Vernon Lockhart v. Commissioner of The Tennessee Department of Safety

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs November 1, 2016
VERNON LOCKHART v. COMMISSIONER OF THE TENNESSEE
DEPARTMENT OF SAFETY
Appeal from the Chancery Court for Davidson County
No. 140472I Ben H. Cantrell, Senior Judge
No. M2016-00083-COA-R3-CV – Filed December 21, 2016
This appeal arises from a civil forfeiture. Vernon Lockhart (“Lockhart”) was charged
and later convicted on a number of criminal counts related to the distribution of large
amounts of marijuana. The Tennessee Department of Safety and Homeland Security
(“the Department”) declared as forfeited certain of Lockhart‟s properties alleged to be
derived from illegal drug transactions. An Administrative Law Judge (“the ALJ”) found
in favor of the Department by a preponderance of the evidence, a decision which was
affirmed on appeal by the Chancery Court for Davidson County (“the Trial Court”).
Lockhart appeals to this Court, arguing, in large part, that the evidence used against him
should have been suppressed and that the ALJ and Trial Court erred by failing to conduct
an analysis of his suppression issue independent of the resolution of that issue in the
criminal court proceedings. We hold, inter alia, that the ALJ‟s order of forfeiture was
supported by a preponderance of the evidence and that the doctrine of collateral estoppel
bars Lockhart from re-litigating whether the evidence should have been suppressed as
that issue has been resolved finally on appeal in his criminal proceedings. We affirm the
judgment of the Trial Court upholding the ALJ‟s order declaring Lockhart‟s designated
properties forfeited to the state.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed;
Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which W. NEAL
MCBRAYER and BRANDON O. GIBSON, JJ., joined.
Vernon Elliott Lockhart, pro se appellant.
Herbert H. Slatery, III, Attorney General and Reporter, Grant C. Mullins, Assistant
Attorney General, and, Andrée S. Blumstein, Solicitor General, for the appellee, the
Tennessee Department of Safety and Homeland Security, Commissioner.
OPINION
Background
The detailed history of Lockhart‟s criminal investigation and trial is set
forth in the Tennessee Court of Criminal Appeals opinion State v. Lockhart, No. M2013-
01275-CCA-R3-CD, 2015 WL 5244672 (Tenn. Crim. App. September 8, 2015), perm.
app. appeal denied Jan. 20, 2016. Lockhart was convicted at the trial court level of 14
counts, three of which for money laundering were overturned on appeal. Lockhart‟s most
ardent and persistent argument, both in the criminal matter and in this civil forfeiture
matter now before us, is that the evidence used against him was gathered unlawfully and
should be suppressed. The Tennessee Court of Criminal Appeals in Lockhart, among
other things, disagreed with Lockhart‟s suppression-based arguments while affirming
most of Lockhart‟s convictions.
An asset forfeiture hearing was held in March 2013. The ALJ subsequently
entered an order which stated, in part, as follows:
1. Beginning in January 2006, the 18th and 20th Judicial District Drug Task
Forces along with the United States Drug Enforcement Agency (DEA)
conducted an investigation of Claimant, along with several other
individuals, through the use of wiretaps, for drug trafficking of large
amounts of marijuana.
2. The investigation revealed that Claimant devised and conducted an
elaborate operation wherein he, or one of his co-conspirators, would travel
across the country to purchase large quantities of marijuana and bring it
back to Nashville for resell.
3. As a part of this elaborate operation, Claimant used several companies to
conceal and/or launder the money he made through his illegal drug
transactions. These companies were Pyramid Engineering, Reconstruction
Management Group, VEL Properties and VEL Trucking, LLC.
4. The investigation culminated in the issuance of numerous search
warrants
5. On March 9, 2009, a 2005 GMC Sierra Engineering truck pulling a
gooseneck trailer and driven by Cheyenne Davis was stopped by the
Tennessee Highway Patrol for a traffic violation. A K-9 narcotic officer
alerted to the truck. The truck and trailer were searched and the trailer was
cut open. It was found to contain approximately 550 pounds of marijuana.
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6. Inside the truck the officers found a TomTom GPS device and an Aspire
I Acer laptop with accessories along with several telephones. These items
were seized.
7. After the search of the truck and trailer, the officers began executing
search warrants on the various properties identified as the stash houses
owned by the claimant.
8. Claimant also owned several homes that were used as “stash houses” to
hide the large quantities of marijuana.
9. The main location for storing the marijuana was a home, owned by VEL
Properties, located at 6960 Old Hickory Boulevard, Nashville, Tennessee
(6960 OHB). Other properties known as “201 Cude Lane” and “Pulley
Road aka „The Country‟”, along with his residence at 5225 Rustic Way,
Mt. Juliet, Tennessee were also used as “stash houses”.
10. The search warrant executed on Claimant‟s residence at 5225 Rustic
Way, Mt. Juliet, Tennessee yielded ledgers that were discovered in the
home. These ledgers were determined by officers to reflect transactions
representing the sale of 5,702 pounds of marijuana and income from those
sales in the amount of Two million eight hundred thirty four thousand eight
hundred twenty seven dollars ($2,834,827.00).
11. As a result of the search of the Claimant‟s home, numerous items were
seized. Among those items were an outdoor surveillance system, a 1999
Chevrolet SK1 pickup truck containing 10 pounds of marijuana, furniture
from the dining room, living room, kitchen, and master bedroom, tools and
golf clubs. The officers also discovered a hidden $154,000.00 in US
currency hidden in the home.
12. Claimant was indicted and eventually convicted of fourteen (14) felony
counts. (The factual allegations in the indictments and Claimant‟s
convictions are found at exhibits 2 A -3B of the technical record and
incorporated herein in their entirety by reference). Claimant was sentenced
in January 2013, to ninety four (94) years in prison.
13. Claimant, during the time of the investigation, had no legitimate source
of income. In fact, the only income tax records that he filed reflected
income in the amount of $8,189.00 for the 2006 filing year.
14. Detective Herb Kajihara, of the Nashville Police Department testified
on behalf of the Department of Safety. His testimony is found to credible.
15. Claimant did not appear nor testify at the hearing. Claimant presented
no proof to rebut the testimony or evidence introduced by the Department.
16. Claimant had a prior conviction for the sale of marijuana.
17. The Department of Safety has shown by a preponderance of the
evidence that the [sic] [a]ll of the listed property and currency seized were
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either acquired through criminal activity or through the facilitation of drug
sales as a part of this extensive drug trafficking operation.
CONCLUSIONS OF LAW and ANALYSIS
1. The State bears the burden of proof in this case, and must therefore
prove, by a preponderance of the evidence, that the seized currency is
subject to forfeiture, pursuant to law. Failure to carry the burden of proof
operates as a bar to the proposed forfeiture. TENN. CODE ANN. § 53-11-
201(d)(2); Rule 1340-2-2-.15, TENN. COMP. R. & REGS., Rules of the
Tennessee Department of Safety.
2. “Everything of value furnished, or intended to be furnished, in exchange
for a controlled substance in violation of the Tennessee Drug Control Act
of 1989, . . . all proceeds traceable to such an exchange, and all moneys . . .
used, or intended to be used, to facilitate any violation of the Tennessee
Drug Control Act . . .” are subject to forfeiture under the law. TENN.
CODE ANN. § 53-11-451(a)(6)(A).
3. T.C.A. §53-11-451(a)(2) provides that “all raw materials, products, and
equipment of any kind which are used, or intended for use, in
manufacturing, compounding, processing, delivering, importing or
exporting any controlled substance in violation of the Tennessee Drug
Control Act are subject to forfeiture.[”]
***
10. Claimant‟s record of drug activity is highly probative factor in the
forfeiture calculus. U.S. v. $67,220.00 in United States Currency, 957 F.2d
280 (6th Cir. 1992). The Department of Safety has shown by a
preponderance of the evidence that the Claimant was engaged in the sale of
illegal drugs and that the property and currency seized was derived from
those illegal drug transactions. Accordingly, it is hereby ORDERED that
the subject properties and currencies shall be forfeited to the Seizing
Agency, the 18th and 20th Judicial District Drug Task Forces, for
disposition as provided by law.
An initial amended order was entered in August 2013, and a final order was entered in
February 2014. The matter was appealed to the Trial Court. The Trial Court affirmed the
ALJ. In its December 2015 Memorandum and Order, the Trial Court found and held:
This cause is before the Court on the petition of Vernon Lockhart
challenging the Department of Safety and Homeland Security
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Commissioner‟s action in declaring a forfeiture of a large amount of real
and personal property. See Tenn. Code Ann. § 4-5-322. The basis for the
forfeiture was the petitioner‟s use of the property in the conduct of an
extensive criminal enterprise or its acquisition with proceeds derived from
that enterprise. See Tenn. Code Ann. § 39-17-401, et. seq.; 53-11-451
(“Tennessee Drug Control Act”).
The petitioner does not challenge the preponderance of the evidence
in the record of the criminal activity or its relationship to the property; the
defense is based on his assertion that the evidence should have been
excluded because it was acquired by the use of illegal wiretaps or GPS
monitoring.
The Commissioner asserts that the exclusionary rule does not apply
in this civil forfeiture proceeding, and, in any case, that the criminal courts
of Davidson and Wilson counties have decided that the evidence was
admissible in separate criminal prosecutions. The record contains written
orders from both courts overruling the petitioner‟s motions to suppress the
evidence.
The Court finds that the exclusionary rule does apply in an
administrative hearing considering a civil forfeiture. See Ware v. Green,
984 S.W.2d 610 (Tenn. Ct. App. 1998); Williams v. State Dep’t of Safety,
854 S.W.2d 102 (Tenn. Ct. App. 1992). Even the case cited by counsel for
the Commissioner supports the applicability of the exclusionary rule in this
case. In Holmes v. Owen, 1998 WL 70644 (Tenn. Ct. App. 1998), the Court
of Appeals noted that a question might still exist as to the application of the
exclusionary rule in a “purely civil” case, but that the rule did not apply to a
civil forfeiture proceeding, which the Court characterized as a penalty for
illegal activity.
That being said, however, the Court is of the opinion that the agency
did not err in admitting the evidence in reliance on the orders of the
criminal courts. The rules of evidence in the Administrative Procedures
Act allow evidence not admissible in Court to be admitted if it is “of a type
commonly relied on by reasonably prudent men [sic] the conduct of their
affairs.” Tenn. Code Ann. § 4-5-313(1). With the Criminal Courts‟
decisions that the evidence should not be suppressed, it was reasonable to
rely on these decisions without conducting an independent analysis of the
various cases dealing with the exclusionary rule.1
1
The decision of the Davidson County Criminal Court overruling the motion to suppress has now been
affirmed by the Court of Criminal Appeals. See State v. Lockhart, 2015 WL 5244672, slip op. filed in
Nashville September 8, 2015. Further, the Court is aware that the doctrine of collateral estoppel may be
dispositive regarding the exclusionary rule, however the Tennessee Supreme Court has not taken action
regarding the criminal cases as of the date of entry.
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The Court is of the opinion that the Department of Safety and
Homeland Security‟s decision to declare the property in question forfeited
to the state is supported by a preponderance of the evidence in the record.
It is, therefore, ORDERED that the petition for judicial review is
hereby dismissed at the cost of the petitioner.
(Footnote in original). Lockhart filed a timely appeal to this Court.
Discussion
We restate and consolidate the issues Lockhart raises on appeal into the
following two dispositive issues: 1) whether the ALJ erred in finding, and the Trial Court
erred subsequently in affirming, that the Department met its burden, by a preponderance
of the evidence, necessary to declare Lockhart‟s properties forfeited; and, 2) whether the
Trial Court erred in declining to reverse or remand on the basis that three of Lockhart‟s
convictions were overturned on appeal by the Tennessee Court of Criminal Appeals.
Our Supreme Court has discussed forfeiture as follows:
Forfeiture is defined as “[t]he divestiture of property without
compensation.” Black‟s Law Dictionary 722 (9th ed. 2009) (Forfeiture).
In the context of this case, the divestiture occurs because of a crime and
title to the forfeited property is transferred to the government. Id. At first
blush, forfeiture appears to be an amalgam of a civil and a criminal
proceeding. Indeed, some Tennessee decisions have described forfeiture
proceedings as “quasi criminal in nature.” Garrett v. State Dep’t of Safety,
717 S.W.2d 290, 291 (Tenn. 1986) (italics in original); Reece v. Lawson,
No. 01A01-9310-CH-00439, 1994 WL 171056, at *4 (Tenn. Ct. App. May
6, 1994). However, later decisions by the United States Supreme Court and
by this Court clarify that forfeiture actions are in rem, regarding the
property; while they proceed parallel to criminal prosecutions and are
“based upon the same underlying events,” they are civil in nature. U.S. v.
Ursery, 518 U.S. 267, 274, 116 S. Ct. 2135, 135 L. Ed. 2d 549 (1996); Stuart
v. State Dep’t of Safety, 963 S.W.2d 28, 34 (Tenn. 1998). Because
forfeiture proceedings are considered civil, “[t]he State has a less onerous
burden—that of proving only by a preponderance of the evidence that the
property is subject to forfeiture. This is to be contrasted with the State‟s
burden in criminal proceedings—proof beyond a reasonable doubt.”
Stuart, 963 S.W.2d at 33 (citations omitted).
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***
In Tennessee, while forfeiture is permissible, it is not favored: “The
public policy of this state as expressed in the state constitution opposes
forfeitures for convictions of crimes unless specifically provided for.”
Hays v. Montague, 860 S.W.2d 403, 408 (Tenn. Ct. App. 1993) (citing
Whisnant v. Byrd, 525 S.W.2d 152, 153 (Tenn. 1975), overruled on other
grounds by Logan v. Winstead, 23 S.W.3d 297 (Tenn. 2000); Fields v. Met.
Life Ins. Co., 249 S.W. 798, 798 (Tenn. 1923)). “Forfeitures are not favored
by the law.” Redd, 895 S.W.2d at 335; see also Wells, 198 S.W.2d at 643
(“Forfeitures are not favored.”). Consequently, “statutes authorizing
forfeitures are to be strictly construed.” Watson, 361 S.W.3d at 555 (citing
Redd, 895 S.W.2d at 335); see also Wells, 198 S.W.2d at 643 (“Forfeiture
statutes are to be strictly construed.”).
State v. Sprunger, 458 S.W.3d 482, 492-94 (Tenn. 2015) (footnotes omitted).
Tenn. Code Ann. § 4-5-322 (2015) provides in relevant part:
(h) The court may affirm the decision of the agency or remand the case for
further proceedings. The court may reverse or modify the decision if the
rights of the petitioner have been prejudiced because the administrative
findings, inferences, conclusions or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion; or
(5)(A) Unsupported by evidence that is both substantial and material in the
light of the entire record.
(B) In determining the substantiality of evidence, the court shall take into
account whatever in the record fairly detracts from its weight, but the court
shall not substitute its judgment for that of the agency as to the weight of
the evidence on questions of fact.
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Tenn. Code Ann. § 4-5-314 (c)(2015) provides further:
(c) A final order, initial order or decision under § 50-7-304 shall include
conclusions of law, the policy reasons therefor, and findings of fact for all
aspects of the order, including the remedy prescribed and, if applicable, the
action taken on a petition for stay of effectiveness. Findings of fact, if set
forth in language that is no more than mere repetition or paraphrase of the
relevant provision of law, shall be accompanied by a concise and explicit
statement of the underlying facts of record to support the findings. The
final order, initial order or decision must also include a statement of the
available procedures and time limits for seeking reconsideration or other
administrative relief and the time limits for seeking judicial review of the
final order. An initial order or decision shall include a statement of any
circumstances under which the initial order or decision may, without
further notice, become a final order.
We first address whether the ALJ erred in finding, and the Trial Court erred
subsequently in affirming, that the Department met its burden, by a preponderance of the
evidence, necessary to declare Lockhart‟s properties forfeited. Lockhart argues in his
brief on appeal: “Mr. Lockhart submits that the issues concerning the wiretaps and
extensions require a greater discussion and are the most extensive issues herein the case;
as the determination thereof, required suppression of all of the proof, hence essentially
leaving no bases or evidence warranting forfeiture.” The Trial Court, citing Tenn. Code
Ann. § 4-5-313 (allowing evidence not admissible in Court in Administrative Procedures
Act cases if it is “of a type commonly relied upon by reasonably prudent men in the
conduct of their affairs”), held that it was reasonable that the ALJ did not conduct an
independent analysis of Lockhart‟s suppression issues, instead relying on the criminal
courts‟ decisions. We respectfully reject this reasoning. Another court‟s analysis of a
legal issue cannot properly be regarded as “evidence.”
The Trial Court also observed, however, that the Davidson County
Criminal Court, as affirmed by the Tennessee Court of Criminal Appeals, overruled
Lockhart‟s motion to suppress. The Trial Court pointed out that the Tennessee Supreme
Court had not taken any action with respect to the criminal cases so it did not hold that
collateral estoppel applied. We are under no such limitation, because on January 20,
2016, shortly after the Trial Court‟s final judgment was entered, the Tennessee Supreme
Court denied permission to appeal in State v. Lockhart, and the United States Supreme
Court denied certiorari. The doctrine of collateral estoppel, therefore, may be applicable.
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Our Supreme Court has discussed the doctrine of collateral estoppel as
follows:
Collateral estoppel is an issue-preclusion doctrine developed by the
courts. Mullins, 294 S.W.3d at 534 (citing Kremer v. Chem. Constr. Corp.,
456 U.S. 461, 480, 102 S. Ct. 1883, 72 L. Ed. 2d 262 (1982); Morris v.
Esmark Apparel, Inc., 832 S.W.2d 563, 565 (Tenn. Ct. App. 1991)). This
doctrine “promotes finality, conserves judicial resources, and prevents
inconsistent decisions,” id. (citing Allen v. McCurry, 449 U.S. 90, 94, 101
S. Ct. 411, 66 L. Ed. 2d 308 (1980); Gibson v. Trant, 58 S.W.3d 103, 113
(Tenn. 2001); State ex rel. Cihlar v. Crawford, 39 S.W.3d 172, 178 (Tenn.
Ct. App. 2000)), by barring “the same parties or their privies from
relitigating in a later proceeding legal or factual issues that were actually
raised and necessarily determined in an earlier proceeding,” id. at 534-35
(citing Barnett v. Milan Seating Sys., 215 S.W.3d 828, 835 (Tenn. 2007)
superseded by statute on other grounds as recognized in Freeman v. Gen.
Motors Co., No. M2011-02284-SC-WCM-WC, 2012 WL 5197672, at *5 n.
3 (Tenn. Workers‟ Comp. Panel Oct. 22, 2012); Massengill v. Scott, 738
S.W.2d 629, 631-32 (Tenn. 1987); Blue Diamond Coal Co. v. Holland-Am.
Ins. Co., 671 S.W.2d 829, 832 (Tenn. 1984)); see also Restatement
(Second) of Judgments § 27 (1982) (“When an issue of fact or law is
actually litigated and determined by a valid and final judgment, and the
determination is essential to the judgment, the determination is conclusive
in a subsequent action between the parties, whether on the same or a
different claim.”). To prevail on a claim of collateral estoppel, a party must
establish:
(1) that the issue to be precluded is identical to an issue
decided in an earlier proceeding, (2) that the issue to be
precluded was actually raised, litigated, and decided on the
merits in the earlier proceeding, (3) that the judgment in the
earlier proceeding has become final, (4) that the party against
whom collateral estoppel is asserted was a party or is in
privity with a party to the earlier proceeding, and (5) that the
party against whom collateral estoppel is asserted had a full
and fair opportunity in the earlier proceeding to contest the
issue now sought to be precluded.
Mullins, 294 S.W.3d at 535 (emphasis added).
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Bowen ex rel. Doe v. Arnold, --- S.W.3d ---, 2016 WL 5491022, at *3 (Tenn. Sept. 29,
2016) (footnote omitted).
Applying the elements of collateral estoppel to the facts of this case, we
conclude that Lockhart is barred from re-litigating his claims regarding suppression of
evidence. Lockhart, the same individual in both this civil forfeiture case and the criminal
case, already has had the full and fair opportunity to challenge the admission of the
incriminating evidence, and he took that opportunity. The Tennessee Court of Criminal
Appeals rejected Lockhart‟s arguments relative to suppression, and that judgment now is
well and truly final as our Supreme Court has denied Lockhart‟s request for permission to
appeal and the United States Supreme Court denied certiorari. In his brief, Lockhart
contends as follows:
Mr. Lockhart submits that all material aspects of the issues relative
suppression were presented, however, never fully addressed by the
Criminal Courts. Further, the Criminal Courts decisions were clearly in
error and result in a substantial injustice in which the ALJ-Chancery
Courts‟ should have conducted their own independent analysis of the
claims. As set forth in the criminal courts, before the ALJ and as set forth
in the Chancery Court, as well as, included here are the positions as to why
the exclusion and/or otherwise suppression of the wiretap evidence should
have been required, inclusive of that before, but not considered, by all
courts.
Lockhart‟s disagreement with the criminal courts‟ decisions regarding his suppression
claims does not require us to revisit legal issues already decided finally by our sister court
and on which permission to appeal has been denied by our Supreme Court and the United
States Supreme Court denied certiorari. The question then becomes whether the other
elements of collateral estoppel are present. It is beyond dispute as already discussed that
all the necessary elements of collateral estoppel are present here. We hold that the
doctrine of collateral estoppel bars Lockhart from re-litigating the issue of whether the
incriminating evidence used against him should have been suppressed.
Having addressed the admissibility issues, we move next to address
whether the Department met its burden for forfeiture by a preponderance of the evidence.
The Trial Court, in its final judgment, stated: “The petitioner does not challenge the
preponderance of the evidence in the record of the criminal activity or its relationship to
the property; the defense is based on his assertion that the evidence should have been
excluded because it was acquired by the use of illegal wiretaps or GPS monitoring.” The
ALJ heard testimony from Detective Herb Kajihara of the Nashville Police Department
who was assigned to Lockhart‟s case. Detective Kajihara testified to the drugs and
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weapons found at Lockhart‟s residence as well as the “drug ledgers” used by Lockhart.
The ALJ specifically found Kajihara to be a credible witness. As noted by the Trial
Court, Lockhart did not and still has not challenged the preponderance of the evidence as
found by the ALJ and Trial Court if the evidence is not excluded. As already held in this
opinion, the evidence properly was not excluded. Having carefully reviewed all the
evidence, we agree with the Trial Court that the Department‟s decision to declare
Lockhart‟s property in question forfeited is supported not only by evidence that is both
substantial and material as required by Tenn. Code Ann. § 4-5-322(h)(5)(A) but by a
preponderance of the evidence. The ALJ‟s order, quoted above, adequately and
independently fulfills the statutory directives.
The next and final issue we address is whether the Trial Court erred in
declining to reverse or remand on the basis that three of Lockhart‟s convictions were
overturned on appeal by the Tennessee Court of Criminal Appeals. In State v. Lockhart,
the Tennessee Court of Criminal Appeals concluded that the state had failed to prove
beyond a reasonable doubt that Lockhart purchased the relevant items (a Chapparal boat,
a 1965 Chevy Impala, and home theatre seating) with intent to conceal the proceeds. On
the other hand, this present civil action is governed by a different statute with different
elements required to be proven not by a reasonable doubt standard but instead by a
preponderance of the evidence standard. Tenn. Code Ann. § 53-11-451 (a)(6)(A) (2008)2
provides that the following are subject to forfeiture:
(6)(A) Everything of value furnished, or intended to be furnished, in
exchange for a controlled substance in violation of the Tennessee Drug
Control Act of 1989, compiled in part 3 of this chapter, this part and title
39, chapter 17, part 4, all proceeds traceable to the exchange, and all
moneys, negotiable instruments, and securities used, or intended to be used,
to facilitate any violation of the Tennessee Drug Control Act;
The evidence is not only substantial and material but supports by a
preponderance of the evidence forfeiture of the property under the statute. We hold that
the difference in the evidentiary standards and statutory requirements means that reversal
on three money laundering counts does not serve to preclude forfeiture of Lockhart‟s
property given the evidence contained in this record. We affirm the judgment of the Trial
Court.
2
In 2012, this section was amended to add “or controlled substance analogue.”
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Conclusion
The judgment of the Trial Court is affirmed, and this cause is remanded to
the Trial Court for collection of the costs below. The costs on appeal are assessed against
the Appellant, Vernon Elliott Lockhart, and his surety, if any.
____________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
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