Opinion
Case No. 5D18-1711
08-16-2019
Benjerman D. ROY, Appellant, v. STATE of Florida, Appellee.
Andrew B. Greenlee, of Andrew B. Greenlee, P.A., Sanford, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
Andrew B. Greenlee, of Andrew B. Greenlee, P.A., Sanford, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
PER CURIAM.
AFFIRMED.
Subsequent to oral argument, Chief Judge Evander was assigned to the panel and reviewed the briefs, the record, and the video recording of the oral argument prior to participating in the decision-making process.
EISNAUGLE, J., concurs specially, with opinion.
ROCHE, R.A., Associate Judge, concurs in part, dissents in part, with opinion.
EISNAUGLE, J., concurring specially.
I agree that Appellant's judgment and sentence should be affirmed. I write only to observe two points. First, some of the arguments relied on by the dissent were either not preserved or not raised in the initial brief, and therefore cannot be properly considered on appeal.
Second, the trial court's authentication rulings were supported by the evidence. We review a trial court's determination regarding the authentication of evidence for an abuse of discretion. Mullens v. State, 197 So. 3d 16, 25 (Fla. 2016). A party may authenticate evidence "by appearance, content, substance, internal patterns, or other distinctive characteristics taken in conjunction with the circumstances." Symonette v. State, 100 So. 3d 180, 183 (Fla. 4th DCA 2012) (quoting Jackson v. State, 979 So. 2d 1153, 1154 (Fla. 5th DCA 2008) ).
With this standard in mind, I observe that the dissent fails to acknowledge a list of evidence introduced at trial. For example, it was Appellant who not only conceded that the phone belonged to his brother but also made this fact part of his theory of defense during cross-examination and closing argument. The dissent also neglects to mention evidence that, upon returning to the gas station a second time, Appellant did not simply sit in his car and smoke. Instead, the testimony established that he conspicuously "look[ed] around like he was looking for somebody" while sitting in his car. When approached by law enforcement, Appellant fled at such a high rate of speed that officers were not permitted to continue their pursuit.
Although not acknowledged by the dissent, this and other record evidence require an affirmance in this case.
ROCHE, R.A., Associate Judge, concurring in part and dissenting in part.
I concur in the majority's affirmance of the judgment and sentence rendered on Count III, charging Appellant, Benjerman D. Roy, with fleeing or attempting to elude a police officer. However, because the State engaged in impermissible inference stacking and because there was insufficient competent, substantial evidence from which a rational jury could find Appellant guilty beyond a reasonable doubt of soliciting a child or person believed to be a child for unlawful sexual conduct using computer services or devices (Count I) and traveling to meet a minor (Count II), I respectfully dissent from the affirmance of those convictions.
In August 2016, a law enforcement officer posing as "Kelsey" posted the following ad on Craigslist: "If you are looking for a younger female, who is down for some fun, then email me." An individual identified only as "Bonjey Roy" responded to the ad from 9f759629734b0adf80f6676441c86@reply.craigslist.org. Using the email address "littlebitKelsey@Gmail.com," the officer exchanged emails with "Bonjey Roy." During the exchange, "Kelsey" identified herself as a fourteen-year-old girl.
The meaning of this series of letters and numbers was not explained at trial. The State offered no explanation of how Craigslist works, how it interfaces with its participants/customers, how Craigslist participants/customers communicate, or whether it is possible to trace its participants/customers to identify them.
"Bonjey Roy" provided "Kelsey" a cellular telephone number and a text message exchange ensued. After exchanging several text messages, a female officer called the cell phone number. In a recorded conversation, the person expressed interest in meeting "Kelsey" for sex and arranged by text to meet her at a RaceTrac gas station in DeLand that evening. "Kelsey" made two requests of the person: to (1) go into the store and buy her a bottle of water when he/she arrived and (2) send her a text confirming he/she was there.
Records of the texts do not provide subscriber information or any other content revealing the identity of the person sending them or the owner of the phone.
Undercover officers were watching the RaceTrac when a silver Saturn arrived at the agreed-upon RaceTrac. Law enforcement had no reason to believe the driver was the person who had communicated with "Kelsey," but observed him as he bought gasoline, walked in and out of the store without buying anything, and left. The undercover agents did not identify the individual and did not obtain the tag number of his vehicle.
When the silver Saturn returned to the RaceTrac a second time, the driver did not go into the store but merely parked and "lit something." Law enforcement officers approached, whereupon the vehicle fled. Later that night, a silver Saturn matching the description of the vehicle that had been observed at the RaceTrac was found abandoned at a rest stop in Lake Mary by other officers. Those officers smelled cannabis and searched the Saturn, recovering Appellant's driver's license from the center console. Based on his driver's license photo, Appellant was identified as the person who had fled from the RaceTrac in the silver Saturn.
Appellant was arrested and charged with soliciting a child for unlawful sexual conduct using computer services or devices in violation of section 847.0135(3)(a), Florida Statutes (2016) (Count I); travelling to meet a minor in violation of section 847.0135(4)(a), Florida Statutes (2016) (Count II); and fleeing or attempting to elude in contravention of section 316.1935(1), Florida Statutes (2016) (Count III). At trial, the trial court allowed the State to introduce into evidence the emails, text messages, and recorded phone conversation between "Bonjey Roy" and "Kelsey" over Appellant's authentication objection. After the jury returned a guilty verdict on all counts, the trial court adjudicated Appellant guilty as charged and sentenced him to twenty-one months in prison, followed by thirty-nine months of probation.
There is a three-fold basis for my dissent in this case. First, I believe there was insufficient evidence to authenticate the emails, texts, and phone call; therefore, it was error to admit them in evidence. Second, under the law addressing purely circumstantial evidence cases, the State failed to carry its burden of proof and presented a case based on impermissible inference-stacking. Finally, viewing the evidence in the light most favorable to the State, no rational jury could have found Appellant guilty of Counts I and II beyond a reasonable doubt. For any of these reasons, it was error to deny Appellant's motion for judgment of acquittal as to Counts I and II.
Authentication
Section 90.901, Florida Statutes (2018), provides: "Authentication or identification of evidence is required as a condition precedent to its admissibility. The requirements of this section are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." There is a low threshold for establishing a prima facie showing of authenticity. This prima facie showing may be established by direct evidence, such as an admission or the testimony of a witness having sufficient knowledge to tie the evidence to the party opposing its admissibility. It may also be established by circumstantial evidence, such as its "appearance, content, substance, internal patterns or other distinctive characteristics taken in conjunction with the circumstances." Symonette v. State, 100 So. 3d 180, 183 (Fla. 4th DCA 2012) (quoting Jackson v. State, 979 So. 2d 1153, 1154 (Fla. 5th DCA 2008) ). A trial court's ruling regarding authentication as a prerequisite to admission of evidence is reviewed for an abuse of discretion. Lamb v. State, 246 So. 3d 400, 408 (Fla. 4th DCA 2018) (citing Mullens v. State, 197 So. 3d 16, 25 (Fla. 2016) ).
Federal courts routinely admit electronic communications based on scant evidence of authentication, including testimony from law enforcement officers participating in the exchange in question who testify that the defendant was the sender/recipient. See, e.g., United States v. Barlow, 568 F.3d 215 (5th Cir. 2009) (holding that law enforcement agent masquerading as underaged girl was qualified to authenticate four months of "chats" with defendant). State courts consistently require more. See infra.
In assessing the adequacy of evidence for authentication, a court should first consider the reason the evidence is offered. See Commonwealth v. Koch, 630 Pa. 374, 106 A.3d 705 (2014). A court should also consider whether the electronic communication at issue is audio, video, or a writing because different approaches apply to each. Here, the evidence consisted of emails, texts, and an audio recording of a telephone conversation, all offered to prove that Appellant went to the RaceTrac to meet a fourteen-year-old girl for sex.
a. Emails and Text Messages
The written electronic communications in this case—emails and text messages—were admitted through the testimony of Sergeant Ehrenkaufer, who posed as fourteen-year-old "Kelsey" during the emails and text messaging sessions. Citing Charles W. Ehrhardt, Florida Evidence § 901.1a (2017 ed.), the trial court reasoned "the most common way to identify social media and things akin to social media is to have the author testify that they're the ones who generated or created it." Satisfied that Sergeant Ehrenkaufer was the "author," the trial court admitted the evidence.
Professor Ehrhardt's treatise does not support this ruling. The "author" of the emails and texts in this case was some unknown person, not Sergeant Ehrenkaufer. When a participant is used to authenticate an electronic exchange, the focus is on the witness's ability to identify the person against whom the communication is offered. The cases cited by Professor Ehrhardt for the proposition that authors may authenticate documents make this clear. In criminal cases, the person communicating with the target of the investigation must be able to identify the target through some personal knowledge or experience. Sergeant Ehrenkaufer acknowledged he had no idea who was on the other side of the emails and texts.
Two Florida cases have specifically addressed the authentication of text messages. In State v. Lumarque, 44 So. 3d 171 (Fla. 3d DCA 2010), the court considered a ruling that sexually explicit text messages of the victim and her boyfriend were inadmissible to prove motive for assault and battery by the victim's ex-husband because they had not been authenticated. At trial, the victim testified that the defendant had shown her the texts before he battered and assaulted her and a forensics examiner testified he downloaded the texts from the defendant's telephone. The Third District held that the text messages were adequately authenticated, noting "[t]he images and text messages were found [1] on the defendant's cellular telephone [2] seized pursuant to a search of the defendant's home [3] through a warrant [4] shortly after the alleged incident. Th[ese] fact[s], testified by the State's forensics expert, [are] sufficient to authenticate these exhibits." 44 So. 3d at 172–73 (citing United States v. Caldwell, 776 F.2d 989 (11th Cir. 1985) ). In Symonette, the Fourth District held that text messages downloaded from a telephone recovered from the defendant pursuant to a search warrant were adequately authenticated. 100 So. 3d at 183. Notably, a co-defendant testified that she and the defendant exchanged the text messages, some of which were exchanged while she was sitting next to him in a vehicle after the robbery. The Fourth District concluded: "The extrinsic evidence offered by the State, as well as the circumstances surrounding the procurement of the phone and pictures, is sufficient to show that the matter in question is genuinely what the State claims—pictures of the defendant's text messages to the driver." Id.
Virtually every out-of-state case holds that ownership of a device alone is insufficient to authenticate a written message found on the device. See, e.g., Rodriguez v. State, 128 Nev. 155, 273 P.3d 845, 849 (2012) ("[A] person cannot be identified as the author of a text message based solely on evidence that the message was sent from a cellular phone bearing the telephone number assigned to that person ...."). The government in Lumarque had substantially more.
Unlike Lumarque and Symonette, in the instant case, there was no evidence that the text messages were recovered from a phone belonging to or in the possession of Appellant pursuant to a search warrant. Further, Sergeant Ehrenkaufer, the witness through whom the State sought to admit the emails and texts, could not identify Appellant as the person on the other side of the emails or texts.
Lamb, a case involving authentication of a Facebook video, is also instructive. In that case, the Fourth District recognized a distinction between authentication of a video recording and an audio recording. The Fourth District acknowledged its prior holding that authentication of an audio recording "should be made by the technician who operated the recording device or a person with knowledge of the conversation that was recorded." 246 So. 3d at 409 (quoting Santana v. State, 191 So. 3d 946, 948 (Fla. 4th DCA 2016) ). It held, however, that to require the proponent of video evidence to provide testimony from persons appearing in the video or from the person recording it, as Santana requires for audio recordings, "sets the authentication burden too high." Id. (citation omitted). Instead, "if the video's distinctive characteristics and content, in conjunction with circumstantial evidence are sufficient to authenticate the video, then the government has met its authentication burden." Id.
The State argues here that it met the low threshold of authenticity through four pieces of evidence: (1) the Craigslist "handle" ("Bonjey Roy") and its supposed similarity to Appellant's name ("Benjerman D. Roy"); (2) the testimony that the telephone "came back to a Roy"; (3) Appellant's appearance at the time and place discussed; and (4) his flight. Each of these pieces of evidence will be examined in turn.
The State made additional arguments in closing and in its appellate brief, citing "facts" that are simply not supported by the record.
The State maintains that all the communications should be examined together because if examined separately, none can be tied to all the evidence the State relies on as proof of authentication. For example, there is no mention of a meeting in the Craigslist exchanges and "Bonjey Roy" is not mentioned in the texts or the telephone conversation. There is no authority supporting this muddled approach to these three distinct types of evidence. Nevertheless, the State asserts, without citation to authority, that the Court should consider all three methods of communications as a "continuous conversation[ ] in various forms." This novel approach should be rejected. See State v. Koch, 157 Idaho 89, 334 P.3d 280 (2014) (finding recording of telephone call, emails and related texts were all admissible as having been adequately authenticated, but analyzing each communication separately).
First, the supposed similarity between Appellant's name, "Benjerman D. Roy," and "Bonjey Roy," used in the Craigslist exchanges is meaningless. The State offered no evidence that "Bonjey" was Appellant's nickname. Cf. Simon v. State, 279 Ga.App. 844, 632 S.E.2d 723 (2006) (emails authenticated by victim's testimony that defendant's nickname, "Penguin," was used by sender to refer to himself); State v. Taylor, 178 N.C.App. 395, 632 S.E.2d 218 (2006) (texts on victim's telephone referring to defendant by nickname authenticated by witness testimony that defendant was known by nickname). There was also no evidence that Appellant ever used "Bonjey Roy" in conjunction with any electronic communication. Cf. State v. Hannah, 448 N.J.Super. 78, 151 A.3d 99 (App. Div. 2016) (tweet authenticated by witness who testified she was familiar with defendant's handle); State v. Thompson, 777 N.W.2d 617 (N.D. 2010) (texts authenticated by defendant's husband's testimony he was familiar with her signature "cuzImJealeon"). Benjerman, even with its unusual spelling, does not readily suggest "Bonjey" as a nickname.
Second, no telephone or telephone records tying the cell phone in question to Appellant were in evidence. Although the State argued in closing and asserts in its appellate brief that the phone "belonged to the brother of the defendant, Ron Roy," there is no evidence that it did. The only mention of Appellant's brother in this trial is the following exchange between Lieutenant Schoeps and defense counsel:
Q. And the phone number that comes back was actually the brother of Mr. Benjerman Roy, wasn't it?
A. I don't know. I just know it came back to a Roy, sir.
The clear implication from this testimony is that the phone did not belong to and was not registered to Appellant. There was also no evidence, expert or otherwise, that any other electronic device utilized to communicate via Craigslist was even accessible to Appellant.
Lieutenant Schoeps assured the jury that "that's very common. My phone number doesn't come back to me. It comes back to my wife." There was no evidence, however that Appellant was married or that he had a relationship to "someone named Roy" who provided him with a telephone. Thus, the question of who owned or registered the telephone was left wholly to speculation and imagination. This evidence, if anything, supports the conclusion that authentication was lacking.
Third, the State's position is that Appellant's appearance at the time and place discussed with "Kelsey" tends to prove that the texts were authored by him. There are no Florida cases supporting this argument. Review of out-of-state cases reveals that where authenticity rests on the content of the message in question, substantially more is required than exists here. See, e.g., United States v. Lanzon, 639 F.3d 1293 (11th Cir. 2011) (defendant arrested when he directly approached officer impersonating minor at prearranged time and place); State v. Glass, 146 Idaho 77, 190 P.3d 896 (Idaho Ct. App. 2008) (chat authenticated when defendant knocked on door of vacant apartment after arriving from certain direction driving black two-door car, as discussed in chats with law enforcement officer impersonating minor); People v. Ziemba, 421 Ill.Dec. 618, 100 N.E.3d 635 (Ill. App. Ct. 2018) (texts on defendant's telephone were authenticated by their content; defendant arrived at specific pre-arranged hotel room, approached law enforcement officer posing as pimp for underaged girls, and spoke about things contained in texts such as price for sex).
Further, nothing about Appellant's conduct at the RaceTrac suggested he was there for "Kelsey." In fact, his behavior conveyed he was not. At no point did he buy water as "Kelsey" requested or text "her" when he arrived. He did not speak to anyone or behave in a way one might expect from a person traveling to meet anyone, let alone a schoolgirl for sex. There was also no evidence that Appellant had anything with him to indicate he was there to meet "Kelsey" for sex. See Lanzon, 639 F.3d at 1297 (defendant had flavored lubricant and colored condoms in his car as discussed in internet messages with authorities). Appellant simply appeared as one of many people who went to the RaceTrac that night, buying gas, driving around, and sitting in his parked car.
Fourth, the State argues that flight somehow supports the authentication of the emails and texts. How this conduct relates to the State's burden to prove that the evidence is what it purports to be has never been made clear. Instead, the State trots out the shop-worn trope that flight is evidence of consciousness of guilt—an entirely different matter unrelated to authenticating evidence. Moreover, the evidence that Appellant had cannabis in the car and that he "lit something" at the RaceTrac supports an equally viable explanation for his flight, that he was afraid of being arrested for possession of cannabis.
The question presented by this case is whether there was enough evidence submitted to satisfy the low standard of authenticity? Despite the lack of a clearly defined pathway for authenticating written electronic communications, or perhaps because of it, in the end, I conclude that there was not. The trial court abused its discretion in admitting the emails and text messages in evidence.
Courts across the country have wrestled with the issue of authenticating electronic communications. See Brown v. State, 2019 Ark. App. 154, 573 S.W.3d 536 (2019) (authentication of Instagram messages); Parker v. State, 85 A.3d 682 (Del. 2014) (authentication of Facebook posts); Twiggs v. State, 315 Ga.App. 191, 726 S.E.2d 680 (2012) (authentication of emails); Hannah, 151 A.3d at 99 (authentication of Twitter tweets); Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012) (authentication of MySpace posts). Some state courts have expressed reservations regarding all such media because of the ease of hacking, misappropriation, fraud, identity theft and overall the ease by which one person can masquerade as another online or by telephone. See Griffin v. State, 419 Md. 343, 19 A.3d 415, 421 (2011) ("The concern arises because anyone can create a fictitious account and masquerade under another person's name or can gain access to another's account ...."). In some states, authenticity of electronic communications requires a higher or at least different degree of proof than other kinds of evidence. See, e.g., Commonwealth v. Williams, 456 Mass. 857, 926 N.E.2d 1162 (2010) (authentication of MySpace page requires proof of persons having access thereto); State v. Young, 192 Wash.App. 850, 369 P.3d 205 (2016) (citing Rule 901(b) of the Washington Rules of Evidence, enacted specifically to address authenticity of email). Most states, however, treat electronic evidence as any other. See, e.g., Tienda, 358 S.W.3d at 638-39 ("[T]he rules of evidence already in place for determining authenticity are at least generally ‘adequate to the task.’ ") (quoting Steven Goode, The Admissibility of Electronic Evidence, 29 Rev. Litig. 1, 7 (Fall 2009) ); State v. Giacomantonio, 371 Wis.2d 452, 885 N.W.2d 394 (Wis. Ct. App. 2016). Even in states where authentication of electronic communications is subject to the standard applicable to other evidence, proof of authorship is still required. See, e.g., Dering v. State, 465 S.W.3d 668 (Tex. Ct. App. 2015).
b. Audio Recording
The trial court also admitted the recorded telephone conversation through the testimony of Detective Maynard, who was posing as "Kelsey" during the conversation. As did Sergeant Ehrenkaufer with respect to the emails and text messages, Detective Maynard admitted she had no idea who was on the other end of the phone call.
Florida cases on authentication of electronic communications dealing with audio recordings are critical here. In Hernandez v. State, 919 So. 2d 707 (Fla. 5th DCA 2006), this Court found that, in a conspiracy to traffic in narcotics trial, an audio recording was not authenticated when there was no evidence that it was the defendant's voice on the recording. This Court cited Parnell v. State, 218 So. 2d 535, 541 (Fla. 3d DCA 1969), for the proposition that "for a tape recording to be admissible the State must show to the trial court's satisfaction that (1) the recording device was operating properly, (2) that it was operated in a proper manner, (3) the recording was accurate, and (4) the voices of the persons speaking were identified." Hernandez, 919 So. 2d at 710 ; see also Vilsaint v. State, 127 So. 3d 647 (Fla. 4th DCA 2013) (detective could identify defendant's recorded voice based on testimony that he recognized it from prior interview). There is no evidence in this record satisfying any part of this four-part test. For this reason, the trial court abused its discretion in admitting the audio recorded phone conversation.
Inference Stacking
This is a circumstantial evidence case that was argued two different ways. Mostly, the State insisted that the evidence showed that Appellant was the person communicating with "Kelsey." By this theory, the State asked the jury to "follow the bricks in the path" and infer (1) that Appellant had access to the internet through some device, and (2) that using the handle "Bonjey Roy" he responded to the Craigslist ad and engaged in a conversation with "Kelsey," wherein she told him she was a fourteen-year-old girl. The "path" then required the jury to infer that (3) Appellant had access to the cell phone used to text "Kelsey" and that (4) it was Appellant who engaged in the text and phone conversations. The final inference in the "path" is that (5) Appellant drove to the RaceTrac for the purpose of meeting an underaged girl for sex. At least on appeal, the State predicates its case on facts not in the record, including that a law enforcement "analyst" (who did not testify) developed probable cause that Appellant was "Bonjey Roy" based on information provided by the undercover officers who communicated with Appellant (aka the "chatters") and that such information, including a photograph of Appellant (also not in evidence), was conveyed to the "surveillance" and "take-down" teams at the designated RaceTrac. Although there was evidence that an analyst identified a target and relayed information to the surveillance team, there was no evidence as to who that target was and what information was provided.
The State also argued that the silver Saturn was registered to Appellant's brother—another fact unsupported by the record.
The State shifted its theory of the case in its closing argument to require even more inferences to reach a guilty verdict, asserting that it was unnecessary to prove that it was Appellant communicating with "Kelsey." According to the State, "[w]hat matters is the person who shows up." In addition to the inferences identified above, this theory required the jury to infer that someone else spoke to "Kelsey" and that person told Appellant to go to the RaceTrac to retrieve her so someone (Appellant, the person who spoke with "Kelsey," or someone else) could have sex with her. This is disingenuous. Without evidence that Appellant was behind these conversations, there is no evidence that he went to the RaceTrac for sex with a minor. Stacking inferences in this manner is prohibited by Florida law. Insufficient Evidence
This is a circumstantial evidence case. As such, the law requires proof of the crimes in question beyond a reasonable doubt and evidence inconsistent with any reasonable hypothesis of innocence. Jaramillo v. State, 417 So. 2d 257 (Fla. 1982). Although this standard has come under weighty criticism (see Knight v. State, 107 So. 3d 449 (Fla. 5th DCA 2013) ), it is the law and must be applied here. Reversal on this basis is compelled even in cases where the circumstantial evidence is strong and highly suggestive of guilt. See, e.g., Smolka v. State, 662 So. 2d 1255 (Fla. 5th DCA 1995) (reversing first-degree murder conviction while acknowledging that facts gave rise to "strong suspicion" of guilt); see also Lindsey v. State, 14 So. 3d 211 (Fla. 2009) (reversing murder conviction in circumstantial evidence case notwithstanding defendant's fingerprints at scene).
Appellant's hypothesis of innocence was reasonable. Law enforcement was anything but thorough. The State failed to subpoena either a representative or records from Craigslist, Google, or the cell phone's service provider. It did not introduce evidence to show that Appellant was "Bonjey Roy." There was no evidence that Appellant had access to any electronic device. Law enforcement chose not to wait before approaching Appellant or have "Kelsey" call or text him at the RaceTrac. The surveillance and take-down officers failed to anticipate that Appellant would flee and then failed to block his egress. Any or all of these things could have yielded evidence resulting in a stronger case and direct evidence to argue to the jury. See Commonwealth v. Amaral, 78 Mass.App.Ct. 671, 941 N.E.2d 1143 (2011) (in case involving similar charges, email, Craigslist exchanges and telephone call authenticated by Yahoo records, photograph sent to "victim" by defendant, telephone number given by defendant was registered to defendant, and defendant observed answering telephone when detective called).
There is no doubt that the State failed to disprove Appellant's reasonable hypothesis of innocence; to wit, that someone else responded to the Craigslist solicitations, exchanged texts with and spoke to "Kelsey," and that Appellant went to the RaceTrac on the evening in question for entirely unrelated reasons. On the facts presented here, no rational jury could have found Appellant guilty on Counts I and II beyond all reasonable doubt. Even with the improperly admitted electronic evidence, this record simply does not support the jury's verdict.
I would reverse on Counts I and II.