                                                             I attest to the accuracy and
                                                              integrity of this document
                                                                New Mexico Compilation
                                                              Commission, Santa Fe, NM
                                                             '00'04- 17:15:44 2018.03.12

Certiorari Granted, February 19, 2018, No. S-1-SC-36865

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2018-NMCA-018

Filing Date: December 13, 2017

Docket No. A-1-CA-34419

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

CRYSTAL ORTIZ,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Stan Whitaker, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM
Walter Hart, Assistant Attorney General
Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                       OPINION

FRENCH, Judge.

{1}     Defendant Crystal Ortiz appeals her convictions for great bodily harm by vehicle
(driving while intoxicated (DWI)), contrary to NMSA 1978, Section 66-8-101(B), (C) (2004,
amended 2016); aggravated battery (deadly weapon-vehicle), contrary to NMSA 1978,
Section 30-3-5(C) (1969); and aggravated DWI, contrary to NMSA 1978, Section 66-8-

                                           1
102(A), (B) (2010, amended 2016). Defendant did not appeal her conviction for leaving the
scene of an accident (great bodily harm). On appeal, Defendant argues that: (1) her
convictions violate her right to be free from double jeopardy, and (2) the district court erred
in refusing to grant her duress defense instructions. This case requires this Court to decide
whether Defendant was entitled to a duress instruction on great bodily harm by vehicle,
aggravated battery, and the strict liability crime of aggravated DWI. We hold that the duress
instruction was applicable to the facts of the case and should have been given for aggravated
battery (deadly weapon-vehicle) and great bodily harm by vehicle (DWI) based on
Defendant’s prima facie evidence. We affirm Defendant’s conviction for the strict liability
crime of aggravated DWI. Because we reverse Defendant’s appealed convictions for
aggravated battery (deadly weapon-vehicle) and great bodily harm by vehicle (DWI) based
on instructional error, we do not address Defendant’s double jeopardy claim.

BACKGROUND

{2}     Prior to trial, Defendant alerted the district court that she intended to present the
affirmative defense of duress as she was forced to flee from Mr. Hughes (Victim) fearing
great bodily harm. Again, after the defense rested, Defendant and the State discussed the
duress defense with the district court. The district court denied Defendant’s duress
instructions the next day before closing arguments.

{3}     On appeal, Defendant challenges the district court’s denial of the duress instruction
for three of her convictions: great bodily harm by vehicle, aggravated battery, and
aggravated DWI. Defendant argues that the district court erred in denying the duress
instructions, claiming that she had presented a prima facie case for the giving of the duress
instructions and that a reasonable view of the evidence supported her defense.

STANDARD OF REVIEW

{4}     “The propriety of jury instructions given or denied is a mixed question of law and
fact” and is “reviewed de novo.” State v. Munoz, 1998-NMSC-041, ¶ 8, 126 N.M. 371, 970
P.2d 143 (internal quotation marks and citations omitted). “When considering a defendant’s
requested instructions, we view the evidence in the light most favorable to the giving of the
requested instruction.” State v. Wyatt B., 2015-NMCA-110, ¶ 33, 359 P.3d 165, citing State
v. Romero, 2005-NMCA-060, ¶ 8, 137 N.M. 456, 112 P.3d 1113; see State v. Hill, 2001-
NMCA-094, ¶ 5, 131 N.M. 195, 34 P.3d 139. Our Supreme Court has recognized that “[t]he
duress defense is similar, in this context, to other justification defenses,” such as necessity,
coercion, or self-defense. State v. Castrillo, 1991-NMSC-096, ¶ 6, 112 N.M. 766, 819 P.2d
1324.

{5}     “The defense of duress is a question for the jury.” Esquibel v. State, 1978-NMSC-
024, ¶ 9, 91 N.M. 498, 576 P.2d 1129, overruled on other grounds by State v. Wilson, 1994-
NMSC-009, ¶ 6, 116 N.M. 793, 867 P.2d 1175. “To warrant submission to the jury of the
defense of duress, a defendant must make a prima facie showing that [she] was in fear of

                                               2
immediate and great bodily harm to [herself] . . . and that a reasonable person in [her]
position would have acted the same way under the circumstances.” Castrillo, 1991-NMSC-
096, ¶ 4 (emphasis added); see also State v. Rios, 1999-NMCA-069, ¶ 7, 127 N.M. 334, 980
P.2d 1068. New Mexico courts have “required the state to disprove such defenses beyond
a reasonable doubt.” State v. Lopez, 1990-NMCA-016, ¶ 9, 109 N.M. 578, 787 P.2d
1261.“[T]he district court must instruct on the defense [of duress] only if it is raised by the
defendant and only if, on the basis of the evidence at trial (whether offered by the state or
by the defendant), a reasonable juror could have a reasonable doubt arising from the
defense.” Id. “The test is not how the judge would weigh the [duress] evidence as a fact[-
]finder; the true test is whether any juror could be justified in having a reasonable doubt
about whether the accused acted [under duress].” State v. Guerra, 2012-NMSC-014, ¶ 14,
278 P.3d 1031. “If any reasonable minds could differ, the instruction should be given.” State
v. Rudolfo, 2008-NMSC-036, ¶ 27, 144 N.M. 305, 187 P.3d 170.

DISCUSSION

{6}       Defendant argues that her trial testimony and evidence, when viewed in the light
most favorable to the giving of the requested instruction, was sufficient to satisfy her burden
in her prima facie case and create a reasonable doubt in the mind of a juror, and therefore the
duress instruction should have been given. We begin by examining Defendant’s testimony
at trial.

{7}      Defendant testified that she had a relationship with Victim several years before the
instant events. Victim had become a good friend of her father’s. Victim became aggressive
when he drank and ultimately, according to Defendant’s testimony, he raped her three years
earlier. Approximately three years later, she again became friendly with Victim. During this
three year hiatus in their relationship, Defendant’s father and Victim remained good friends.
On the night in question, Defendant and Victim had been out drinking, along with
Defendant’s father, and eventually ended up at Victim’s house. Defendant stated that she
was intoxicated, and Victim drove her car to his house.

{8}      Once at Victim’s house and without invitation, Victim stood over Defendant and
tried to kiss her and touch her face. Defendant repeatedly told him to stop. Defendant did not
slap or push Victim. Before Defendant attempted to flee from the house, the first time,
Victim continued to physically touch Defendant and was “trying to pull [her] into him.”
Victim pulled a button off Defendant’s clothing and ripped her shirt. When Defendant tried
to leave Victim’s house, Victim got angry and threw a pillow, knocking over a tower of CDs.

{9}    At this time, Defendant realized that Victim still had her car keys. Victim would not
allow Defendant to call her father, grabbed Defendant’s phone from her, and when
Defendant tried to leave, Victim physically blocked the door. Once Defendant was able to
regain control of her keys and phone, Defendant made it out the door and into her car.
Defendant testified, “Well, my thought was to drive away first and then to call [my father].”
Defendant had started her vehicle before Victim jumped in.

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{10} After Victim jumped into the vehicle, Defendant repeatedly ordered Victim out of
the vehicle but he would not leave. As Defendant started to drive home, Victim was yelling
and screaming at Defendant. At which point, Defendant again tried to call her father. When
Victim grabbed the phone from Defendant, Victim also grabbed Defendant’s hair, causing
the car to jerk. As Victim grabbed Defendant’s hair and the phone, Victim jumped out of the
car and started to run around to the front of the car. It was then that the car jumped the curb
and hit a fence. Defendant believed that Victim had jumped out of the car before Defendant’s
car hit the fence. During Defendant’s testimony, she stated that she accidentally swerved into
Victim, as Defendant did not know Victim was going to keep running forward. Defendant
does not dispute that she struck Victim.

{11} Defendant argues that her testimony was sufficient to warrant the duress instruction,
specifically UJI 14-5130 NMRA, for great bodily harm by vehicle and aggravated battery.
The three elements contained in the instruction are:

       (1)     the defendant committed the crime under threat,
       (2)     the defendant feared immediate [great] bodily harm to [herself] or
               others if [she] failed to commit the crime, and
       (3)     a reasonable person in the defendant’s position would have acted in
               the same way under the circumstances.

Rios, 1999-NMCA-069, ¶ 7; see UJI 14-5130.

{12} Defendant argues that her testimony was also sufficient to warrant the duress
instruction for the strict liability crime of aggravated DWI, providing:

       (1)     the defendant acted under unlawful and imminent threat of death or
               serious bodily injury,
       (2)     the defendant did not find [herself] in a position that compelled [her]
               to violate the law due to [her] own recklessness,
       (3)     [the defendant] had no reasonable legal alternative, and
       (4)     [the defendant’s] illegal conduct was directly caused by the threat of
               harm.

Rios, 1999-NMCA-069, ¶ 25; see State v. Baca, 1992-NMSC-055, ¶ 19, 114 N.M. 668, 845 P.2d
762.

{13} The State argues that Defendant failed to present sufficient evidence on the
“immediacy” requirement and the “reasonableness” requirement of both instructions.
Therefore, the State asserts that Defendant was not entitled to the duress instruction.

I.     Great Bodily Harm by Vehicle (DWI) and Aggravated Battery (Deadly
       Weapon-Vehicle)


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{14} In Rudolfo, a case involving self-defense as justification, our Supreme Court stated
that the standard for fear of immediate great bodily harm is a subjective one (immediate
danger and actual fear from the perspective of Defendant) and the standard for whether a
reasonable person would have acted in the same way as Defendant is an objective one
(hypothetical behavior of a reasonable person under the same circumstances). 2008-NMSC-
036, ¶ 17; see State v. Duncan, 1990-NMCA-063, ¶ 24, 113 N.M. 637, 830 P.2d 554 (same).
The subjective fear of immediate great bodily harm by a defendant depends on the
circumstances of each case. See Esquibel, 1978-NMSC-024, ¶ 12. In Esquibel, the defendant
escaped from prison some forty-eight to seventy-two hours after the most recent threat of
harm. Id. Despite the passage of time, our Supreme Court held that a reasonable juror could
conclude that the defendant subjectively feared immediate great bodily harm. Id. “Under the
circumstances of [Esquibel], the passage of two to three days between threat and escape does
not suffice to remove the defense of duress from the consideration of the jury.” Id. (emphasis
added).

{15} Here, Defendant testified that after returning to Victim’s house, Victim tried to kiss
her and touch her face. Despite being told to stop, Victim continued his physical touching,
pulled a button off her clothing and ripped her shirt. Having managed to secure her car keys,
Defendant testified that she was able to escape Victim’s house and get to her car, whereupon
Victim continued his pursuit and got into the front passenger seat, refusing to leave. Once
in the car, in what could only be inferred by a reasonable juror from Defendant’s testimony
as a continuation of the assault, Victim continued to yell and scream at Defendant.
Defendant testified that Victim grabbed her hair, causing the car to jerk. Victim jumped out
of the car and started to run around to the front of the vehicle. Defendant admitted that she
struck Victim.

{16} We conclude that Defendant made a prima facie showing of duress by presenting
evidence to establish that: (1) Defendant was previously raped by Victim years earlier; (2)
Defendant fled Victim’s home in reasonable fear of immediate bodily harm—being raped
by Victim again; (3) Victim’s continued conduct when he immediately followed Defendant
to her car and jumped into the vehicle, reasonably continued Defendant’s fear of immediate
bodily harm; and (4) Defendant’s continued fear of immediate bodily harm remained even
after Victim jumped out of Defendant’s vehicle and began running around to the front
because Victim was still in a position to re-engage in his assaultive behavior. We conclude
that a jury could also find that an objectively reasonable person would have continued to try
to get away from Victim’s assaultive behavior and would have attempted to drive away from
the scene to escape further assaults by Victim once he exited Defendant’s car. Thus,
Defendant established both the subjective “immediacy” prong and the objective
“reasonableness” prong for a prima facie defense of duress and the district court should have
instructed the jury accordingly.“If the evidence supports a theory of the case, a defendant is
entitled to [an] instruction on that theory.” Castrillo, 1991-NMSC-096, ¶ 4.

{17} Having concluded that Defendant was entitled to the duress instruction pursuant to
UJI 14-5130, we hold that the State was improperly relieved of its burden of proof under the

                                              5
duress instruction. “The burden is on the state to prove beyond a reasonable doubt that the
defendant did not act under such reasonable fear.” UJI 14-5130. A defendant is entitled to
jury instructions on her theory of the case if there is evidence to support the instruction. As
a result, the failure to give such a duress instruction—UJI 14-5130—for the charges of great
bodily harm by vehicle and aggravated battery was reversible error.

II.     Aggravated DWI

{18} Defendant argues that she was entitled to a Rios duress instruction for the crime of
aggravated DWI. “This Court has held that DWI is a strict liability offense.” Rios, 1999-
NMCA-069, ¶ 6. As noted above, our case law has altered the second and third elements of
the duress defense relative to a strict liability crime. As a result, the second and third
elements for a strict liability crime of DWI would be, “(2) [Defendant] did not find [herself]
in a position that compelled [her] to violate the law due to [her] own recklessness, [and] (3)
[Defendant] had no reasonable legal alternative[.]” Id. ¶ 25. Our Supreme Court in Baca
teaches that use of the duress defense in a strict liability crime may be tempered with a
narrow exception, by utilizing these two points in the instruction, “without vitiating the
protectionary purpose of the strict liability statute.” 1992-NMSC-055, ¶ 19. Without
inclusion of these two elements in a strict liability duress instruction, we see no other
reasonable manner in which to properly inform a jury of the evidentiary requirements placed
upon a defendant. “Jury instructions become the law of the case against which the
sufficiency of the evidence is to be measured.” State v. Smith, 1986-NMCA-089, ¶ 7, 104
N.M. 729, 726 P.2d 883. Because aggravated DWI is a strict liability crime, we conclude
that the Rios instruction would be the proper jury instruction for Defendant’s duress defense
as opposed to the unmodified UJI 14-5130. We now turn to Defendant’s argument that her
prima facie case legally entitled her to the modified duress instruction for the strict liability
crime of aggravated DWI.

{19} After returning to Victim’s house, Defendant testified that Victim stood over her and
tried to kiss her, touched her face, pulled Defendant into him, pulled a button off her
clothing, and ripped her shirt. When she attempted to leave Victim’s house, Victim blocked
the door. Victim prevented Defendant from calling her father. When Defendant secured her
keys, she fled to her car. Upon entering her car, Victim then sprinted out to the car and
forced his way into the right passenger seat, refused to leave, and continued to yell and
scream at Defendant.

{20} The State responds that Defendant failed to address the reasonable legal alternatives
to her commission of the crime of aggravated DWI. According to the State, the evidence
established numerous legal alternatives to driving, including whether Defendant could have:
(1) called her father or the police; (2) asked Victim’s roommate for assistance; (3) after
Victim ceased blocking the door, left without her phone or car keys; (4) gone to a neighbor’s
house; or (5) after securing her phone and car keys, simply walked out the door, gotten into
her vehicle, locked the doors, and then called for assistance. The State argues that, as a result
of these failures to address the evidence presented regarding reasonable legal alternatives

                                               6
available, Defendant made the unreasonable decision to drive her vehicle upon exiting
Victim’s home.

{21} On cross-examination Defendant testified, “Well, my thought was to drive away first
and then to call [my father].” Defendant had started her vehicle before the Victim had
jumped in. The State also points out that on cross-examination of Defendant relative to the
issue of seeking assistance of Victim’s roommate, Defendant testified that the roommate,
“wasn’t somebody I really knew. I mean, I don’t know. I just wanted to get out of the
house.” Thus, the State points out that Defendant either failed to address the reasonable legal
alternatives to driving that were available as part of her prima facie case or she failed to
dispute or rebut the evidence presented by the State regarding the reasonable legal
alternatives to driving that were available to her. We therefore address whether Defendant,
“failed to show that [she] exhausted all legal alternatives to [her crime of aggravated DWI],”
under the facts of this case. Baca, 1992-NMSC-055, ¶ 22.

{22} In Castrillo, the series of events that led to the unreasonable illegal act of a convicted
felon purchasing a firearm occurred over a period of months. 1991-NMSC-096, ¶ 2. The
defendant could have called the police and therefore the defendant was unreasonable in
choosing an illegal alternative. Id. ¶ 18. In Baca, a prisoner in the penitentiary armed himself
with a shank two days after being confronted by another prisoner, without having informed
a guard or requesting appropriate security arrangements after the first confrontation. 1992-
NMSC-055, ¶ 22. In both cases, our Supreme Court noted that “[t]he obvious response to
threatened violence—especially a nebulous, potential, future violence—is not to resort to
[criminal conduct].” Id. ¶ 21 (internal quotation marks and citation omitted).

{23} In Rios, this Court reviewed a DWI strict liability crime on facts more pertinent to
those in this appeal. 1999-NMCA-069, ¶ 1. The defendant sought refuge in his truck, and
as the attack continued, the defendant started the vehicle and began to drive out of the
parking lot. Id. ¶ 2. In examining whether the defendant acted under an imminent threat of
death or serious bodily injury and therefore had no reasonable legal alternative to DWI, this
Court concluded that the defendant had not met his burden of establishing the objective
element of reasonable legal alternative by “jumping behind the wheel of a vehicle and taking
off.” Id. ¶¶ 26-27 (internal quotation marks omitted).

{24} The defense of duress must be construed differently in the context of a strict liability
crime. “Specifically, the elements of immediacy and reasonableness must be construed
narrowly so that the high level of protection afforded by a statute [implicating] strict liability
is not vitiated.” Baca, 1992-NMSC-055, ¶ 16. It is against this jurisprudential framework
that we analyze whether Defendant made a prima facie showing of duress in a strict liability
case such as the one before this Court.

{25} Defendant maintains that the immediacy of Victim’s threats and her attendant
responses thereto were a reasonable legal alternative because Victim’s assaultive behavior,
both in Victim’s home and continuing into Defendant’s vehicle was imminent, not nebulous,

                                                7
potential, or future in nature. We address the immediacy issue first. Defendant argues that
once she exited Victim’s home, and as soon as she got into the vehicle, Victim rushed out
to the vehicle and got in, which she claimed left her no opportunity to lock the doors. We
conclude that, viewing the evidence in the light most favorable to giving Defendant’s
requested duress instruction, there was sufficient evidence presented to support Defendant’s
position that she was in immediate fear of great bodily harm and this justified allowing the
jury to assess the immediacy of Defendant’s fear. Therefore, the subjective immediacy
element of a duress instruction was satisfied by Defendant’s evidence.

{26} We now turn to the evidence regarding whether Defendant had no reasonable legal
alternative to driving away from Victim’s home. We conclude that the prima facie evidence
Defendant presented did not satisfy the objective third element of the Rios instruction—no
reasonable legal alternative—for receiving a duress instruction to a strict liability crime.
Rios, 1999-NMCA-069, ¶ 25. Numerous legal non-driving alternatives were presented by
the State’s evidence showing that Defendant was not required to drive away from Victim’s
home in an intoxicated state. However, Defendant testified that she had already made the
decision that she intended to get out of Victim’s home, drive away in her vehicle, and then
call her father. Her testimony was, “Well, my thought was to drive away first and then to call
[my father].” Defendant also started her car before Victim ran over and jumped inside.
Based upon the evidence presented, the other legal alternatives were not even considered at
the time of the incident or factually overcome after being raised by the State at trial. Thus,
Defendant failed to objectively meet her initial burden for a duress instruction—establishing
that no other reasonable legal alternatives existed to driving away from Victim’s home
intoxicated. See Baca, 1992-NMSC-055, ¶ 22 (recognizing the alternatives presented and
affirming the district court’s ruling that the defendant “failed to show that he exhausted all
legal alternatives to his [strict liability criminal offense]”). As a result, the district court did
not err in refusing to give the modified duress instruction for the strict liability charge of
aggravated DWI.

CONCLUSION

{27} We affirm Defendant’s convictions for aggravated DWI and leaving the scene of an
accident (great bodily harm). We reverse Defendant’s convictions for great bodily harm by
vehicle and aggravated battery, and we remand these charges to the district court for further
proceedings and a new trial.

{28}    IT IS SO ORDERED.

                                                 ____________________________________
                                                 STEPHEN G. FRENCH, Judge


WE CONCUR:


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____________________________________
TIMOTHY L. GARCIA, Judge

JONATHAN B. SUTIN, Judge (specially concurring).

SUTIN, Judge (specially concurring).

{29} While I concur in the majority opinion, I have concerns that the opinion may not
fully handle some of the issues. I write separately in hopes that our Supreme Court will take
certiorari and address what appear to me to be problems inherent in duress instruction cases.
The case at hand is difficult conceptually, factually, and with regard to rule applicability. It
offers food for thought and cries out for a bit of clarity.

{30} In considering whether to give a duress instruction, the district court must determine
whether, assuming the defendant is convicted of the crime charged, the defendant has
established a prima facie case that the commission of the crime occurred out of duress—that
is, that the defendant feared immediate great bodily harm if he did not commit the crime and
that a reasonable person would have acted in the same way under the circumstances. Of
course, the defendant who goes to trial does not and will not admit having committed the
crime. It is and must be a hypothetically committed crime.

{31}   The only Uniform Jury Instruction on the duress defense, UJI 14-5130, reads in part:

       If the defendant feared immediate great bodily harm to himself or another
       person if he did not commit the crime and if a reasonable person would have
       acted in the same way under the circumstances, you must find the defendant
       not guilty.

The state of the law presents some concerns.

{32} First, there exist two different tests for giving the duress defense depending upon
whether the crime is or is not a strict liability crime. Non-strict liability crimes require UJI
14-5130. Strict liability crimes require a different, court-created instruction. Yet the
committee commentary in UJI 14-5130 plainly states that this instruction “applies to all
crimes, other than homicide[.]” See Rios, 1999-NMCA-069, ¶ 25 (describing the four
elements of a strict liability crime). A clear inconsistency.

{33} Second, one test, if not the primary test, to be applied in deciding whether to give UJI
14-5130 “is whether any juror could be justified in having a reasonable doubt about whether
the accused acted [under duress].” Guerra, 2012-NMSC-014, ¶ 14. That test nowhere
appears in UJI 14-5130, and in the case before us, were the test to be applied, given the facts
one has to speculate as to what the result would be not only with respect to each crime, but
also as between the aggravated DWI (strict liability) and the two other crimes (not strict
liability), given that the criminal activity appears to have stemmed from Defendant’s fear

                                               9
and attempts to escape harm. There is no easy distinction to be made.

{34} Third, a general principle involving instructing the jury is that the district court is to
consider the evidence in a light most favorable to giving the instruction. Yet, combined with
the juror-reasonable-doubt test, one, again, would have to similarly speculate as to what the
results would be. Again, no easy rule application can be made.

{35} Fourth, a question exists as to the usefulness of attempting distinctions between a
“subjective” test involving fear and an “objective” test involving the reasonable person and
reasonable juror. Are these tests properly applied by a district court? Does the subjective
reasonableness test include whether, under the circumstances, no “reasonable alternative”
existed? Is it a test more properly applied by a jury after the instruction is given? If the latter,
how is the jury to be instructed on subjective and objective? How is the court or jury to make
an informed, rational decision as to the emotional (fear) and the rational (alternative) under
circumstances in which the criminal activity, be it a strict liability crime or not, stems from
a defendant’s legitimate fear and attempts to escape?

{36} Fifth, in regard to the defense as to Defendant’s driving into Victim in the case before
us, it must be assumed, because of Defendant’s convictions, that she drove into Victim
intending to harm him. The oddity that hits one in the face is that the duress instruction issue
here is meaningless without a conviction. If Defendant intended to harm Victim and
intentionally drove into him, what fact possibly exists to support a prima facie showing of
a right to the duress instruction—given that there can be no question that Defendant had the
alternative of driving away instead of intentionally driving into Victim. This type of analytic
insight into the facts of the case together with the majority opinion’s analysis indicate the
complexity, conceptual difficulty, and rule application problems that attend duress
instruction cases.

{37} Until the foregoing concerns about the analyses and tests to be applied in duress
cases are addressed and the job of the district and appellate courts made less of a crapshoot,
I have chosen to specially concur with the hope that our Supreme Court takes on the issue.
Although the record in this case might have been better developed and the briefs better
written, this case seems to me to be a good case in which to do so.

                                                 ____________________________________
                                                 JONATHAN B. SUTIN, Judge




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