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                  THE SUPREME COURT OF NEW HAMPSHIRE

                            ___________________________


Coos
No. 2018-0118


                        THE STATE OF NEW HAMPSHIRE

                                         v.

                           JONATHAN L. WOODBURY

                            Argued: March 28, 2019
                          Opinion Issued: July 11, 2019

      Gordon J. MacDonald, attorney general (Sean R. Locke, assistant
attorney general, on the brief and orally), for the State.


      Stephanie Hausman, deputy chief appellate defender, of Concord, on the
brief and orally, for the defendant.

       LYNN, C.J. The defendant, Jonathan L. Woodbury, appeals his
convictions and sentences following a jury trial in the Superior Court
(Bornstein, J.) on one count of falsifying physical evidence, see RSA 641:6, I
(2016), and two counts of assault by a prisoner, see RSA 642:9, I (2016). On
appeal, the defendant challenges: (1) the sufficiency of the evidence to support
his conviction of falsifying physical evidence; (2) the trial court’s denial of his
jury instruction interpreting language in RSA 641:6, I; (3) the trial court’s
imposition of multiple sentences on the assault convictions; and (4) the trial
court’s failure to sua sponte instruct the jury on the defense of mutual combat.
We affirm.
                                               I

       The jury could have found the following facts. On December 8, 2016, the
defendant, an inmate at the Northern New Hampshire Correctional Facility in
Berlin, was involved in a physical altercation with Matthew Moriarty, another
inmate at the facility. At the time of the incident, Moriarty was fighting with
his cellmate, Terrence Hartley, and had sustained severe injuries. While most
of the dispute between Hartley and Moriarty occurred within their cell, at one
point during the fight, Moriarty was outside of the cell when the cell door
closed, locking him outside. After attempting to get back inside, Moriarty,
while bleeding from his face, spit at Hartley through an opening in the cell
door. Immediately thereafter, the defendant, who was watching from the
common area of the cellblock, came up behind Moriarty and struck him with
his fist on the side of the face. Moriarty then swung at and struck the
defendant, who continued the altercation, twice more striking Moriarty with his
fist. Following this exchange, the defendant, with the help of another inmate,
mopped up Moriarty’s blood from the floor and tables in the common area.
Meanwhile, Moriarty went into the bathroom to clean blood from his face.
Realizing that he was struggling to breathe, he exited the bathroom to press a
button on a callbox located in the common area. This action alerted
correctional officers that an incident had occurred and that a response team
should be sent to the cellblock. The entire incident between the defendant and
Moriarty was recorded by video surveillance, which was being monitored by
correctional officers from a control room.

      When the response team arrived at the scene, they restrained Moriarty,
whose face was covered in blood, and removed him from the cellblock. An
investigation ensued, resulting in disciplinary actions taken by the prison
against the defendant, Moriarty, Hartley, and another inmate.

      As a result of the events described above, the defendant was charged
with three counts of assault by a prisoner and one count of falsifying physical
evidence. Following a jury trial, he was convicted on all charges except for one
count of assault. At sentencing, the trial court imposed concurrent sentences
of two-and-a-half to five years stand committed on the falsifying physical
evidence conviction and the first assault conviction. These sentences were
ordered to be served consecutive to the sentence the defendant was serving at
the time of the incident. On the second assault conviction, the court imposed a
sentence of three-and-a-half to seven years. This sentence was suspended for
ten years and conditioned on good behavior and compliance with the court’s
order.1 This appeal followed.



1The suspended sentence, if imposed, was ordered to be served consecutive to the defendant’s
other sentences.


                                               2
                                         II

       The defendant first argues that the evidence was insufficient to support
his conviction for falsifying physical evidence. He claims that, because
witnesses at trial testified to facts contrary to the State’s evidence regarding the
mens rea elements of RSA 641:6, I, the State failed to meet its burden of proof.
Although this argument was not raised by the defendant in the trial court, he
has invoked plain error review on appeal. See Sup. Ct. R. 16-A. Under plain
error review, we may consider arguments that were not previously raised in the
trial court. See State v. Noucas, 165 N.H. 146, 160 (2013). “To find plain
error: (1) there must be an error; (2) the error must be plain; (3) the error must
affect substantial rights; and (4) the error must seriously affect the fairness,
integrity or public reputation of judicial proceedings.” Noucas, 165 N.H. at 160
(quotation omitted). The rule is used sparingly and is limited to those
circumstances in which a miscarriage of justice would otherwise result. Id.

       As an initial matter, the defendant contends that the evidence at trial
relevant to his intent was solely circumstantial. The State, on the other hand,
asserts that the jury had both direct and circumstantial evidence to consider in
determining the defendant’s intent. Although our general rule is that we will
uphold a jury’s verdict unless no rational trier of fact could have found guilt
beyond a reasonable doubt, see State v. Kelley, 159 N.H. 449, 454-55 (2009),
we employ a different test when the evidence is solely circumstantial, see State
v. Ruiz, 170 N.H. 553, 568 (2018). In the latter circumstance, to be sufficient
to sustain the verdict, the evidence must exclude all reasonable conclusions
except guilt. Ruiz, 170 N.H. at 568. Here, the only evidence to support the
mens rea elements of the crime was circumstantial. See State v. Newcomb,
140 N.H. 72, 80 (1995). While the defendant testified regarding his intent, his
testimony was offered to negate the requisite intent elements, rather than to
support them. When the evidence presented to prove an element of the offense
is solely circumstantial, that evidence must exclude all reasonable conclusions
except guilt. See State v. Duguay, 142 N.H. 221, 225 (1997). Under this
standard, we consider the evidence in the light most favorable to the State, and
examine each evidentiary item in the context of all the evidence, not in
isolation. Id.

      Pursuant to RSA 641:6, I, a person commits the crime of falsifying
physical evidence when, “believing that an official proceeding . . . or
investigation is pending or about to be instituted,” that person “[a]lters,
destroys, conceals or removes any thing with a purpose to impair its verity or
availability in such proceeding or investigation.” RSA 641:6, I. The defendant
contends that the evidence at trial was insufficient for the jury to find that he
had the purpose to impair the verity or availability of the blood in an
investigation he believed was pending or about to be instituted. We disagree.




                                         3
       The defendant points to the following statements he made at trial to
support his argument that there was insufficient evidence of the statute’s mens
rea requirements: (1) that he was aware that the common area — where the
fight occurred and where he cleaned up the blood — was under video
surveillance; (2) that if he had intended to hinder the investigation, he would
have cleaned up the blood left by Moriarty in the bathroom, and hid or dumped
the mop bucket, which was filled with bloody water from the cleanup; and (3)
that his intent instead was to maintain the cleanliness of his living space, as he
“took it upon [him]self to clean the blood” because the common area was his
“home” and the place where he ate. Aside from his own testimony, the
defendant also relies on testimony from other witnesses to support his claim.
Specifically, he argues that “[c]ircumstantial evidence from the State’s
institutional witnesses supported [his] testimony that not every prison assault
is investigated, that inmates clean their living spaces, and that blood is seen by
those in the prison system as being a potential health problem.”

       At its essence, however, the defendant’s assertion is that, because there
was evidence at trial that was contradictory to the State’s case, the State failed
to establish its burden of proof. This argument is unpersuasive. As we have
stated in the past, matters such as weighing evidence, determining witness
credibility, and resolving conflicts in witness testimony are left to the jury. See
State v. Alwardt, 164 N.H. 52, 57 (2012). In determining witness credibility,
the jury may accept some parts and reject other parts of testimony, and adopt
one or the other of inconsistent statements by witnesses. State v. Thomas, 154
N.H. 189, 193 (2006). Moreover, when reviewing sufficiency claims, including
those involving only circumstantial evidence, we view the record in the light
most favorable to the State, Duguay, 142 N.H. at 225, which involves resolving
issues of credibility in the State’s favor, see Ruiz, 170 N.H. at 569. Given this
standard, we hold that, notwithstanding the testimony relied on by the
defendant, there was sufficient evidence at trial to exclude all reasonable
conclusions except guilt. Id. at 568.

        As to the issue of whether the defendant knew or believed that an
investigation was pending or about to be instituted, the defendant himself
testified that he was aware, when cleaning up the blood, that the common area
was being video monitored by correctional officers. His testimony was
corroborated by the prison housing lieutenant’s testimony that staff monitoring
the video surveillance are expected to observe an altercation and respond
accordingly. Indeed, testimony from a member of the response team
established that, following the altercation on December 8, correctional officers
reported to the scene of the incident. In addition, an investigator testified that,
where there is evidence of serious bodily injury, an investigator is notified and
an investigation ensues. Based on the totality of the evidence, there was
sufficient evidence to exclude all reasonable conclusions except that the
defendant knew or believed that an investigation was pending or about to be
instituted.


                                         4
       There was also testimony to support the jury’s conclusion that the
defendant intended to impair the verity or availability of evidence in such an
investigation. The investigator testified that, had the blood not been removed
by the defendant, it would have been included in the evidence gathered by the
correctional officers. The investigator further testified that inmates often clean
up blood after an assault to avoid being detected, locked in their cells, or
punished. Although it is true, as the defendant contends, that there was
testimony at trial that inmates at the prison are assigned jobs, such as
mopping floors, there also was testimony that inmates are allowed to clean up
blood only after the conclusion of an investigation, and even then may not do
so unless directed by prison staff because there are specific procedures for
removing blood. In addition, the jury was presented with the video recording of
the incident between the defendant and Moriarty, which depicts the defendant
cleaning up the blood, with the help of another inmate, immediately following
the altercation. Viewing this evidence in the light most favorable to the State,
we conclude that there was sufficient evidence to exclude all reasonable
conclusions except that the defendant cleaned up the blood with the purpose of
impairing its verity or availability in an impending investigation. Because we
conclude that the evidence was sufficient to support the jury’s verdict, the first
prong of the plain error test is not satisfied, and we therefore need not address
the remaining prongs. See State v. Dodds, 159 N.H. 239, 246 (2009) (declining
to address the remaining plain error prongs where there was no error).

                                        III

      The defendant next contends that the trial court erred in denying his
request for a jury instruction that the State had to prove that the defendant
believed that an official investigation was pending or about to be instituted.
RSA 641:6 provides, in pertinent part, that to be convicted of falsifying physical
evidence, a defendant must have acted with the belief “that an official
proceeding, as defined in RSA 641:1, II, or investigation is pending or about to
be instituted.” RSA 641:6 (2016).

      The defendant was charged under this statute with cleaning up blood
with the belief “that an investigation . . . was about to be instituted.” On the
third day of trial, prior to closing arguments, the parties discussed with the
court its proposed jury instructions. The defendant, asserting that
“investigation” is modified by the word “official” in the statute, requested that
the court define “official investigation.” See RSA 641:6. The court denied the
defendant’s request. The court stated that “official proceeding” is defined by
the Criminal Code while “investigation” is not, and that “investigation,” as used
in the statute, is “explicitly . . . worded in the alternative.” Based on the
statute’s wording, the court concluded that “investigation” does not require
further definition or explanation, and thus “is defined by its plain, ordinary
meaning.”



                                        5
      On appeal, the defendant maintains that the word “official” in the statute
modifies both “proceeding” and “investigation.” The State, on the other hand,
asserts that the term “investigation” should be given its plain and ordinary
meaning, and therefore does not require further definition through a jury
instruction.

       Whether a jury instruction is necessary, and the scope and wording of
the instruction, generally fall within the sound discretion of the trial court.
State v. Boggs, 171 N.H. 115, 122 (2018). However, when a jury instruction
raises a question of law relating to the State’s burden of proof, we review such
matters de novo. Id. Furthermore, resolving the issue presented by this appeal
requires us to interpret a provision of the Criminal Code. See State v.
McKeown, 159 N.H. 434, 435 (2009). The interpretation of a statute is also a
question of law, which we review de novo. Id. We construe the Criminal Code
“according to the fair import of [its] terms and to promote justice.” RSA 625:3
(2016). In so doing, we first look to the language of the statute itself, and, if
possible, construe that language according to its plain and ordinary meaning.
State v. Labrie, 171 N.H. 475, 482 (2018). We are the final arbiters of the
legislative intent as expressed in the words of the statute considered as a
whole. Id. at 482-83. We interpret legislative intent from the statute as written
and will not consider what the legislature might have said or add language that
the legislature did not see fit to include. Id. at 483. Absent an ambiguity, we
will not look beyond the language of the statute to discern legislative intent.
McKeown, 159 N.H. at 435.

       We agree with the trial court that the plain language of RSA 641:6
encompasses two alternative types of proceedings: “official proceedings” and
“investigations.” See RSA 641:6. First, the statute signals this distinction by
separating the two types of inquiries with the word, “or.” See id. As we have
previously stated, “[t]he word ‘or’ is defined as a function word to indicate an
alternative between different or unlike things.” In re Richard M., 127 N.H. 12,
17 (1985) (quotation omitted). Second, the statute includes the phrase, “as
defined in RSA 641:1, II,” between the two types of inquiries. See RSA 641:6.
This phrase is of particular importance, as it signifies to the reader of the
statute that “official proceeding” is a term of art defined by the legislature while
“investigation” is not. Because there is no indication from the plain language of
the statute that investigation was meant to be qualified by the word “official,”
see Labrie, 171 N.H. at 482-83, we conclude that the trial court did not err in
failing to instruct the jury on the definition of “official investigation,” see Boggs,
171 N.H. at 122.

      In support of his contrary argument, the defendant relies primarily on
our decision in State v. Kousounadis, 159 N.H. 413 (2009), wherein we
interpreted the statute defining deadly weapon. See Kousounadis, 159 N.H. at
423. “A deadly weapon is any firearm, knife or other substance or thing which,
in the manner it is used, intended to be used, or threatened to be used, is


                                          6
known to be capable of producing death or serious bodily injury.” Id.
(quotation omitted). The defendant in Kousounadis argued that the trial court
erred in failing to instruct the jury on the definition of the term “deadly
weapon” because the word “firearm,” as used in the statute, is qualified by the
phrase “used, intended to be used, or threatened to be used” in a manner
“known to be capable of producing death or serious bodily injury,” and without
this definition the jury was precluded “from rendering a finding on a necessary
element of the felony criminal threatening charge.” Id. at 422-23. Our focus,
in conducting the statutory analysis, was on the use of the comma after
“firearm,” and the omission of the comma after “knife.” Id. at 423-24. We
determined that the statute had two reasonable interpretations. Id. First, that
the comma after “firearm” indicated the legislature’s intent to separate the
weapon from the other items listed, deeming it a per se deadly weapon. Id.
Second, that the use of the comma was merely the legislature’s grammatical
choice in constructing a list of items to be modified by the qualifying phrase in
the latter part of the statute. Id. Finding the statute ambiguous, we looked to
legislative history for further clarification, ultimately deciding that the
legislature had “intended for the qualifying phrase . . . to modify each item
listed, including ‘firearm.’” Id. at 423-25.

       As demonstrated above, however, the language in the deadly weapon
statute presented an ambiguity that is not present here. In Kousounadis, the
statute included a list of three items, and the issue on appeal was whether
each item in that list was qualified by a phrase in the latter part of the statute.
Id. at 422-23. Here, in contrast, RSA 641:6 includes two distinct types of
proceedings that, by the plain and unambiguous language of the statute, are
clearly distinct. Thus, the word “investigation” is not modified by the word
“official,” and the trial court did not err in failing to define “official
investigation” in its instructions to the jury.

                                        IV

       The defendant next argues that the trial court plainly erred in imposing
multiple sentences for two charges alleging the same act occurring on the same
day. He contends that the trial court’s alleged error implicates his state and
federal constitutional rights to freedom from double jeopardy, clarity in
charging documents, and juror unanimity as to the acts charged. See N.H.
CONST. pt. I, arts. 15, 16; U.S. CONST. amend. V; State v. Greene, 137 N.H.
126, 128 (1993). When a defendant argues that his rights have been violated
under both the State and Federal Constitutions, we consider the arguments
first under our State Constitution and rely upon federal law only to aid our
analysis. State v. Martinko, 171 N.H. 239, 242 (2018). Because we find that
no error occurred, the defendant’s argument fails on the first prong of plain
error review. See State v. Addison (Capital Murder), 165 N.H. 381, 562-63
(2013).



                                         7
       The Double Jeopardy provisions of the State and Federal Constitutions
provide protection against: (1) subsequent prosecution for the same offense
after acquittal; (2) subsequent prosecution for the same offense after
conviction; and (3) multiple punishments for the same offense. Martinko, 171
N.H at 242. The defendant argues that the trial court’s imposition of multiple
sentences on his assault convictions was plain error because the charges were
legally and factually identical. This assertion requires us to determine whether
the defendant’s course of conduct constitutes more than one violation of a
single statutory provision. See id. We refer to the category of cases that
address this scenario as “unit of prosecution” cases. Id. To determine whether
charged offenses violate the double jeopardy protections of our State
Constitution in unit of prosecution cases, we examine whether proof of the
elements of the crimes as charged will require a difference in evidence. Id.2

      The State charged the defendant with three counts of the simple assault
version of the assault by prisoner offense. See RSA 631:2-a, I(a) (2016); RSA
642:9, I. All three indictments read as follows:

       [The defendant] . . . did commit the crime of Assaults by Prisoners:
       Simple Assault, in that he, while being held in official custody . . . ,
       knowingly caused unprivileged physical contact to [Moriarty], in
       that [he] struck [Moriarty] with his fist, an act constituting Simple
       Assault under RSA 631:2-a[, I(a)].

“A person is guilty of simple assault if he . . . [p]urposely or knowingly causes
bodily injury or unprivileged physical contact to another.” RSA 631:2-a, I(a).
We have defined “unprivileged physical contact” as “all physical contact not
justified by law or consent.” State v. Burke, 153 N.H. 361, 364 (2006). So long
as there were dissimilar facts to prove that the defendant committed three
separate assaults, there was no double jeopardy violation. See State v. Leavitt,
165 N.H. 32, 33-34 (2013).

       The evidence presented at trial indicated that the defendant made
unprivileged physical contact with Moriarty on three separate occasions: the
first occurring immediately after Moriarty spit through the window into his cell,
and the second and third occurring at independent times during the
subsequent altercation between the defendant and Moriarty. Moreover, the
testimonial evidence provided by the State was corroborated by a video
recording of the altercation, which depicts the three distinct assaults. Contrary
to the defendant’s assertions that “there was nothing preventing the jury from


2“Although we have consistently articulated this test, we have not consistently applied it and have
previously invited parties to suggest a formulation of the double jeopardy test to be applied under
our State Constitution.” Martinko, 171 N.H. at 242-43 (quotation omitted). Neither party has
addressed our invitation in this case.


                                                8
reaching two guilty verdicts on the same act,” the jury was provided with the
evidence necessary to distinguish the three assaults.

       To the extent that the defendant contends that the trial court erred in
failing to instruct the jury that they must find distinct acts, this argument is
belied by the record. The trial court instructed the jury:

      Now each of the charges against this Defendant constitutes a
      separate offense. You must consider each charge separately and
      determine whether the State has proven the Defendant’s guilt
      beyond a reasonable doubt. The fact that you may find the
      Defendant guilty or not guilty on any one of the charges, should
      not influence your verdict with respect to the other charges.

Although the defendant refers to this instruction as a “general instruction,” it
nonetheless clearly conveyed to the jury the point that each charge represented
a separate offense, and that the jury could not rely on the evidence in support
of one offense to support a conviction on another offense. The court also
instructed that the “verdict must be unanimous.” We presume that the jury
followed the court’s instructions. Leavitt, 165 N.H. at 33.

       For the same reasons that we reject the defendant’s double jeopardy
argument, we also reject his assertion that the sentences imposed by the trial
court violated his constitutional rights to clarity in charging documents and
juror unanimity as to the acts charged. See State v. Davis, 149 N.H. 698, 704
(2003) (“An indictment is generally sufficient if it recites the language of the
relevant statute; it need not specify the means by which the crime was
accomplished or any other facts that are not essential elements of the crime.”);
Greene, 137 N.H. at 130 (stating that “a general instruction to the jury on the
requirement of a unanimous verdict is sufficient”). Finally, we reach the same
conclusion when we review the defendant’s federal double jeopardy claim. See
Leavitt, 165 N.H. at 33-34 (stating, in consideration of a federal double
jeopardy claim, that the claim fails so long as there is evidence at trial to
clearly distinguish between the separate offenses).

                                         V

       Lastly, the defendant argues that the trial court erred in failing to give an
instruction on the defense of mutual combat. See RSA 642:9, IV (2016) (noting
that simple assaults that are “committed in a fight entered into by mutual
consent” are misdemeanors). He contends that he was entitled to a jury
instruction on this defense because there was sufficient evidence in the record
to support a rational finding in favor of the defense.

      Following the jury’s verdict, the defendant moved to set aside the verdict
and for a new trial. In his motion, he argued that: (1) defense counsel was


                                         9
ineffective in failing to request a jury instruction on the defense of mutual
combat; and (2) the trial court had erred in failing to sua sponte provide such
an instruction. The trial court ruled that the defendant was not entitled to a
new trial because “[t]here was no evidence to support a mutual combat jury
instruction presented in th[e] case.”

        RSA 526:1 provides that “[a] new trial may be granted in any case when
through accident, mistake or misfortune justice has not been done and a
further hearing would be equitable.” RSA 526:1 (2007). The grant of a new
trial is within the discretion of the trial court, and we will not overturn the
court’s determination absent an unsustainable exercise of discretion. Hodgdon
v. Weeks Mem. Hosp., 128 N.H. 366, 368 (1986). To show that the trial court’s
decision is not sustainable, the defendant must demonstrate that the court’s
ruling was clearly untenable or unreasonable to the prejudice of his case.
State v. Addison, 160 N.H. 792, 796 (2010). We do not find an unsustainable
exercise of discretion here.

       Pursuant to RSA 642:9, IV, an assault by a prisoner in the form of a
simple assault “is a class B felony . . . unless committed in a fight entered into
by mutual consent, in which case it is a misdemeanor.” RSA 642:9, IV.
“[M]utual consent requires that both parties agree to participate in the fight,
either expressly or by implication.” State v. Place, 152 N.H. 225, 227 (2005).

       The defendant argues that there was evidence presented at trial that,
following the first strike of Moriarty by the defendant, the two engaged in
mutual combat. To support this argument, he points to the following witness
testimony: (1) from Moriarty that he “tried to fight [the defendant] and [the
defendant] ran off at one point”; (2) from the defendant that Moriarty “swung at
[him]” and he “swung back”; and (3) from prison staff that the two squared up
and took aggressive positions as though they were going to fight, and that
Moriarty swung at and struck the defendant at least once. He contends that
because there was “more than a scintilla” of evidence of mutual combat, the
court erred in not instructing the jury on the defense.

      For a defendant to be entitled to an instruction on a specific defense,
there must be some evidence to support a rational finding in favor of that
defense. State v. Carr, 167 N.H. 264, 271 (2015). “Some evidence” means
more than a minutia or scintilla of evidence. Id. To be more than a scintilla,
evidence cannot be vague, conjectural, or the mere suspicion of a fact, but
must be of such quality as to induce conviction. Id. When there is simply no
evidentiary basis to support the theory of the requested jury instruction, the
party is not entitled to such an instruction, and the trial court may properly
deny the party’s request. Id.

      We agree with the trial court that there was insufficient evidence at trial
to support a rational finding in favor of a mutual combat defense. As the


                                        10
record and the video recording indicate, Moriarty’s back was turned to the
defendant when the defendant first struck Moriarty and initiated the
altercation. After the initial blow by the defendant, Moriarty attempted to flee
while the defendant pursued him. See Place, 152 N.H. at 228 (finding no
support for mutual combat instruction where defendant made derogatory
statements, victim slapped defendant and entered another room in an attempt
to get away, and defendant hit or pushed victim from behind). In addition,
when Moriarty was first struck by the defendant, he had already suffered
severe injuries from his fight with Hartley, and was bleeding and “disoriented.”
Although Moriarty stated that he “engaged” in fighting with the defendant, and
confirmed that the two “exchange[d] blows,” under all the circumstances, this
evidence is not enough to support an implicit or express agreement on the part
of Moriarty to voluntarily engage in mutual combat with the defendant.
Because there was insufficient evidence in the record to support a rational
finding in favor of a mutual combat defense, see Carr, 167 N.H. at 271, we
conclude that the trial court did not err in failing to sua sponte offer such an
instruction, cf. Noucas, 165 N.H. at 161-62 (suggesting that courts refrain from
taking sua sponte action, particularly where defense counsel may have
strategic reasons for not pursuing certain avenues at trial).

       In light of this conclusion, it necessarily follows that the defendant’s
ineffective assistance of counsel claim also must fail. See State v. Cable, 168
N.H. 673, 685 (2016) (“Failing to advance a meritless argument . . . does not
constitute ineffective assistance of counsel.” (quotation omitted)).

                                       VI

      For the reasons stated herein, we affirm the defendant’s convictions and
sentences.

                                                  Affirmed.

      HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.




                                       11
