Opinion
Court of Appeals No. 09CA1745
03-15-2012
The People of the State of Colorado, Plaintiff-Appellee, v. Jeff Anthony Casias, Defendant-Appellant.
John W. Suthers, Attorney General, Alice Q. Hosley, Assistant Attorney General, William Kozeliski, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Douglas K. Wilson, Colorado State Public Defender, Joseph Paul Hough, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
Pueblo County District Court No. 06CR1755
Honorable , Judge
JUDGMENTS REVERSED AND CASE
REMANDED WITH DIRECTIONS
Opinion by JUDGE DAILEY
Taubman and Fox, JJ., concur
John W. Suthers, Attorney General, Alice Q. Hosley, Assistant Attorney General, William Kozeliski, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Joseph Paul Hough, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Jeff Anthony Casias, appeals the judgments of conviction entered on jury verdicts finding him guilty of first degree murder (causing the death of a child under the age of twelve by one in a position of trust) and knowing or reckless child abuse resulting in death. We reverse and remand for a new trial.
I. Background
¶2 Defendant's girlfriend left defendant at home with their seven-week-old baby, J.C. When she left, defendant was holding an awake, responsive, and content J.C. Shortly afterwards, however, defendant telephoned to tell her that J.C. had choked and stopped breathing. Defendant hung up but called back moments later to tell her that he was taking J.C. to the hospital.
¶3 Upon arrival at the hospital, J.C. was unresponsive and limp and did not open her eyes or move any of her extremities. Defendant told the emergency room physician that he had been feeding her when she began choking and that, in an effort to help her, he put cold water on her and shook her "a little bit but not excessively."
¶4 J.C. died the next morning.
¶5 At trial, the People presented expert witnesses who opined that J.C. died as the result of nonaccidental traumatic brain injury caused by being violently shaken or "slamm[ed]" against a hard surface. The experts based their opinions on fractures to J.C.'s skull and rib, hemorrhages in both her retinas, severe swelling of her brain, and bruising on her forehead. According to some experts, J.C.'s injuries had been recently inflicted, that is, within a day or two of her death. Additionally, some stated that J.C.'s injuries would have immediately affected her heart rate and breathing, making her lethargic and unable to focus.
The jury also heard evidence that J.C. had a bruise on her right hand that one expert thought resulted from defendant hitting her with a hairbrush that was found in the home.
¶6 Defendant asserted that J.C.'s injuries were the result of a fall off the bed onto a hardwood floor approximately a week before she died. Consistent with this theory, defendant's girlfriend testified that seven to ten days before she died, J.C. rolled off the bed, struck her head on the wooden floor, and thereafter was more lethargic, had trouble eating, was congested, and "cried a lot."
¶7 Also consistent with this theory, defendant's expert witness testified that (1) skull fractures in children J.C.'s age could result from short falls onto a hard surface; (2) she did not see injuries to the upper neck, spinal cord, and brain stem that she would expect if J.C. had been injured as a result of being shaken; and (3) choking is reported in many cases where a child has the type of brain damage J.C. suffered. Defendant's expert also opined, contrary to the People's evidence, that J.C.'s rib injury could have resulted from either a deformity or CPR performed on her, and that retinal hemorrhages are found in accidental deaths and are not characteristic of significant force to the head.
¶8 For the purposes of showing defendant's knowledge or absence of mistake, the prosecution was permitted to introduce evidence of two instances in which defendant allegedly abused his three-year-old daughter, A.C.
¶9 The jury convicted defendant as charged, and the trial court sentenced him to concurrent terms of life imprisonment without the possibility of parole on the first degree murder count and twenty-four years imprisonment on the child abuse count.
II. Other Acts Evidence
¶10 Defendant contends that the trial court erroneously admitted evidence that he had, on two prior occasions, mistreated his other daughter, A.C. We agree for two reasons. First, the prosecution offered evidence of defendant's alleged past acts only to prove his mental state, but those acts did not result in serious injury or death to A.C. Second, those acts bear no resemblance to the acts he was alleged to have committed against J.C.
¶11 The prosecution sought to introduce evidence of numerous, other bad acts committed by defendant involving alleged abuse of A.C. and domestic violence against his girlfriend. After conducting an evidentiary hearing, and considering the parties' written submissions, the court denied the prosecution's request with respect to all but two of the alleged acts.
¶12 Both of the alleged acts for which the prosecution was permitted to introduce evidence concerned defendant's treatment of A.C.: approximately four to five months before J.C.'s death, defendant had slapped A.C. hard enough to leave a handprint (and later a bruise) on her face, and, on another occasion, had taken her by the arm, shaken her "a little bit," placed her roughly in a car, and "smacked" her on the arm. On both occasions, the acts against A.C. occurred shortly after an argument between defendant and another adult (in the first instance, with his girlfriend's sister, and in the second instance, with the girlfriend).
¶13 In a written order, the trial court found that evidence concerning the two acts was admissible because it was relevant, apart from any inference of bad character, to show that defendant had acted knowingly and recklessly -- rather than mistakenly -- toward the victim in this case. During trial, the court instructed the jury that the evidence could "be used for the purpose of showing knowledge or absence of mistake and . . . for no other purpose."
¶14 The admission of evidence of other bad acts may "unfairly expose[] a defendant to the risk of being found guilty based on bad character rather than on evidence relating to the charged offense." People v. Lopez, 129 P.3d 1061, 1064 (Colo. App. 2005). Thus, evidence of other bad acts is inadmissible if its relevance depends only on an inference that the person has a bad character and acted in conformity therewith. CRE 404(b); People v. Cooper, 104 P.3d 307, 309 (Colo. App. 2004).
¶15 Under CRE 401, 403, and 404(b), however, a trial court may admit evidence of a defendant's other bad acts if (1) the evidence is offered for a proper purpose; (2) the evidence is logically relevant to a material issue in the case; (3) its relevance is independent of the intermediate inference that the defendant has a bad character; and (4) its probative value is not substantially outweighed by the danger of unfair prejudice. People v. Rath, 44 P.3d 1033, 1038 (Colo. 2002).
"[E]vidence of other acts often suggests bad character and action in conformity therewith. However, '[this] third prong . . . does not demand the absence of the inference but merely requires that the proffered evidence be logically relevant independent of that inference.'" Masters v. People, 58 P.3d 979, 998 n.4 (Colo. 2002) (quoting People v. Snyder, 874 P.2d 1076, 1080 (Colo. 1994)); see also People v. Everett, 250 P.3d 649, 657 (Colo. App. 2010) ("[A]lmost any evidence of other crimes will suggest that the defendant has a bad character and acted consistently with that character. The key to understanding the third . . . step is that it 'does not demand the absence of the inference but merely requires that the proffered evidence be logically relevant independent of that inference.'") (citation omitted) (quoting Snyder, 874 P.2d at 1080).
¶16 Trial courts have considerable discretion to decide questions concerning the admissibility of evidence, id., and an abuse of discretion will only be found upon a showing that the court misconstrued or misapplied the law or otherwise reached a manifestly arbitrary, unreasonable, or unfair result. See generally People v. Garcia, 169 P.3d 223, 226 (Colo. App. 2007).
¶17 Here, the court found that the conditions for admitting evidence of the two instances of alleged abuse against A.C. were satisfied. As pertinent to our inquiry, the court found that the evidence was logically relevant to a material issue in the case, independent of any inference of bad character, because:
Evidence indicating that the Defendant had engaged in abusive behavior toward another small child in the near past has some tendency to make it more probable as a logical matter that he knew that his conduct would have a particular result on [the day J.C. went into distress].
[Here, t]he inference relied upon arises not from the criminal character of the accused, but from the demonstration of his pattern of engaging in a type of conduct to accomplish a particular end or result.
A. Use of Other Act Evidence to Prove Mental State
¶18 As we see it, the issue on appeal is whether the acts against A.C. were logically relevant, independent of any inference of bad character, to prove the culpable mental state for each of the crimes allegedly committed against J.C., that is, first degree murder and child abuse resulting in death.
1. The "Knowing "and "Reckless"
Culpable Mental States of the Crimes Charged
¶19 As pertinent here, section 18-3-102(1)(f), C.R.S. 2011, provides that "[a] person commits the crime of murder in the first degree if . . . [t]he person knowingly causes the death of a child who has not yet attained twelve years of age and the person committing the offense is in a position of trust with respect to the victim." A person acts knowingly "when he [or she] is aware that his [or her] conduct is practically certain to cause the result." § 18-1-501(6), C.R.S. 2011.
¶20 Thus, with respect to the first degree murder charge here, the prosecution had to prove that defendant engaged in conduct which he was aware was practically certain to cause J.C.'s death. Cf. Mata-Medina v. People, 71 P.3d 973, 978 (Colo. 2003) (discussing second degree murder's requirement that a person knowingly cause the death of another).
¶21 A person who commits child abuse under section 18-6-401(1)(a), C.R.S. 2011, is subject to punishment for a class 2 felony "when [he or she] act[ed] knowingly or recklessly and the child abuse results in death to the child." § 18-6-401(7)(a)(I), C.R.S. 2011. As pertinent here, a person acts knowingly with respect to conduct or a circumstance described in a statute defining an offense "when he [or she] is aware that his [or her] conduct is of such nature or that such circumstance exists." § 18-1-501(6). A person acts recklessly "when he [or she] consciously disregards a substantial and unjustifiable risk that a result will occur." § 18-1-501(8), C.R.S. 2011. A person acts with a conscious disregard of the risk created by his or her conduct when he or she is aware of the risk and chooses to act despite that risk. People v. Hall, 999 P.2d 207, 219 (Colo. 2000).
However, if the crime is committed under circumstances qualifying as first degree murder of a child under twelve, a defendant is to be convicted of first degree murder. § 18-6-401(7)(a)(I), (c), C.R.S. 2011.
¶22 In connection with the child abuse charge, the prosecution had to prove, with respect to the "knowing" mental state, only that defendant was aware of the abusive nature of his conduct in relation to J.C. or of the circumstances in which he committed an act against her well-being; and with respect to the "reckless" element, only that defendant was aware of (and consciously chose to disregard) a substantial and unjustifiable risk that his conduct could result in injury to her life or health. See People v. Deskins, 927 P.2d 368, 371 (Colo. 1996) (the culpable mental states applicable to the crime of child abuse relate not to a particular result, but to the nature of the offender's conduct in relation to the child or to the circumstances under which an act or omission occurred; discussing reckless child abuse resulting in death); People v. Thompson, 756 P.2d 353, 356 (Colo. 1988) (the defendant acted knowingly where he was aware of the abusive nature of his conduct, regardless of his specific awareness of certainty of death).
2. Legitimate Use of Other Bad Acts Evidence
to Prove Knowledge or Recklessness
¶23 Other bad acts evidence is admissible to prove a defendant's knowledge or reckless mental state, see 1 Edward J. Imwinkelried, Uncharged Misconduct Evidence § 5:24, at 65-66 & § 5:39, at 115-16 (2009), when, during the course of the bad act(s), (1) the defendant revealed guilty knowledge of a circumstance or risk; (2) the defendant gained direct knowledge of a fact or risk relevant to charged offense; or (3) the defendant learned something which circumstantially provides evidence of knowledge (or recklessness) at the time of the crime; or when (4) other bad act(s) tend to prove the requisite knowledge by virtue of the doctrine of chances. Id. §§ 5:25 to 5:28.
For example, a defendant makes a statement during either (1) a prior act, about an upcoming event, or (2) in a subsequent act, about a past act. See 1 Imwinkelried, Uncharged Misconduct § 5:25, at 68.
For example, in a public indecency case, the prosecution, to show that the defendant realized his neighbors could see him standing in the front room window, naked, could prove that, on prior occasions the police had warned him of complaints from his neighbors about such activity. See 1 Imwinkelried, Uncharged Misconduct § 5:26, at 69-70.
For example, in a case involving allegations that the defendant knowingly received stolen goods from another, the prosecution could prove that the defendant had, on a prior occasion, received stolen goods, under suspicious circumstances, from the same individual. See 1 Imwinkelried, Uncharged Misconduct § 5:27, at 73-74.
¶24 Here, we are unconcerned with the first three modes of proving knowledge or recklessness. In his actions involving A.C., defendant did not reveal any guilty knowledge concerning his alleged acts against J.C. or gain, either directly or inferentially, knowledge of a fact, circumstance, or risk in relation to his treatment of J.C.
¶25 We are, then, concerned only with whether the evidence of defendant's acts involving A.C. would be admissible under the doctrine of chances to show his mental state with respect to his actions involving J.C.
¶26 "The reasoning underlying [the doctrine of chances] is that it is unlikely that the defendant would be repeatedly innocently involved in similar suspicious situations." Id. § 5:28, at 78; see id. § 5:06, at 16 ("The doctrine teaches us that the more often the defendant performs the actus reus, the smaller is the likelihood that the defendant acted with an innocent state of mind. The recurrence or repetition of the act increases the likelihood of a mens rea or mind at fault.") (footnotes omitted); see also Douglas v. People, 969 P.2d 1201, 1206 n.6 (Colo. 1998) (quoting Imwinkelried's discussion of the doctrine of chances).
¶27 While "even dissimilar acts can be logically relevant to show intent," proof of similarity is required when, as here, the theory of logical relevance depends on the doctrine of chances. 1 Imwinkelried, Uncharged Misconduct § 5:05, at 14 & § 5:06, at 18; see People v. Spoto, 795 P.2d 1314, 1320 (Colo. 1990) ("Dissimilar prior acts are not probative under the doctrine of chances. . . . [S]imilarity is crucial when the theory of logical relevance is the doctrine of chances."). ¶28 "Perhaps the most important factor is whether the two acts required the same state of mind. After all, the ultimate question is whether the defendant had a particular state of mind -- the mens rea -- at the time of the actus reus alleged in the pleading." 1 Imwinkelried, Uncharged Misconduct § 5:09, at 31 (footnote omitted).
¶29 Accordingly, where, as here, other act evidence is offered to prove a mental state, "the prior conduct [must involve] the same intent that the prosecution seeks to establish in the charged offense." People v. Spoto, 772 P.2d 631, 633 (Colo. App. 1988), aff'd, 795 P.2d 1314 (Colo. 1990); see also United States v. Cockrell, 587 F.3d 674, 679 n.1 (5th Cir. 2009) ("Where the issue . . . is the defendant's intent to commit the offense charged, the relevancy of the extrinsic offense derives from the defendant's indulging himself [or herself] in the same state of mind in perpetration of [both offenses . . . .") (quoting United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978)); United States v. Dickerson, 248 F.3d 1036, 1047 (11th Cir. 2001) ("To establish relevance under [rule 404(b)] . . . where testimony is offered as proof of intent, 'it must be "determined that the extrinsic offense requires the same intent as the charged offense . . . ."'") (quoting United States v. Cardenas, 895 F.2d 1338, 1343 (11th Cir. 1990)); United States v. Torres, 977 F.2d 321, 326 (7th Cir. 1992) (courts must "examine each of the extrinsic . . . acts in this case to determine whether [the defendant] committed them with the same type of . . . intent that he allegedly harbored when he [committed the charged offense]"); United States v. Mark, 943 F.2d 444, 448 (4th Cir. 1991) ("[T]he relevance of the evidence 'derives from the defendant's having possessed the same state of mind in the commission of both the extrinsic act and the charged offense.'") (quoting United States v. Dothard, 666 F.2d 498, 502 (11th Cir. 1982)); United States v. McCollum, 732 F.2d 1419, 1424 (9th Cir. 1984) ("A past crime is not relevant to intent unless it required the same form of intent that the Government seeks to prove in the second case."); United States v. Moody, 763 F. Supp. 589, 598 (M.D. Ga. 1991) ("Where extrinsic evidence is offered to prove intent, the charged crime and the extrinsic evidence must be similar enough in their characteristics to permit an inference that the defendant had the same state of mind when committing both acts."), aff'd, 977 F.2d 1420 (11th Cir. 1992).
3. Application
¶30 In our view, evidence that, on other occasions, defendant, in anger, slapped, shook, and roughly handled a three-year-old, with no resulting serious bodily injury, has no tendency to make more or less probable the allegation that, in connection with the first degree murder charge, he knowingly caused J.C.'s death. This follows for the simple reason that defendant's past acts did not result in serious injury or death to A.C., and, thus, did not tend to demonstrate that he was aware his conduct was practically certain to cause A.C.'s (much less, J.C.'s) death.
¶31 Similarly, the evidence of defendant's other bad acts with respect to A.C. were not relevant to prove the culpable mental state of child abuse resulting in death.
¶32 In one sense, evidence of any past "knowing" or "reckless" abuse of a child could be said to tend to prove any "knowing" or "reckless" abuse of a child -- even a different child -- on a subsequent occasion. But this type of proof differs little, if at all, from impermissible proof of bad character or propensity, that is, that because the person acted abusively in the past with some child, he is likely to have acted abusively on a subsequent occasion with any child. See Harvey v. State, 604 P.2d 586, 590 (Alaska 1979) ("Evidence of past abusive conduct is often available in child abuse cases and strictly speaking is never totally irrelevant. However, its relevance often exists only because it reflects on the propensity of a past offender to continue a pattern of child abuse. This is precisely the type of inference Rule 404(b) is intended to prevent."); see also 1 Imwinkelried, Uncharged Misconduct § 2:19, at 113 ("the prosecutor may not prove that the defendant is either generally a criminal or more particularly a rapist or burglar" to show that, on a particular occasion, the defendant acted in conformity therewith).
¶33 As noted above, CRE 404(b) does not always require similarity between a defendant's prior act and the charged offense. Yusem v. People, 210 P.3d 458, 467 (Colo. 2009). When seeking to prove intent by the doctrine of chances, however, "[t]he uncharged act should closely parallel the charged act," and "[i]f the acts are similar in material respects, the similarity justifies the admission of the acts to disprove innocent intent." 1 Imwinkelried, Uncharged Misconduct § 5:08, at 25; cf. People v. Morales, 2012 COA 2, ¶ 33 (other act evidence offered to show, inter alia, intent was sufficiently similar to the charged offense where both incidents involved homes under renovation in which no one was living; both occurred on weekends; in both, expensive tools were stolen; the homes were close to each other; and the incidents took place within weeks of each other); People v. McBride, 228 P.3d 216, 227 (Colo. App. 2009) (other act evidence offered to show intent and absence of mistake was sufficiently similar to the charged offense where all acts involved the defendant's violent behavior toward the same victim).
¶34 Here, defendant was alleged to have injured his infant daughter by hitting her hand with a hairbrush, violently shaking her, and slamming her against a hard surface. In our view, these alleged acts bear no resemblance to the other acts admitted against him at trial.
¶35 First, there is an obvious age discrepancy between the victims: defendant committed the other acts when A.C. was over three years old, and the acts charged in the present case, when J.C. was seven weeks old; second, the incidents did not occur in close proximity to each other: several months passed between the other acts and the charged offense; third, defendant's actions against each daughter were different: A.C. was not hit with an object, shaken violently, or slammed against a hard surface; fourth, defendant was angry before he allegedly abused A.C., but there was no indication he was angry before J.C. was injured; and fifth, the results of the events were different: A.C. did not suffer severe injuries as a result of defendant's actions.
¶36 Because of the dissimilarities between the prior acts against A.C. and the alleged acts against J.C., we conclude that the prior acts against A.C. were not relevant to prove the culpable mental state element of child abuse resulting in death. See, e.g., State v. Gibson, 928 P.2d 344, 349 (Or. Ct. App. 1996) (evidence that two years after the disappearance of his young son, the defendant hit his young daughter was inadmissible because it did not tend to make it (1) less likely that the first disappearance was accidental and (2) more likely that he recklessly caused the son's death; rather, the evidence, if relevant at all, tended only to prove that "once a child abuser always a child abuser").
¶37 Consequently the trial court abused its discretion in admitting them for this purpose.
B. Use of Other Act Evidence to Prove Absence of Mistake
¶38 The doctrine of chances also applies to the use of uncharged misconduct to disprove a claim of mistake or accident. See 1 Imwinkelried, Uncharged Misconduct § 5:11, at 40 & § 5:33, at 100. The differences mentioned above between the prior acts and the present case lead us to reject the court's conclusion that the evidence was properly admitted to prove that defendant did not mistakenly or accidentally cause J.C.'s death. Consequently, we conclude that the trial court abused its discretion in admitting the evidence for these purposes as well.
We recognize that the doctrine of chances can also be used to prove the actus reus of a crime. See Everett, 250 P.3d at 658. To admit evidence of other acts under the doctrine of chances to prove the actus reus, the other acts must be roughly similar to the charged crime, and the number of unusual occurrences in which the defendant has been involved must exceed the frequency rate for the general population. Id.
Here, although defendant asserted that J.C.'s injuries were attributable to a fall off the bed, the prosecution did not offer defendant's prior acts with respect to A.C. as proof that he had caused her injuries. Nor, in our view, could it have done so. For the reasons detailed in text, defendant's treatment of A.C. was not "roughly similar" to his alleged abuse of J.C. Nor was his rough handling of A.C. in the car incident unusual parental behavior. Finally, even when it is viewed in conjunction with the slapping incident, the number of unusual occurrences could not be said to exceed the frequency rate for the general population. See Mark Cammack, Using the Doctrine of Chances to Prove Actus Reus in Child Abuse and Acquaintance Rape: People v. Ewoldt Reconsidered, 29 U.C. Davis L. Rev. 355, 389 (Winter 1996) (although "similar happenings offered to prove actus reus need not be unique or distinctive," "[t]he probative value of the evidence derives from the coincidence of the same rare . . . event occurring repeatedly to the same individual"; and, for the evidence to be probative, "the number of events must be shown to be significantly more numerous than would be expected in the absence of design") (emphasis added).
C. Harmless Error
¶39 Because defendant objected to the admission of the evidence in the trial court, we must determine whether the court's error was harmless or prejudicial to defendant. In this context, an error is harmless where there is no reasonable probability that it contributed to a defendant's conviction by substantially influencing the verdict or impairing the fairness of the trial. People v. Jones, _ P.3d _, ____, (Colo. App. No. 09CA2362, Aug. 18, 2011).
¶40 For several reasons, we perceive a reasonable probability that the admission of the other acts evidence contributed to defendant's conviction:
• "Studies . . . indicate that the admission of a defendant's uncharged misconduct significantly increases the likelihood of a jury finding of liability or guilt" because it "strips the defendant of the presumption of innocence[,] . . . stigmatizes the defendant[,] and predisposes the jury to find him liable or guilty." 1 Imwinkelried, Uncharged Misconduct § 1:2, at 6;
• The evidence of defendant's guilt was not overwhelming: there were no eyewitnesses, other than defendant, to what happened to J.C.; defendant had proffered, in his out-of-court statements, an innocent explanation for her injuries
and death; and there was conflicting expert testimony on the cause of J.C.'s injuries and death. See Yusem, 210 P.3d at 470 (admission of other act evidence not harmless where the evidence did not overwhelmingly favor the People and the case was dependent on the credibility of conflicting testimony); Jones, _ P.3d at _ (admission of other act evidence not harmless where, inter alia, there were no witnesses to the alleged assault);
• The improperly admitted evidence played a significant part at trial: two witnesses testified regarding defendant's alleged abuse of A.C. and the prosecutor referred to defendant's "anger issues" twice during closing argument. Cf. People v. Rincon, 140 P.3d 976, 980 (Colo. App. 2005) (admission of other act evidence harmless where the single reference was brief and was never relied upon by the prosecution); and
• The improperly admitted evidence was inflammatory in nature. See Montgomery v. State, 810 S.W.2d 372, 397 (Tex. Crim. App. 1990) ("[M]isconduct involving children [is] inherently inflammatory. . . . [It poses] a grave potential for
[a] decision on an improper basis, as jurors may [lose] sight of specific issues they [are] called upon to decide and convict[] . . . out of a revulsion against [the defendant's] parental demeanor."); accord State v. Miller, 608 N.W.2d 437 (Wis. Ct. App. 1999) (unpublished table disposition) ("Inquiry about allegations of child abuse is inflammatory and appeals to the jury's natural revulsion towards such conduct.").
¶41 Accordingly, we reverse defendant's convictions and remand the matter for a new trial.
III. Exclusion of Expert Witness Testimony
¶42 In light of our disposition, we need not address defendant's contention that the trial court deprived him of his constitutional right to present a defense when it precluded a defense expert from testifying via live video-conferencing. This issue is not likely to recur on retrial.
¶43 The judgments of conviction are reversed and the case is remanded for a new trial.
JUDGE TAUBMAN and JUDGE FOX concur.