                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 38500

STATE OF IDAHO,                                   )      2013 Unpublished Opinion No. 681
                                                  )
       Plaintiff-Respondent,                      )      Filed: September 25, 2013
                                                  )
v.                                                )      Stephen W. Kenyon, Clerk
                                                  )
MICHAEL ALFARO aka MICHAEL                        )      THIS IS AN UNPUBLISHED
ALFANO, MICHAEL ALFARA,                           )      OPINION AND SHALL NOT
                                                  )      BE CITED AS AUTHORITY
       Defendant-Appellant.                       )
                                                  )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. Thomas J. Ryan, District Judge.

       Judgment of conviction and sentences for aiding and abetting first degree murder,
       two counts of aiding and abetting aggravated assault, and aiding and abetting
       unlawful discharge of a firearm at a dwelling, and sentence enhancement for
       infliction of great bodily injury, affirmed.

       Robyn Fyffe of Nevin, Benjamin, McKay & Bartlett LLP, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Daphne J. Huang, Deputy
       Attorney General, Boise, for respondent. Daphne J. Huang argued.
                 ________________________________________________
PERRY, Judge Pro Tem
       Michael Alfaro appeals from his judgment of conviction and sentences for aiding and
abetting first degree murder, two counts of aiding and abetting aggravated assault, and aiding and
abetting unlawful discharge of a firearm at a dwelling, and his sentence enhancement for
infliction of great bodily injury. For the reasons set forth below, we affirm.
                                                 I.
                                  FACTS AND PROCEDURE
       In the summer of 2004, Caldwell experienced a spate of drive-by shootings between rival
gangs. One shooting occurred at approximately 3:30 a.m. on August 14, 2004, while Javier
“Harvey” Rodriguez, Sael Castillo, Jason Alverado and Carlos Chavez, all associated with the
“Westside Lomas” (Westside) gang, were at Rodriguez’s house. A vehicle drove by, and two of



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its passengers began shooting at the house, resulting in Chavez being killed. It was the third
shooting investigated by Caldwell police that night alone.
       When police arrived on the scene they found various bullet casings in the area, but the
bullet that killed Chavez could not be tied to a particular weapon. One neighbor reported seeing
a blue car speed away after the shooting, while another described a light tan car with three
occupants. Rodriguez told the police he arrived at the house mere moments before the shooting
and that Castillo and Alverado were outside in front of the house and Chavez was inside at the
time. He could not describe the vehicle from which the shots had been fired and was generally
uncooperative in aiding the investigation. After interviewing over 100 people in relation to
Chavez’s death, the police never recovered a weapon, never identified the vehicle, and had no
suspects.
       In June 2005, Evan Musquiz, a teenager associated with the “Eastside Locos” (Eastside)
gang, who was thirteen years old at the time of Chavez’s shooting, told police he had been in a
light blue four-door car with other Eastsiders, Arandu Maceda, Richard Alaniz, and a person he
only knew as “Mike” who was driving. Musquiz stated the four had driven around for a while
and then drove by a residence where Maceda and Alaniz opened fire, shooting at the house and
the men in front of the house. Musquiz was shown a six person photo lineup, in which Alfaro
was number three, and indicated “Mike” was either two or three. Musquiz could not identify the
time of year or the time of day the shooting had taken place, other than to say it was dark. When
police provided Musquiz with the location of Rodriguez’s house and asked whether it was the
location of the shooting, Musquiz said yes. Following Musquiz’s interview, Alaniz denied any
involvement in the shooting.
       In June 2009, another Eastside gang member, Mario Flores, was charged with multiple
felonies, including recruiting gang members, supplying firearms, and witness intimidation.
Police questioned him as to whether he had any knowledge pertaining to Chavez’s death, which
he had denied possessing when interviewed shortly after the shooting. This time, Flores told
police he had observed Maceda and Musquiz getting into a black Cadillac with Alfaro and
Alaniz on the night of August 14, 2004. In exchange for his cooperation, all charges against
Flores were dismissed.
       On August 6, 2009, a grand jury indicted Alfaro for charges stemming from the
August 2004 shooting that caused Chavez’s death. An amended indictment charged Alfaro with


                                                2
aiding and abetting first degree murder, Idaho Code §§ 18-4001, 18-4002, 18-4003, or
alternatively, involuntary manslaughter, I.C. §§ 18-4006(2), 18-4007, 18-204; two counts of
aiding and abetting aggravated assault, I.C. §§ 18-901(a), 18-905(a), 18-204; aiding and abetting
unlawful discharge of a firearm at a dwelling, I.C. §§ 18-3317, 18-204; and a sentence
enhancement for inflicting great bodily injury, I.C. § 19-2520B.
       A five-day jury trial commenced on October 12, 2010.             Musquiz, Flores, Alaniz,
Rodriguez, and Castillo all testified, providing accounts of the shooting that often conflicted with
each other. 1 Musquiz and Alaniz identified Alfaro as the driver. The jury found Alfaro guilty of
aiding and abetting first degree murder, both counts of aiding and abetting aggravated assault,
and aiding and abetting unlawful discharge of a firearm at a dwelling; the district court found the
sentence enhancement for infliction of great bodily injury applicable. The district court entered a
judgment of conviction and sentenced Alfaro to a unified term of life, with twenty years
determinate, for the murder conviction and five years determinate for each remaining count, with
all sentences to run concurrently. Alfaro now appeals his judgment of conviction and sentences.
                                                II.
                                           ANALYSIS
A.     Prosecutorial Misconduct
       Alfaro contends the prosecutor committed misconduct during closing argument, violating
his right to a fair trial.   Specifically, he argues the prosecutor’s statement during rebuttal
referring to the defense’s closing argument as a “red herring fishing trip,” disparaged the
defense’s arguments to a degree amounting to prejudicial misconduct.
       Although our system of criminal justice is adversarial in nature, and the prosecutor is
expected to be diligent and leave no stone unturned, the prosecutor is nevertheless expected and
required to be fair. State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007). However, in
reviewing allegations of prosecutorial misconduct, we must keep in mind the realities of trial. Id.
A fair trial is not necessarily a perfect trial. Id. When there has been a contemporaneous
objection we determine factually if there was prosecutorial misconduct, then we determine
whether the error was harmless. Id.; State v. Hodges, 105 Idaho 588, 592, 671 P.2d 1051, 1055
(1983); State v. Phillips, 144 Idaho 82, 88, 156 P.3d 583, 589 (Ct. App. 2007). A conviction will



1
       Macedo was called to the stand, but refused to testify.

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not be set aside for small errors or defects that have little, if any, likelihood of having changed
the results of the trial. State v. Pecor, 132 Idaho 359, 367-68, 972 P.2d 737, 745-46 (Ct. App.
1998).
         The prosecutor’s statement occurred during the State’s rebuttal, where the following
exchange occurred:
         [Prosecutor]: [Defense counsel] in the opening told you they weren’t contesting
                the shooting and the death of Carlos Chavez. [Defense counsel] stood up
                here and told you they weren’t contesting the shooting of Carlos Chavez.
                The only issue is [is Alfaro] the driver. Yet [defense counsel] spent the
                last hour contesting the details of the shooting. That’s what his closing
                was doing.
         [Defense counsel]: Judge, for the record, I’ll object to the characterization and as
                to the court’s rulings previously.
         [Prosecutor]: We just went on an hour-long red herring fishing trip.
         [Defense counsel]: Same objection, Judge.
         [The Court]: You’re allowed a continuing objection.

On appeal, Alfaro contends the prosecutor’s characterization of defense counsel’s “entire closing
argument as a red-herring fishing trip, went beyond asking the jury to return a verdict based on
evidence, instructions and permissible inferences.” Rather, Alfaro contends, the prosecutor’s
argument “disparaged defense counsel and ridiculed Mr. Alfaro’s entire defense thereby
depriving him of his due process right to a fair trial.”
         We do not agree that the prosecutor’s statement amounted to misconduct. We addressed
a similar issue in State v. Norton, 151 Idaho 176, 187-89, 254 P.3d 77, 88-90 (Ct. App. 2011).
There, Norton argued the prosecutor committed misconduct in his rebuttal closing argument by
referring to the defense arguments as “red herrings and smoke and mirrors.” Id. at 188, 254 P.3d
at 89.    This Court noted the prosecutor’s comments were not directed at defense counsel
personally, but rather were comments on the defense theories and therefore concluded the
prosecutor’s remark did not constitute misconduct. Id. at 189, 254 P.3d at 90. Although Alfaro
argues otherwise, Norton is indistinguishable in any dispositive respect from this case. Like in
Norton, the prosecutor’s statement here was directed at the defense theories and arguments and
did not amount to misconduct.
B.       Judgment of Acquittal
         Alfaro contends there was insufficient evidence to support the jury’s verdict that he was
the driver of the vehicle involved in the drive-by shooting resulting in Chavez’s death.


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Specifically, he contends that even viewing the evidence in the light most favorable to the
prosecution, there was not sufficient evidence. Alfaro concedes the jury could have reasonably
concluded that, at some point in time, Alfaro drove a vehicle carrying Alaniz, Maceda and
Musquiz into Westside territory where Alaniz and Maceda shot at Rodriguez’s residence and the
men outside. However, he argues that given the “undisputed testimony concerning the number
of drive-by shootings during that time period, along with inconsistencies in the witnesses’
testimony,” there was not sufficient evidence to conclude that Alfaro was involved in the specific
drive-by shooting that resulted in Chavez’s death.
       Alfaro filed motions for a judgment of acquittal after the close of the State’s case and
after the jury returned a guilty verdict. The district court denied both motions. On review of the
denial of a motion for judgment of acquittal, we determine whether there is substantial evidence
to support the challenged conviction. State v. Hoyle, 140 Idaho 679, 683, 99 P.3d 1069, 1073
(2004); State v. Merwin, 131 Idaho 642, 644, 962 P.2d 1026, 1028 (1998). Substantial evidence
to support the challenged conviction is present when a reasonable mind could conclude that the
defendant’s guilt of the offense was proven beyond a reasonable doubt by such material
evidence. Hoyle, 140 Idaho at 684, 99 P.3d at 1074; State v. Kuzmichev, 132 Idaho 536, 545,
976 P.2d 462, 471 (1999). Where there is competent although conflicting evidence to sustain the
verdict, this court cannot reweigh that evidence or disturb the verdict. Hoyle, 140 Idaho at 684,
99 P.3d at 1074; Merwin, 131 Idaho at 644-45, 962 P.2d at 1028-29. In reviewing a motion for
judgment of acquittal, all reasonable inferences on appeal are taken in favor of the prosecution.
Hoyle, 140 Idaho at 684, 99 P.3d at 1074; Kuzmichev, 132 Idaho at 545, 976 P.2d at 471.
       At trial, Musquiz testified that on the night of the shooting, he and Maceda arrived at
Flores’ house as it was getting dark. They hung out drinking beer and smoking marijuana.
Alaniz and Alfaro arrived in a vehicle with Alfaro driving. Musquiz was unable to explain how
he knew Alfaro or whether he had met him before that night. Musquiz testified he and Maceda
joined the two men in the car and they drove around for a bit, eventually ending up in Westside
“territory” where they drove past a house Musquiz did not recognize. Musquiz testified there
were two people standing in the front yard and that once the car turned around and headed back
toward the house, Maceda and Alaniz opened fire, shooting at the house and the men in front of
the house. He testified Alfaro drove the four to a Flying J truck stop where he, Maceda, and
Alaniz were picked up by Alaniz’s girlfriend.


                                                5
       Flores testified he was having a party on the evening of August 14, 2004, and Musquiz
and Maceda had arrived at approximately 9 or 10 p.m. when it was getting dark. About an hour
later, Alfaro and Alaniz arrived with Alfaro driving a black, two-door Monte Carlo. Flores
testified Maceda and Musquiz left with Alfaro and Alaniz and approximately ten to thirty
minutes later, Flores heard gun shots. He also testified that on August 14, 2004, at 12:35 a.m., a
bullet grazed his leg during a shooting outside his house.         He testified that this shooting
happened on a different night than the night Alfaro and Alaniz picked up Macedo and Musquiz at
Flores’s home.
       At trial, Alaniz testified 2 that on the evening of August 13, 2004, he and Alfaro drank
some beers and discussed that Alaniz’s house had been shot at by some Westsiders. The two
then went to Flores’s house, with Alfaro driving a four-door sedan, where they picked up
Macedo and Musquiz. Alaniz testified he had a Glock .40 gun and Macedo was armed as well.
Alaniz stated that the four drove to Rodriguez’s house, noticed two people outside, and Alfaro
turned off the headlights. Alaniz stated he heard gunfire, got out his gun, and started shooting at
the house. The four then drove to a Flying J truck stop to fix a flat tire, where a girlfriend picked
up him, Macedo, and Musquiz, leaving Alfaro with the vehicle.
       Rodriguez testified that in the early morning hours of August 14, 2004, he was at home
drinking beer with Castillo, Alverado, and Chavez. After Chavez went inside the house, with the
three others remaining outside, Rodriguez noticed a white car drove by his house several times at
a high rate of speed. Shortly thereafter, another darker car drove down the street with its lights
out, going very slowly. He heard gunshots coming from the car and somehow came to have a
gun in his hand (he denied having a firearm before the shooting and testified he did not know
where the gun had come from or what happened to it after the shooting) with which he began
shooting back. He ran inside to find Chavez shot in the neck.
       Castillo also testified he was at Rodriguez’s house with Alverado and Chavez on
August 14, 2004. He did not see the white car Rodriguez mentioned, but testified he saw a car



2
        In order to testify at trial, Alaniz was transported from a federal prison where he was
serving time for distribution of methamphetamine. On the evening before his testimony, he
entered a binding plea agreement, agreeing to plead guilty to voluntary manslaughter for
Chavez’s death and to testify against Alfaro in exchange for a unified sentence of twenty-one
years, with six years determinate, to run concurrently with his federal sentence.

                                                 6
drive down the street, turn around, and drive back towards the house. Castillo testified the car
was traveling fast for a neighborhood and he did not recall the headlights being turned off.
       In arguing there was insufficient evidence to support the jury’s verdict--because there
was insufficient evidence to establish that Alfaro had been involved in the specific shooting on
August 14 that killed Chavez--Alfaro focuses on the contradictions in the testimony of these
witnesses. He argues that none of the Westsiders’ testimony competently linked a vehicle driven
by Alfaro with the vehicle used in the shooting. He points out that although Rodriguez testified
the vehicle whose occupants shot at his house only drove by once and did not turn around,
Castillo testified the vehicle drove by once and then returned. Additionally, Rodriguez indicated
the vehicle’s lights were turned off, whereas Castillo could not remember and Castillo testified
the car was going fast, whereas Rodriguez testified it was going slowly. Finally, Musquiz and
Alaniz testified they drove by a house in Westside territory with two, not three, people outside.
       Alfaro also contends none of the Eastside gang members competently testified that any
shooting Alfaro was involved in took place in the early morning hours of August 14. Flores
testified he observed Musquiz and Macedo leave with Alfaro and Alaniz on a different night than
when Flores stated he was shot at in another incident. Additionally, Flores testified that Musquiz
and Macedo arrived at his house around 9 or 10 p.m. and left with Alfaro and Alaniz about an
hour later. Alaniz and Musquiz testified they only drove around for a short period of time before
driving to Rodriguez’s house, which Alfaro contends places them at the scene of the shooting
much earlier than 3:30 a.m. when Chavez was killed. Flores also testified he held the party
attended by Musquiz and Macedo beginning on the evening of August 14, which, if Flores was
believed, means the shooting that occurred in the early morning hours of August 14 happened
before the party. Alfaro also discounts Musquiz’s testimony that the shooting occurred on
August 14 because “it is apparent that his testimony concerning the date was not based on
personal knowledge.” When first discussing the incident with police in 2005, Musquiz said he
did not know what time of year or what time of day the incident occurred. Thus, Alfaro argues,
it is an “inescapable conclusion” that Flores observed Macedo and Musquiz get into a vehicle
with Alfaro and Alaniz on a different night than the one on which Chavez died.
       Alfaro contends that these inconsistencies and a lack of substantial evidence tying the
shooting described by Musquiz, Flores, and Alaniz with the shooting that killed Chavez, in
combination with the fact it was undisputed there were many drive-by shootings in Caldwell that


                                                 7
summer, including three reported at Rodriguez’s house in August alone, resulted in insufficient
evidence to establish beyond a reasonable doubt that Alfaro participated in the shooting that
resulted in Chavez’s death.        Alfaro’s argument is unavailing.         There were certainly
contradictions in the witnesses’ testimonies regarding the details of the incident; however, it is
well-settled that absent a showing that evidence lacks competence, conflicts are an inadequate
basis upon which to disturb a jury’s factual finding. Hoyle, 140 Idaho at 684, 99 P.3d at 1074.
All of the witnesses testified the incident took place at night and Alaniz and Musquiz both
testified they had participated in a drive-by shooting in the early morning hours of
August 14, 2004, in which Alfaro was the driver. Alaniz testified they shot at Rodriguez’s house
and Musquiz identified Rodriguez’s house as the target of the shooting that occurred when
Alfaro was the driver. As the State points out, those testimonies were consistent with the
testimony of the detective who responded to the call immediately following the shooting on
August 14. In addition, a Caldwell police officer testified, consistent with his report at the time,
that the drive-by shooting that occurred near Flores’ house and resulted in a bullet passing near
Flores’ leg, occurred in the early morning hours of August 14, approximately three hours before
Chavez was shot. Further, as the State points out, the inconsistencies between the testimonies of
the various gang members is largely unremarkable given that the shooting had occurred
approximately six years before trial and most, if not all, of the witnesses had been intoxicated
and at least some had smoked marijuana on the night of the shooting.
       Alfaro concedes there was sufficient evidence for the jury to reasonably conclude that he
participated in a drive-by shooting of Rodriguez’s house with Alaniz, Maceda, and Musquiz.
The inconsistencies in the testimony did not defeat the sufficient competent evidence presented
that this shooting occurred in the early morning hours of August 14 and resulted in Chavez’s
death. The district court did not err in denying Alfaro’s motions for acquittal.
C.     Sentence Review
       Alfaro also argues the district court abused its discretion and violated his constitutional
rights to a jury trial and due process by sentencing him more harshly because he exercised his
right to trial. Because there was apparently no objection before the trial court, we must review
Alfaro’s claim of a vindictive sentence, brought for the first time on appeal, for fundamental
error. State v. Robbins, 123 Idaho 527, 529-30, 850 P.2d 176, 178-79 (1993); State v. Baker, 153
Idaho 692, 695, 290 P.3d 1284, 1287 (Ct. App. 2012); State v. Grist, 152 Idaho 786, 791, 275


                                                 8
P.3d 12, 17 (Ct. App. 2012). To establish fundamental error, the defendant must show the
alleged error violates one or more of the defendant’s unwaived constitutional rights, plainly
exists without the need of additional information not contained within the appellate record, and
affected the outcome of the proceedings. State v. Perry, 150 Idaho 209, 228, 245 P.3d 961, 980
(2010).
          Alfaro’s assertion fails because he has not shown the error is clear in the record. A
sentencing court may not impose a harsher sentence on a defendant for putting the state to its
burden of proof and exercising the right to trial. State v. Kellis, 148 Idaho 812, 814, 229 P.3d
1174, 1176 (Ct. App. 2010); Stedtfeld v. State, 114 Idaho 273, 276, 755 P.2d 1311, 1314 (Ct.
App. 1988); State v. Regester, 106 Idaho 296, 299, 678 P.2d 88, 91 (Ct. App. 1984). A
defendant must prove actual vindictiveness. Robbins, 123 Idaho at 532, 850 P.2d at 181; Baker,
153 Idaho at 695, 290 P.3d at 1287. We look to the totality of the circumstances when reviewing
a record for whether a sentence was imposed vindictively. Baker, 153 Idaho at 695, 290 P.3d at
1287; State v. Brown, 131 Idaho 61, 72, 951 P.2d 1288, 1299 (Ct. App. 1998). Our scope of
review under the totality of the circumstances is narrowly defined:
          [W]e do not view the “totality of circumstances” rule as an invitation for an
          appellate court to weigh the sentence against the entire record and to treat the
          vindictiveness issue as merely a question of abuse of sentencing discretion.
          Rather, we recognize that vindictiveness is a more subtle, narrow question. It
          focuses upon the sentencing judge’s view of the defendant’s decision to plead not
          guilty. That view cannot be determined upon a single remark removed from
          context. The judge’s words and actions must be considered as a whole.

Regester, 106 Idaho at 300, 678 P.2d at 92. A disparity in sentencing among co-defendants in
the same criminal activity does not make the harsher sentence per se excessive or an abuse of
discretion. Stedtfeld, 114 Idaho at 276, 755 P.2d at 1314.
          As noted above, Alfaro was sentenced to a unified term of life, with twenty years
determinate, on the murder conviction and five years determinate for each remaining count, with
all sentences to run concurrently. In arguing the district court imposed a longer sentence in
retaliation for his decision to go to trial, Alfaro focuses on the fact that Alaniz, who actually fired
a weapon at the residence, only received a unified term of fifteen years, with six years
determinate. The “sole distinction,” between Alfaro and Alaniz, Alfaro contends, is that Alaniz
elected to plead guilty and testify against Alfaro. He points out that in sentencing him, the
district court opined that the plea bargained sentence of Alaniz and the other perpetrators did not

                                                  9
serve justice, but that the State had been forced into those agreements because Alfaro had
exercised his right to a jury trial. Alfaro argues that none of the district court’s other rationales,
including deterrence, justified the imposed sentence, and therefore, he asserts the district court
sentenced him more harshly because he exercised his right to trial.
       Alfaro’s conclusion--that the district court imposed his sentence to punish him for
exercising his right to trial--is not supported by the record. The disparity between Alaniz’s and
Alfaro’s sentences was the result of the negotiated sentence reduction for Alaniz’s cooperation
with the State in pleading guilty. It does not follow that the court’s intention in imposing
sentence was to punish Alfaro for proceeding to trial. The district court explicitly recognized the
disparity and expressed concern about how to reconcile it, but ultimately determined, based on
the requisite sentencing objectives, that a twenty-year determinate sentence was appropriate for
the murder conviction. Specifically, the court noted the protection of society was an overarching
concern, deterrence required a longer sentence because a “message” needed to be sent to
individuals in the community that such actions could not be tolerated, and it was a “heinous”
crime that deserved significant retribution. Accord Baker, 153 Idaho at 696, 290 P.3d at 1288
(holding Baker could not show plain error because the record did not demonstrate the district
court based its sentence on Baker’s entry of an Alford 3 plea; rather the court gave consideration
to Baker’s broader failure to accept responsibility and callous attitude toward his offenses, which
made him a danger to the public). The sentences imposed were based on proper statutory
considerations, not on a desire to punish Alfaro for proceeding to trial, and therefore, Alfaro has
failed to show the district court committed fundamental error in imposing sentence.
D.     Cumulative Error
       Finally, Alfaro contends that even if harmless individually, the errors alleged
cumulatively deprived him of his due process right to a fair trial. In order to find cumulative
error, this Court must conclude there is merit to more than one of the alleged errors and then
conclude that these errors, when aggregated, denied the defendant a fair trial. Dunlap v. State,
141 Idaho 50, 66, 106 P.3d 376, 392 (2004). Here, we did not find that any error occurred; thus,
the cumulative error doctrine is not applicable.




3
       See North Carolina v. Alford, 400 U.S. 25 (1970).


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                                               III.
                                        CONCLUSION
       Alfaro has not shown the prosecutor committed misconduct in closing arguments. Nor
has he shown the district court erred in denying his motions for a judgment of acquittal as there
was sufficient evidence presented at trial for a reasonable jury to conclude beyond a reasonable
doubt that Alfaro was the driver of the vehicle involved in the drive-by shooting that resulting in
Chavez’s death. Alfaro has also not shown that the district court committed fundamental error
by imposing a vindictive sentence; the district court based its sentence on the requisite statutory
factors and not on Alfaro’s decision to proceed to trial. Alfaro’s judgment of conviction and
sentences for aiding and abetting first degree murder, two counts of aiding and abetting
aggravated assault, and aiding and abetting unlawful discharge of a firearm at a dwelling and his
sentence enhancement for infliction of great bodily injury are affirmed.
       Judge LANSING and Judge GRATTON CONCUR.




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