               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA15-480

                                  Filed: 1 March 2016

Lenoir County, Nos. 11 CRS 543–45, 12 CRS 1214–19

STATE OF NORTH CAROLINA

              v.

MARTIN LUTHER PEELE


        Appeal by defendant from judgments entered 15 October 2014 by Judge Paul

L. Jones in Lenoir County Superior Court. Heard in the Court of Appeals 6 October

2015.


        Attorney General Roy Cooper, by Assistant Attorney General Jason R. Rosser,
        for the State.

        Meghan A. Jones for defendant-appellant.


        BRYANT, Judge.


        Where the State failed to meet the requirements of Rule 9(b), and where the

State’s evidence was insufficient to confer subject matter jurisdiction upon the trial

court for the revocation of defendant’s probation in Case Nos. 11 CRS 543–45, we

vacate the judgments imposed in those cases. In Case Nos. 12 CRS 1214–19, we

remand to the trial court for correction of clerical errors.

        On 13 January 2009, defendant Martin Luther Peele was indicted for two

counts of obtaining property by false pretenses in violation of N.C. Gen. Stat. § 14-

100, a Class H felony.     On 6 April 2009, defendant was indicted for thirty-one
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                                Zachary, J., concurring in result

additional counts of obtaining property by false pretenses. In 2009, defendant was

also charged with a Class 2 misdemeanor, fraudulent disposal of personal property

on which there was a security interest, in violation of N.C. Gen. Stat. § 14-114. The

charges of obtaining property by false pretenses arose from separate incidents

occurring in 2007 and 2008. Defendant owned a business for the construction of metal

buildings, and the charges alleged that in each case, defendant had received money

to construct a building and then either failed to perform work or performed work that

was defective.

      On 24 February 2010, a jury found defendant guilty of two charges of obtaining

property by false pretenses, and defendant pled guilty to the misdemeanor charge of

fraudulent disposal of personal property. The court imposed consecutive sentences

in Case Nos. 11 CRS 543–45. Defendant was sentenced in Case No. 11 CRS 543 to a

suspended sentence of thirty days imprisonment and placed on supervised probation

for eighteen months for fraudulent disposal of personal property. In Case Nos. 11

CRS 544 and 545, defendant was given a suspended sentence of six to eight months

imprisonment, placed on supervised probation for forty-eight months, and ordered to

pay restitution in the amount of $5,360.00.

      On 1 March 2011, defendant entered pleas of guilty to twenty-seven charges of

obtaining property by false pretenses and four charges of the misdemeanor offense of

failing to perform work for which he had been paid, the latest of which occurred in



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                               Zachary, J., concurring in result

April of 2007. Defendant’s pleas were entered pursuant to a plea bargain under the

terms of which he agreed to pay $45,276.47 as restitution to the victims of these

offenses. The State agreed to dismiss other charges pending against defendant and

to dismiss all charges arising from theses offenses that had been lodged against

defendant’s wife.

      The thirty-one charges were consolidated into six cases for purposes of

sentencing, and consecutive sentences of eight to ten months imprisonment were

imposed in each case. These sentences were suspended, and in each case defendant

was placed on probation for sixty months. The following chart summarizes the

judgments and the original terms of probation.




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                               Zachary, J., concurring in result

Judgment Date      File No.         Charge                Consecutive       Original
                                    No./Nos.              Sentences in 11   Term of
                                                          CRS 543–45        Probation

10 February 2010   11 CR 543        09 CR 2992            30 Days           18
                                                                            Months
24 February 2010   11 CRS 544       08 CRS 51479          6–8 Months        48
                                                                            Months
24 February 2010   11 CRS 545       08 CRS 51481          6–8 Months        48
                                                                            Months

                                                          Consecutive
                                                          Sentences in 12
                                                          CRS 1214–19

1 March 2011       12 CRS 1214      08 CRS 55446,         8–10 Months       60
                                    55448, 55452,                           Months
                                    55454, 55455,
                                    55458, 55459,
                                    55462
1 March 2011       12 CRS 1215      08 CRS 55463,         8–10 Months       60
                                    55466, 55467,                           Months
                                    55470, 56978,
                                    56981, 56982,
                                    56985, 56986
1 March 2011       12 CRS 1216      08 CRS 56989,         8–10 Months       60
                                    56991, 56995,                           Months
                                    56997
1 March 2011       12 CRS 1217      08 CRS 57000,         8–10 Months       60
                                    57001, 57005,                           Months
                                    57007
1 March 2011       12 CRS 1218      08 CRS 57010,         8–10 Months       60
                                    57011, 57014                            Months
1 March 2011       12 CRS 1219      08 CRS 57015,         8–10 Months       60
                                    57309, 09 CRS                           Months
                                    50785




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                                Zachary, J., concurring in result

      On 7 August 2014, violation reports were filed in each of the nine cases

discussed above—three cases from 2010 and six cases from 2011. All of the violation

reports alleged that on 4 June 2014, defendant was convicted of obtaining property

by false pretenses, in violation of the requirement that defendant commit no criminal

offenses while on probation. On 15 October 2014, the trial court revoked defendant’s

probation in all nine cases and activated the prison sentences in each case. The trial

court ordered the terms of imprisonment in Case Nos. 11 CRS 543–45 to be served

consecutively, with these three consecutive sentences to be served concurrently with

the six consecutive sentences activated in Case Nos. 12 CRS 1214–19. Defendant

appealed to this Court from the judgments revoking his probation.

       ________________________________________________________________

      On appeal, defendant argues (1) that the trial court lacked subject matter

jurisdiction to revoke his probation in Case Nos. 11 CRS 543–45 and (2) the trial court

made clerical errors in Case Nos. 11 CRS 544–45 and 12 CRS 1214–19 requiring

remand for correction of those errors.

                                            I

      Defendant first argues that the trial court lacked subject matter jurisdiction to

revoke his probation in Case Nos. 11 CRS 543–45 because the State failed to prove

that the violation reports were timely filed. We agree.




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                                 Zachary, J., concurring in result

        Defendant’s Motion to Strike the State’s Rule 9(b)(5) Supplement and
               All References to the Supplement in the State’s Brief

      On 13 May 2015, defendant filed his appellant brief with this Court and served

it on the State by email. On 12 June 2015, the State electronically filed its appellee

brief and filed in person a Rule 9(b)(5) Supplement to the Printed Record on Appeal.

On 18 June 2015, defendant filed a Motion to Strike the State’s Rule 9(b)(5)

Supplement and All References to the Supplement in the State’s Brief. On 23 June

2015, the State filed a Response to defendant’s Motion.

      In his Motion to Strike, defendant argues that the State’s 9(b)(5) supplement

fails to satisfy Rule 9 as the documents the State seeks to present to this Court in its

supplement cannot be properly included as they were not introduced at the 15

October 2014 probation violation hearing. We agree and, for the reasons stated

herein, grant defendant’s motion to strike.

      Rule 9 of our Rules of Appellate Procedure governs the filing of the record on

appeal. N.C. R. App. P. 9 (2015). In a criminal appeal, the record should contain all

matters presented before the trial court, including

             copies of all other papers filed and statements of all other
             proceedings had in the trial courts which are necessary for
             an understanding of all issues presented on appeal, unless
             they appear in the verbatim transcript of proceedings
             which is being filed with the record pursuant to Rule
             9(c)(2)[.]




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                                Zachary, J., concurring in result

Id. 9(a)(3)(i).   Where the record on appeal is insufficient to answer the issues

presented on appeal, the record may be supplemented by items allowed under Rule

9, so long as those items “could otherwise have been included pursuant to this Rule

9.” Id. 9(b)(5)(a).

       It is well-settled that this Court may “only consider the pleadings and filings

before the trial court . . . .” Twaddell v. Anderson, 136 N.C. App. 56, 68, 523 S.E.2d

710, 719 (1999) (citation omitted). This Court has specifically rejected the State’s

attempt to supplement the Settled Record on Appeal with documents that were never

presented to the trial court in order to prove that a defendant’s probation was tolled.

See, e.g., State v. Karmo, No. COA12-1209, 2013 WL 4006648, *4–5 (N.C. Ct. App.

Aug. 6, 2013) (unpublished).

       In Karmo, an unpublished case but directly on point here, the State filed a

supplement to the record along with its brief containing documents tending to show

that the defendant had received various criminal convictions stemming from

incidents which took place while the defendant was on probation. Id. This Court

categorically found that it “lack[ed] authority to consider the information contained

in the supplemental materials presented for [this Court’s] consideration by the State”

because “the record before [this Court] contain[ed] no indication that the documents

contained in the supplement . . . were admitted into evidence at Defendant’s

revocation hearing.” Id. Accordingly, this Court concluded that because



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                                  Zachary, J., concurring in result

              nothing in the record developed before the trial court
              tend[ed] to show that Defendant committed any criminal
              offenses during, as compared to before or after, his initial
              probationary period. As a result, we have no choice but to
              conclude that the State failed to demonstrate that the trial
              court had jurisdiction to consider the revocation of
              Defendant’s probation and the activation of Defendant’s
              suspended sentence.

Id. at *3 (emphasis added).

       Here, just like the State’s supplement in Karmo, the State’s Rule 9(b)(5)

supplement was filed in order to submit to this Court certain documents which were

not presented to the trial court which, had they been, would have conferred subject

matter jurisdiction on the trial court to revoke defendant’s probation in Case Nos. 11

CRS 543–45. But those documents were not introduced at the 15 October 2014

probation violation hearing in the trial court, even though it is the State’s burden to

establish jurisdiction in that court. State v. Williams, 230 N.C. App. 590, 595, 754

S.E.2d 826, 829 (2013); State v. Moore, 148 N.C. App. 568, 571, 559 S.E.2d 565, 566–

67 (2002) (“The burden of perfecting the trial court’s jurisdiction for a probation

revocation hearing . . . lies squarely with the State.”); State v. Petersilie, 334 N.C. 169,

175, 432 S.E.2d 832, 835 (1993) (“North Carolina requires the State to prove

jurisdiction beyond a reasonable doubt in a criminal case”).

       The State argues that, because the documents included in the State’s Rule

9(b)(5) Supplement were filed with the trial court in the case files of the former

proceedings, and because they are necessary for an understanding of the issues


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                                  Zachary, J., concurring in result

presented on appeal, they are properly part of the record here. N.C. R. App. P.

9(a)(1)(j) (stating that the record on appeal shall contain “copies of all other papers

filed and statements of all other proceedings had in the trial courts which are

necessary for an understanding of all issues presented on appeal”).

         However, the North Carolina Supreme Court has previously concluded that

this Court does not act beyond its discretion when it denies the State’s motion to

amend the record to include documents which would be “sufficient to confer

jurisdiction” on the trial court, where the record otherwise before this Court, absent

the proposed amendment, “affirmatively shows a lack of jurisdiction.” Petersilie, 334

N.C. at 177–78, 432 S.E.2d at 836–37; see also State v. Felmet, 302 N.C. 173, 174, 176

273 S.E.2d 708, 710–11 (1981) (concluding that this Court did not abuse its discretion

in denying defendant’s motion to amend the record to include “the judgment of the

district court which reflected defendant’s appeal therefrom to the superior court” in

order to show how the superior court obtained subject matter jurisdiction over the

case).

         Accordingly, we decline to invoke Rule 2 and allow a Rule 9(b)(5) supplement

to function as the vehicle by which the State attempts to establish the trial court’s

jurisdiction where it failed to do so before.




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                                 Zachary, J., concurring in result

                                Case No. 11 CRS 543

      We address defendant’s argument that the trial court lacked subject matter

jurisdiction to revoke his probation in Case No. 11 CRS 543. For reasons set forth

below, we address Case Nos. 11 CRS 544 and 545 separately.

      This Court reviews de novo the issue of whether a trial court had subject

matter jurisdiction to revoke a defendant’s probation. State v. Satanek, 190 N.C. App.

653, 656, 660 S.E.2d 623, 625 (2008) (citation omitted). “A court’s jurisdiction to

review a probationer’s compliance with the terms of his probation is limited by

statute.” Moore, 148 N.C. App. at 569–70, 559 S.E.2d at 566 (quoting State v. Hicks,

148 N.C. App. 203, 204–05, 557 S.E.2d 594, 595 (2001)). When a sentence has been

suspended and a defendant has been placed on probation on certain named

conditions, the trial court may, “at any time during the period of probation, require

defendant to appear before it, inquire into alleged violations of the conditions, and if

found to be true, place the suspended sentence into effect.” Id.

      However, “the State may not do so after the expiration period of probation

except as provided in G.S. 15A-1344(f).” Id. “The burden of perfecting the trial court’s

jurisdiction for a probation revocation hearing after defendant’s period of probation

has expired lies squarely with the State.” Id. at 571, 559 S.E.2d 566–67 (citations

omitted). The trial court may revoke probation after the expiration of the probation

period only if the State filed a written violation report with the clerk prior to the



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                                   Zachary, J., concurring in result

expiration of the probation period. N.C. Gen. Stat. § 15A-1344(f) (2015). For purposes

of determining when a document is considered “filed,” the file stamp date is

controlling. “Filed” means the original document has been “received in the office

where the document is to be filed.” N.C. Gen. Stat. § 15A-101.1(7)(a) (2015).

      The State bears the burden in criminal cases of “demonstrating beyond a

reasonable doubt that a trial court has subject matter jurisdiction.” Williams, 230

N.C. App. at 595, 754 S.E.2d at 829 (citing Petersilie, 334 N.C. at 175, 432 S.E.2d at

835). A “defendant may properly raise the issue of subject matter jurisdiction at any

time, even for the first time on appeal.” Id. (citation omitted). When the record

“shows a lack of jurisdiction in the lower court, the appropriate action on the part of

the appellate court is to arrest judgment or vacate any order entered without

authority.” Moore, 148 N.C. App. at 570, 559 S.E.2d at 566 (quoting Petersilie, 334

N.C. at 175, 432 S.E.2d at 836).

      The violation report in 11 CRS 543 was not filed until 13 August 2014, as

reflected by the file stamp at the top of the first page of the report. In the judgment

suspending sentence, the trial court ordered only 18 months of probation. There are

no orders extending probation and no tolling provisions apply. The effective date for

N.C. Gen. Stat. § 15A-1344(g) (2009) applies only to offenses committed on or after 1

December 2009.     2009 N.C. Sess. Law 2009-327, § 11(b).              The previous tolling

provision, N.C. Gen. Stat. § 15A-1344(d) (2007), was removed in 2009 for “hearings



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                                Zachary, J., concurring in result

held on or after December 1, 2009.” 2009 N.C. Sess. Law 2009-372, § 11(a); see also

N.C. Gen. Stat. § 1344(g), repealed by 2011 N.C. Sess. Law 2011-62, § 3, eff. Dec. 1,

2011.

        The probationary period in 11 CRS 543 ended on 9 August 2011, 18 months

after probation began on 10 February 2010. Therefore, the violation report with a

file stamp of “13 August 2014” was filed too late to confer jurisdiction on the trial

court to revoke defendant’s probation and activate the suspended sentence. See

N.C.G.S. § 15A-1344(f); Moore, 148 N.C. App. at 569, 559 S.E.2d at 566.

        As stated above, a Rule 9(b) supplement to the record on appeal can only

contain documents presented to the trial court. Twaddell, 136 N.C. App. at 68, 523

S.E.2d at 719. As we have already established, the State’s Rule 9(b)(5) supplement

was filed in order to confer jurisdiction on the trial court, and the State otherwise

failed to establish that the trial court had jurisdiction to consider the revocation of

defendant’s probation in Case No. 11 CRS 543.

        The State alleges that the documents, filed as a Rule 9 supplement, had they

been properly introduced in the trial court below and made part of the record here,

would confer jurisdiction on the trial court to revoke defendant’s probation in Case

No. 11 CRS 543. However, because this Court denies the State’s 9(b)(5) supplement

to the record, and the State cannot establish that the trial court had jurisdiction to




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                                             STATE V. PEELE


                                      Zachary, J., concurring in result

consider the revocation of defendant’s probation in Case No. 11 CRS 543, we vacate

the judgment entered thereon.

                                Case Nos. 11 CRS 544 and 545

       Defendant also argues that the trial court lacked subject matter jurisdiction to

revoke his probation in Case Nos. 11 CRS 544 and 545. We agree.

       Defendant’s probation cases under 11 CRS 544 and 545, for the same reasons

discussed supra regarding Case No. 11 CRS 543, suffer from lack of jurisdiction. In

the judgment suspending sentence, the trial court ordered 48 months of probation.

There are no orders extending probation, and again, no tolling provisions apply in

these cases. The probationary period ended on 23 February 2014—48 months after

probation began on 24 February 2010. Accordingly, the violation reports filed on 13

August 2014 in both Case Nos. 11 CRS 544 and 545 were filed over five months after

the expiration of the probationary period on 24 February 2014. Accordingly, the

judgments entered in Case Nos. 11 CRS 544 and 545 are vacated.1

                                                 II

       Defendant next argues that clerical errors were made in Case Nos. 12 CRS

1214–19, which require remand for correction. Defendant argues that the trial court

marked boxes which indicated erroneously that, in the original judgments




       1 Because we vacate the judgments, we do not remand for correction of the clerical errors that
were a part of those judgments.

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                                 Zachary, J., concurring in result

suspending sentence, the court found that the offenses involved assault,

communicating threats, or another act defined in N.C. Gen. Stat. § 50B-1(a) and that

defendant had a personal relationship, as defined by N.C. Gen. Stat. § 50-1(b), with

the victim in Case Nos. 12 CRS 1214–19. We agree.

      A clerical error is an error “resulting from a minor mistake or inadvertence, in

writing or copying something on the record, and not from judicial reasoning or

determination.” State v. Lark, 198 N.C. App. 82, 95, 678 S.E.2d 693, 702–03 (2009)

(quoting State v. Jarman, 140 N.C. App. 198, 202, 535 S.E.2d 875, 878 (2000)).

“Clerical errors include mistakes such as inadvertently checking the wrong box on

preprinted forms.” Rudder v. Rudder, ___ N.C. App. ___, ___, 759 S.E.2d 321, 326

(2014) (citation omitted).

      “When, on appeal, a clerical error is discovered in the trial court’s judgment or

order, it is appropriate to remand the case to the trial court for correction because of

the importance that the record speak the truth.” Lark, 198 N.C. App. at 95, 678

S.E.2d at 702 (quoting State v. Smith, 188 N.C. App. 842, 845, 656 S.E.2d 695, 696

(2008)). Further, where “the sentence imposed will not be affected by a recalculation

of [a] [d]efendant’s prior record points, it is not necessary that there be a new

sentencing hearing.” State v. Everette, ___ N.C. App. ___, ___, 764 S.E.2d 634, 639

(2014).




                                               -14-
                                        STATE V. PEELE


                                 Zachary, J., concurring in result

      Here, on six of the judgments entered upon revocation of probation in 12 CRS

1214–19, the trial court marked boxes indicating that the underlying offense involved

assault, communicating a threat, or an act defined in N.C.G.S. § 50B-1(a), and that

the defendant had a personal relationship with the victim as defined by N.C.G.S. §

50B-1(b).

      However, none of the original judgments suspending sentence support such

findings. The respective boxes, denoted No. 10 on the preprinted forms (Form AOC-

CR-603), for finding that “this is an offense involving assault or communicating a

threat and that the defendant had a personal relationship as defined by G.S. 50B-

1(b) with the victim” on the original judgments suspending sentence, all remain

unmarked. It appears that the trial court “inadvertently” checked this box on these

preprinted forms.

      The reason that remand is appropriate in this case for the correction of clerical

errors is because any subsequent inquiry into defendant’s criminal record will

erroneously reflect that underlying offenses “involved domestic violence” on eight

separate judgments. See generally N.C. Gen. Stat. § 15A-1382.1 (2015).

      Because the errors here do not affect the sentences imposed, and because

failure to correct these errors could prejudice defendant, and defendant does not

argue that new hearings are necessary, we remand this matter to the trial court for

the correction of the aforementioned clerical errors.



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                               STATE V. PEELE


                        Zachary, J., concurring in result

VACATED IN PART, REMANDED IN PART.

Judge CALABRIA concurs.

Judge ZACHARY concurs in the result only by separate opinion.




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        No. COA 15-480, State v. Peele


       Judge ZACHARY, concurring in result.



       I concur with the holding that, in the absence of the information contained in

the State’s supplement to the record, we are unable to determine that the trial court

had jurisdiction over the probation revocation proceedings challenged by defendant

on appeal. Given the decision not to exercise our authority under N.C.R. App. P. Rule

2 in order to allow the State to supplement the record, the judgments revoking

defendant’s probation in these cases must be vacated. I write separately in order to

express my view that it would have been preferable to invoke Rule 2, in order to reach

the merits of the issue of the trial court’s jurisdiction.

       “The State bears the burden in criminal matters of demonstrating beyond a

reasonable doubt that a trial court has subject matter jurisdiction.” State v. Williams,

230 N.C. App. 590, 595, 754 S.E.2d 826, 829 (2013) (citing State v. Petersilie, 334 N.C.

169, 175, 432 S.E.2d 832, 835 (1993)), disc. review denied, 367 N.C. 298, 753 S.E.2d

670 (2014). In Petersilie our Supreme Court held that, although this Court had not

erred by denying the State’s motion to amend the record to add the documents that

established subject matter jurisdiction, the better approach is to grant such a motion:

              In [State v.] Felmet, [302 N.C. 173, 273 S.E.2d 708 (1981),]
              the defendant moved for leave to amend the record to
              include “the judgment of the district court which reflected
              defendant’s appeal therefrom to the superior court” to show
              how the superior court obtained subject matter jurisdiction
              over his case. The Court of Appeals denied the motion. We
              concluded that the denial was a decision within the
              discretion of the Court of Appeals[.] . . . Nevertheless, we
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                                  Zachary, J., concurring in result

             held the record should be amended to reflect subject matter
             jurisdiction so that we could reach the substantive issue of
             the appeal. In so holding, we stated, “[this] is the better
             reasoned approach and avoids undue emphasis on
             procedural niceties.” While we find no abuse of discretion
             on the part of the Court of Appeals in denying the State’s
             motion to amend, we elect as we did in Felmet to allow the
             State leave to amend. When the record is amended to add
             the presentment, it is clear the superior court had
             jurisdiction[.]

Petersilie, 334 N.C. at 177-78, 432 S.E.2d at 837 (quoting State v. Felmet, 302 N.C.

173, 174, 176, 273 S.E.2d 708, 710-11 (1981)).

      My belief that it would have been preferable to invoke Rule 2 in this case in

order to reach the merits of this issue is based in part on the longstanding rule that

the “ ‘issue of a court’s jurisdiction over a matter may be raised at any time, even for

the first time on appeal or by a court sua sponte.’ ” State v. Kostick, __ N.C. App. __,

__, 755 S.E.2d 411, 418 (quoting State v. Webber, 190 N.C. App. 649, 650, 660 S.E.2d

621, 622 (2008)), disc. review denied, 367 N.C. 508, 758 S.E.2d 872 (2014). When the

issue of subject matter jurisdiction is determined for the first time on appeal then, by

definition, the issue was not litigated at the trial level. It is inconsistent to, on one

hand, allow inquiry into the existence of jurisdiction for the first time at the appellate

level, but on the other hand to restrict our analysis to consideration of documents

presented at the trial level, where the issue was not even raised. However, given that

we have not allowed the State to supplement the record, I concur in the result reached

in this opinion.


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