Sills v. State , 463 N.E.2d 228 ( 1984 )

HUNTER, Justice.

The defendant, Shawn Lynn Sills, was convicted of murder, Ind.Code § 85-42-1-1 (Burns 1979 Repl.) The defendant was sentenced to a term of forty years, with twenty years added for aggravating circumstances. The defendant raises the following eight issues in this direct appeal:

1. Whether the trial court erred in denying the defendant's motion to suppress his confession and by allowing the introduction into evidence of a tape recording of the confession;

2. Whether the trial court erred in denying the defendant's motion to withdraw his plea of not guilty and by denying defendant's motion to present evidence before the state had presented its case;

3. Whether the trial court erred in denying the defendant's motion for a change of venue;

4. Whether the trial court erred by admitting into evidence and displaying to the jury certain photographs of the victim;

5. Whether the trial court erred by admitting into evidence a "sexual assault kit";

6. Whether the trial court erred by admitting into evidence certain diagnostic reports;

7. Whether the trial court erred when it failed to read to the jury seven of the defendant's instructions; and

8. Whether the sixty-year sentence was manifestly unreasonable.

The facts most favorable to the state show that the defendant was arrested for the murder of Mary Haines, an eighty-two year old woman. The defendant, then sixteen years old, entered the victim's house, found her sitting on the floor, and beat her to death with his fists.

I.

Shortly after his arrest on September 9, 1981, the defendant was taken to an interrogation room. Present at this time were Officer Jim Walters and Sheriff Ray Wil liams. The defendant's father, George Sills, arrived about fifteen minutes later. The defendant and his father were advised of their Miranda rights and both indicated they understood. The defendant then signed a written waiver of rights form and the father signed as a witness. Walters and Williams began questioning the defendant. A few minutes later, the defendant and his father conferred privately, during which time the father urged the defendant to tell the truth. After five minutes, the father summoned Walters and Williams and indicated his son was ready to talk. The defendant and his father were again advised of their constitutional rights. The defendant then began to discuss the events surrounding the murder. The officers asked the defendant to repeat those statements; this time the statements were tape-recorded. The defendant was again advised of his rights before giving the taped statements.

As noted above, the defendant was a juvenile at the time of his arrest and interrogation. Under Ind.Code § 81-67-83 (Burns 1980 Repl.):

"(a) Any rights guaranteed to the child under the Constitution of the United States, the Constitution of Indiana, or any other law may be waived only:

"(1) by counsel retained or appointed to represent the child, if the child knowingly and voluntarily joins with the waiver; or

"(2) by the child's custodial parent, guardian, custodian, or guardian ad litem if:

"(A) that person knowingly and voluntarily waives the right;

"(B) that person has no interest adverse to the child;

"(C) meaningful consultation has occurred between that person and the child; and

"(D) the child knowingly and voluntarily joins with the waiver."

This statute is essentially a codification of our holding in Lewis v. State, (1972) 259 Ind. 481, 288 N.E.2d 188. The code, however, significantly changed our holding in Lewis in one way. Whereas we stated in Lewis that a child could, by himself, waive his constitutional rights, the code prohibits unilateral waiver by the child. Instead, only an attorney or a custodial parent can waive the child's rights. The defendant contends that, since he signed the waiver form and his father signed only as a witness, the requirements of Ind.Code § 31-6-7-8 were not met. In support of this argument, he cites Deckard v. State, (1981) Ind.App., 425 N.E.2d 256.

In Deckard, the Court of Appeals dealt with the situation where the parent was present when the juvenile signed the waiver, but did not herself sign. The court held that "there is nothing from the face of the waiver to establish that [the juvenile's] mother knowingly and intelligently waived his rights." Id., 425 N.E.2d at 257. The concern in Deckard was whether there was a knowing and intelligent waiver of rights by the parent. No particular form is required to establish such a waiver. Powell v. State, (1982) Ind., 487 N.E.2d 969. There must, however, be sufficient evidence to establish that the parent and child joined in the waiver. In Deckard, the evidence was insufficient since the waiver was signed only by the child, thus preventing the Court of Appeals from determining whether the parent waived the rights. Here, the evidence does establish that the parent joined in the waiver. The father signed the waiver form, albeit on a line designated as "witness." In addition, the father testified at the hearing on the motion to- suppress that he did not object to his son giving statements to the officers and, in fact, encouraged him to do so. The facts, taken as a whole, establish that the father and the defendant joined in the waiver and that the father knowingly and voluntarily waived his son's rights. As such, there was no unilateral waiver by the defendant.

The defendant also asserts that, even if the tape recording should not be suppressed pursuant to Deckard, it must be suppressed under Miranda v. Arizona, (1966) 384 U.S. 486, 86 S.Ct. 1602, 16 L.Ed.2d 694. The defendant contends the interrogating officers continued to question him after he requested a lawyer. The record reflects a sharp discrepancy in the evidence. The defendant testified that he asked for an attorney three times and that each time the officers continued questioning. The defendant's father recalled the defendant asking for a lawyer twice. Sheriff Williams testified that the defendant asked for an attorney only once and that questioning then ceased. Williams further testified that the defendant was then allowed to talk alone with his father. After this brief conversation, the father request ed that the questioning be resumed. The defendant was given his rights again, and the questioning resumed with the result being that the defendant gave the challenged incriminating statement.

The evidence on this issue is conflicting. As such, only that evidence which tends to support the trial court's ruling can be considered on appeal. Chandler v. State, (1981) Ind., 419 N.E.2d 142. We cannot weigh the evidence nor judge the credibility of witnesses. Chandler v. State.

The admissibility of defendant's challenged incriminating statement is governed most closely by the post-Miranda case of Edwards v. Arizona, (1981) 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378. There the United States Supreme Court stated:

"[Wle ... hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an ac cused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police."

451 U.S. at 484-85, 101 S.0t. at 1884-85, 68 L.Ed.2d at 8386. Cf. Romine v. State, (1983) Ind., 455 N.E.2d 911; Bryon v. State, (1982) Ind., 438 N.E.2d 709. Here there is proof that the resumption of interrogation was not "police-initiated," but instead was initiated through a communication to interrogators by the father after consultation with the defendant. The defendant was then given a new Miranda advisement and responded without resist ance to the renewed questioning. Edwards requires resumption to be initiated by the accused himself. It is certainly rational and we believe consistent with Edwards to regard the father here as the spokesman for both father and son who communicated their joint decision to the interrogators. Since there was substantial evidence of probative value to support the trial court's decision that the statements were given in compliance with Miranda, we cannot now disturb the ruling. Thus, for the reasons set forth above, the trial court did not err in denying the motion to suppress or in allowing the tape-recorded statements into evidence.

IL.

The defendant next contends that the trial court erred in denying his motion to withdraw his plea of not guilty and in denying the defendant's "Motion to Present Evidence First and Open and Close Argument." The defendant asserts that by withdrawing his plea of not guilty, he was attempting to proceed solely on theories of not guilty by reason of intoxication and not guilty by reason of insanity. The defendant argues that since he bears the burden of proof on these issues, he should have been allowed to open and close the case.

At the time of this trial, our statute on motions to withdraw stated:

"'The court may allow the defendant to withdraw his plea of not guilty for good cause shown. A motion to withdraw a plea of not guilty shall be in writing and shall state facts showing the reason why such plea should be withdrawn and in what respect the substantial rights of the defendant will be prejudiced if the motion is denied. The motion shall be verified and the state may file counter-affidavits in opposition to the motion. The ruling of the court on the motion shall be reviewable on appeal only for an abuse of discretion."

Ind.Code § 85-4.1-1-6(a) (Burns 1979 Repl.) (repealed by 1981 Acts, P.L. 298). The trial court did not exeeed its discretionary power to deny the motion. 'The defendant's motion contained an admission of guilt; yet the defendant continued to allege he was not guilty by reason of intoxication. Voluntary intoxication is a defense. Ind. Code § 385-41-8-5(b) (Burns 1983 Supp.). A defendant asserting intoxication is still pleading not guilty. The trial judge could reasonably have surmised that allowing the defendant to profess his guilt yet plead not guilty by reason of intoxication would confuse the jury. Furthermore, it has been held that it is impossible to both confess guilt and assert an insanity defense, since the mens rea element of a crime and the sanity of the defendant are considered in the same, rather than a bifurcated, trial. Mingle v. State, (1979) Ind.App., 396 N.E.2d 399. There was no error in refusing to allow the motion to withdraw the not guilty plea.

We also hold that there was no error in refusing to grant defendant's "Motion to Present Evidence First and Open and Close Argument." Under the statute in effect at the time of this trial, the state offers its evidence first, "and the defendant shall then offer the evidence in support of his defense." Ind.Code § 85-1-85-1 (Burns 1979 Repl.) (repealed by 1981 Acts, P.L. 298). Further, the statute provided that the state shall have the opening and closing of the argument. Id. These rules of trial procedure were not and are not changed by the fact that a defendant raises the insanity defense. The defendant contends that insanity proceedings are civil in nature, and therefore, since the defendant bears the burden of proof, he should be allowed to open and close and to present evidence first. It is true that the burden of proof in insanity proceedings is the civil standard rather than the criminal. But this does not talismanically transform the entire criminal proceeding into a civil one. Insanity is a defense and defenses are offered after the state has offered evidence to support the prosecution. Ind.Code § 85-1-385-1 (Burns 1979 Repl.) (repealed by 1981 Acts, P.L. 298). There is no error.

TIL

The defendant next contends the trial court erred by denying his motion for a change of venue. The basis for this motion was that the defendant believed that pretrial publicity on the murder was so intensive that it deprived the defendant of the opportunity for a fair trial.

In order for us to reverse the trial court's decision to deny the motion, the defendant is required to show that there was adverse publicity and that the jurors were unable to set aside their preconceived notions of guilt and render a verdict based on the evidence. Sage v. State, (1981) Ind., 419 N.E.2d 1286; Pine v. State, (1980) Ind., 408 N.E.2d 1271. A review of the examples of pretrial publicity here shows little more than the reporting of the facts surrounding the case. More importantly, however, we note that nothing in the record reflects any juror prejudice, since there was no transcript of the voir dire examination. Therefore, there is no basis for finding that the trial court erred in denying the defendant's motion. Sage v. State.

IV.

The defendant next contends that state's exhibits 4 and 6 were improperly admitted into evidence. These exhibits were black and white photographs depicting the nude body of the victim. The photographs were taken at the scene of the murder. The defendant asserts the photographs were cumulative, redundant and gruesome and, therefore, should not have been allowed into evidence.

The admission of photographic evidence is generally within the discretion of the trial court, reviewable only if the trial judge exceeds his discretionary power. Wilson v. State, (1978) 268 Ind. 112, 374 N.E.2d 45. Photographs are not necessarily inadmissible on the ground that they are gruesome and cumulative, Chittenden v. State, (1982) Ind., 436 N.E.2d 86; Bates v. State, (1977) 267 Ind. 8, 366 N.E.2d 659, and the fact that a photograph might arouse the jury is not itself sufficient to exclude it from the evidence if the photograph is material and relevant. Porter v. State, (1979) 271 Ind. 180, 391 N.E.2d 801.

Although the photographs in question were undoubtedly gruesome, we find that they were properly admitted. The photographs depicted the victim as she was found in her house. They were relevant to show the crime seene and the position of the victim. Drollinger v. State, (1980) Ind., 408 N.E.2d 1228. The pictures showed the victim from different angles and were not redundant of other photographs that were admitted. They were probative of the nature and extent of the victim's wounds. Drollinger v. State. We find that the trial judge did not exceed his discretionary power to admit these two photographs.

V.

The defendant next contends the trial court erred in admitting into evidence state's exhibit 12, a "sexual assault kit." This exhibit was offered during the testimony of Thomas Malone, a field technician for the Indiana State Police. Malone was present during the victim's autopsy and placed samples of the victim's blood in the sexual assault kit. Both the blood and the kit were admitted into evidence.

At trial, the defendant objected to the introduction of the sexual assault kit. The objection at this time was that the kit was inflammatory; no further grounds were given for the objection. On appeal, however, the defendant contends the kit was inadmissible on the ground that it could only be considered by the jury of evidence of another crime, such as sexual assault or rape. Objections to the admission of evidence must be based on specific, rather than general, grounds. Brown v. State, (1981) Ind., 417 N.E.2d 333. The defendant cannot change or add to his objections in the reviewing court. Lucas v. State, (1980) Ind., 413 N.E.2d 578; Cooper v. State, (1972) 259 Ind. 107, 284 N.E.2d 799. The error is therefore normally waived. We also note that any error on the nebulous ground that the kit was inflammatory was rendered harmless by the subsequent admission without objection of an autopsy report containing a reference to the rape of the victim. As we stated in Badelle v. State, (1982) Ind., 434 N.E.2d 872, "[alny error in the admission of evidence is harmless when other evidence having the same probative value is admitted without objection and is not refuted." Id., 484 N.E.2d at 875. There is no reversible error.

VIL.

The defendant next contends the trial court erred in admitting state's exhibits numbered 20, 21, and 22. These exhibits were introduced over the defendant's objections during the testimony of Dr. Norman Duly, a psychiatrist, who testified during the state's rebuttal on the insanity defense. Exhibit 20 was an electroencephalograph evaluation prepared by Dr. Webb. Exhibit 21 was a diagnostic evaluation of the defendant prepared before he entered the Indiana Boys' School in 1980. Exhibit 22 was a copy of psychological and intelligence tests administered to the defendant as part of his evaluation before admission to the Boys' School. None of the individuals who prepared the reports testified at trial,. The defendant objected to the introduction of these exhibits on the ground that they were hearsay.

Hearsay is defined in our state as an extrajudicial declaration of another offered to prove the truth of the facts asserted therein, and thus resting on the credibility of declarant who is not in court and available for cross-examination. Roberts v. State, (1978) 268 Ind. 348, 375 N.E.2d 215. A review of the record in this case shows that the three exhibits were not being offered for the truth of the matters contained in them. Rather, they were being offered to establish the foundation of Dr. Duly's diagnosis. Before each exhibit was offered into evidence, Dr. Duly was asked if it constituted material that he considered or relied upon in his evaluation of the defendant. No attempt was made to assert that the facts contained in the exhibits were true. While it might have been better not to have admitted these documents directly into evidence, see Smith v. State, (1972) 259 Ind. 187, 285 N.E.2d 275, it was not necessarily an error to do so. The portrayal of the defendant in exhibits 21 and 22 is almost identical in substance to that produced before the jury by the defendant's own psychiatric witnesses, who regarded the defendant as being legally insane. The exhibits described the defendant as having an angry and hateful attitude, and to a large extent they undermined Dr. Duly's opinion that the defendant was sane at the time of the killing. In short, the trial judge has wide discretion in the admission of evidence. Under the circumstances of this case, we cannot say that the trial judge exceeded his discretion in allowing the state to admit these exhibits.

VIL.

The defendant next contends that the trial court erred when it refused defendant's tendered instructions numbered 1, 5, 6, 7, 8, 9, and 11.

Defendant's tendered instruction number 1 dealt with the defense of insanity. The defendant asserts that by refusing this instruction the trial court confused the jury since they were purportedly left without a standard to determine whether the defendant was insane. An examination of the record, however, shows that the jury was provided with the proper standard. Preliminary instruction number 11, reread to the jury at the conclusion of the case stated:

"The Defendant has imposed a defense of insanity.

"Insanity may be a defense to the crime charged. The legal defense of insanity is defined as follows:

"A person is not responsible for criminal conduct if at the time of such conduct as the result of mental disease or defect he lacks substantial capacity either to appre-clate the wrongfulness of his conduct or to conform his conduct to the requirements of law.

"The terms 'mental disease or defect' do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct."

The substance of the refused instruction was contained in preliminary instruction number 11. The trial court, therefore, did not err in refusing to give defendant's tendered instruction number 1. Davis v. State, (1976) 265 Ind. 476, 355 N.E.2d 836; Hash v. State, (1972) 258 Ind. 692, 284 N.E.2d 770.

Defendant's tendered instruction number 5 concerned involuntary manslaughter. The defendant argues that involuntary manslaughter was a lesser included offense of murder and that he was therefore entitled to an instruction on the offense. The defendant further argues that since the commission of battery is a necessary element of involuntary manslaughter, the trial court erred in refusing to give defendant's tendered instruction number 9, a definition of battery.

The test for determining the propriety of an instruction on a lesser offense is the two-step analysis discussed in Lawrence v. State, (1978) 268 Ind. 330, 375 N.E.2d 208. The first step involves examining the statutes involved and the charging information, while the second involves examining the evidence. Both steps must be satisfied before an instruction is proper. Roddy v. State, (1979) Ind.App., 394 N.E.2d 1098. In the present case, the defendant failed to pass the first step. In Jones v. State, (1982) Ind., 438 N.E.2d 972, we held that "the state through its drafting can foreclose as to the defendant, the tactical opportunity to seek a conviction for a lesser offense. The point is that absolute discretion rests in the state to determine the crime(s) with which a defendant will be charged." Id., 488 N.E.2d at 975. The information in this case charged that:

"On or about the 7th day of September, 1981, in Huntington County, in the State of Indiana, Shawn Lynn Sills did knowingly or intentionally kill another human being, Mary Haines, by striking and beating at and against the body of the said Mary Haines with his fists and did then and there and thereby cause said Mary Haines to die.

"All of which is contrary to the form of the Statute in such cases made and provided, to-wit: Ind.Code 85-42-1-1 and against the peace and dignity of the State of Indiana."

It is clear that the state sought only to charge for murder. The defendant cannot inject the lesser offense, since this would allow the jury to return a compromise verdict. Jones v. State Hester v. State, (1974) 262 Ind. 284, 315 N.E.2d 351. It was not error to refuse defendant's tendered instructions numbers 5 and 9.

Defendant's tendered instructions numbered 6, 7, and 8 all related to the defense of intoxication. The defendant concedes that the legislature in 1980 limited the use of the voluntary intoxication defense to cases where it negates an element of an offense referred to by the phrase "with intent to" or "with an intention to." Ind.Code § 85-41-38-5 (Burns 1983 Supp.) Since the crime of murder does not contain the necessary words, Ind. Code § 85-42-1-1 (Burns 1979 Repl.), voluntary intoxication is not a defense. The defendant, however, relies on Hughes v. Mathews, (7th Cir.1978) 576 F.2d 1250, in support of his contention that the trial court should have given the instructions. Hughes involved a challenge on a writ of habeas corpus to Wisconsin's rule of excluding all psychiatric evidence in the guilt portion of a bifurcated trial. The petitioner had been tried in a Wisconsin court for the first-degree murder of his wife and neighbor. Hughes's defense was that he lacked the specific intent necessary for first degree murder. The only evidence the defendant offered to show lack of intent was the testimony of a psychiatrist. Under Wisconsin's bifurcated system, however, psychiatric evidence was admissible in the insanity portion of the case but not in the guilt portion. Furthermore, Wisconsin had a rebuttable presumption that the defendant intended the probable consequences of his acts. The Seventh Circuit Court of Appeals held that the rebuttable presumption coupled with evidentiary prohibition unconstitutionally relieved the prosecution of proving the intent element of the crime.

In the present case, the refusal to allow instructions on intoxication did not, as the defendant asserts, relieve the state from proving the intent element. As noted in Muench v. Israel, (E.D.Wis.1981), 514 F.Supp. 1194, "the only defense defendant [in Hughes] offered at trial went to, the issue of proving his lack of intent. The only evidence on lack of intent he offered was the testimony of the psychiatrist. Excluding that testimony, therefore, precluded the defendant from raising any defense as to intent." Id., 514 F.Supp. at 1197. Thus a conclusive presumption was created in the Hughes trial. No such presumption was created in the present case. The defendant's defense on specific intent was not limited to intoxication. The defendant also presented evidence on insanity, including testimony that the defendant did not recall actually killing the victim and testimony of psychiatrists that the defendant was psychotic. The state was therefore still required to prove intent beyond a reasonable doubt, and they were not relieved of this duty by the trial court's refusal to give instructions on intoxication. Under the circumstances of this case, circumstances significantly different from those in Hughes, no conclusive presumption of intent existed. Since intoxication is only a defense in crimes involving an element with the words "with intent to" or "with an intention to," and since no element of murder contains these words, it was not error to refuse to give defendant's tendered instructions numbered 6, 7, and 8, all dealing with intoxication.

The defendant's last contention on the issue of instructions is that the trial court erred in refusing to give defendant's tendered instruction number 11, which stated:

"Members of the Jury, you are not to consider any sentence which might be imposed as a result of these proceedings. Sentencing, if any, is the function of a later proceeding, if required."

We agree with the state that this was not entirely a correct statement of law. The court is responsible for sentencing. Ind. Code § 35-50-1-1 (Burns 1979 Repl.) The above instruction, however, leaves the jury with the impression that they might be called upon to render a sentence. The trial court was not in error in refusing to give the instruction. Richey v. State, (1981) Ind., 426 N.E.2d 389.

VIIL

The defendant lastly contends that the sixty-year sentence was manifestly unreasonable. Under Ind.R.Ap.Rev.Sen. 2, a sentence is not manifestly unreasonable unless no reasonable person could find the sentence appropriate to the particular offense and offender.

The trial judge made the following findings when sentencing the defendant:

"The Defendant, Shawn Lynn Sills, having been found guilty of the crime of Murder by the jury and the Court having adjudged the defendant guilty of the crime of Murder now sentences the defendant to the Indiana Department of Corrections for a period of forty (40) years and having considered the mitigating and aggravating circumstances imposes an additional twenty (20) years making a total of sixty (60) years. The Court finds that the mitigating cireum-stances to be considered were that the fact that the defendant was drinking. There was a conflict in evidence as to how drunk the defendant was and how much he had drank. The court also finds that two psychiatrists did indeed find that the defendant was insane at the time. However, the court again finds that there was contradicting and conflicting evidence on the question of the defendant's sanity. The Court also finds that there was evidence of the fact that the defendant had suffered a diminished capacity but again the court finds that the evidence was conflicting on that fact. The Court does find that the defendant comes from a family of which the father was alleged to have been and there was evidence to establish that he was alcoholic and that the fact that the defendant was abused physically. The Court further finds as possible mitigating cireum-stances that the defendnat [sic] did engage in or was at the time perhaps under the influence of alcohol and drugs but again there was conflicting evidence as to how much and how much under the influence the defendant was. Certainly as a mitigating circumstance the court finds that the defendant is 16 years of age.

"As aggravating circumstances the court finds that this crime was committed while the defendant was on parole and and [sic] that in fact he had violated his parole. The Court further finds that the defendant has a history of criminal activity commencing in 1975 wherein he was found to be involved in vandalism that occurred on July 10, 1975. Again on July 28, 1979 the defendant was involved in two different types of burglary.... Again on April 2, 1980 and again on the 15th of June, of 1980. The Court finds that the defendant was sent to the diagnostic unit of the Indiana Boy's School in September 15, 1980 and following the report from the diagnostic unit the defendant was placed in the Gibault Home near Terre Haute, Indiana on November 16, 1980. the [sic] court received four separate reports one on 12-9-80, another on 1-26-81 another on 2-9-81 and another on 2-17-81 from the boys' school showing that the defendant was unable to conform to the rules and was involved in fighting and other violations at the boy's school. Then on 2-17-81 the defendant was discharged from the Gibault Home and on February 20, 1981 the defendant was sent to Indiana Boys School. The defendant was parolled [sic] from Indiana Boys School on June 19, 1981. as [sic] an additional aggravating cireum-stances the court finds that the defendant is in need of correctional treatment that can best be provided by commitment to a penal facility. The Court finds that imposition of a reduced sentence would tend to depreciate the seriousness of the crime in which the defendant was involved in. The Court finds that the vie-tim of the crime was over 65 years of age in fact she was 82 years of age. Court further finds that the victim of the crime was physically infirm.

"The Court finds that the victim was brutally beaten to death at the hands of the defendant. The Court finds that the defendant has lacked remorse as demonstrated during the trial of this cause. The Court further finds that the aggravating circumstances outweigh the mitigating circumstances and thus imposes the standard sentence of 40 years and aggravates the sentence for 20 additional years."

We feel that the trial judge fully considered the aggravating and mitigating circumstances of the case and stated his findings with commendable detail. We cannot say that no reasonable person could have found the sentence appropriate. As such, the sentence is not manifestly unreasonable.

For all the foregoing reasons, there was no reversible trial court error, and the judgment of the trial court should be affirmed.

Judgment affirmed.

DeBRULER, J., concurs. GIVAN, C.J., concurs in result with opinion in which PIVARNIK, J., concurs. PRENTICE, J., dissents with opinion.