People v. Jasso CA2/3 ( 2013 )

Filed 12/6/13 P. v. Jasso CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B242229
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA350171)
v.
ORDER MODIFYING OPINION
JESUS JAVIER JASSO, AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]
Defendant and Appellant.
THE COURT:
It is ordered that the opinion filed herein on November 18, 2013, be modified
as follows:
1. On page 2, the last line of the third paragraph, the word “appellant” is changed
to “Carrillo” so the sentence reads:
Her way of handling the situation was to keep Carrillo away from Art T. and hope
Carrillo would give up.
2. On page 3, the third sentence of the fourth paragraph, in two locations, the
word “appellant” is changed to “Carrillo” so the sentence reads:
At some point, Art T. tried to speak to Carrillo man-to-man about the situation, but
Carrillo continued to make annoying telephone calls to Art T.’s residence where he lived
with his parents.
3. On page 10, the fourth sentence of the second full paragraph, the word
“appellant” is changed to “Carrillo” so the sentence reads:
He urged the complaint to the police and even Art T.’s man-to-man visit with
Carrillo had not stopped Carrillo’s obsessive efforts to continue his relationship with
H.A.
4. On page 10, the last sentence of the second full paragraph, the word
“appellant’s” is changed to the word “the” so the sentence reads:
Fortunately for Art T., Carrillo ran out of ammunition or the gun jammed at a
critical point during the shooting, and that spared Art T.’s life.
5. On page 10, the third sentence of the third full paragraph, the words “the
defendants” is changed to “appellant and Carrillo” so the sentence reads:
Essentially, in the final phase of the argument, the prosecutor again summarized
the evidence against appellant and Carrillo and replied to several points made by trial
counsel.
6. On page 10, the fourth sentence of the third full paragraph, in one location, the
word “appellant” is changed to “Carrillo” so the sentence reads:
The prosecutor pointed out appellant apparently had arrived and given Carrillo a
gun, and his sign to Ryan B. to be quiet indicated appellant was well aware of the entire
situation between Carrillo and H.A.
There is no change in the judgment.
Respondent’s petition for rehearing is denied. .
2
Filed 11/18/13 P. v. Jasso CA2/3 (unmodfied version)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B242229
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA350171)
v.
JESUS JAVIER JASSO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Craig E. Veals, Judge. Affirmed.
David Arredondo, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and
Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Jesus Javier Jasso appeals from the judgment entered after a jury trial in which he
was found guilty of attempted willful, deliberate and premeditated murder with a finding
a principal was armed with a handgun. (Pen. Code, §§ 664/187, subd. (a), 12022, subd.
(a)(1).)1 At sentencing, the trial court imposed an aggregate term in state prison of one
year to life, consisting of a base term of life enhanced by one year for the finding a
principal was armed with a firearm.
BACKGROUND
Appellant argues the sufficiency of the evidence. Hence, we set out the trial
evidence in the light most favorable to the judgment. (People v. Ochoa (1993) 6 Cal. 4th
1199, 1206.)
In September 2008, H.A. was living with her parents. She had a boyfriend named
Art T. In July 2008, she started seeing Art T. after she broke up with her former
boyfriend, codefendant Mario Carrillo (Carrillo).2 Carrillo would not accept the breakup.
Carrillo persisted in texting her, calling her and showing up at her residence at all hours
of the day and night to see what she was doing. She changed her telephone number, but
nothing discouraged him. He continued to harass her. She had not wanted to get the
authorities involved. She pretended to be friendly with him, but refused to date him.
Her way of handling the situation was to keep Carrillo away from Art T. and hope
appellant would give up.
Carrillo was not friendly with Art T., and when Carrillo discovered Art T. was
seeing H.A., Carrillo harassed Art T., as well.
According to H.A., appellant was a friend of Carrillo’s and the boyfriend of H.A.’s
friend, Mercedes. The parties stipulated appellant and Carrillo were friends.
1
All further statutory references are to the Penal Code unless otherwise indicated.
2
Appellant and codefendant Carrillo were tried jointly, and each defendant was
convicted of the December 8, 2008, attempted willful, deliberate and premeditated
murder charge in count 1. Carrillo was found guilty of additional charges relating to a
September 2008 kidnapping/forcible rape and sexual penetrations charged in counts 2, 3,
4 and 5. In a separate appeal, Carrillo has also appealed from the judgment.
2
At 3:00 a.m., on September 6, 2008, Carrillo kidnapped H.A. in her own car when
she returned home from a date with Art T. During the kidnapping, Carrillo pointed his
semiautomatic pistol at her to coerce her cooperation. Carrillo had her drive him to his
family’s apartment, held her there in the one bedroom, forcibly raped her and engaged in
forcible sexual penetration. When he permitted her to leave, she drove home. She told
her father about the kidnapping. Several hours later, she reported the kidnapping and the
forcible sexual misconduct to the police.
On September 8, 2008, in a recorded interview, the police interrogated Carrillo
about the kidnapping, rape and sexual penetration. He admitted the offenses but denied
the use of a firearm. Carrillo claimed he loved H.A. and simply wanted her to continue to
be his girlfriend.
The report to the police did not deter Carrillo. He continued to come by H.A.’s
residence where she lived with her family frequently and knocked on her window at 2:00
a.m. At some point, Art T. tried to speak to appellant man-to-man about the situation, but
appellant continued to make annoying telephone calls to Art T.’s residence where he
lived with his parents. Carrillo threatened to shoot Art T.
At about 6:30 a.m., on December 8, 2008, Carrillo showed up at H.A.’s residence.
They argued. Carrillo was upset because H.A. refused to marry him. At about 8:30 a.m.,
H.A. and Art T. had arranged to meet that morning to jog or to take a walk. At one point,
H.A. did not answer her cellular telephone, and Art T. became concerned and drove to
her residence.
3
On the way there, Art T. saw Carrillo two blocks from H.A.’s residence, and Art
T. tried again to talk with Carrillo man-to-man. Carrillo said to leave him alone and ran
away in the direction of H.A.’s residence. Art T. drove to the residence. He spoke to
H.A. outside and then waited for her to get ready. While they were conversing, H.A. saw
a silver truck that looked like appellant’s drive by at the south end of the block. H.A.
testified there were other similar trucks in the neighborhood, but appellant’s truck was
distinctive as it had black rims. H.A. commented to Art T., “There goes Vision,”
referring to appellant by his nickname. On two prior occasions, Art T. had seen appellant
previously as appellant drove by H.A.’s residence. H.A. had identified appellant as
“Vision,” Carillo’s friend and Mercedes’s boyfriend.
As Art T. was waiting outside, the same truck pulled up to the corner north of the
residence. Art T. could see appellant sitting in the driver’s seat of the truck. Carrillo was
in the truck’s passenger seat. For two minutes, the men looked in Art T.’s direction and
conversed. Then the truck turned and pulled up in front of Art T. Carrillo and appellant
made eye contact with Art T. Appellant hunched over, and then Carrillo got out of the
car wearing a black glove, walked toward Art T., pulled a handgun from his waistband
and pointed the handgun at Art T. Art T. jumped a fence and ran. Art T. turned and saw
Carrillo chasing him. Appellant remained in the truck driving slowly after Carrillo as
Carrillo chased Art T.
On a residential driveway, Carrillo shot at Art T., and Art T. fell and could not get
up. Art T. was wounded during the gunfire. Carrillo stood over him pointing the gun at
him, and Art T. closed his eyes. He heard a click. Art T. opened his eyes and saw
Carrillo run to the truck. The truck backed up the street, then drove off.
Art T. telephoned H.A. and told her Carrillo had shot him. H.A. telephoned 9-1-1.
H.A. found Art T. two doors away bleeding profusely. The police and an ambulance
responded. Near Art T., the officers found 9 expended shell casings and two spent
bullets.
On December 8, 2008, H.A. identified Carrillo and appellant in two different six-
pack photographic identification procedures.
4
Three days later, in the hospital’s intensive care unit, in two six-pack photographic
displays, Art T. identified Carrillo as the gunman and appellant as the truck’s driver.
He added that the rims on appellant’s truck were black.
Art T. suffered 10 gunshot wounds and almost died. Art T.’s ambition was to be a
deputy sheriff, and he now had permanent nerve damage in his legs that prevented him
from running, making him ineligible for the police academy. He had had six surgeries
and possibly needed more, and at the time of trial, he was still involved with physical
therapy. He walked with a cane.
At trial, Art T. identified Carrillo as the gunman and appellant as the driver of the
truck. At trial, H.A. identified Carrillo as her former boyfriend and appellant as
Carrillo’s friend, the owner of the silver truck she saw shortly before the shooting.
Two neighbors witnessed the shooting. Teresa C. heard the shots and saw the
gunman apparently pointing a gun and shooting. The gunman then ran and jumped into
the rear window of a truck waiting in the middle of the street. The truck drove off. The
truck was a newer model, charcoal gray, with a “futuristic look.” Ryan B. heard the shots
and went outside. He then saw a newer model silver pickup truck, a Toyota Tacoma or
Tundra, backing up in the middle of the street. The truck was not “stock” as it was
modified with what he recalled as unique aftermarket raised wheels and perhaps
distinctive chrome rims. Ryan B. got a partial license plate, 7YR4, from the vehicle.
Ryan B. said he got a good look at the truck’s driver, who looked directly at
Ryan B. and put his finger to his lips, instructing Ryan B. with that sign to “Be quiet.”
At trial, and during an extrajudicial six-pack photographic identification procedure,
Ryan B. identified appellant as the truck’s driver. Ryan B. had never seen appellant
before the shooting.
California Department of Motor Vehicle records disclosed the license plate for
appellant’s Toyota truck was 7Y43053.
After the shooting, neither Art T. nor H.A. heard from, or saw, Carrillo again until
the preliminary hearing.
5
CONTENTIONS
1. The sufficiency of the evidence
Appellant contends the identification evidence is insufficient to support the
judgment.
a. Standard of review
Recently, in People v. Whisenhunt (2008) 44 Cal. 4th 174, the California Supreme
Court summarized the well-established standard of review. “ ‘In reviewing a challenge
to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we
“examine the whole record in the light most favorable to the judgment to determine
whether it discloses substantial evidence—evidence that is reasonable, credible and of
solid value—such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.” [Citations.] We presume in support of the judgment the existence of
every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same
standard of review applies to cases in which the prosecution relies primarily on
circumstantial evidence . . . . [Citation.] “[I]f the circumstances reasonably justify
the jury’s findings, the judgment may not be reversed simply because the circumstances
might also reasonably be reconciled with a contrary finding.” [Citation.] We do not
reweigh evidence or reevaluate a witness’s credibility. [Citation.]’ [Citation.]”
(Id. at p. 200.)
“ ‘ “Although an appellate court will not uphold a judgment or verdict based upon
evidence inherently improbable, testimony which merely discloses unusual circumstances
does not come within that category. [Citation.] To warrant the rejection of the
statements given by a witness who has been believed by the [trier of fact], there must
exist either a physical impossibility that they are true, or their falsity must be apparent
without resorting to inferences or deductions. [Citations.] Conflicts and even testimony
which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is
the exclusive province of the trial judge or jury to determine the credibility of a witness
and the truth or falsity of the facts upon which a determination depends. [Citation.]”. . . .’
[Citation.]” (People v. Barnes (1986) 42 Cal. 3d 284, 303-304, 306.)
6
The uncorroborated testimony of a single witness is sufficient to sustain a
conviction unless it is physically impossible or inherently improbable. (People v. Young
(2005) 34 Cal. 4th 1149, 1181.) Indeed, “ ‘[t]he testimony of a single witness is sufficient
to uphold a judgment even if it is contradicted by other evidence, inconsistent or false as
to other portions. [Citations.]’ ” (In re Robert V. (1982) 132 Cal. App. 3d 815, 821.)
b. The analysis
Appellant’s contention in part misstates the evidence and misapprehends the
nature of an appellate court’s review for sufficiency of the evidence. Art T. had seen
appellant before on two prior occasions. On the day of the shooting, Art T. had an
adequate opportunity to observe the driver of the Toyota truck. He positively identified
appellant as the truck’s driver in the extrajudicial post-shooting six-pack identification
procedure and in court as Carrillo’s accomplice, the driver of the getaway vehicle.
H.A. had seen appellant’s truck drive by minutes before the shooting. The truck
was unique in appearance due to its newness and aftermarket modifications.
Two neighbors who did not know appellant or his truck saw the shooting or its
immediate aftermath. Teresa C. described appellant’s truck. Ryan B. positively
identified appellant by his facial appearance and his truck and got a partial license plate
number that was highly similar to appellant’s actual California license plate number.
The parties stipulated appellant and Carrillo were friends, and H.A. testified
appellant was one of Carrillo’s friends, making it likely appellant was well aware of
Carrillo’s obsessive attempts to reclaim H.A. as his girlfriend. Her testimony also made
it probative that appellant was the driver assisting Carrillo by supplying the firearm to
commit the shooting and in assisting Carrillo during the shooting and the escape.
Multiple witnesses identified appellant as the truck’s driver. The identifications
were neither physically impossible nor inherently incredible. Discrepancies in the
testimony and issues of reliability were for the jury to resolve. (People v. Elliot (2012)
53 Cal. 4th 535, 585.) Even an identification by one of these witnesses would be
sufficient to support a conclusion appellant assisted Carrillo during the shooting.
(People v. Avila (2009) 46 Cal. 4th 680, 703-704 [identification testimony of a single
7
witness is sufficient to support the judgment]; People v. Williams (1997) 16 Cal. 4th 153,
248 [the court uses the general test for sufficiency of the evidence to determine the
sufficiency of an out-of-court identification in supporting a judgment].) The
identification evidence amply supports the judgment.
2. Prosecutorial misconduct
Appellant contends the prosecutor committed misconduct during the final
comments he made to the jury. The complained-of comments are italicized below.
a. Background
The prosecutor initiated his final comments to the jury by saying the very reason
they were all there was because Carrillo could not accept H.A.’s “No.” Carrillo’s
inability to accept reality had landed them all here in court three years later. He urged the
jury it did not have to rely on H.A.’s claim of what had occurred alone concerning the
September 2008 kidnapping and forcible rape and sexual penetration. Appellant had
admitted these crimes during the subsequent videotaped police interview, although he did
not admit he had committed the offenses with a firearm.
The prosecutor said, as it was, H.A. had to relive this September 2008 incident and
appear in court as a witness for the trial as “no means no.” He urged, “So she’s been
through a lot since 2008 and now its time for no to mean no. And you’re the ones that
can make that happen. You need to tell both of the defendants that no meant no and find
them guilty as charged.” (Italics added.)
At this point, appellant’s trial counsel objected the evidence concerning the
September 2008 kidnapping, rape and sexual penetrations did not relate to appellant.
The trial court admonished the jury: “Okay. Remember, ladies and gentlemen, as
I have mentioned to you before, you must decide each defendant[‘s guilt] separately and
consider the evidence independently as to each defendant.”
The prosecutor explained to the jury his theme applied to both defendants: “And I
would beg to differ with counsel because when I say no means no, no was Hermila [A.]
telling [Carrillo to] stop coming over to harass[] us. And the defendant—that defendant
8
[appellant] got involved as he did that he became part of that. And no should mean no to
him just as well.” (Italics added.)
Appellant’s trial counsel objected again on the same grounds.
The trial court admonished the jury: “Okay. Understanding that, again, decide the
evidence independently as to each defendant and each defendant must be determined
guilty or not guilty based upon the evidence independently of the other.”
The prosecutor continued arguing: “Let’s talk about [appellant] then. Let’s make
it clear we’re talking about [appellant] here. And let’s see if the no means no applies to
him.”
The prosecutor then described the evidence indicating appellant knowingly acted
as an aider and abettor and the getaway driver during the December 2008 shooting. The
prosecutor urged appellant’s conduct indicated appellant was well aware of the situation
that existed among Carrillo, H.A. and Art T. When Carrillo and appellant arrived in front
of H.A.’s residence, the two of them were “smirking.” Earlier Carrillo had run away
from Art T. But now Carrillo was not running. Carrillo now had a handgun and was
acting with bravado. Appellant’s conduct during the shooting showed he was well aware
of what was going on. Appellant followed Carrillo slowly in his truck and drove Carrillo
off after the shooting. And in driving off, appellant directed Ryan B. by a sign to keep
quiet about what Ryan B. had seen regarding the shooting. The prosecutor argued that
evidence indicated appellant was fully involved in the shooting and had acted with
knowledge of Carrillo’s purpose.
He argued the crimes were “intertwined.” Appellant’s trial counsel objected the
comment implied appellant was charged in both incidents. The trial court instructed the
prosecutor to clarify his argument.
The prosecutor said, “These crimes are intertwined as . . . they are the result of that
relationship that [Carrillo] had with Hermila [A.] where he wouldn’t take no for an
answer.” The prosecutor said he had discussed appellant’s involvement in the shooting
and now would delineate the evidence supporting Carrillo’s guilt. He emphasized his
argument from this point on related only to Carrillo. He urged the complaint to the police
9
and even Art T.’s man-to-man visit with appellant had not stopped Carrillo’s obsessive
efforts to continue his relationship with H.A. After H.A. reported the kidnapping and
rape to the police, events escalated. Carrillo’s next move was to ‘take out” the boyfriend.
Fortunately for Art T., Carrillo ran out of ammunition or appellant’s gun jammed at a
critical point during the shooting, and that spared Art T.’s life.
Trial counsel then made their closing comments to the jury. The prosecutor closed
thereafter, twice arguing with respect to Carillo, “no means no.” Essentially, in the final
phase of the argument, the prosecutor again summarized the evidence against the
defendants and replied to several points made by trial counsel. The prosecutor pointed
out appellant apparently had arrived and given appellant a gun, and his sign to Ryan B. to
be quiet indicated appellant was well aware of the entire situation between Carrillo and
H.A. The prosecutor urged appellant was as involved in the shooting as Carrillo was.
b. The relevant legal principles
Prosecutors are given “ ‘ “ ‘wide latitude’ ” ’ ” in trying their cases.
(People v. Hill (1998) 17 Cal. 4th 800, 819 [wide latitude given in closing argument].)
“ ‘A prosecutor is allowed to make vigorous arguments and may even use such epithets
as are warranted by the evidence, as long as these arguments are not inflammatory and
principally aimed at arousing the passion or prejudice of the jury.’ [Citations.]”
(People v. Pearson (2013) 56 Cal. 4th 393, 441.) A prosecutor may not misstate or
mischaracterize the evidence. (People v. Caldwell (2013) 212 Cal. App. 4th 1262, 1268.)
“The applicable federal and state standards regarding prosecutorial misconduct are
well established.” (People v. Samayoa (1997) 15 Cal. 4th 795, 841 (Samayoa).) Under
federal constitutional standards, a prosecutor’s “ ‘ “intemperate behavior” ’ ” constitutes
misconduct if it is so “ ‘ “ ‘egregious’ ” ’ ” as to render the trial “fundamentally unfair”
under due process principles. (Ibid.) Under state law, a prosecutor commits misconduct
by engaging in deceptive or reprehensible methods of persuasion. (Ibid.) Where a
prosecutor has engaged in misconduct, the reviewing court considers the record as a
whole to determine if the alleged harm resulted in a miscarriage of justice. (People v.
Duncan (1991) 53 Cal. 3d 955, 976-977.) In considering prejudice “when the claim
10
focuses upon comments made by the prosecutor before the jury, the question is whether
there is a reasonable likelihood that the jury construed or applied any of the complained-
of remarks in an objectionable fashion. [Citation.]” (Samayoa, supra, 15 Cal.4th at
p. 841.)
c. The analysis
Appellant contends there was prosecutorial misconduct during the final comments
to the jury as the “no means no” argument appealed to the jury’s passion and prejudice.
He argues there was no proof appellant was involved in the earlier kidnapping and rape
of H.A. Therefore, the prosecutor’s argument was likely to have persuaded the jury that
appellant had something to do with Carrillo’s September 2008 misconduct, when
appellant had nothing to do with these earlier crimes. He claims the September 2008
crimes were so offensive that the effect of including appellant in the “no means no”
argument had a spill-over effect that improperly influenced appellant’s conviction as an
aider and abettor to the attempted murder. He urges the trial court’s admonitions the
evidence against each defendant should be considered and weighed independently would
not have had the effect of curing the possible harm flowing from the prosecutor’s
remarks.
The contention lacks merit. When the prosecutor made his “no means no”
argument and urged the charges were intertwined, the comments did not constituted a
reprehensible attempt to persuade the jury that appellant was involved in the September
2008 kidnapping and rape. It was apparent from the charges and the evidence, as well as
counsels’ final comments to the jury, that no juror reasonably would believe appellant
was involved in the September 2008 incident of kidnapping and rape. Moreover, the trial
court instructed the jury that evidence was introduced against Carrillo respecting the
September 2008 kidnapping and rape, and such evidence was not admitted against
appellant. The trial court specifically charged the jury, “Do not consider this evidence
against the other defendant,” meaning appellant. During closing comments, when trial
counsel objected on grounds of prosecutorial misconduct, the trial court twice
admonished the jury to consider the defendants’ guilt separately. On this record there is
11
no reasonable likelihood the jury would have been misled into believing appellant was
involved in the earlier kidnapping and rape. We presume the jury fully understood and
applied the court’s instructions. (People v. Tully (2012) 54 Cal. 4th 952, 1021.)
Trial counsel attached a post-trial affidavit to the motion for new trial. Therein,
a juror claimed the initial vote of guilt regarding appellant was 6 to 6. She said she and
other jurors were confused by the “no means no” argument and misunderstood and
believed appellant was involved in the earlier incident and those beliefs influenced the
jurors’ consideration of appellant’s guilt of the later shooting.
Evidence Code section 1150 precludes the use of such post-trial juror affidavits
concerning the mental processes of the jury to impeach its verdict. The trial court
properly refused to consider the juror’s statements in the affidavit. And pursuant to
Evidence Code section 1150, this court also cannot consider the juror’s comments in
determining whether the prosecutor’s final comments led to jury confusion.
Furthermore, we note the trial court denied the motion for new trial insofar as it
made the same claim of prosecutorial misconduct. As the trial court commented,
Evidence Code section 1150 put the death knell to appellant’s claim of jury confusion
arising of prosecutorial misconduct. The trial court said in the circumstances, trial
counsel was making too much of the influence the prosecutor’s comments might have
had on the jury. The jury had been “well educated on the necessity of deciding the case
based on the evidence . . . .” It was instructed the statements of counsel were not
evidence, and no evidence had been introduced at trial suggesting appellant was involved
in Carrillo’s September 2008 crimes. The trial court had notes or recalled that it was
explicit with the jurors at the beginning of the trial concerning appellant’s lack of
involvement in the earlier incident.3
3
On appeal, appellant does not contend his motion for new trial or pretrial
severance motion were improperly denied. However, he appears to conflate such claims
with the two contentions he does raise. This court examined the record with respect to
whether the pretrial severance motion and the motion for new trial were properly denied.
We find no error in the trial court’s rulings.
12
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P. J.
We concur:
CROSKEY, J.
ALDRICH, J.
13