate court "will not disturb a trial court's ruling concerning the
scope of cross-examination of a witness to test his or her credibility, or to show
possible bias or self-interest in testifying, absent a manifest abuse of discretion."
State v. Hawes, 423 S.C. 118, 135, 813 S.E.2d 513, 522 (Ct. App. 2018) (quoting
State v. Gracely, 399 S.C. 363, 371, 731 S.E.2d 880, 884 (2012). Similarly,
"[w]hether a person opens the door to the admission of otherwise inadmissible
evidence during the course of a trial is addressed to the sound discretion of the trial
judge." State v. Page, 378 S.C. 476, 483, 663 S.E.2d 357, 360 (Ct. App. 2008).
"An abuse of discretion occurs when a trial court's decision is unsupported by the
evidence or controlled by an error of law." State v. Makins, 433 S.C. 494, 500–01,
860 S.E.2d 666, 670 (2021).
Pretrial, Blake questioned whether the State intended to introduce evidence of prior
bad acts. The State responded:
The only conviction that I see on his record is a 2014
public disorderly conduct[,] which does not fall under the
rules to use against him. As far as prior bad acts, I do not
intent to get into any, unless he should open the door[.] I
do intent to ask some of the witnesses if they know what
the relationship between Mr. Blake and Mr. Dobson is
without getting into the details. They had some problems
together. They did not get along, not going to go into the
details of why they didn't get along. But any prior
difficulties are animus between the parties, without
getting into the details, are appropriate things to address
with witnesses when we have an attempted homicide. It
goes to motive and identity. And, again, not going into
the details so it is not a 404(b) analysis. It is just a
relevance analysis.
During his direct examination, Blake testified he has a one-year-old son (Nephew)4
with Dobson's older sister, Delisha, but admitted he was also seeing another
woman while in that relationship. Blake further testified that in April 2015,
Dobson shot out the back window of Blake's car, likely because he was "running
around with Delisha." Although Blake initially reported the incident to law
enforcement and gave a statement, he chose not to pursue the charges. Defense
counsel asked Blake about the April shooting and Blake's resolution of his conflict
with Dobson:
Q. Eventually did y'all have a discussion about that?
A. Yes, sir. We came to a conclusion to wash off the
situation.
Q. Did you explain to him [Dobson] that, you know, you
needed to see your baby?
A. Yes, sir.
Q. He's the uncle?
A. Yes, sir.
Q. So there, the better problem to start with. But
whatever the problem was in [Dobson's] mind, did you
believe it was solved?
A. Yes, sir.
At the conclusion of his direct examination, Blake was asked whether he thought
"there would be anything wrong with a child spending time with his father" and
4
Blake's son was born on February 3, 2017; the child's birthdate is relevant
because Blake claimed he and Dobson had settled their differences for the sake of
the child prior to the shooting for which Blake was being tried. But the offenses
for which Blake was on trial occurred on November 7, 2015—more than a year
before Nephew's birth.
whether that would be a normal thing to happen in society. Blake agreed there
would be nothing wrong with that and it would indeed be normal.
On cross-examination, Blake conceded his problems with Dobson had nothing to
do with Blake's fathering of Nephew and admitted the child was not born until
2017, nearly two years after Dobson shot at Blake's car and some fifteen months
after the shooting that injured Lakes and her baby.
Defense counsel again asked on redirect about Blake's relationship with Delisha
and its relevance to the animus with Dobson:
Q. Okay. And the truth is, you've been running around
with Delisha for years?
A. Yes, sir.
Q. And her brother knew that?
A. Yes, sir.
Q. Okay. And is that what he was mad about?
A. Could have been.
Q. Okay. But there shouldn't have been any problems in
November?
A. No, sir.
The State requested re-cross and inquired:
Q. [Defense counsel] asked you if [Dobson] could have
possibly been mad about you running around on his
sister, Lisha Dobson, right?
A. Yes ma'am. He did.
Q. Right. And so you said, yeah, that's probably what he
was mad about, correct?
A. I said could have been.
Q. Could have been? So it could have been something
else, too, right?
A. Like?
Q. I'm glad you asked me. It could have been when
Investigator Michael Thomas found you dragging her out
of the woods by her hair, correct?
Blake immediately objected, and the circuit court excused the jury. Referencing
his pretrial inquiry regarding whether the State intended to ask about prior bad
acts, Blake emphasized the solicitor's response that she did not intend to raise such
unless Blake opened the door. Blake argued the State misled the court, there was
no evidence to support the investigator's allegation, and the State was trying to
offer extrinsic evidence to prove a point from another witness. However, the State
countered that Blake opened the door when he testified Dobson could have been
angry that Blake was running around on Delisha and declined to marry her. The
solicitor noted, "[Blake] himself asked me like what else is there. He was there.
He knows. This is proper cross-examination. This explores the relationship
between the parties and the motive that [Dobson] had and Mr. Blake has in
shooting [Dobson]." After hearing further arguments, the circuit court asked,
Tell me, [counsel] how you didn't open the door when
you asked all manner of questions about the reason
[Dobson], wasn't he upset with you because you were
running around on his sister and had a baby with his
sister while [you were] in another relationship. How
does that not open the door?
The parties further discussed the prior incident, including who witnessed it and its
timing. The circuit court then allowed the question but cautioned, "I'm not giving
free rein on this. This is for a very narrow purpose." 5
5
During this discussion, the State noted it also planned to present rebuttal
testimony from the investigator who witnessed the hair dragging incident;
however, the circuit court declined to allow such testimony.
Once the jury returned, the solicitor asked, "All right. So [Mr. Blake], the last
question to you was that [Dobson]'s problem with you could not have possibly
arisen from how you treated his sister and you at one point were pulling her by her
hair from the wood line?" Blake responded:
A. How would he know how I am treating his sister?
How [does] he know what our personal life, what we
have going on?
Q. Okay.
A. Second, do you have a statement or proof of me
dragging Delisha by her hair? You got me on camera
doing that to her? Somebody seeing me do that to her?
Did she write, tell you that I did that to her?
During the redirect following this inquiry, Blake's counsel emphasized the State
had shown Blake no statement, video, or police report to support its questioning.
"When an accused takes the stand, he becomes subject to impeachment, like any
other witness." Hawes, 423 S.C. at 135, 813 S.E.2d at 522 (quoting State v. Major,
301 S.C. 181, 183, 391 S.E.2d 235, 237 (1990)). Had the State initially sought to
question Blake about "dragging [Delisha] out of the woods by her hair," without
Blake's own testimony, such would have been inadmissible under Rules 403 and
404. But because Blake testified Dobson previously shot at him, implied he was
clueless as to exactly why he and Dobson had problems, and indicated the two men
had resolved their differences for the sake of a baby who had not yet been born, the
circuit court did not abuse its discretion in concluding Blake opened the door for
the State's question addressing a possible reason for the enmity between the two
men. See State v. Culbreath, 377 S.C. 326, 333, 659 S.E.2d 268, 272 (Ct. App.
2008) (reiterating "a defendant may open the door to what would be otherwise
improper evidence through his own introduction of evidence or witness
examination").
The State was permitted to respond to Blake's incomplete—and demonstrably
false—explanation regarding his conflict with Dobson by eliciting testimony to
show Blake's problems with Dobson did not begin with Dobson shooting at him.
To the contrary, the prior shooting was merely one incident in the ongoing conflict
between the two men, going at least as far back as Blake's assault on Dobson's
sister. See State v. Stroman, 281 S.C. 508, 513, 316 S.E.2d 395, 399 (1984)
("Where one party introduces evidence as to a particular fact or transaction, the
other party is entitled to introduce evidence in explanation or rebuttal thereof, even
though [the] latter evidence would be incompetent or irrelevant had it been offered
initially." (quoting State v. Albert, 277 S.E.2d 439, 441 (N.C. 1981))). The State
sought to question Blake about the prior assault in an effort to discern the true
source of the hostile relationship only after Blake introduced evidence of Dobson's
prior act of shooting at Blake and the purported resolution of the matter.
Finally, the State's limited cross-examination addressing the prior assault on
Dobson's sister became necessary only after Blake's direct examination effort to
demonstrate his good character as a peaceful and family-focused man. Blake
claimed that rather than press charges against Dobson, he sought to make peace
with him for Nephew's sake. This was clearly false, because Nephew had not yet
been born and because Blake told others at the time of the incident that he would
"take care of it." For these reasons, we find the circuit court did not abuse its
discretion in permitting the State's limited cross-examination of Blake regarding
this particular conduct for the "very narrow purposes" of challenging Blake's
testimony and establishing the context of his problematic relationship with
Dobson. See State v. Young, 378 S.C. 101, 106, 661 S.E.2d 387, 389 (2008)
("[W]hen the accused offers evidence of his good character regarding specific
character traits relevant to the crime charged, the solicitor has the right to
cross-examine him as to particular bad acts or conduct.").
Conclusion
Blake's convictions for attempted murder, ABHAN, and possession of a weapon
during the commission of a violent crime are
AFFIRMED.
WILLIAMS, C.J. and LOCKEMY, A.J., concur.