                        UNITED STATES, Appellee

                                    v.

                  James N. DURBIN, Technical Sergeant
                       U.S. Air Force, Appellant

                              No. 09-0380

                         Crim. App. No. 36969

       United States Court of Appeals for the Armed Forces

                        Argued November 3, 2009

                       Decided January 20, 2010

ERDMANN, J., delivered the opinion of the court, in which BAKER,
STUCKY, and RYAN, JJ., joined. EFFRON, C.J., filed a separate
dissenting opinion.

                                 Counsel


For Appellant: Captain Marla J. Gillman (argued); Major Shannon
A. Bennett (on brief); Colonel Nikki A. Hall and Colonel James
B. Roan.

For Appellee: Major Coretta E. Gray (argued); Colonel Douglas
P. Cordova, Lieutenant Colonel Jeremy S. Weber, and Gerald R.
Bruce, Esq. (on brief).

Amicus Curiae for Appellant: Christopher M. Hamp-Lyons (law
student) (argued); Alistair E. Newbern, Esq. (supervising
attorney) and R. Andrew Free (law student) (on brief) -– for the
Vanderbilt Legal Clinic.

Military Judge:    Bryan D. Watson

       This opinion is subject to revision before final publication.
United States v. Durbin, No. 09-0380/AF

     Judge ERDMANN delivered the opinion of the court.1

     Technical Sergeant James N. Durbin was convicted of one

specification of possessing child pornography at a contested

general court-martial.   The convening authority approved the

adjudged sentence of reduction to E-2, confinement for one year,

and a bad-conduct discharge.   The United States Air Force Court

of Criminal Appeals affirmed the findings and the sentence.

United States v. Durbin, No. ACM 36969, 2008 CCA LEXIS 486, 2008

WL 5192441 (A.F. Ct. Crim. App. Dec. 10, 2008).

     “A person has a privilege during and after the marital

relationship to refuse to disclose, and to prevent another from

disclosing, any confidential communication made to the spouse of

the person while they were husband and wife and not separated as

provided by law.”   Military Rule of Evidence (M.R.E.) 504(b)(1).

The rule allows the privilege to be claimed by the spouse who

made the communication or the other spouse on his or her behalf.

However, where the privilege is claimed by one spouse on behalf

of the other, the spouse upon whose behalf the privilege is

claimed may waive the privilege.       M.R.E. 504(b)(3).




1
  We heard oral argument in this case at the Vanderbilt Law
School as part of the Court’s “Project Outreach.” See United
States v. Mahoney, 58 M.J. 326, 347 n.1 (C.A.A.F. 2003). This
practice was developed as part of a public awareness program to
demonstrate the operation of a federal court of appeals and the
military justice system.



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United States v. Durbin, No. 09-0380/AF

       We granted review to determine whether the military judge

erred when he ruled that Durbin could not prevent his wife from

testifying as to the statements she made during a marital

communication.    We also granted review to determine if the Air

Force Court of Criminal Appeals erred when it found that the

military judge’s erroneous admission of evidence was harmless.2

       Under the circumstances of this case, we hold that the

military judge properly allowed Ms. Durbin to testify as to her

statements made during the marital communication.   We also agree

with the lower court’s conclusion that the admission of the

erroneous evidence was harmless and therefore affirm the Court

of Criminal Appeals.

                             BACKGROUND

       Durbin’s wife was working late one night on a homework

assignment when she found pictures on her husband’s laptop

computer that she believed to be child pornography.   Angry and


2
    We granted review of the following issues:

I.     WHERE THE MILITARY JUDGE FOUND THAT APPELLANT AND HIS WIFE
       HAD A PRIVATE CONVERSATION WHILE MARRIED AND NOT SEPARATED,
       WAS THE MILITARY JUDGE CORRECT THAT APPELLANT COULD CLAIM
       THE PRIVILEGE UNDER MIL. R. EVID. 504 ONLY AS TO HIS
       STATEMENTS DURING THAT CONVERSATION BUT NOT TO HIS WIFE’S
       AS WELL.

II.    WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN
       FINDING THERE WAS NO HARM AFTER OVERTURNING THE MILITARY
       JUDGE’S RULING THAT APPELLANT’S ACT OF SHOWING HIS WIFE
       THAT HE HAD DELETED THE PICTURES HE SAID HE WOULD WAS NOT
       COMMUNICATIVE AND THEREFORE NOT PRIVILEGED UNDER MIL. R.
       EVID. 504.

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United States v. Durbin, No. 09-0380/AF

upset, Ms. Durbin went upstairs and woke her husband and asked

him to explain how the pictures got onto his computer.    After

initially denying knowledge of the pictures, Durbin said that it

had been “a one-time thing.”   Although Ms. Durbin did not ask

him to do so, Durbin said that he would delete the pictures and

subsequently took the laptop and sat down on the couch.    Ms.

Durbin saw her husband move his hands over the laptop’s

touchpad, but did not look at the laptop’s screen while he

worked on the laptop.

     As Durbin was sitting in front of the computer, he said

“[h]ere, I’ll delete them.”    A short time later, in what Ms.

Durbin believed was an effort to appease her, Durbin turned the

laptop screen towards her and said “They’re deleted.”    Ms.

Durbin told her husband that he needed to get professional help

and she asked him to move out of the house.

     Prior to trial, the Government moved in limine to admit the

conversation between Durbin and his wife that occurred the night

she discovered suspected child pornography on his laptop

computer.   Following a hearing on the motion in limine, the

military judge allowed Ms. Durbin to generally testify as to the

confrontation between the two of them, but did not allow her to

testify as to any verbal statements made by her husband.   He

did, however, permit Ms. Durbin to testify about the actions

Durbin took with the laptop computer as described above.



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United States v. Durbin, No. 09-0380/AF

     The Air Force Court of Criminal Appeals found that the

military judge did not abuse his discretion in allowing Ms.

Durbin to testify as to her statements, but that he did err in

permitting her to testify about the actions Durbin took with the

laptop computer.   Durbin, 2008 CCA LEXIS 486, at *6-*9, 2008 WL

5192441, at *2-*3.   The lower court went on to find that the

military judge’s error in admitting Ms. Durbin’s testimony about

Durbin’s actions with the laptop computer was harmless.    Id. at

*9, 2008 WL 5192441, at *3.

                              DISCUSSION

     We discussed the standard of review for marital privilege

issues in United States v. McCollum, 58 M.J. 323, 335-36

(C.A.A.F. 2003):

          A military judge’s decision to admit or exclude
     evidence is reviewed for an abuse of discretion.
     United States v. McElhaney, 54 M.J. 120, 132 (C.A.A.F.
     2000); see United States v. Westmoreland, 312 F.3d
     302, 306 (7th Cir. 2002) (“We review the trial court’s
     resolution of a marital privilege issue for an abuse
     of discretion.”). Whether a communication is
     privileged is a mixed question of fact and law.
     McElhaney, 54 M.J. at 131 (citing United States v.
     Napoleon, 46 M.J. 279, 284 (C.A.A.F. 1997)). We
     review a lower court’s legal conclusions de novo, but
     we give a lower court’s factual findings more
     deference, and will not reverse such findings unless
     they are clearly erroneous. United States v. Ayala,
     43 M.J. 296, 298 (C.A.A.F. 1995).

The party asserting the marital privilege has the burden of

establishing its applicability by a preponderance of the

evidence.   Id. at 336.



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United States v. Durbin, No. 09-0380/AF

Ms. Durbin’s Statements From the Marital Communication

     Durbin argues that Ms. Durbin’s statements that she was

allowed to testify to at trial occurred during a marital

communication and as such were privileged under M.R.E. 504.    He

notes that the rule allows either spouse to claim the privilege

on behalf of the other.   While he recognizes that the rule also

allows a spouse on whose behalf the privilege has been asserted

to waive the privilege, he argues that the military judge did

not make any ruling as to waiver and implies that without such a

ruling there was no waiver.   According to Durbin, allowing Ms.

Durbin to testify as to her statements “eviscerated the marital

communications privilege and disclosed the nature of [Durbin’s]

statement to her.”

     The Government responds that the military judge did not err

in allowing Ms. Durbin to testify as to her statements from the

marital communication on two bases:   the communication was not

“confidential” as both spouses later discussed the incident with

others; and, while M.R.E. 504(b)(3) allows one spouse to claim

the privilege on behalf of the other spouse, it also allows the

spouse for whom the privilege is claimed to waive the privilege,

which Ms. Durbin did in this case by testifying.

     In ruling on the motion in limine at trial, the military

judge stated:

     [A]pplicable rules do not permit the Accused to
     prevent his wife from revealing the content of her own


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United States v. Durbin, No. 09-0380/AF

     statements. (“The privilege to prevent disclosure by
     anyone of confidential communications is held by the
     spouse who made them.” U.S. v. Vandyke, supra,
     emphasis added.) As orally argued by the Defense
     Counsel, there may be some extreme cases where, if a
     witness spouse were allowed to testify as to her own
     prior statements to her husband, it would serve to
     destroy the purpose of the privilege (e.g., if the
     witness spouse had a conversation with her husband
     where she repeated her husband’s words and then later
     testified to her own words -- the end result being
     that her husband’s words nonetheless came before the
     trier of fact). However, this is not such a case.
     This Court finds that the statements by Ms. Durbin do
     not sufficiently mirror the Accused’s such that the
     Accused’s right to invoke the confidential
     communication privilege pertaining to his own
     statements is in any way diminished. This conclusion
     is based upon the plain language of MRE 504(b).

     M.R.E. 504(b)(3) provides in part:

     Who may claim the privilege. The privilege may be
     claimed by the spouse who made the communication or by
     the other spouse on his or her behalf. The authority
     of the latter spouse to do so is presumed in the
     absence of evidence of a waiver . . . .

     While the rule on its face allows either spouse to claim

the privilege on behalf of the other, it also allows the spouse

upon whose behalf the privilege was claimed to waive the

privilege.   The rule requires “evidence” of a waiver.   Certainly

the voluntary testimony of Ms. Durbin as to her statements made

during the marital communication constituted a waiver of the

privilege claimed on her behalf by her husband.

     Despite this clear language of the rule, Durbin argues that

the rule should be construed to prohibit the disclosure of both

sides of the marital communication when the privilege is claimed



                                 7
United States v. Durbin, No. 09-0380/AF

by one spouse, citing several federal circuit court decisions.3

While the federal marital privilege protects both sides of a

marital communication, that privilege is based on federal common

law while the marital privilege in the military justice system

is created by M.R.E. 504.

     M.R.E. 501 provides:

     (a)   A person may not claim a privilege with respect
           to any matter except as required by or provided
           for in:

     . . . .

     (3)   These rules or this Manual; or

     (4) The principles of common law generally recognized
     in the trial of criminal cases in the United States
     district courts pursuant to rule 501 of the Federal
     Rules of Evidence insofar as the application of such
     principles in trials by courts-martial is practicable
     and not contrary to or inconsistent with the code,
     these rules, or this Manual.

As the President has chosen to adopt a more restrictive marital

privilege for the military, the federal circuit court cases

interpreting federal common law are not relevant to our analysis

of that issue.

     We agree with the analysis of the military judge and we

note his concern that in a situation where one spouse has

claimed the marital privilege and the other spouse’s statements

repeat or reveal the privileged statements of the claiming


3
  United States v. Montgomery, 384 F.3d 1050, 1059 (9th Cir.
2004); United States v. Bahe, 128 F.3d 1440, 1442 (10th Cir.
1997).

                                 8
United States v. Durbin, No. 09-0380/AF

spouse, admission of those statements may violate the marital

privilege.   We do not, however, have that situation here.   Ms.

Durbin’s testimony as to her statements did not repeat nor

reveal any of her husband’s protected statements.   As we find

that Ms. Durbin’s testimony as to her statements was authorized

under M.R.E. 504(b)(3), we need not address the Government’s

argument that the communication itself was not privileged.

Whether the Erroneous Admission of Evidence was Harmless
Error

     The military judge allowed Ms. Durbin to testify as to

Durbin’s actions with the laptop computer the night she

confronted him with the pictures of child pornography.    She

testified that she left one of the pictures of suspected child

pornography on the screen of the laptop when she went to wake up

Durbin.   After she asked him for an explanation, she testified

that he sat on the couch and put the laptop on his lap.    She

testified that she could see his hands moving over the touchpad

and he then turned the computer toward her so she could see the

screen and nothing was on the screen.

     In his motion in limine ruling, the military judge held:

     22. The Accused’s acts: Despite the Defense’s
     arguments to the contrary, this Court finds that the
     physical acts by the Accused on the evening in
     question were not protected communications under MRE
     504. Simply put, acts do not become privileged simply
     by being done in the presence of a spouse. Upon
     consideration of the facts and law on this issue, this
     Court finds that the Accused’s acts of going to the
     laptop computer and deleting certain data were neither


                                 9
United States v. Durbin, No. 09-0380/AF

     communicative per se, nor manifested an intent by the
     Accused to convey a private message to his spouse -–
     the Accused’s affidavit notwithstanding. This
     conclusion is based, in part, on the Court’s
     evaluation of Ms. Durbin’s minimal motive to
     fabricate, and the Accused’s substantial one.
     Additionally, this Court personally evaluated the
     credibility of Ms. Durbin, and finds her to be very
     credible. See Martel, supra, and U.S. v. Peterson, 48
     MJ 81 (CAAF 1998).

     The Court of Criminal Appeals found that the military

judge’s ruling on this issue was clearly erroneous.   Durbin,

2008 LEXIS 486, at *9, 2008 WL 5192441, at *3.   The lower court

noted that while the acts of one spouse generally do not

constitute confidential communications with the other spouse,

they may do so if the acts are intended to convey a private

message to the other spouse.   Id. at *7-*8, 2008 WL 5192441, at

*3 (citing and comparing United States v. Lustig, 555 F.2d 737,

748 (9th Cir. 1977) with United States v. Lewis, 433 F.2d 1146,

1151 (D.C. Cir. 1970)).   Reviewing the military judge’s findings

of fact, the Court of Criminal Appeals held:

     As the facts indicate, the appellant told Ms. GD that
     he would delete the child pornography images from his
     laptop computer after she confronted him about the
     images. He then proceeded, as Ms. GD surmised, to
     delete the images and showed Ms. GD the laptop screen.
     Nothing could be clearer, given the context and timing
     of the appellant’s actions, that by making the key
     strokes and showing Ms. GD the laptop screen, he was
     telling Ms. GD that he had deleted the images. His
     actions were a confidential communication and the
     military judge abused his discretion in admitting
     evidence of such.

Id. at *8-*9, 2008 WL 5192441, at *3.



                                10
United States v. Durbin, No. 09-0380/AF

     On appeal to this court, Durbin argues that while the lower

court correctly found that the testimony concerning his actions

was erroneously admitted, it erred in finding that the error was

harmless.   Assuming without deciding that Durbin’s actions with

the laptop computer were a communication protected by M.R.E. 504

and testimony concerning his actions was erroneously admitted,

such error was harmless.   “We evaluate prejudice from an

erroneous evidentiary ruling by weighing (1) the strength of the

Government’s case, (2) the strength of the defense case, (3) the

materiality of the evidence in question, and (4) the quality of

the evidence in question.”   United States v. Kerr, 51 M.J. 401,

405 (C.A.A.F. 1999) (citation omitted).

    We agree with the Court of Criminal Appeals that the

Government’s case was very strong.    The hard drives seized from

Durbin’s desktop and laptop computers contained thirty-two known

or suspected images of child pornography.   Ms. Durbin testified

that she had earlier seen a folder full of child pornographic

images on the laptop computer.   Testimony established that the

laptop computer was used almost exclusively by Durbin and the

other individuals who had access to the computer testified that

they did not view or download child pornography on either

computer.   The evidence also established that Durbin’s Yahoo

e-mail logon had been used to search a Yahoo group website

entitled “young p0rn” and had conducted a search using the



                                 11
United States v. Durbin, No. 09-0380/AF

following terms:   “preteen queens”; “sweet sexy preteens”;

“sweet young girls”; “young hotties”.

     By contrast, Durbin’s case was markedly less substantial.

His case primarily consisted of attempting, through cross-

examination, to establish that other individuals who had access

to the computer may have accessed and retained the images.

Turning to the materiality and quality of the challenged

evidence, we conclude that even if Durbin’s actions with the

laptop could have been construed as an admission, we are

convinced that the testimony was not material to the

Government’s case.   The incident was the subject of three

comparatively brief references in trial counsel’s twenty-nine

page findings and rebuttal arguments.      Considering the other

evidence admitted establishing his guilt, this testimony did not

play a major role in the prosecution against Durbin.     We

therefore conclude that even assuming it was error to admit this

testimony, the error was harmless and had no prejudicial impact

on Durbin’s substantial rights.

                                DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




                                  12
United States v. Durbin, 09-0380/AF


     EFFRON, Chief Judge (dissenting):

     In the present appeal, the majority opinion would affirm

the decision of the court below.   United States v. Durbin, __

M.J. __ (12) (C.A.A.F. 2010).   For the reasons set forth below,

I respectfully dissent.   The military judge erred in permitting

testimony by Appellant’s wife that impermissibly revealed

Appellant’s confidential communications, and the military

judge’s further error in permitting her to testify about his

communicative act constituted prejudicial error.

     At trial, the prosecution introduced testimony by

Appellant’s wife that she confronted Appellant with the

accusation that she had found images of child pornography on his

computer.   Appellant’s wife testified that she specifically

asked Appellant:   “Could you explain this to me, please?”   She

further testified as to portions of the ensuing two-way dialogue

between husband and wife, including Appellant’s communicative

acts and her comments to him.

     Appellant’s wife testified pursuant to a ruling by the

military judge that the testimony at issue was not precluded by

the privilege for spousal communications under Military Rule of

Evidence (M.R.E.) 504(b).   On review of Appellant’s conviction,

the Court of Criminal Appeals ruled that the military judge did

not err in permitting Appellant’s wife to testify as to the

statements she made during their interaction, but that the
United States v. Durbin, 09-0380/AF


military judge erred in permitting her to testify as to

Appellant’s nonverbal acts.   United States v. Durbin, No. ACM

36969, 2008 CCA LEXIS 486, at *6-*9, 2008 WL 5192441, at *2-*3

(A.F. Ct. Crim. App. Dec. 10, 2008).   The lower court further

held that the error was not prejudicial.   Id. at *9, 2008 WL

5192441, at *3.



   I.    SPOUSAL PRIVILEGE UNDER THE MILITARY RULES OF EVIDENCE

     Military Rule of Evidence (M.R.E) 504(b)(1) grants one

spouse the privilege “to prevent another from disclosing, any

confidential communication made to the spouse . . . while they

were husband and wife . . . .”   One spouse may not waive another

spouse’s privilege without the privilege-claiming spouse’s

consent.   United States v. McCollum, 58 M.J. 323, 339 (C.A.A.F.

2003).

     Under M.R.E. 510(a), waiver occurs when a privilege-holder

discloses “any significant part of the matter or communication”

claimed as privileged.   Waiver of the spousal privilege takes

place when the “‘overall substance of the conversation’ [between

spouses is] conveyed” to a third party.    United States v.

Custis, 65 M.J. 366, 371 (C.A.A.F. 2007) (quoting United States

v. McElhaney, 54 M.J. 120, 132 (C.A.A.F. 2000)).

     As noted in the majority opinion, testimony by a spouse

that describes a marital communication made by the testifying


                                 2
United States v. Durbin, 09-0380/AF


spouse that repeats or reveals a marital communication made by

the non-testifying spouse may waive the privilege.   Durbin, __

M.J. at __ (8-9).   This would apply, for example, to the

following dialogue between two spouses:   the first spouse (the

privilege-claimant) initiates a conversation by saying, “I can’t

keep a secret any longer -- I did X, Y, and Z, and I’m guilty,”;

and the second spouse (the testifying spouse) responds by

saying, “Your willingness to acknowledge that you did X, Y, and

Z, and that you’re guilty is the first step to recovery.”

Consistent with the purpose of the privilege, the testifying

spouse could not testify at trial as to his or her own marital

communication because that would repeat the other spouse’s

confidential communication.

       The privilege applies with equal force to testimony that

reveals the “overall substance” of confidential communications

even if not amounting to a literal word for word repetition of

the privilege-claimant’s remarks.    For example, in the

hypothetical described in the preceding paragraph, the overall

substance of the confidential statement would be revealed if the

testifying spouse were to testify as follows:   “I asked him to

explain his criminal conduct.   We spoke about it.   Then I asked

him to stop committing these crimes.”   In the context of a

criminal trial, a factfinder could reasonably infer from such




                                 3
United States v. Durbin, 09-0380/AF


testimony that the privilege-claimant had been confronted with

an accusation of criminal conduct and had admitted guilt.



 II.     THE SIGNIFICANCE OF THE TESTIMONY FROM APPELLANT’S SPOUSE

        The testimony from Appellant’s spouse revealed the “overall

substance” of Appellant’s confidential communications.    The

members were well aware that the communication involved a

dialogue about the charged misconduct.    Appellant’s spouse

testified that she began the dialogue by confronting him with an

accusatory question (“Could you explain this to me, please?”).

She further testified about his reactions “[a]fter we spoke.”

In the course of testifying about a dialogue in which she asked

Appellant to “explain” the presence of child pornography on his

computer, Appellant’s wife testified that he took and used the

laptop; that he showed her that the images were gone; and that

she commanded Appellant to seek counseling and leave the house.

Although as a general matter there may be any number of reasons

why a wife might ask a husband to seek counseling and leave the

marital home, the discussion here took place in the immediate

context of her discovery and Appellant’s conduct.    In that

setting, it is quite likely that members of the panel inferred

that, during this conversation, Appellant admitted possessing

the images of child pornography and accepted responsibility for

them.


                                   4
United States v. Durbin, 09-0380/AF


     Although the panel members might not have deciphered

Appellant’s exact words from the testimony by Appellant’s

spouse, a panel member could reasonably have inferred that

Appellant made an admission of guilt to his wife -- an admission

protected by a privilege.     In this case, the testimony by

Appellant’s wife waived his privilege without his consent.      The

military judge erred by permitting her to testify in a manner

that revealed his admission of guilt.



          III.   PREJUDICE OF ADMITTING THE COMMUNICATIVE ACT

     The lower court held that other testimony by Appellant’s

wife -- that Appellant manipulated the laptop and showed her its

blank screen -- was a communicative act protected by spousal

privilege, but that the military judge’s erroneous admission of

this testimony did not prejudice Appellant.     The majority

opinion would affirm.     I respectfully disagree.

     To determine “prejudice resulting from the erroneous

admission of evidence, we weigh ‘(1) the strength of the

Government’s case, (2) the strength of the defense case, (3) the

materiality of the evidence in question, and (4) the quality of

the evidence in question.’”     McCollum, 58 M.J. at 342-43

(quoting United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F.

1999)).




                                   5
United States v. Durbin, 09-0380/AF


     The Government had a strong, but not solid, case.     At

trial, the prosecution acknowledged that the Government’s case

was based on “circumstantial evidence.”   As such, the members

had to infer that Appellant, and not another laptop user,

downloaded and viewed the images of child pornography.    The only

direct evidence that Appellant used the laptop while it

displayed images of child pornography is the evidence at issue

here -- the testimony of Appellant’s wife regarding Appellant’s

communicative act.   The prosecution exploited that testimony,

arguing to the members that “you can infer from that that he

deleted [the images].”

     The testimony of Appellant’s wife concerning his

communicative act constituted highly material evidence.    While

questioning Appellant’s wife, trial counsel emphasized

Appellant’s actions, focusing on how “the accused physically

respond[ed] when [Appellant’s wife] asked him to explain” the

images.   In rebuttal, trial counsel argued that Appellant’s

communicative act was “[the] last piece of evidence combined

with the circumstantial evidence in this case that shows the

accused wrongfully and knowingly possessed images of child

pornography.”   The prosecution apparently believed that the

testimony from Appellant’s wife about Appellant’s communicative

act was so essential to proving guilt that trial counsel

characterized it as the “nail in the reasonable doubt coffin.”


                                 6
United States v. Durbin, 09-0380/AF


Once that “nail” is removed, we cannot have confidence that the

evidence did not have a “substantial effect” on the findings.

Custis, 65 M.J. at 371.   Under these circumstances, we should

set aside the findings and authorize a rehearing.




                                 7
