State v. Melendez. ( 2020 )

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
24-APR-2020
08:22 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
---o0o---
STATE OF HAWAI‘I,
Respondent/Plaintiff-Appellant,
vs.
PEKELO K.K. MELENDEZ,
Petitioner/Defendant-Appellee.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CR. NO. 1CPC-XX-XXXXXXX)
APRIL 24, 2020
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY POLLACK, J.
In this case, the defendant was found to be in
possession of .005 grams of a substance containing cocaine, and
he was charged with possession of a dangerous drug in the third
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degree, a class C felony. The defendant moved to dismiss the
charge, arguing that his violation of the statute was so trivial
that it did not warrant the condemnation of conviction. The
circuit court agreed, finding that the violation was de minimis
and dismissing the charge. On appeal, the Intermediate Court of
Appeals (ICA) vacated the order dismissing the charge. It
concluded that the circuit court had erred in finding that the
cocaine the defendant possessed could not have had any
pharmacological or physiological effect upon consumption, and
that this error required the order of dismissal to be vacated.
The defendant sought certiorari review of the ICA’s decision.
We conclude that the ICA erred in holding that a defendant, in
order to prevail on a motion to dismiss a possessory drug
violation as de minimis, must prove that the possessed drugs
could not have any pharmacological or physiological effect.
Thus, the ICA’s vacatur of the dismissal order was erroneous.
I. BACKGROUND
A. General Overview
On May 23, 2017, Pekelo K.K. Melendez was taken into
custody at the Circuit Court of the First Circuit’s (circuit
court) Adult Client Services Section (ACSS) for violating the
terms and conditions of Hawaii’s Opportunity Probation with
Enforcement (HOPE probation). Incident to Melendez being taken
into custody, a Department of Public Safety deputy sheriff
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searched him and uncovered a plastic “baggie” containing a white
powdery substance from Melendez’s right-side pocket. No other
items typically associated with drug use, such as a lighter or a
pipe, were found in the search. Melendez was not observed or
known to be under the influence of any substance at the time of
his detention at ACSS. The powdery substance in the plastic bag
was determined to be approximately .005 grams of a substance
containing cocaine. There was no analysis as to the quantity of
cocaine contained within the .005 grams. Melendez was
subsequently charged with promoting a dangerous drug in the
third degree in violation of Hawaiʻi Revised Statutes (HRS)
§ 712-1243.1
B. Motion to Dismiss as De Minimis
Melendez filed a motion to dismiss the charge on the
basis that possession of .005 grams of cocaine constituted a de
minimis violation and the charge should be dismissed pursuant to
HRS § 702-236.2 The State did not file a written opposition, but
1
HRS § 712-1243 (2014) provides as follows: “(1) A person commits
the offense of promoting a dangerous drug in the third degree if the person
knowingly possesses any dangerous drug in any amount. (2) Promoting a
dangerous drug in the third degree is a class C felony.”
2
HRS § 702-236 (2014) provides as follows:
(1) The court may dismiss a prosecution if, having regard
to the nature of the conduct alleged and the nature of the
attendant circumstances, it finds that the defendant’s
conduct:
(continued. . .)
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it orally opposed Melendez’s motion at the hearing on the
motion.3
Both parties stipulated into evidence previous expert
testimony by Dr. George Read. The testimony had been given at a
hearing on a motion to dismiss a possessory drug violation as de
minimis held approximately 17 years earlier.4 The parties also
stipulated to facts detailed in defense counsel’s declaration
submitted with Melendez’s motion to dismiss; no other evidence
was submitted in relation to Melendez’s motion. In the
(. . .continued)
(a) Was within a customary license or tolerance,
which was not expressly refused by the person whose
interest was infringed and which is not inconsistent
with the purpose of the law defining the offense;
(b) Did not actually cause or threaten the harm or
evil sought to be prevented by the law defining the
offense or did so only to an extent too trivial to
warrant the condemnation of conviction; or
(c) Presents such other extenuations that it cannot
reasonably be regarded as envisaged by the
legislature in forbidding the offense.
(2) The court shall not dismiss a prosecution under
subsection (1)(c) of this section without filing a written
statement of its reasons.
3
The Honorable Judge Todd W. Eddins presided over the proceedings
in this case.
4
Dr. Read, an expert in pharmacology, testified in relevant part
that doses of methamphetamine as low as .005 grams had been used to treat
Attention Deficit Hyperactivity Disorder (ADHD). Additionally, Dr. Read had
testified in State v. Viernes that .001 grams of methamphetamine was
incapable of producing any pharmacological or physiological effect. 92
Hawai‘i 130, 131–32, 988 P.2d 195, 196–97 (1999). Melendez cited the
testimony given in Viernes in his motion to dismiss, and the State discussed
that testimony at the hearing as if it were part of the stipulation, although
it was not.
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declaration, defense counsel averred in relevant part that (1)
Melendez was taken into custody at ACSS and subjected to a
custodial search; (2) that a baggie containing a small amount of
white powdery substance was discovered in Melendez’s right
pocket; (3) that no paraphernalia was located during the search;
(4) the bag was later analyzed as containing a substance
weighing .005 grams and containing cocaine; and (5) .005 grams
of a substance containing cocaine is neither usable nor
saleable. Melendez also maintained that there was no evidence
indicating he was under the influence of any drugs at the time
of the custodial search. The State opposed the motion, arguing
that Melendez’s violation was not de minimis because the amount
of drugs Melendez possessed was five times greater than .001
grams, which the expert testimony indicated was an amount that
could not have any pharmacological effect.
After hearing argument from counsel, the court orally
granted Melendez’s motion with prejudice. The court issued an
Order Granting Motion to Dismiss for De Minimis Violation (De
Minimis Order) on May 29, 2018. In the De Minimis Order, the
court made several findings of fact and conclusions of law
related to its granting of Melendez’s motion. The court
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discussed the statutory scheme of HRS §§ 712-1241,5 712-1242,6
and 712-1243, noting that the Hawaiʻi Penal Code quantifies
illegal possession by measurement in ounces or grams, not in
5
HRS § 712-1241(1)(a) and (2) (2014 & Supp. 2016) provides as
follows:
(1) A person commits the offense of promoting a dangerous
drug in the first degree if the person knowingly:
(a) Possesses one or more preparations, compounds,
mixtures, or substances of an aggregate weight of:
(i) One ounce or more, containing methamphetamine,
heroin, morphine, or cocaine or any of their
respective salts, isomers, and salts of isomers; or
(ii) One and one-half ounce or more, containing one
or more of any of the other dangerous drugs;
. . . .
(2) Promoting a dangerous drug in the first degree is a
class A felony.
6
HRS § 712-1242 (2014 & Supp. 2016) provides as follows:
(1) A person commits the offense of promoting a dangerous
drug in the second degree if the person knowingly:
(a) Possesses twenty-five or more capsules, tablets,
ampules, dosage units, or syrettes, containing one or
more dangerous drugs;
(b) Possesses one or more preparations, compounds,
mixtures, or substances of an aggregate weight of:
(i) One-eighth ounce or more, containing
methamphetamine, heroin, morphine, or cocaine or any
of their respective salts, isomers, and salts of
isomers; or
(ii) One-fourth ounce or more, containing any
dangerous drug; or
(c) Distributes any dangerous drug in any amount.
(2) Promoting a dangerous drug in the second degree is a
class B felony.
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tenths, hundredths, or thousandths of grams. Considering the
scheme as a whole, the court stated, “it is clear that under the
circumstances . . . Melendez’s possession of .005 grams of a
substance containing cocaine eclipses the ‘any amount’ element
of HRS § 712-1243,” and his possession did not actually cause or
threaten the harm sought to be prevented by the law.
The court further stated that it considered the
stipulated testimony of Dr. Read, but discounted it because the
court was uncertain about its continued reliability in light of
its age. The court concluded that the relevant attendant
circumstances were more persuasive and indicated that the
cocaine Melendez possessed could not have had a pharmacological
or physiological effect. Particularly, the court found it
reasonable to infer that Melendez, as an individual under HOPE
probation supervision, was “keenly aware of the ‘useability’ or
‘saleability’ of .005 grams of a substance containing an
unspecified amount of cocaine.” Since Melendez had not ingested
the cocaine in his possession it was reasonable to conclude that
the cocaine would not have had a pharmacological or
physiological effect. Furthermore, the court found that .005
grams of cocaine is not capable of sale as a narcotic. Finally,
the court concluded that the fact that Melendez was not in
possession of any items associated with drug use and was not
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under the influence of any drugs weighed strongly in favor of
the violation being de minimis.
II. ICA PROCEEDINGS
The State appealed to the ICA from the De Minimis
Order. The State argued, inter alia, that the circuit court
abused its discretion in concluding that the critical inquiry
was whether the amount of cocaine recovered from Melendez was
useable or saleable and in concluding that .005 grams of cocaine
was an amount that could not produce a pharmacological or
physiological effect.
In a Memorandum Opinion filed on June 14, 2019, the
ICA vacated the De Minimis Order and remanded the case to the
circuit court, concluding that the court erred in finding the
cocaine Melendez possessed could not have a pharmacological
effect, and that the erroneous finding was not “harmless error.”7
Specifically, the ICA concluded that the circuit court erred by
discounting the testimony of Dr. Read and relying instead “upon
‘Melendez’s collection of experiences, beliefs, and knowledge as
a cocaine consumer’” to conclude that Melendez would have
consumed the substance in his possession if it were capable of
producing an effect. “As the movant in de minimis cases,” the
7
The ICA’s memorandum opinion can be found at State v. Melendez,
No. CAAP-XX-XXXXXXX, 2019 WL 2482183 (App. June 14, 2019) (mem.).
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ICA stated, “the defendant . . . must present evidence that the
amount possessed was incapable of producing a pharmacological or
physiological effect.” (Emphasis added.) Since the record
lacked evidence supporting the circuit court’s finding as to the
effect of the drugs Melendez possessed, the ICA vacated the De
Minimis Order.
III. STANDARD OF REVIEW
A. De Minimis Rulings
A circuit court’s ruling with regard to whether a
defendant’s criminal conduct constitutes a de minimis infraction
pursuant to HRS § 702-236 is reviewed on appeal for abuse of
discretion. State v. Oughterson, 99 Hawaiʻi 244, 253, 54 P.3d
415, 424 (2002). “A court abuses its discretion if it clearly
exceeded the bounds of reason or disregarded rules or principles
of law or practice to the substantial detriment of a party
litigant.” Id. (brackets omitted).
IV. DISCUSSION
A. Motion to Dismiss Possessory Drug Violation as De Minimis
HRS § 702-236(1)(b) allows the circuit court to
dismiss a prosecution if, upon consideration of the nature of
the alleged conduct and attendant circumstances, the court finds
that the violation “[d]id not actually cause or threaten the
harm or evil sought to be prevented by the law defining the
offense or did so only to an extent too trivial to warrant the
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condemnation of conviction.” In order for dismissal to be
granted on de minimis grounds, the defendant must place “the
relevant attendant circumstances before the trial court . . . to
establish why dismissal is warranted in light of those
circumstances.” State v. Rapozo, 123 Hawaiʻi 329, 331, 235 P.3d
325, 327 (2010) (citing State v. Park, 55 Haw. 610, 616, 525
P.2d 586, 591 (1974)); see also State v. Fukagawa, 100 Hawaiʻi
498, 507, 60 P.3d 899, 908 (2002) (“[D]ismissal of a prosecution
without any indicators from the surrounding circumstances that
demonstrate a de minimis infraction would constitute an abuse of
discretion.”). With respect to HRS § 712-1243, this court has
stated that the harm sought to be prevented by the statute is
“the use of the [proscribed drug] or its ‘sale or transfer for
ultimate use.’” State v. Hironaka, 99 Hawai‘i 198, 209, 53 P.3d
806, 817 (2002) (quoting State v. Vance, 61 Haw. 291, 307, 602
P.2d 933, 944 (1979)).
1. The Defendant Does Not Need To Prove that the Possessed Drugs
Are Incapable of Producing Any Pharmacological or
Physiological Effect.
In this case, the circuit court found that the .005
grams of cocaine that Melendez possessed could not have any
pharmacological or physiological effect based on the
circumstances attendant to Melendez’s violation. The ICA
concluded this finding was clearly erroneous because it was
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unsupported by the evidence in the record and vacated the De
Minimis Order, stating that “the defendant . . . must present
evidence that the amount possessed was incapable of producing a
pharmacological or physiological effect.” (Emphasis added.)
Evaluating the relevance of the possessed drug’s pharmacological
effect requires a review of our pertinent precedent.
In State v. Vance, this court first discussed the de
minimis principle set forth in HRS § 702-236(1)(b) in the
context of an HRS § 712-1243 violation. 61 Haw. at 307, 602
P.2d at 944. We observed that when the literal application of a
possessory drug offense, such as HRS § 712-1243, would result in
an “unduly harsh conviction for possession of a microscopic
trace of a dangerous drug,” HRS § 702-236 might be applied to
avoid an unjust result. Id. We explained that when
the amount [of the drug] is microscopic or is infinitesimal
and in fact unusable as a narcotic, the possibility of
unlawful sale or use does not exist, and proscription of
possession under these circumstances may be inconsistent
with the rationale of the statutory scheme of narcotics
control.
Id. (emphasis added). That is, when the amount of the drug is
microscopic and “in fact unusable as a narcotic,” then
proscription of possession may be contrary to the statutory
scheme. Id. Further, inability to use or sell a minute amount
of a narcotic may be shown by other relevant factors, warranting
dismissal of the charge.
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Thus, the possession of a microscopic amount in combination
with other factors indicating an inability to use or sell
the narcotic, may constitute a de minimis infraction within
the meaning of HRS § 702–236 and, therefore, warrant
dismissal of the charge otherwise sustainable under HRS
§ 712–1243.
Id.
This court again considered the application of the de
minimis statute to a possessory drug offense in State v.
Viernes, 92 Hawaiʻi 130, 988 P.2d 195 (1999). In Viernes, the
defendant was found to be in possession of .001 grams of a
substance containing methamphetamine. Id. at 131, 988 P.2d at
196. The trial court found, based on the expert testimony of
Dr. Read, that .001 grams of methamphetamine has no
pharmacological effect, and therefore that amount was “unusable
for use or sale.” Id. at 132, 988 P.2d at 197. Citing Vance,
the trial court concluded that convicting the defendant for the
violation would be unduly harsh and dismissed the charge as a de
minimis violation. Id. at 132-33, 988 P.2d at 197-98. On
appeal, the State argued it was erroneous for the trial court to
conclude that the violation was de minimis solely because the
amount of methamphetamine the defendant possessed was unusable.
Id. at 133, 988 P.2d at 198. The Viernes court rejected this
contention and held that “[i]nasmuch as the quantity of
methamphetamine possessed by Viernes was infinitesimal and
unusable as a narcotic, and was thereby incapable of causing or
threatening the harms sought to be prevented by HRS § 712–1243,”
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the trial court did not err in dismissing the charge. Id. at
133, 988 P.2d at 198. The court, extensively quoting from
Vance, held that
the .001 grams of methamphetamine was infinitesimal and was
neither useable nor saleable, it could not engender any
abuse or social harm. As such, Viernes’s possession of the
.001 grams of methamphetamine did not threaten the harm
sought to be prevented by HRS § 712–1243.
Id. at 134-35, 988 P.2d at 199-200 (footnote omitted).
Accordingly, the Viernes court concluded that the trial court
did not abuse its discretion in determining that the possession
of .001 grams of methamphetamine was de minimis pursuant to HRS
§ 702–236. Id. at 135, 988 P.2d at 200.
The issue of de minimis dismissal for an HRS § 712-
1243 violation was again addressed in State v. Balanza,
93 Hawaiʻi 279, 285, 1 P.3d 281, 287 (2000). In Balanza, we held
that the trial court did not abuse its discretion in denying a
de minimis motion because the prosecution adduced uncontroverted
evidence that the cocaine residue in a pipe the defendant
possessed “could be scraped out and smoked again.” 93 Hawaiʻi at
285, 1 P.3d at 287. Based on the evidence in the record, we
concluded that the trial court did not abuse its discretion in
denying the motion to dismiss. Id.In State v. Hironaka, we again affirmed a trial
court’s denial of a defendant’s de minimis motion. 99 Hawaiʻi
198, 200, 53 P.3d 806, 808 (2002). The defendant was charged
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under HRS § 712-1243 for his possession of .044 grams of residue
containing methamphetamine. Id. He adduced no evidence that
the amount of methamphetamine he possessed was “incapable of
producing a pharmacological or physiological effect or was not
saleable.” Id. at 209, 53 P.3d at 817. Thus, “there was no
evidence introduced from which the circuit court could have
concluded that [the defendant’s] conduct did not ‘cause or
threaten the harm or evil sought to be prevented by the law,’
i.e., the use of the methamphetamine or its ‘sale or transfer
for ultimate use.’” Id. (quoting Vance, 61 Haw. at 307, 602
P.2d at 944). As such, we held that the court did not err in
denying the defendant’s motion to dismiss on the grounds that
his violation was de minimis. Id.The relevance of a possessed drug’s “pharmacological
effect” was clarified in State v. Fukagawa, 100 Hawaiʻi 498, 60
P.3d 899 (2002). A majority of this court rejected a contention
by the dissent that the significant inquiry in de minimis drug
cases is whether the amount of drugs possessed could have an
“illicit” or “narcotic” effect. Fukagawa, 100 Hawaiʻi at 506, 60
P.3d at 907. Instead, the court stated that in considering the
effect of the amount of drugs possessed, “the proper inquiry in
de minimis cases is whether the amount possessed could produce a
pharmacological or physiological effect.” Id. This court
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observed that the amount of substance containing methamphetamine
in the defendant’s possession weighed .018 grams, and Dr. Read
had testified that doses of methamphetamine as low as .005 grams
were used to treat ADHD. Id. Additionally, we concluded that
the trial court’s determination that the substance recovered was
usable was supported by testimony that it may have constituted
an amount sufficient to be “used” by someone. Id. Thus, we
held that the court did not abuse its discretion in denying the
motion to dismiss. Id. at 507, 60 P.3d at 908.
This court has thus consistently held over the past
forty years that when the amount of drugs possessed is unusable,
the violation of HRS § 712-1243 does not “cause or threaten the
harm or evil sought to be prevented by the law defining the
offense,” and a de minimis dismissal would be warranted in such
circumstances. HRS § 702-236; see Vance, 61 Haw. at 307, 602
P.2d at 944; Viernes, 92 Hawaiʻi at 134, 988 P.2d at 199; cf.
Balanza, 93 Hawaiʻi at 285, 1 P.3d at 287; Hironaka, 99 Hawaiʻi
at 209, 53 P.3d at 817; Fukagawa, 100 Hawaiʻi at 506, 60 P.3d at
907. Although we have declined to read a usable quantity
standard into HRS § 712-1243, it is clear that if the amount
possessed is “so minuscule that it cannot be . . . used in such
a way as to have any discernible effect on the human body, it
follows that the drug cannot lead to abuse, social harm, or
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property and violent crimes,” i.e., the harm sought to be
prevented by HRS § 712-1243. Viernes, 92 Hawaiʻi at 134, 988
P.2d at 199. Under such circumstances, dismissal under HRS
§ 702-236 is warranted. See id.
Hence, contrary to the conclusion of the ICA, a
defendant’s burden on a de minimis motion for an HRS § 712-1243
violation is not to specifically prove that the drugs possessed
could not have a pharmacological or physiological effect, but to
“place ‘all’ of the relevant attendant circumstances before the
trial court . . . to establish why dismissal is warranted in
light of those circumstances.” Rapozo, 123 Hawaiʻi at 331, 235
P.3d at 327. When the defendant proves the amount of drugs
possessed is incapable of producing a pharmacological effect, it
is clear the amount is not usable or saleable. Viernes, 92
Hawai‘i at 134-35, 988 P.2d at 199-200. In such cases, in the
absence of other circumstances indicating the violation actually
threatened the harm sought to be prevented by HRS § 712-1243, de
minimis dismissal will be warranted. Id. But proving that the
possessed drugs could not have a pharmacological effect is not a
condition precedent for de minimis dismissal of a possessory
drug violation. Our decisions firmly establish that if the
amount of drugs possessed is not usable or saleable, the
violation does not engender the harms sought to be prevented by
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HRS § 712-1243 absent demonstrable evidence to the contrary.
Id. at 134, 988 P.2d at 199; Balanza, 93 Hawaiʻi at 285, 1 P.3d
at 287; Hironaka, 99 Hawaiʻi at 209, 53 P.3d at 817; Fukagawa,
100 Hawaiʻi at 506, 60 P.3d at 907. In sum, if the possessed
drugs are neither usable nor saleable, and the attendant
circumstances do not otherwise demonstrate the defendant’s
violation caused the harm HRS § 712-1243 seeks to prevent, de
minimis dismissal is warranted.
2. The Circuit Court Did Not Abuse Its Discretion in
Dismissing the Charge as De Minimis.
The parties in this case stipulated that “0.005 grams
of a substance containing cocaine is neither usable nor
saleable.” Even assuming that the amount of cocaine Melendez
possessed was theoretically capable of producing a
pharmacological or physiological effect, it was well within the
court’s discretion to dismiss the charge against Melendez as de
minimis because, per the parties’ stipulation, the cocaine
Melendez possessed was not a usable or saleable amount. Since
it was neither usable nor saleable, Melendez’s possession of the
cocaine did not “cause or threaten the harm or evil sought to be
prevented” by HRS § 712-1243 and violated the statute “only to
an extent too trivial to warrant the condemnation of
conviction.” HRS § 702-236(1)(b); see Viernes, 92 Hawai‘i at
133, 988 P.2d at 198 (“Inasmuch as the quantity of
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methamphetamine possessed by Viernes was infinitesimal and
unusable as a narcotic, [it] was thereby incapable of causing or
threatening the harms sought to be prevented by HRS § 712-
1243[.]”).
Additionally, even if it was erroneous for the circuit
court, based on the evidentiary record, to conclude that
Melendez had proved that the .005 grams of cocaine that he
possessed was incapable of producing a pharmacological or
physiological effect, “it is well-settled that ‘[a]n appellate
court may affirm a judgment of the lower court on any ground in
the record that supports affirmance.’” Fukagawa, 100 Hawaiʻi at
506-07, 60 P.3d at 907-08 (alteration in original) (quoting
State v. Dow, 96 Hawaiʻi 320, 326, 30 P.3d 926, 932 (2001)).
Thus, the ICA should have considered other grounds in the record
supporting affirmance of the De Minimis Order, particularly the
stipulated fact that the cocaine Melendez possessed was unusable
and unsaleable. See State v. Woodhall, 129 Hawaiʻi 397, 405, 301
P.3d 607, 615 (2013) (noting that stipulations as to facts are
conclusive and binding). Under our precedents, this stipulation
warrants dismissal of the charge as de minimis unless the other
attendant circumstances demonstrate that the violation did in
fact cause or threaten the harm sought to be prevented by HRS
§ 712-1243. Viernes, 92 Hawai‘i at 133, 988 P.2d at 198; cf.
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Balanza, 93 Hawaiʻi at 285, 1 P.3d at 287; Hironaka, 99 Hawaiʻi
at 209, 53 P.3d at 817.
Further, none of the attendant circumstances in this
case refute the conclusion that Melendez’s possession of an
unusable and unsaleable amount of cocaine did not threaten or
cause the harm sought to be prevented by HRS § 712-1243. We
note that the circuit court found that Melendez was not in
possession of any items typically associated with drug use at
the time of his violation and was not under the influence of any
drugs. There is also no indication Melendez was engaged in any
other criminal conduct. These circumstances additionally do not
militate against a finding that the violation was de minimis.
Fukagawa, 100 Hawai‘i at 507, 60 P.3d at 908. Thus, inasmuch as
the record supports the circuit court’s determination that
Melendez’s violation was de minimis as the possessed drug was
neither usable nor saleable, the court did not abuse its
discretion in dismissing the charge.8 Id. at 506-07, 60 P.3d at
907-08.
8
Given our disposition in this case, it is unnecessary to review
the ICA’s determination that the circuit court erred in finding that the
amount of cocaine Melendez possessed could not have had a pharmacological or
physiological effect.
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V. CONCLUSION
Based on the foregoing, the ICA’s judgment on appeal
is reversed.
Jon N. Ikenaga /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Stephen K. Tsushima
for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
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