Opinion
38707-7-II
02-28-2012
STATE OF WASHINGTON, Respondent, v. COLLEEN MULVIHILL EDWARDS, Appellant.
UNPUBLISHED OPINION
Quinn-Brintnall, J.
On April 24, 2006, while wearing a Kevlar vest and brandishing a loaded .40 caliber semi-automatic, Colleen M. Edwards confronted construction worker Paul Miller as he was excavating land Edwards believed was an Indian burial site. Following a trial at which Edwards represented herself, a jury found Edwards guilty of second degree assault while armed with a deadly weapon. RCW 9A.36.021(1)(c). The jury also found by special verdict that Edwards was armed with a firearm at the time of the commission of the crime. Former RCW 9.94A.602 (1983). The trial court sentenced her to three months confinement, the low end of the standard range. Because of the firearm enhancement, the trial court imposed an additional, statutorily required 36-month sentence enhancement and 18 months of community custody. On appeal, Edwards, again appearing pro se, raises 27 errors challenging her conviction and sentence. Although Edwards's over-length brief addresses nearly all of her assignments of error improperly, the State's brief fairly addresses each of Edwards's assignments of error with citations to the record and appropriate controlling authority. Having conducted an independent review of the record of the proceedings below, we find Edwards's challenges to her conviction and sentence meritless and affirm.
DISCUSSION
Edwards's unorthodox and unusual presentation of her appeal warrants a unique opinion format to address her issues. Accordingly, the facts being well known to the parties will not be restated except as required to address the issue reviewed. In addition, we stress that, as a pro se litigant, Edwards is "bound by the same rules of procedure and substantive law as everyone else." Bly v. Henry, 28 Wn.App. 469, 471, 624 P.2d 717 (1980), review denied, 95 Wn.2d 1020 (1981). "The right of self-representation cannot be permitted to justify a defendant disrupting a hearing or trial, or as a license to a pro se defendant to not comply with relevant rules of procedural and substantive law." State v. Fritz, 21 Wn.App. 354, 363, 585 P.2d 173 (1978), review denied, 92 Wn.2d 1002 (1979). Charging Document
Edwards contends that the State incorrectly charged her because it amended the charging document and because the charging document did not specifically reference "intent." Because the State properly amended the charging document and because Washington courts have held that an allegation of assault sufficiently implies intent, Edwards's claim fails.
Edwards also alleges that probable cause did not exist to charge her with a crime. CrR 3.2, however, does not require a judicial finding of probable cause before the State files criminal charges but, instead, relates to setting conditions of release: "If the court does not find . . . probable cause, the accused shall be released without conditions." See also Gerstein v. Pugh, 420 U.S. 103, 125 n.26, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) ("Because the probable cause determination is not a constitutional prerequisite to the charging decision, it is required only for those suspects who suffer restraints on liberty other than the condition that they appear for trial."). As the State did not detain Edwards prior to or during trial, this assignment of error is without merit.
A. Amended Charging Document
CrR 2.1(d) provides that "[t]he court may permit any information . . . to be amended at any time before verdict or finding if substantial rights of the defendant are not prejudiced." Prosecutorial vindictiveness, however, must not motivate the decision to amend charges. United States v. Goodwin, 457 U.S. 368, 373, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982). "Prosecutorial vindictiveness occurs when 'the government acts against a defendant in response to the defendant's prior exercise of constitutional or statutory rights.'" State v. Korum, 157 Wn.2d 614, 627, 141 P.3d 13 (2006) (quoting United States v. Meyer, 810 F.2d 1242, 1245 (D.C. Cir. 1987)). In a pretrial setting, there is no presumption of prosecutorial vindictiveness when the State amends the charging document. State v. Bonisisio, 92 Wn.App. 783, 791, 964 P.2d 1222 (1998), review denied, 137 Wn.2d 1024 (1999). A defendant must offer proof of actual prosecutorial vindictiveness before an appellate court may invalidate the prosecutor's adversarial decisions made before trial. See State v. McDowell, 102 Wn.2d 341, 344, 685 P.2d 595 (1984).
Here, Edwards alleges that the "prosecutor office waited more than two years to correct the defect [of not adding the firearm enhancement] with a second amended information in September 12, 2008, less than 15 days before trial was to begin." Br. of Appellant at 13. The record, however, reveals that on August 9, 2006, fully two years before trial, the State advised Edwards that it would be filing an additional count of second degree assault and that firearm enhancements would be added to both counts. Edwards's assignment of error appears to relate to the second amended information submitted by the State on September 12, 2008. That amended information, however, dropped one of the two assault charges filed against Edwards. Further, Edwards acknowledged that she understood the new information and that she wished to continue pleading not guilty to the charge. Thus, the State fully and timely apprised Edwards of the charges against her, including the firearm enhancement, well before trial commenced. No prejudice occurred in the State reducing the charges against Edwards approximately two weeks before trial. Last, Edwards has failed to show prosecutorial vindictiveness and, having reviewed the record, we agree with the State that this assignment of error lacks merit.
Edwards also notes that the "identification of the accomplice is unknown and unspecified." Br. of Appellant at 13. This appears to be a reference to the statutory language of former RCW 9.94A.602 which reads, "[A]t the time of the commission of the crime, . . . the defendant or an accomplice was armed with a deadly weapon." The language of the statute makes it sufficiently clear that a logical disjunction exists and a charged defendant is guilty whether they, an accomplice, or both they and an accomplice were armed with a firearm. As such, the State properly charged Edwards using the statutory language and Edwards's "unproved accomplice" theory lacks merit.
B. Sufficiency of Charging Document
A charging document is constitutionally sufficient under the Sixth Amendment of the United States Constitution and article I, section 22 of the Washington State Constitution only if it includes all "essential elements" of the crime. See, e.g., State v. Goodman, 150 Wn.2d 774, 786, 83 P.3d 410 (2004). Both statutory and nonstatutory elements of the charged crime are to be included "so as to apprise the accused of the charges against him or her and to allow the defendant to prepare a defense." State v. Vangerpen, 125 Wn.2d 782, 787, 888 P.2d 1177 (1995). When a defendant challenges a charging document for the first time on appeal, appellate courts "more liberally" construe the document in favor of validity. State v. Kjorsvik, 117 Wn.2d 93, 102, 812 P.2d 86 (1991). Under this liberal standard, "even if there is an apparently missing element, it may be able to be fairly implied from language within the charging document." Kjorsvik, 117 Wn.2d at 104.
The first amended information filed against Edwards on May 9, 2007, charged her as follows: "On or about April 24, 2006 in the County of Kitsap, State of Washington, the above-named Defendant did assault another, to wit: Paul William Miller, with a deadly weapon; contrary to the Revised Code of Washington 9A.36.021(1)(c)." Clerk's Papers at 44. RCW 9A.36.021(1)(c) reads, "A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree . . . (c) [a]ssaults another with a deadly weapon." Thus, on its face, the charging document sufficiently apprised Edwards of the statutory elements of assault. Furthermore, Washington courts have consistently held that "'[b]ecause an assault is commonly understood as an intentional act, ' a mere allegation of assault does not, by definition, omit the element of intent." State v. Taylor, 140 Wn.2d 229, 238, 996 P.2d 571 (2000) (quoting State v. Chaten, 84 Wn.App. 85, 87, 925 P.2d 631 (1996)). Washington courts are clear that a charging document alleging assault need not specifically reference "intent." Edwards's challenge to the charging document on this basis also fails. Discovery
Edwards argues that the State failed to provide a portion of her defense investigator's report concerning an interview with Michael Montfort—a colleague of Edwards who accompanied her on the day of the assault—and, in addition, that the State failed to disclose the original 911 call made by Miller's boss, Patrick Hall. Because Edwards failed to substantiate her claim that part of her own defense investigator's report went missing and because the record clearly indicates that the State went beyond the discovery requirements outlined in CrR 4.7, we find that Edwards's claims of error in relation to discovery lack merit.
CrR 4.7 delineates a prosecutor's obligations related to discovery. CrR 4.7(a)(3) states that "the prosecuting attorney shall disclose to defendant's counsel any material or information within the prosecuting attorney's knowledge which tends to negate defendant's guilt as to the offense charged." In addition, CrR 4.7(d) states, in part,
Upon defendant's request and designation of material or information in the knowledge, possession or control of other persons which would be discoverable if in the knowledge, possession or control of the prosecuting attorney, the prosecuting attorney shall attempt to cause such material or information to be made available to the defendant.A. Montfort Interview
In the present case, Edwards claimed at trial that her previous counsel and her court-appointed investigator, Sandy Francis, interviewed Montfort about the incident but that part of that interview is missing. In light of this, Edwards asked to depose Montfort prior to trial. The court noted that Edwards had not complied with the rules related to requesting a deposition but heard her argument anyway as to why Montfort should be deposed. The court withheld ruling on the issue until Edwards could confirm that part of the interview was missing. The next time the matter came up, Edwards made vague allegations that Francis may be withholding the report or refusing to turn it over for unknown reasons, but Edwards failed to produce any substantive proof that part of any report was missing.
On October 17, the State explained to Edwards and the trial court that it talked to Francis about the alleged missing portions of the report. The State told the court that Francis turned over everything she had to Edwards's second court-appointed lawyer. The State, on its own initiative, confirmed this and further confirmed that Edwards's third court-appointed lawyer had received everything Francis had on the Montfort interview as well. The third court-appointed lawyer also confirmed with the prosecutor that he had turned over everything he had to Edwards. At trial, Edwards asked Francis, while she was under oath, if she had ever recorded an interview with Montfort. Francis testified that she had never recorded such an interview but, instead, simply put together a shorter report after interviewing him.
Edwards does not allege that this shorter report went missing as she provided a copy of this report to the State. Edwards's unsupported allegation appears to be that Francis tape recorded a much longer interview with Montfort.
Whether further portions of a Montfort report ever existed is irrelevant. As the record makes clear, the prosecutor did not violate CrR 4.7(a)(3) as he never possessed such a report. Further, the prosecutor followed CrR 4.7(d) and made significant effort in trying to understand whether, in the course of Edwards changing counsel three times, a report may have gone missing. Edwards's vague allegations of prosecutorial misconduct in relation to this "missing" report are without merit.
B. 911 Call
In similar fashion, Edwards contends that the prosecutor failed to disclose the "original (non-edited) 911 call." Br. of Appellant at 6. Specifically, Edwards argues that neither the prosecutor nor the court attempted to acquire the "original" call from Kitsap County Central Communications (CenCom, the 911 call center). Our review of the record reveals that both the prosecutor and court attempted to assist Edwards in procuring a copy of the original call, and this argument is clearly without merit.
Edwards suspected that there were "imperfections in [the] transfer process" when Kitsap County Central Communications (CenCom 911) transferred the call from its original format to the waveform audio file format she received from the prosecutor. Report of Proceedings (RP) (Sept. 8, 2008) at 7. Edwards asked the court to grant her up to $6,000 for an expert witness, William Nichols, to come from New York and analyze the recording. It was later revealed in the course of the trial that Nichols was Edwards's boyfriend.
On September 8, 2008, the court ordered that Edwards be given an opportunity to listen to the "original" 911 recording. The prosecutor explained to the court that he had given Edwards everything he had on the 911 call but offered to accompany her to CenCom headquarters so that she could hear the "original" tape. On September 12, the court inquired whether Edwards had reviewed the call. Edwards said she had not because she did not have a written court order. The court explained to Edwards that if she needed an order it was her responsibility to prepare one for the court to sign. Immediately after this exchange, the prosecutor told Edwards that he did not intend to offer the 911 call at trial. In light of this, Edwards proclaimed the point moot and told the court, "I don't need to pursue it." Report of Proceedings (RP) (Sept. 12, 2008) at 24.
Like with the alleged "missing" report of the Montfort interview, whether an "unedited" version of the 911 call ever existed is irrelevant. The prosecutor told the court he gave Edwards all he had on the call and, when Edwards was still not satisfied, offered to accompany her to CenCom headquarters himself to listen to the original tape. The court, pursuant to CrR 4.7(d), indicated that it would issue an order allowing Edwards this privilege. Edwards, however, never took advantage of this. Thus, we hold that Edwards's vague allegations of prosecutorial misconduct or trial error related to discovery and the 911 call are clearly without merit.
In a separate assignment of error, Edwards appears to allege that prosecutorial misconduct or a trial court abuse of discretion occurred because various witnesses testified that Hall had called 911. Although the parties agreed in a motion in limine that the call would not be offered into evidence, the State never agreed to instruct its witnesses to avoid all reference to the fact that a call had been made. At trial, the State did not offer the call into evidence. Edwards has failed to indicate how reference to the 911 call prejudiced her and, more importantly, how reference to the 911 call amounted to misconduct or an abuse of discretion. Because Edwards's brief on this issue falls well below the standard envisioned by RAP 10.3(a)(6), we do not address this issue further.
Errors Related to Evidentiary Rulings
Edwards contends that a host of errors occurred at trial related to the trial court's evidentiary rulings. We review a trial court's evidentiary rulings for an abuse of discretion. State v. Brown, 132 Wn.2d 529, 571-72, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998). A trial court abuses its discretion when its decision is manifestly unreasonable or exercised on untenable grounds. State v. Lamb, 163 Wn.App. 614, 631, 262 P.3d 89 (2011). Because the trial court did not abuse its discretion in making any of its evidentiary rulings, Edwards's evidentiary challenges fail.
A. Testimony about Evidence Not Admitted as Exhibits
Edwards relates that the trial court improperly allowed reference to various objects collected at the crime scene and, further, improperly allowed the jury to view an optical disc storage (DVD) of a police officer test firing her gun. Edwards, however, does not indicate how this prejudiced her or how the trial court's decision to allow this testimony was manifestly unreasonable or exercised on untenable grounds. Further, Edwards provides no legal support for her bald assertion that these actions constitute trial error. As such, Edwards's arguments are clearly without merit. See RAP 10.3(a).
B. Errors Related to Exhibits
Edwards also contends that the trial court made numerous errors in including or excluding certain exhibits. Specifically, Edwards contends that the trial court should have admitted two National Rifle Association certificates, a copy of her concealed weapon permit, and a 1992 study guide on firearms certification for private security guards produced by the Washington State Criminal Justice Training Commission. Edwards also contends that the trial court should have excluded from evidence a Kevlar vest and "SAR pack/pouch" she wore at the scene, and the firearm collected at the scene. Br. of Appellant at 79. Because these items were relevant evidence of things Edwards used during the alleged assault, the trial court did not abuse its discretion in either admitting or omitting any of these items. Moreover, Edwards has failed to indicate how the inclusion or exclusion was erroneous or prejudiced her at trial in any legally recognized or relevant way. Accordingly, her evidentiary objections lack merit and we do not address them further. See RAP 10.3(a)(6).
"SAR" appears to be an acronym for "search and rescue."
C. Errors Related to Testimony
Edwards contends that the trial court should have allowed testimony about her conducting a citizen's arrest, testimony about human remains possibly being on the property, testimony about self-defense and Edwards's intent, and testimony about the ownership of the property on which the incident occurred. Edwards also alleges that the trial court erred in not allowing expert testimony on the state of the law. Again, Edwards fails to substantiate or support these claims, or explain how these alleged errors prejudiced her at trial in a legally cognizable way. These claims lack merit and we do not address them further. See RAP 10.3(a)(6). Jury Instructions
In this section of her brief, Edwards argues that "the defendant when testifying without counsel has no way to have counsel make motions to objejct [sic] or strike. The defendant is left without counsel when testifying as a pro se. In this case, the defendant cannot propose questions in advance or during the prosecutors [sic] examination and cross." Br. of Appellant at 70. Edwards also appears to argue that similar problems occur when the defendant cross-examines herself. But Edwards was made aware of the difficulties attendant on self-representation and insisted that she be allowed to exercise her constitutional right to represent herself.
Edwards also appears to argue in this portion of her brief that she could not possibly have had the requisite intent to commit assault because Miller was not afraid of her while she cross-examined him in the courtroom. Edwards provides no support for the novel idea that, after an assault occurs involving a deadly weapon, when the victim no longer feels threatened after the weapon is removed, the victim must never have felt fear or apprehension.
Edwards contends that the trial court erred in not providing the jury with an instruction on "citizen's arrest, " and an instruction related to disturbing an Indian burial ground. Because the evidence presented at trial did not support these defense theories, and because Edwards has failed to show how the trial court abused its discretion in omitting them, these claims fail.
Edwards also contends that the trial court failed to provide jury instructions related to self-defense. The record, however, reveals that instructions 12 to 18 given at trial were, in fact, self-defense instructions.
In general, we review a trial court's choice of jury instructions for an abuse of discretion. State v. Douglas, 128 Wn.App. 555, 561, 116 P.3d 1012 (2005). Jury instructions are sufficient if substantial evidence supports them, they allow the parties to argue their theories of the case, and, when read as a whole, they properly inform the jury of the applicable law. State v. Clausing, 147 Wn.2d 620, 626, 56 P.3d 550 (2002). It is reversible error to refuse to give a proposed instruction only if the instruction properly states the law and the evidence supports it. State v. Ager, 128 Wn.2d 85, 93, 904 P.2d 715 (1995).
Before delivering the jury instructions, the trial court told both counselors,
I will not be giving proposed Instructions 17, 18, and 19, which are interrelated. These deal with the citizen's arrest offense that Ms. Edwards has been promoting throughout this trial. . . .[T]here has been no evidence whatsoever that there was a knowing disturbance of an Indian -- a Native Indian grave. There was certainly testimony that the dogs had found human remains, but there was nothing presented to the jury that indicated these were Indian remains or that this is an Indian burial site.
Further, there has been no testimony that Mr. Miller [was] detained by Ms. Edwards, and the elements of this defense are clearly set out in the statute, and she has failed in her burden of production on those points, and, consequently, is not entitled to an instruction.10 RP at 1099-1100. As nothing in the record indicates that Edwards did, in fact, detain Miller or that the site in question was an Indian burial ground protected statutorily by ch. 27.44 RCW, the trial court did not abuse its discretion in refusing to give jury instructions on these topics. Cumulative and Procedural Errors
Edwards argues that the trial court refused to grant her a continuance to seek medical care and did not grant her appropriate ADA accommodations throughout the trial. Further, Edwards contends that these errors, along with all of the other asserted "errors" that occurred at trial, were prejudicial and cumulative. Here, our review of the record demonstrates that the trial court made significant efforts to accommodate Edwards and granted Edwards numerous continuances.
We review a trial court's ruling on a motion to continue for an abuse of discretion. State v. Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004). Under this standard, we will not disturb a trial court's decision unless the record shows that the decision is manifestly unreasonable, based on untenable grounds, or made for untenable reasons. Downing, 151 Wn.2d at 272-73 (quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)).
A. Continuances
Edwards received multiple continuances before trial commenced. On the morning of the actual trial, October 27, 2008, Edwards again asked for a continuance. Despite its concerns, the trial court granted Edwards's request for a continuance for one day, but told Edwards, "I expect to have from you medical records of the problems that you say you've had over the last three weeks. I don't want statements from you; I want materials signed by a doctor." 1 RP at 13.
The next day, on October 28, the trial court commenced by first inquiring as to the status of Edwards's medical condition. Edwards began making a number of assertions about her medical condition before being cut off by the trial court, which stated, "Ms. Edwards, yesterday you told us in open court that you had an appointment and you were going to be seen immediately. . . . Do you have any confirmation of that?" 2 RP at 18. Edwards again began explaining the situation, without providing documentation, and was again cut off by the trial court. The trial court explained,
Ms. Edwards, I'm going to repeat. I'm not going to take your uncorroborated statements in terms of what's happening. I need confirmation from your doctors as to the situation, not your self-reporting.
It seems to me that if the next appointment is for November 19, the doctors don't believe this is any imminent threat to you in between now and then, or they would have admitted you immediately.2 RP at 20. The court then asked Edwards if she was renewing her motion for a continuance. Edwards asserted that she was. As part of addressing Edwards's continuance request, the trial court addressed issues related to the possibility of Edwards having a seizure in the courtroom. The court determined that it would act as swiftly as possible in aiding Edwards in the case of a seizure but that, at the moment, "[w]e'll just go forward, then, as best we can." 2 RP at 30. The court then denied the request for a continuance and determined that trial would start immediately with the handling of pretrial motions. During the course of the three-week trial, Edwards never provided the court with documentation concerning her medical problems. Further, the record gives no indication that Edwards experienced a seizure during trial or suffered from medical issues outside the normal medical problems she experiences.
B. Americans With Disabilities Act (ADA) Accommodations
On September 12, the trial court addressed a motion to continue submitted by Edwards relating to ADA accommodations. The trial court noted for the record that
Judge Haberly, as long ago as her 2007 order, directed Ms. Edwards to [Kitsap County Court Administrator Frank] Maiocco, for her accommodations. On Monday, I directed Ms. Edwards to meet with Mr. Maiocco after court. She didn't do that. She did not call him or come into court on Tuesday.
On Wednesday, he took affirmative action to attempt to call her. Called her on . . . Wednesday morning and Wednesday afternoon. Apparently Ms. Edwards doesn't have an answering machine so it just rang and rang without picking up.
On Wednesday Ms. Edwards came into court and deposited her motion for continuance without contact with Mr. Maiocco.
Finally, on Thursday of this week, or late Wednesday afternoon, Mr. Maiocco and Ms. Edwards began communicating by e-mail. . . .
Mr. Maiocco has taken every effort to attempt to get a hold of Ms. Edwards. Ms. Edwards is the one creating the delays in that accommodation and that conversation that needs to happen. Therefore, that ground is baseless.RP (Sept. 12, 2008) at 29-30. Edwards provides no support for the contention that, after making contact with Maiocco, the court failed to accommodate her needs.
In light of this record, it is clear that the trial court did not act in a manifestly unreasonable manner and it did not abuse its discretion in refusing to grant Edwards an endless series of unsupported continuances. The court complied with ADA requirements and did its best to meet Edwards's undisclosed needs. Judgment and Sentencing Errors
Edwards also contends that the restitution amount on the judgment and sentence is $500 and does not match the actual damages of the assault victims. The trial court, however, never ordered restitution. Edwards is likely referencing the statutorily required $500 "victim assessment" fee collected pursuant to RCW 7.68.035(1)(a).
Edwards contends that the trial court erred in refusing to continue sentencing so that she could possibly hire an attorney. Washington courts have clearly indicated that reappointing counsel to a defendant who has previously waived her right to an attorney is within the discretion of the trial court, we hold that this assignment of error lacks merit.
In State v. DeWeese, 117 Wn.2d 369, 376-79, 816 P.2d 1 (1991), the Washington Supreme Court explained,
We observe a tension between a defendant's autonomous right to choose to proceed without counsel and a defendant's right to adequate representation. To protect defendants from making capricious waivers of counsel, and to protect trial courts from manipulative vacillations by defendants regarding representation, we require a defendant's request to proceed in propria persona, or pro se, to be unequivocal. Once an unequivocal waiver of counsel has been made, the
defendant may not later demand the assistance of counsel as a matter of right since reappointment is wholly within the discretion of the trial court. . . .
. . . .
. . . After a defendant's valid . . . waiver of counsel under these circumstances, the trial court is not obliged to appoint, or reappoint, counsel on the demand of the defendant. The matter is wholly within the trial court's discretion. Self-representation is a grave undertaking, one not to be encouraged. Its consequences, which often work to the defendant's detriment, must nevertheless be borne by the defendant. When a criminal defendant chooses to represent himself and waive the assistance of counsel, the defendant is not entitled to special consideration and the inadequacy of the defense cannot provide a basis for a new trial or an appeal.(Emphasis added.)
After firing three court-appointed attorneys, Edwards unequivocally requested the right to proceed pro se at trial. The record contains no reason to believe that the trial court abused its discretion in granting that request. Having elected to proceed pro se, however, the trial court did not abuse its discretion in declining to appoint Edwards counsel (for a fourth time) for the purposes of sentencing.
Despite the inadequacy of appellant's briefing, at the State's request we have conducted an independent review of the record in this case. Our review reveals that none of Edwards's many assignments of error have merit. Accordingly, we affirm the judgment and sentence.
Edwards also requested attorney fees pursuant to RAP 18.1(c). Having failed to establish any error or to apprise this court of the applicable law mandating consideration of her financial resources as required by RAP 18.1, we decline to grant Edwards attorney fees.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.
We concur: ARMSTRONG, P.J. HUNT, J.