Opinion
2015 KA 0029
06-05-2015
STATE OF LOUISIANA v. ROY SHORT
Cynthia K. Meyer New Orleans, Louisiana Attorney for Appellant, Roy Short Warren Montgomery District Attorney Franklinton, Louisiana and Kathryn Landry Special Appeals Counsel Baton Rouge, Louisiana Attorneys for Appellee, State of Louisiana
NOT DESIGNATED FOR PUBLICATION On Appeal from the 22nd Judicial District Court In and for the Parish of Washington State of Louisiana
Trial Court No. 11-CR9-115159
The Honorable Reginald T. Badeaux, III, Judge Presiding Cynthia K. Meyer
New Orleans, Louisiana
Attorney for Appellant,
Roy Short
Warren Montgomery
District Attorney
Franklinton, Louisiana
and
Kathryn Landry
Special Appeals Counsel
Baton Rouge, Louisiana
Attorneys for Appellee,
State of Louisiana
BEFORE: GUIDRY, THERIOT, AND DRAKE, JJ. DRAKE, J.
The defendant, Roy Short, was charged by bill of information with possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1 and conspiracy to distribute cocaine, a violation of La. R.S. 14:26 and La. R.S. 40:967(A)(1). The defendant pled not guilty and, following a jury trial, was found not guilty of the possession of a firearm by a convicted felon charge. The defendant was found guilty of the conspiracy to distribute cocaine charge. The defendant filed a motion for postverdict judgment of acquittal, which was denied. The defendant was sentenced to five years imprisonment at hard labor. The State filed a habitual offender bill of information; the defendant admitted to the allegations in the bill (prior conviction for distribution of cocaine) and was adjudicated a second-felony habitual offender. The trial court vacated the five-year sentence and resentenced the defendant to seven-and-one-half years imprisonment at hard labor. The defendant now appeals, designating three assignments of error. We affirm the conviction, habitual offender adjudication, and sentence.
FACTS
In June of 2010, an interagency joint task force was formed to investigate illegal drugs in the city of Bogalusa. Louisiana State Trooper John Miller, Lieutenant Donald Phelps, with the Bogalusa Police Department, and Special Agent Scott Brownlie, with the Drug Enforcement Administration (DEA), headed up the investigation. Through intelligence gathering, including undercover drug purchases, it was learned that a drug organization, dealing mainly in cocaine, was operating in Bogalusa and the surrounding areas. Mid-level to upper-level drug dealers were identified, as well as out-of-state sources of the cocaine. The investigators also used pen registers, obtained through court orders, to obtain recorded data from certain telephones.
As part of the investigation, Agent Brownlie obtained a wire interception order from the United States District Court, Eastern District of Louisiana, authorizing the interception of wire communications. The federal court ordered AT&T Wireless and any subsequent service provider that provides service to the target telephones to furnish the DEA with the information and assistance necessary to accomplish the interception of phone calls. This wire intercept (or wire taps) allowed for the real-time monitoring of phone conversations. Two of the target cell phones were for those of Derrick Moss and Jesse Owens, both identified as mid-level to upper-level drug dealers. Through the course of monitoring many of Jesse Owens's phone calls from October to December of 2010, it was learned that the defendant was selling cocaine provided to him by Jesse Owens, who in turn, had acquired his cocaine from Derrick Moss.
Derrick Moss testified that he had cocaine brought in from Houston. According to Derrick Moss, one of the people he sent his cocaine to was Jesse Owens. Jesse Owens would sell some of the cocaine and break the rest into smaller quantities to be given to other people, including the defendant, to sell it for him.
Trial counsel stipulated that in 1996 the defendant pled guilty to two counts of distribution of cocaine. The defendant did not testify at trial.
ASSIGNMENT OF ERROR NO. 1
In his first assignment of error, the defendant argues that the trial court erred in allowing telephone recordings to be admitted into evidence and played for the jury. Specifically, the defendant contends that the recorded telephone conversations allegedly between the defendant and Jesse Owens were not authenticated and, therefore, inadmissible.
Agent Brownlie testified that Jesse Owens's phone was tapped, and that the calls he made and received were recorded at a monitoring station in the DEA Office in Metairie. A CD containing seventy-one phone calls was identified by Agent Brownlie and introduced into evidence, with most of the phone calls being played for the jury. The State also introduced linesheets into evidence. Agent Brownlie explained that the several monitors who listened to the phone calls at issue synopsized the content of each call. Each page contained the contents of one phone call; as such, seventy-one linesheets were introduced into evidence. It should be noted not every linesheet contained merely a summary of the recorded phone call; many of the linesheets contained verbatim (or as close to verbatim as possible) accounts of the conversations. All of the phone calls recorded (and played for the jury) involved only two numbers - Jesse Owens's tapped number (or target telephone no. 1) of 985-750-0070 and the defendant's number of 985-750-8378. The subscriber of the 985-750-8378 number was the defendant's mother, Georgia Short. Most of the calls were between who Agent Brownlie identified as Jesse Owens and the defendant. A few of the calls contained the voice of an unknown male. Most of the calls were outgoing from Jesse Owens's phone to the defendant's phone, and a few times, the defendant called Jesse Owens. When some of the phone calls were played, Agent Brownlie would describe for the jury the conversation between Jesse Owens and the defendant. The defendant continuously objected to the admissibility of the phone calls while they were being played.
On cross-examination, Agent Brownlie testified that he had never spoken to the defendant. When asked how he could identify the defendant in the phone recordings, Agent Brownlie stated that (1) he learned from Trooper Miller that the defendant was involved "with another individual;" (2) the speaker was identified as "Roy" in some of the calls; and (3) the defendant's number was subscribed to Georgia Short. Agent Brownlie made clear that while he had never had a conversation with the defendant, "the investigation determined that that was Roy Short on those phone calls."
The defendant argues that the above-mentioned testimony of Agent Brownlie during cross-examination was not sufficient to satisfy the authentication or self-authentication requirements pursuant to La. C.E. arts. 901 or 902. The defendant notes that Agent Brownlie testified that the phone the defendant allegedly was using was registered to Georgia Short, a female, and it was not her voice on the recordings. The defendant contends that Agent Brownlie was never able to explain exactly how investigators determined that the voice on the phone talking to Jesse Owens was the defendant. Since these recordings, according to the defendant, were not properly authenticated, they were not competent evidence; as such, the trial court erred in admitting the recorded calls.
During the direct examination of Agent Brownlie, the defendant lodged various objections regarding the admissibility of the CD of the recorded phone calls. The defendant continuously objected on grounds of hearsay; speculation (regarding Agent Brownlie's interpretation of what the parties were discussing); leading questions; relevance; failure of the State to establish a prima facie case of conspiracy; and that the maker of the CD was unavailable for cross examination (the concern being there was no way to know if the CD had been doctored). Most objections were overruled, while a few were sustained.
Despite the litany of objections, the defendant never lodged an objection based on the authenticity of the CD, or more specifically, the authenticity of the defendant's voice in the recordings. Accordingly, this singular issue, as it is raised in the defendant's brief, is not properly before us. Before and during trial, the defendant never raised the issue of the authenticity of the defendant's voice on the phone recordings, by way of objections, motions in limine, or motions to suppress. At the pretrial motion to suppress, the defense counsel concentrated all of his questions/attacks on the issue of whether or not the police and/or agents caught the defendant engaged in an actual illegal act. In order to preserve an issue for appellate review, a party must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for the objection. La. C.Cr.P. art. 841. It is well-established that a defendant is limited to the grounds for objection articulated at trial and a new basis for an objection may not be raised for the first time on appeal. State v. Cooks, 97-0999 (La. 9/9/98), 720 So. 2d 637, 644, cert. denied, 526 U.S. 1042, 119 S.Ct. 1342, 143 L.Ed.2d 505 (1999). Since the defendant never lodged an objection that the voice in the recorded phone calls was never properly authenticated as the defendant's voice, the defendant is precluded from raising the issue on appeal.
ASSIGNMENT OF ERROR NO. 2
In his second assignment of error, the defendant argues the trial court erred in allowing Agent Brownlie to testify regarding his interpretation of the recorded telephone conversations. Specifically, the defendant contends that Agent Brownlie, not having been qualified as an expert, should not have been allowed to give his opinion regarding certain vernacular used in the narcotics trade. Thus, according to the defendant, Agent Brownlie should not have been allowed to speculate during his testimony on the meaning of some of the language used between the recorded parties. The defendant contends the trial court erred in allowing Agent Brownlie to testify as a lay witness about what he thought the telephone conversations meant.
Following are those complained of exchanges addressed in the defendant's brief. In one phone conversation, Jesse Owens asked the defendant what those "people" were doing down there. Agent Brownlie testified that "people" referred to the drug task force. The defendant objected as to speculation, and the trial court sustained the objection.
In another conversation, Jesse Owens said he was sending someone to "get some change." Agent Brownlie indicated this was subject to interpretation, but that the investigation determined Jesse Owens would send people to another supplier. The defendant objected as to speculation, and the trial court sustained the objection.
In another conversation, Jesse Owens asked if the caller was "ready to see him." Agent Brownlie explained that the supplier (Owens) supplied the cocaine without getting the money. When Jesse Owens asked if his dealer was "ready to see him," he was asking if the dealer had sold the cocaine and had the money for Jesse Owens. In other words, according to Agent Brownlie, Jesse Owens was looking for his money that the defendant owed him. The defendant objected based on the fact Agent Brownlie had never been established as an expert in voice recognition and/or in being able to decipher language. The trial court overruled the objection.
In another call, the defendant (as referred to by Agent Brownlie and as the "other caller" by the defendant in his brief) called Jesse Owens and told him he thought he (the defendant) left his keys in Jesse Owens's car. Agent Brownlie testified that Jesse Owens was worried that something other than keys was left in the car. The defendant objected as to speculation, and the trial court sustained the objection.
In brief, the defendant reverses the caller and recipient of the call.
In another call, "the caller" (as referred to by the defendant in brief) told Jesse Owens things were in "slow motion" when Jesse Owens asked how things were going. Agent Brownlie testified that it meant the dealer was not selling a lot of cocaine but only small (crack) rocks for $10 or $15. The defendant made no objection to this testimony.
During another conversation, according to Agent Brownlie, Jesse Owens told the defendant to take his time with it, that "Juve" said it was "fire." Agent Brownlie stated that "Juve" was Todd Mark, a drug supplier of Derrick Moss. Agent Brownlie explained that "fire" was a common word used to describe good quality, or strong, cocaine; as such Jesse Owens was telling the defendant to take his time with it and do the process slowly. The defendant made no objection to this testimony.
During another conversation, according to Agent Brownlie, Jesse Owens provided the defendant with a quantity of cocaine, and the defendant told Jesse Owens that he "went put it straight up" and would tell Jesse Owens in the morning. Agent Brownlie suggested that this meant the defendant would not handle the cocaine until the morning, at which time he would determine the quality of the cocaine and how well it cooked up in the conversion process to crack cocaine. The defendant made no objection to this testimony.
Finally, according to the defendant, Jesse Owens said during a phone call that he had to take "two and a baby somewhere." Agent Brownlie testified that this was a common term for two and a quarter ounces of cocaine. The defendant made no objection to this testimony.
Of the eight exchanges set forth in the defendant's brief, three of the objections were sustained, one objection was overruled, and in four of the instances, no objection was made. If an objection is sustained, the defendant cannot on appeal complain of the alleged error unless at trial he requested and was denied either an admonition to disregard the offending testimony or a mistrial. State v. Michel, 422 So. 2d 1115, 1121 (La. 1982); State v. Hookfin, 476 So. 2d 481, 487 (La. App. 1st Cir. 1985). The defendant did not request an admonition or a mistrial after his objections were sustained and, as such, he cannot complain on appeal of the alleged errors. Further, as we noted, a defendant is limited to the grounds for objection articulated at trial and a new basis for an objection may not be raised for the first time on appeal. See Cooks, 720 So. 2d at 644; see also La. C.Cr.P. art. 841. Accordingly, the defendant's argument regarding the four recorded exchanges raised by the defendant, wherein no contemporaneous objections were made, is not properly before this court.
We are left, thus, with a single instance of, according to the defendant, improper testimony. During this particular conversation, Agent Brownlie explained that when Jesse Owens asked the defendant if he (the defendant) was ready to see him (Owens), it meant that Jesse Owens was looking for the money that was owed him.
Louisiana Code of Evidence article 701, which pertains to opinion testimony by lay witnesses, provides:
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are:
(1) Rationally based on the perception of the witness; and
(2) Helpful to a clear understanding of his testimony or the determination of a fact in issue.
While Agent Brownlie did not testify as an expert, he testified about drug lingo used between Jesse Owens and the defendant as a lay witness with nineteen years of experience as a law enforcement officer, with sixteen of those years entailing narcotics investigations. Agent Brownlie testified that as a Special Agent with the DEA, he investigated individuals and organizations involved with crimes involving drugs, primarily cocaine, crack cocaine, methamphetamine, and heroin.
The rule is well-established that an experienced narcotics agent may testify about the significance of certain conduct or methods of operation unique to the drug distribution business, as such testimony is often helpful in assisting the trier of fact understand the evidence. United States v. Washington, 44 F. 3d 1271, 1283 (5th Cir.), cert. denied, 514 U.S. 1132, 115 S.Ct. 2011, 131 L.Ed.2d 1010 (1995). Agent Brownlie's extensive experience and familiarity with drug distribution and the various methods used by drug dealers did not require that he testify as an expert. His testimony was permissible opinion testimony based on his personal knowledge, training, and experience. See United States v. Buchanan, 70 F. 3d 818, 832-33 (5th Cir. 1995), cert. denied, 517 U.S. 1114, 116 S.Ct. 1340, 134 L.Ed.2d 490 (1996), cert. denied sub nom., 517 U.S. 1126, 116 S.Ct. 1366, 134 L.Ed.2d 532 (1996). See also State v. Watson, 47,980 (La. App. 2d Cir. 5/15/13), 135 So. 3d 693, 700 n.15, writs denied, 13-1676, 1788 (La. 2/7/14), 131 So. 3d 856, 862; State v. Morgan, 02-1489 (La. App. 4th Cir. 3/12/03), 842 So. 2d 1126, 1134, writ denied, 03-1062 (La. 10/17/03), 855 So. 2d 759.
Accordingly, the trial court did not abuse its discretion in admitting Agent Brownlie's opinion testimony into evidence. This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 3
In his third assignment of error the defendant argues the evidence was insufficient to support the conviction. Specifically, the defendant contends the State failed to prove he "knowingly and intentionally" conspired to distribute cocaine.
A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See La. C.Cr.P. art. 821(B); State v. Ordodi, 06-0207 (La. 11/29/06), 946 So. 2d 654, 660; State v. Mussall, 523 So. 2d 1305, 1308-09 (La. 1988). The Jackson standard of review, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patorno, 01-2585 (La. App. 1st Cir. 6/21/02), 822 So. 2d 141, 144.
Louisiana Revised Statutes 14:26 provides, in pertinent part:
A. Criminal conspiracy is the agreement or combination of two or more persons for the specific purpose of committing any crime; provided that an agreement or combination to commit a crime shall not amount to a criminal conspiracy unless, in addition to such agreement or combination, one or more of such parties does an act in furtherance of the object of the agreement or combination.
B. If the intended basic crime has been consummated, the conspirators may be tried for either the conspiracy or the completed offense, and a conviction for one shall not bar prosecution for the other.
The crime of conspiracy is formed when an agreement to commit a crime is reached between two or more persons and an act is done in furtherance of the agreement. State v. Richards, 426 So. 2d 1314, 1316 (La. 1982). Specific intent is an essential element of criminal conspiracy. Specific intent is that state of mind that exists when the circumstances indicate that the offender actively desired the prescribed criminal consequence to follow his act or failure to act. La. R.S. 14:10(1). In order to constitute criminal conspiracy, criminal intent to commit a specific offense must exist in at least two minds. State v. Hinton, 08-1849 (La. App. 1st Cir. 2/13/09), 6 So. 3d 242, 245, writ denied, 09-0821 (La. 3/4/11), 58 So. 3d 466. In conspiracy, it is the combination of minds in an unlawful purpose that is the foundation of the offense. The overt act may be any act in furtherance of the agreement; a fortiori, it is not necessary that it constitute the crime and the question whether it serves to support the object of the conspiracy is one of fact for the jury. Id. Further, the overt act need not be unlawful. State v. Taylor, 96-1043 (La. App. 3rd Cir. 2/5/97), 688 So. 2d 1262, 1268 (citing State v. Guillory, 540 So. 2d 1212, 1215 (La. App. 3rd 1989).
In his brief, the defendant argues the State failed to prove that he knowingly and intentionally conspired to distribute cocaine. The defendant points out that no pictures or videos were produced showing him and Jesse Owens together or of him (the defendant) distributing cocaine. According to the defendant, the State sought to prove the conspiracy through the testimony of "thrice convicted felon" Derrick Moss, who cooperated with the State "in exchange for a favorable sentence." The defendant notes that investigators alleged the defendant converted powdered cocaine into crack cocaine by cooking it; however, a search of the Davenport Street residence, where the defendant was staying, produced a telephone, a small amount of marijuana, a set of digital scales, and a small pill bottle containing cocaine residue. According to the defendant, while the State was required to prove that he "committed an act in furtherance of the conspiracy," the State could not produce one picture showing him receiving or distributing cocaine.
Derrick Moss testified that he was in jail awaiting sentencing for a federal conviction for conspiracy to distribute cocaine. Derrick Moss also indicated that no promises were made to him regarding his sentence in exchange for his testimony. According to his testimony, Derrick Moss supplied and distributed cocaine. He had cocaine transported from Houston to New Orleans and the surrounding parishes. Derrick Moss would bring the cocaine to Jesse Owens, who would then cut down the cocaine to smaller amounts and distribute to street dealers, who would sell the cocaine for Jesse Owens and, ultimately, Derrick Moss. Derrick Moss testified he knew the defendant from Bogalusa and specifically indicated that the defendant was one of the individuals who received cocaine from Jesse Owens. Derrick Moss further testified that he knew that Jesse Owens collected money from the defendant. Derrick Moss testified about a time he rode with Jesse Owens to the Davenport Street residence where the defendant was staying to get money from the sale of cocaine from the defendant. Derrick Moss also testified that he knew the defendant cooked crack cocaine, and that he (Moss) received the money from the sale of that crack cocaine from Jesse Owens. Moss indicated that he never personally saw the defendant with drugs, but that he dealt with him indirectly through Jesse Owens.
Several of the recorded phone calls between the defendant and Jesse Owens played for the jury clearly indicated the defendant's intent to sell cocaine. For example, during one exchange, Jesse Owens told the defendant he was trying to get a "dub." The defendant replied that he was not at home but doing something in the lab. In another exchange, the defendant asked Jesse Owens if he wanted a "hard ball." Jesse Owens replied that he needed "soft." The defendant told Jesse Owens that he did not have any soft, that it was in the water. Agent Brownlie testified that "hard ball" was slang for crack cocaine and "soft" meant powdered cocaine; the defendant's reference to the cocaine being in the water meant that he had already begun converting the powdered cocaine into crack cocaine, and that putting it in water is part of the cooking process. In another exchange, the defendant told Jesse Owens that he was out trying to get customers. In another exchange, the defendant told Jesse Owens he was in the projects handling business. Jesse Owens responded that a particular person had been hiding from them. The defendant replied that that "m----- f-----" had not done anything, and that he still had "sh-t" from earlier. The defendant continued that the person had four ounces, and he wanted the defendant to do it. In another exchange, an aggravated Jesse Owens told the defendant that he was not "f---ing" with the defendant until he got his money. The defendant told Jesse Owens that he had a partner who wanted "a half." In another exchange, Jesse Owens called the defendant, looking for "soft." The defendant responded that it was in the water, that he did not have soft, but that he had "cake." Agent Brownlie testified that "cake" was another term for crack cocaine. In another exchange, Jesse Owens called the defendant and told him he needed a "seven" for someone. The defendant replied that it would be $10. Agent Brownlie testified that "seven" meant seven grams, or one-quarter ounce of cocaine. In another exchange, Jesse Owens called and the defendant told him he was in the process of selling "half to the "dude" right now. Jesse Owens told the defendant he could sell the whole thing for $225. Jesse Owens then told the defendant that he wanted him to cook it, and the defendant replied that he had already cooked it.
The evidence clearly established the defendant committed acts in furtherance of the conspiracy to distribute cocaine. He personally produced crack cocaine and sold it, making profits for himself and for Jesse Owens. Moreover, Derrick Moss's actions as a main distributor and seller of cocaine, as well as Jesse Owens's statements and actions, were admissible against the defendant, since the acts and declarations of a conspirator are admissible against all co-conspirators. See La. R.S. 15:455; State v. Courtney, 127 So. 735, 738 (La. 1930).
It is of no moment that the defendant was not photographed or videoed dealing or producing cocaine, or that cocaine and its attendant implements of distribution were not found in the home where he was staying. Criminal conspiracy to commit a crime is an inchoate offense separate and entirely distinct from the completed crime. Richards, 426 So. 2d at 1316.
The defendant also attacks, in brief, the veracity of Derrick Moss's testimony because he was a convicted felon and he was allegedly providing testimony conducive to the State's position in exchange for a lenient sentence. These arguments, however, raise a credibility issue. The jury heard the testimony and viewed the physical evidence presented to it at trial and found the defendant guilty as charged. In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Higgins, 03-1980 (La. 4/1/05), 898 So. 2d 1219, 1226, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005). The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a factfinder's determination of guilt. State v. Taylor, 97-2261 (La. App. 1st Cir. 9/25/98), 721 So. 2d 929, 932. We are constitutionally precluded from acting as a "thirteenth juror" in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99-3342 (La. 10/17/00), 772 So. 2d 78, 83. The fact that the record contains evidence that conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Quinn, 479 So. 2d 592, 596 (La. App. 1st Cir. 1985).
When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Moten, 510 So. 2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So. 2d 126 (La. 1987). The jury's verdict reflected the reasonable conclusion that there existed an agreement among Moss, Owens, and the defendant for the specific purpose of distributing cocaine, and that the defendant (as well as Moss and Owens) did acts in furtherance of the object of that agreement. In finding the defendant guilty, the jury clearly rejected the defense's theory of innocence. See Moten, 510 So. 2d at 61.
After a thorough review of the record, we find the evidence supports the jury's guilty verdict. We are convinced that viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty of conspiracy to distribute cocaine. See State v. Calloway, 07-2306 (La. 1/21/09), 1 So. 3d 417, 418 (per curiam).
This assignment of error is without merit.
CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE AFFIRMED.