State v. Sutton , 259 N.C. App. 891 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-35
Filed: 5 June 2018
Jackson County, No. 15 CRS 050090-92
STATE OF NORTH CAROLINA,
v.
LARIS SUTTON, Defendant.
Appeal by defendant from judgment entered on or about 9 August 2016 by
Judge Alan Z. Thornburg in Superior Court, Jackson County. Heard in the Court of
Appeals 8 August 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Kacy L. Hunt,
for the State.
Julie C. Boyer, for defendant-appellant.
STROUD, Judge.
Defendant appeals from the trial court’s order denying his motion to suppress
all evidence recovered as a result of a traffic stop and subsequent dog sniff. Although
the law enforcement officer had seen defendant’s truck cross only once about one inch
over the double yellow lines on a curvy road, crossing the center line is a traffic
violation which is sufficient to justify the stop. After the stop, the officer’s
observations of defendant and additional information that defendant had drugs in
the truck gave the officer reasonable suspicion to request a canine sniff of the car,
STATE V. SUTTON
Opinion of the Court
and the canine officer arrived without unreasonable delay. We affirm the trial court’s
order.
Background
Defendant was indicted on trafficking in methamphetamine by transportation,
trafficking in methamphetamine by possession, felonious maintaining a vehicle for
keeping and/or selling a controlled substance, possession of methamphetamine,
possession with intent to sell and/or deliver methamphetamine, possession of drug
paraphernalia, and driving left of center on 29 February 2016. On 5 August 2016,
defendant moved to suppress the traffic stop which led to his arrest based on both a
lack of reasonable suspicion to justify the initial stop and on the search of defendant’s
vehicle after the “passage of an amount of time far in excess of any justification for
said stop and seizure.” The trial court held a hearing on the motion to suppress on 8
August 2016 and denied the motion both on the initial stop and to the extension of
time and dog sniff. The trial court later entered a written order in accord with its
rendition of the ruling on the motion to suppress in open court on 8 August 2016.
Defendant reserved his right to appeal the ruling on the motion to suppress and pled
guilty to all of the charges against him on or about 9 August 2016. Defendant timely
filed written notice of appeal from the order denying motion to suppress and the
judgment entered upon his guilty plea.
Analysis
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On appeal, defendant challenges the trial court’s conclusion of law that there
was reasonable suspicion to stop defendant’s vehicle. He also challenges some of the
trial court’s findings of fact and conclusions of law regarding the officer’s questioning
of defendant after the stop and contends the traffic stop was unreasonably extended
beyond the time necessary for the traffic violation.
I. Traffic stop
What a difference a few inches can make in cases dealing with traffic stops.
This Court and many other appellate courts have struggled with making fine
distinctions between weaving within a travel lane and “weaving plus,” such as
weaving repeatedly within a lane, weaving and barely crossing a fog line, weaving in
the wee hours of the morning, weaving near a bar, weaving while driving under the
speed limit, and many other factors. The rules regarding weaving are hazy at best.
But there is a “bright line” rule in some traffic stop cases. Here, the bright line
is a double yellow line down the center of the road. Where a vehicle actually crosses
over the double yellow lines in the center of a road, even once, and even without
endangering any other drivers, the driver has committed a traffic violation of N.C.
Gen. Stat. § 20-146 (2017). This is a “readily observable” traffic violation and the
officer may stop the driver without violating his constitutional rights. See, e.g., State
v. Johnson, __ N.C. __, __, 803 S.E.2d 137, 141 (2017) (“To be sure, when a defendant
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does in fact commit a traffic violation, it is constitutional for the police to pull the
defendant over.” (Citation omitted)).
Defendant challenges none of the findings of fact regarding the initial traffic
stop, so they are binding on appeal:
The standard of review in evaluating the denial of a
motion to suppress is whether competent evidence
supports the trial court’s findings of fact and whether the
findings of fact support the conclusions of law. However,
when, as here, the trial court’s findings of fact are not
challenged on appeal, they are deemed to be supported by
competent evidence and are binding on appeal.
Conclusions of law are reviewed de novo and are subject to
full review. Under a de novo review, the court considers
the matter anew and freely substitutes its own judgment
for that of the lower tribunal.
State v. Biber, 365 N.C. 162, 167-68, 712 S.E.2d 874, 878 (2011) (citations and
quotation marks omitted).
The trial court found these facts which are relevant to the traffic stop:
6. Daniel Wellmon is an officer with the Jackson County
Sheriff's office. Officer Wellmon received his Basic Law
Enforcement Training in 2009 and has maintained that
certification each year through in-service training. In
addition, Officer Wellmon is certified to operate an
Intoxilyzer and has maintained that certification as
required by law.
7. Officer Wellmon has worked as a Patrol officer with the
Jackson County Sheriff’s office since 2009 handling, among
other things, serving papers, traffic stops, regular patrol
duties and community patrols. During his Tenure as a
Deputy Sheriff, Officer Wellmon has made in excess of 500
Chapter 20 related investigations.
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8. On the 13th day of January, 2015 Officer Wellmon was
working a regular day shift beginning at 6 am through 6
pm. He was operating a marked Dodge Charger equipped
with Blue lights, sirens, radio and a computer. His
assignment for that day was to conduct a community patrol
of Cabe Road because the Sheriff’s office had received
multiple complaints about drug activity in that area.
9. That same morning Officer Wellmon was advised by a
State Bureau of Investigation Agent, who was involved in
drug related investigations, to be on the lookout for a black
vehicle driven by [defendant]. According to the Agent, this
vehicle was bringing large quantities of methamphetamine
to a supplier off of Cabe Road.
10. At approximately 3:09 pm on January 13, 2016, Officer
Wellmon was traveling on Cabe Road behind a white Ford
Ranger Pick-up truck. Cabe Road is a dead end, curvy,
paved road located in Jackson County and is of sufficient
width for two lanes of travel. The officer observed the Ford
Ranger travel left of center with the driver’s side tires
crossing over the double yellow lines approximately one
inch.
11. Officer Wellmon activated his blue lights and the
vehicle pulled into Comfort Road, a one lane gravel
driveway off of Cabe Road.
Defendant argues that the trial court erred in concluding that “Officer
Wellmon had reasonable suspicion to stop the Defendant’s vehicle for failing to
operate his vehicle on the right half of the roadway that was of sufficient width for
more than one lane of traffic in violation of N.C.G.S. 20-146(A).” Defendant relies
heavily on State v. Derbyshire, 228 N.C. App. 670, 677, 745 S.E.2d 886, 891 (2013)
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and contends that the facts of this case are “substantially similar, and, in fact, even
less suspicious than the facts presented in Derbyshire.”
But the facts of Derbyshire differ greatly from this case. Derbyshire was a
“weaving plus” case in which this Court held that the officer did not have a sufficient
basis for a reasonable suspicion to stop the defendant. Id. (“On a number of occasions,
this Court has determined that an officer has the reasonable suspicion necessary to
justify an investigatory stop after observing an individual’s car weaving in the
presence of certain other factors. This has been referred to by legal scholars as the
‘weaving plus’ doctrine.” (Citation omitted)). But the Derbyshire Court emphasized
in a footnote that the defendant’s car did not cross the center line of the road:
The right side of Defendant’s tires did not cross the line
separating his lane of traffic from oncoming traffic.
Rather, the tires crossed the line separating those two
lanes of traffic headed in the same direction. At no point
did Defendant cross the center line or the solid white line
on the outer edge of the road.
Id. at 675, n.1, 745 S.E.2d at 890, n.1. Derbyshire and the other cases cited by
defendant’s brief are weaving or “weaving plus” cases; none address readily
observable traffic violations.
Here, the uncontested findings of fact show that the officer saw defendant’s
vehicle cross the double yellow lines in the center of the road, in violation of N.C. Gen.
Stat. § 20-146(a). Cases from this Court and the Supreme Court have consistently
held that when an officer observes a traffic violation, the officer has reasonable
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suspicion to stop the vehicle. In State v. Jones, the officer saw the defendant’s truck
cross the double yellow lines in the center of the road, “ ‘slightly left of center in a
curve.’ ” State v. Jones, __ N.C. App. __, __ S.E.2d __, 2018 WL 1597450, at *1 (Apr.
3, 2018) (No. COA17-796). This Court rejected the defendant’s argument in Jones
that the officer needed some additional basis for reasonable suspicion for a traffic stop
where he had seen the traffic violation:
Defendant’s argument . . . ignores the fact that Trooper
Myers’ direct observations provided reasonable suspicion
for the vehicle stop. Under North Carolina law,
Defendant’s act of crossing the double yellow centerline
clearly constituted a traffic violation. N.C. Gen. Stat. § 20-
150(d) (2017) (“The driver of a vehicle shall not drive to the
left side of the centerline of a highway upon the crest of a
grade or upon a curve in the highway where such centerline
has been placed upon such highway by the Department of
Transportation, and is visible.”).
This Court has made clear that an officer’s
observation of such a traffic violation is sufficient to
constitute reasonable suspicion for a traffic stop.
Jones, __ N.C. App. at __, __ S.E.2d at __, 2018 WL 1597450, at *4 (citations omitted).
Officer Wellmon saw defendant’s truck cross the double yellow lines in the
center of the road, which is a traffic violation, so the trial court correctly concluded
that he had reasonable suspicion to stop defendant’s vehicle based upon the
uncontested findings of fact. This argument is without merit.
II. Extension of Traffic Stop
A. Findings of Fact
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Defendant next argues that the “trial court erred in finding and concluding
that the length and scope of the stop was reasonable under the totality of the
circumstances as it is not supported by competent evidence.” Defendant challenges
four findings of fact as not supported by the evidence. “The applicable standard in
reviewing a trial court’s determination on a motion to suppress is that the trial court’s
findings of fact are conclusive on appeal if supported by competent evidence, even if
the evidence is conflicting.” State v. Barden, 356 N.C. 316, 332, 572 S.E.2d 108, 120-
21 (2002) (citations and quotation marks omitted).
The trial court first made these uncontested findings of fact regarding the stop
itself and extension of the stop:
12. Officer Wellmon approached the vehicle and identified
the defendant to be the driver. Officer Wellmon noticed
that [defendant] appeared confused. His speech was so fast
that the officer had a difficult time understanding him.
The defendant began to stutter and mumble his words.
13. As the Defendant handed his license and registration
to the Officer his hands were quivering.
14. As Officer Wellmon asked the defendant questions, the
defendant’s eyes veered away from the officer and he would
not make eye contact.
15. In Officer Wellmon’s opinion, the nervousness exhibited
by the Defendant was much more extreme than that of any
motorists he had previously stopped for a Chapter 20
violation.
16. Officer Wellmon observed the Defendant’s eyes to be
bloodshot and glassy, like a mirror, and the skin
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underneath his eyes were ashy in appearance. The
defendant, in answer to the officer’s inquiry, denied
consuming any impairing substance.
17. Based on Officer Wellmon’s training and experience,
the behaviors and physical appearance of the Defendant
were consistent with someone having used
methamphetamine.
18. When asked where he was going, the defendant told the
Officer he was going to “Rabbit’s” house because he had
sold “Rabbit” his car and needed to collect the money.
19. The Officer knew “Rabbit” to be the nickname of Archie
Stanberry. Furthermore, the officer had prior knowledge
that Archie Stanberry was involved with
methamphetamine and had previous drug charges
involving methamphetamine. Officer Wellmon also knew
that Archie Stanberry’s house was located at Shadrack
Lane, which is in close proximity to Cabe Road.
20. That the defendant had a small dog in his vehicle that
was barking and growling at the officer. When the Officer
asked if the dog would bite, the defendant, of his own
volition, got out of his vehicle. Officer Wellmon testified
that it is unusual for someone to exit their vehicle without
being requested to do so by the Officer.
21. Because of concerns for officer safety, Officer Wellmon
asked the defendant if he could pat him down for weapons.
The defendant said he did not mind. During the process of
checking for weapons, the defendant talked the entire time,
stuttered and the officer was unable to understand
anything he said.
22. The officer asked the defendant to walk to the back of
his truck and as he did so, the defendant placed his hand
on the vehicle for stability. When he reached the back of
his vehicle, the defendant leaned on the tailgate.
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23. Officer Wellmon did not perform field sobriety tests or
seek a breath or blood sample from [defendant].
24. Officer Wellmon then asked the defendant for consent
to search and the defendant denied that request.
25. Officer Wellmon, requested Sgt. Kenneth Woodring,
who had just arrived on the scene, to make contact with a
Canine Unit. Jackson County Sheriff’s Office did not have
a canine at that time. Macon County was closest to the
location, but their canine was unavailable. At 3:17, Officer
Wellmon was told that a canine from Cherokee was on the
way.
26. Officer Wellmon went to his patrol vehicle to check on
the validity of the defendant’s license, registration and for
any outstanding warrants. Before getting into his vehicle
and while his driver’s side door was open, Mallory Gayosso,
approached Officer Wellmon and told him “that was
Archie’s dope in the vehicle”.
27. Officer Wellmon knew that Ms. Gayosso lived near
where the officer and the defendant were parked on
Comfort Road. He also knew that Ms. Gayosso has given
drug information to law enforcement in the past.
28. Approximately 6 minutes later, while Officer Wellmon
was conducting his license and record checks, Ms. Gayosso
approached him once again. She told him she had just
walked down to Cabe Road from Comfort Road to get milk
from her mother. Ms. Gayosso told Officer Wellmon that
she had “just got off the phone Rabbit” Archie Stanberry,
and that “there was dope in the vehicle and it was in a
black tackle box and not to let us find it.” Ms. Gayosso
continued to walk back to her home.
29. During this time, the defendant remained standing at
the back of his vehicle speaking with Sgt. Woodring.
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Defendant challenges the next four findings as not supported by the evidence.
30. Officer Wellmon ran an inquiry on the defendant’s
license from Jackson County Dispatch, ran a driver’s
history on C.J. Leads, checked for any outstanding
warrants on N.C. AWARE and NCIC. He determined the
defendant’s license and registration were valid and there
were no outstanding warrants for his arrest. The
defendant’s license and registration were not returned to
him. This process takes officer Wellmon 15 minutes.
31. Within six to seven minutes after making that
determination, Sgt. Rick Queen from Cherokee Police
Department’s NRE Division arrived with his canine
Bogart. Officer Wellmon testified the Sergeant and his
canine arrived at approximately 3:47 pm.
32. That based on his training and experience and the
totality of the circumstances, Officer Wellmon had
reasonable suspicion to justify extending the stop until a
canine unit arrived.
33. That six to seven minutes is a reasonable amount of
time, following the completion of the officer’s Chapter 20
investigation, to detain the Defendant based on the
Officer’s reasonable suspicion to believe criminal activity is
afoot.
Defendant does not challenge the events described in these findings but only
the trial court’s findings regarding the exact timing of the events. The trial court
found that defendant was detained only “six to seven” minutes after Officer Wellmon
completed the Chapter 20 investigation. The court also found that “six to seven
minutes” after completion of the Chapter 20 investigation was a reasonable amount
of time to detain defendant while waiting for the canine officer, based upon Officer
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Wellmon’s reasonable suspicion to believe that defendant was engaging in criminal
activity. Defendant argues that “[i]n the thirty minutes from the arrival of the
Sergeant to the arrival of the canine unit, Officer Wellmon could have issued a
citation” and defendant should have been released. By defendant’s calculations, “[i]t
was a full fifteen minutes after” 3:32 pm, or 3:47 pm, “when Officer Queen even
arrived on the scene with the dog[,]” not “six or seven” minutes. The State notes that
although there was some confusion in the testimony regarding exact timing of the
events, ultimately Officer Wellmon clarified his testimony about how long he took to
check the information on the computer and when he completed the Chapter 20
investigation. Officer Wellmon testified:
Q. Did you have an occasion at that juncture [after
receiving information about defendant’s license,
registration, or outstanding warrants] to estimate how
long it was before the K-9 arrived?
A. Yes.
Q. About how long was it before the K-9 arrived?
A. I would say 15.
Q. After you had completed running all the
information, correct?
A. Yeah. Once I completed the information, it was
probably six -- six, seven minutes.
Q. Okay. I guess I’m somewhat confused. I asked a second
ago: How long after you finished running all the
information was it before the K-9 arrived?
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A. Oh, excuse me. Six to seven minutes.
Q. You had said 15 minutes.
A. I'm sorry. I got confused.
If there was any conflict in the testimony about the timing of events, the trial
court resolved that conflict in the findings of fact. “It is well established that the trial
court resolves conflicts in the evidence and weighs the credibility of evidence and
witnesses.” Jones, __ N.C. App. at __, __ S.E.2d at __, 2018 WL 1597450, at *2
(citation and quotation marks omitted). The evidence supports the trial court’s
findings as to the timing of the traffic stop and extension.
B. Conclusions of law
Defendant argues next that even if the extension of time was only six or seven
minutes, the trial court erred in concluding that “Officer Wellmon had reasonable
suspicion to further question the defendant in that under the totality of the
circumstances there existed reasonable articulable suspicion to indicate that criminal
activity was afoot” and that “Officer Wellmon had reasonable suspicion to detain the
defendant until the arrival of the canine officer and the delay was not unreasonable
under the totality of the circumstances in this case.” Defendant contends that the
extension of the stop during and after the Chapter 20 investigation was
“unreasonable under the Fourth and Fourteenth Amendments to the United States
Constitution and case law interpreting same.” Defendant’s argument is based
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primarily on Rodriguez v. United States, __ U.S. __, 191 L. Ed. 2d 492, 135 S. Ct. 1609
(2015).
In Rodriguez, the United States Supreme Court addressed “the question [of]
whether the Fourth Amendment tolerates a dog sniff conducted after completion of a
traffic stop.” Id. at __, 191 L. Ed. 2d at 496, 135 S. Ct. at 1612. The Court held that
if a “police stop exceed[s] the time needed to handle the matter for which the stop was
made,” the stop “violates the Constitution’s shield against unreasonable seizures. A
seizure justified only by a police-observed traffic violation, therefore, becomes
unlawful if it is prolonged beyond the time reasonably required to complete the
mission of issuing a ticket for the violation.” Id. at __, 191 L. Ed. 2d at 496, 35 S. Ct.
at 1612 (citation, quotation marks, and brackets omitted).
Defendant contends that the “factual scenario in Rodriguez is very similar” to
his case. In Rodriguez, a police officer saw a vehicle “veer slowly onto the shoulder”
of a highway “for one or two seconds and then jerk back onto the road.” Id. at __, 191
L. Ed. 2d at 496, 35 S. Ct. at 1612. Because state law prohibited driving on the
shoulder of a highway, the officer stopped Rodriguez for this traffic violation at about
12:06 a.m. Id. at __, 191 L. Ed. 2d at 496, 35 S. Ct. at 1612. The officer was a canine
officer and his dog was with him in his patrol car. Id. at __, 191 L. Ed. 2d at 496, 35
S. Ct. at 1612. The officer approached Rodriguez’s vehicle and got his license,
registration and proof of insurance. Id. at __, 191 L. Ed. 2d at 496, 35 S. Ct. at 1613.
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He then ran a record check and returned to the vehicle to get the passenger’s license
and question him about where they were coming from and where they were going.
Id. at __, 191 L. Ed. 2d at 497, 35 S. Ct. at 1613. The officer returned to his patrol
car to run a record check on the passenger and called for a second officer. Id. at __,
191 L. Ed. 2d at 497, 35 S. Ct. at 1613. He returned to Rodriguez’s vehicle a third
time to issue a written warning ticket at about 12:27 or 12:28 am. Id. at __, 191 L.
Ed. 2d at 497, 35 S. Ct. at 1613. At that point, the officer acknowledged that he had
taken care of “ ‘all the reason[s] for the stop[.]’ ” Id. at __, 191 L. Ed. 2d at 497, 35 S.
Ct. at 1613. But then he asked for permission to walk his dog around defendant’s
car, and Rodriguez said no. Id. at __, 191 L. Ed. 2d at 497, 35 S. Ct. at 1613. He had
Rodriguez get out of the car and wait for the second officer to arrive. Id. at __, 191 L.
Ed. 2d at 497, 35 S. Ct. at 1613. At 12:33 a.m., the second officer arrived and the first
officer had his canine sniff the car; the canine alerted, leading to the discovery of a
“large bag of methamphetamine.” Id. at __, 191 L. Ed. 2d at 497, 35 S. Ct. at 1613.
The entire stop took about twenty-seven minutes prior to the dog sniff, and the stop
was extended by about seven to eight minutes after completion of the investigation
of the traffic violation for the dog sniff. Id. at __, 191 L. Ed. 2d at 498, 35 S. Ct. at
1614.
Defendant argues that here, the entire stop was about forty-one minutes, and
it was extended six to seven minutes for the dog sniff, so under Rodriguez, it was
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unreasonable because its duration was too long. Defendant argues that “based upon
the totality of the circumstances, performing these functions by checking a driver’s
information and issuing a traffic citation for driving left of center should reasonably
have been completed in less than forty-one minutes.” Defendant does not explain
how he contends that Officer Wellmon could have completed the Chapter 20 portion
of the stop more quickly or why the length of the Chapter 20 portion of the stop was
unreasonable under the totality of the circumstances. But even if the stop could have
been completed more quickly, defendant ignores a crucial part of the Rodriguez
analysis. The Court held that the officer may not conduct the traffic stop “in a way
that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify
detaining an individual.” Id. at __, 191 L. Ed. 2d at 499, 35 S. Ct. at 1615.
In Rodriguez, based upon the findings made by the district court, there were
no other circumstances which could have given the officer a basis for reasonable
suspicion of any crime other than the initial traffic stop; Rodriguez had merely driven
on the shoulder of the road for one or two seconds, which was a traffic violation, but
there were no other facts which might arouse suspicion of wrongdoing. Id. at __, 191
L. Ed. 2d at 496, 35 S. Ct. at 1612. The district court found that “ ‘Officer Struble had
[no]thing other than a rather large hunch’ ” and determined that “no reasonable
suspicion supported the detention once Struble issued the written warning.” Id. at
__, 191 L. Ed. 2d at 497, 35 S. Ct. at 1613. But the Supreme Court specifically noted
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that if a law enforcement officer has a basis for reasonable suspicion which develops
during the stop, the stop can be extended accordingly. Id. at __, 191 L. Ed. 2d at 499,
35 S. Ct. at 1615.
As in Rodriguez, the dog sniff here extended the stop. But the Supreme Court
noted that the next inquiry was “whether reasonable suspicion of criminal activity
justified detaining Rodriguez beyond completion of the traffic infraction
investigation,” and since the Eighth Circuit Court of Appeals had not reviewed the
district court’s conclusion on this issue, the Supreme Court remanded the case for
review of this issue. Id. at __, 191 L. Ed. 2d at 501, 35 S. Ct. at 1616-17.
Unlike in Rodriguez, here the trial court addressed the basis for reasonable
suspicion to extend the stop. Defendant’s argument ignores the many uncontested
findings of fact which support the trial court’s conclusion that Officer Wellmon had
reasonable suspicion to extend the stop for the dog sniff. Officer Wellmon was
patrolling Cabe Road based upon complaints about drug activity and he had been
advised by the State Bureau of Investigation to be on the lookout for defendant based
upon reports he was “bringing large quantities of methamphetamine to a supplier off
of Cabe Road.” After he stopped the truck, Officer Wellmon identified defendant as
the person he was on the lookout for and noticed defendant was confused, spoke so
quickly he was hard to understand, and began to “stutter and mumble his words.”1
1The SBI had told Officer Wellmon to be on the lookout for defendant in a black vehicle, but
defendant was the registered owner of the white truck he was driving when he was stopped.
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Defendant did not make eye contact when talking to Officer Wellmon and his
nervousness was “much more extreme” than that of most drivers stopped by the
officer. His eyes were bloodshot and glassy and the skin underneath his eyes was
ashy. Based upon his training and experience, Officer Wellmon believed defendant’s
“behaviors and physical appearance” were consistent with methamphetamine use.
Defendant told Officer Wellmon he was going to “Rabbit’s” house, and Officer
Wellmon knew that “Rabbit” was involved with methamphetamine and that he lived
nearby. When defendant got out of the car -- without having been asked -- he put his
hand on the car for stability. And although these facts alone would have given Officer
Wellmon reasonable suspicion, at this point a woman Officer Wellmon knew had
given “drug information to law enforcement in the past” approached and told him she
had talked to Rabbit and defendant had “dope in the vehicle and it was in a black
tackle box” and not to let the police find it. These facts were more than sufficient to
give Officer Wellmon a reasonable suspicion that defendant may have drugs in his
vehicle and to justify a dog sniff, and the trial court’s conclusions of law were
supported by the findings of fact. This argument is also without merit.
Conclusion
We affirm the trial court’s order denying defendant’s motion to suppress.
AFFIRMED.
Judges BRYANT and CALABRIA concur.
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