         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs October 15, 2003

                 LETIVIAS D. PRINCE v. STATE OF TENNESSEE

                 Direct Appeal from the Circuit Court for Williamson County
                          No. 801-260    Timothy L. Easter, Judge



                    No. M2003-00166-CCA-R3-PC - Filed January 27, 2004


Petitioner, Letivias D. Prince, filed a petition for post-conviction relief, which was subsequently
amended. Following an evidentiary hearing, the trial court dismissed Petitioner’s petition. On
appeal, Petitioner argues the trial court erred in dismissing his petition for post-conviction relief and
contends (1) that his counsel failed to develop a reasonable trial strategy or defenses for Petitioner;
(2) that his counsel failed to fully investigate or adequately prepare the witnesses for trial; (3) that
his counsel failed to allow Petitioner to testify at trial; and (4) that his counsel failed to ask for a
continuance to investigate certain exculpatory evidence presented by the State at the time of trial.
After a thorough review of the record, we affirm the judgment of the post-conviction court.

        Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed

THOMAS T. WOODA LL, J., delivered the opinion of the court, in which DAVID G. HAYES and JERRY
L. SMITH, JJ., joined.

J. Britt Phillips, Franklin, Tennessee, for the appellant, Letivias D. Prince.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
Ronald L. Davis, District Attorney General; and Lee E. Dryer, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                              OPINION

I. Background


        Following a jury trial, Petitioner was convicted of first degree murder and was sentenced to
life imprisonment. The facts surrounding Petitioner’s conviction were summarized by this Court in
the direct appeal in State v. Letivias Prince, No. M1998-00005-CCA-R3-CD, 2000 WL 1133572
(Tenn. Crim. App., Nashville, Aug. 10, 2000), perm. to appeal denied (Tenn. 2001) as follows:
              At approximately 10:30 P.M. on March 8, 1997, Joel Dickerson, directed by
      the victim, Ricky Fly, drove to an area of Franklin to purchase crack cocaine. After
      circling the block several times, they stopped at a street corner to ask a "large black
      man" for a "twenty." When the man responded that there was "nothing going on,"
      they drove away. As they approached the intersection of Glass and Eleventh,
      Dickerson heard between four and six successive gunshots which seemed to be
      coming from some bushes behind his truck. Fly was struck in the back of the head
      by a bullet which came through the rear window. Dickerson drove to a nearby gas
      station and called 911. Neither Dickerson nor the victim were armed. Dickerson did
      have a small pocket knife stored in his glove compartment.

               Police immediately identified the defendant as a suspect. Several hours later,
      he was found hiding in a vehicle. The defendant initially denied any involvement in
      the shooting, but later took officers to the crime scene and admitted that he had fired
      at the truck.

              When interviewed by the police, the defendant stated that two white men in
      a truck had driven through the area asking for crack cocaine. The defendant stated
      that he and his companions had informed the men that they did not sell drugs. He
      claimed that the two men threatened to shoot them and then drove away. He
      contended that the two men came around the block again and appeared to be
      throwing bottles from the truck. The defendant told police that he shot at the truck
      in order to frighten the men. He claimed that after he fired the shots, he took the
      weapon to his home and hid it under a mattress. The police recovered a Lorcin .380
      semiautomatic pistol from the defendant's step-grandfather at the defendant's
      residence.

              At the trial, Marcus Cannon, who was standing at the corner of Glass Street
      and Ninth Avenue, testified that the men in the truck also asked him to sell them
      some drugs. He claimed that when he informed them that he had none, they
      threatened to kill someone. Cannon contended that he warned the defendant and his
      friends about the two men. Defense witnesses claimed that the two men in the truck
      turned off the lights as if to do a "drive by shooting" on their third trip around the
      block.

              Dickerson's truck contained four different bullet holes. Two bullets were
      imbedded in the truck, one in the passenger door, and another in the left rear wheel
      well. One bullet and seven lead bullet jackets were recovered from the scene of the
      shooting. The state's expert testimony established that all three bullets and four of the
      seven shells had been fired from the Lorcin .380 pistol. The other three shells were
      very close to a match. Other than Dickerson's small pocket knife located in the glove
      compartment, there were no weapons in the truck.

Prince, 2000 WL 1133572, *1-2.

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       On appeal, this Court found that the evidence was sufficient to support Petitioner’s
conviction for first degree murder. Id. at *10.

II. Post-Conviction Hearing

          In his pro se post-conviction petition, as amended by his counsel, Petitioner argued that his
counsel rendered ineffective assistance at trial. Specifically, Petitioner contends that his counsel
failed to develop a reasonable trial strategy or defense, failed to adequately prepare Petitioner’s
witnesses for trial or investigate the substance of their testimony, failed to allow Petitioner to testify
at trial, and failed to request a continuance when provided with exculpatory evidence by the State
during the trial.

       At the post-conviction hearing, Petitioner’s counsel at trial, Mark Scruggs, testified that he
had twenty years of legal experience and had handled twenty to twenty-five criminal trials. Since
1988, Mr. Scruggs’ practice has focused primarily on criminal matters.

        Mr. Scruggs said that he first represented Petitioner in 1996 on some unrelated charges. Mr.
Scruggs agreed to represent Petitioner on the current charges in the spring of 1997. Mr. Scruggs
hired Charles Scott, an investigator, to assist him in the preparation for trial and began investigating
the matter immediately. Petitioner’s mother introduced Mr. Scruggs to the potential witnesses, and
either he or Mr. Scott interviewed all of the witnesses prior to trial.

        Petitioner’s family was very involved in the development of Petitioner’s case. They believed
Petitioner should be charged with no more than the offense of manslaughter. The State offered to
reduce the charge against Petitioner to second degree murder during plea negotiations, but after
discussions with Petitioner and his family members, the offer was rejected by Petitioner. Mr.
Scruggs did not view the case as one of premeditation. His decision to put on a defense at the close
of the State’s proof was based on the family’s desire to avoid a conviction of second degree murder.

         Mr. Scruggs presented alternative theories of defense as part of his trial strategy. Mr. Scruggs
first argued that Petitioner was not the one who fired the bullet that killed the victim. Although the
State recovered a slug from the scene which matched the caliber of Petitioner’s gun, there was no
DNA evidence to tie the slug to the victim’s injuries. Testimony placed Marcus Cannon in the
vicinity of the shooting with a gun, and one of the witnesses heard a shot fired from Mr. Cannon’s
direction.

        Alternatively, if the jury believed that Petitioner fired the bullet that killed the victim, then
there was some evidence supporting an argument that Petitioner acted in self-defense. The primary
evidence supporting this defense was Petitioner’s statement to the police in which he admitted that
he hid behind a tree and fired his gun in the air as the truck drove by. Mr. Scruggs admitted that an
argument based on self-defense was arguably weak. However, Mr. Scruggs felt that Petitioner’s
statement did not indicate that Petitioner had lain in wait for the truck to return. There was testimony
that Mr. Dickerson and Mr. Fly threw things out of the truck’s windows as they circled the block.


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Mr. Scruggs wanted to show how chaotic and tense the situation was that night, and the fact that no
two witnesses described the sequence of events in the same way helped create that picture. The
ultimate goal of presenting alternative theories of defense was to provide the jury with sufficient
justification to convict on a lesser-included offense.

         Mr. Scruggs said that either he or Mr. Scott interviewed all of the defense’s witnesses prior
to trial and felt that the testimony was favorable to Petitioner. Their testimony supported a theory
that the shooting occurred spontaneously during a tense encounter and that perhaps Petitioner had
simply panicked that night. None of the witnesses gave Mr. Scruggs an impression that the shooting
was premeditated or that Petitioner had lain in wait for the truck as it circled the block.

         The erosion of Petitioner’s self-defense theory occurred during the cross-examination of
Timothy Prince, Petitioner’s first cousin, who was called as a witness for the defense. Mr. Prince
testified that he and Petitioner hid when the truck circled the block the second and third times.
Although he ran away to a neighboring house, Mr. Prince saw Petitioner hide in some bushes when
the truck passed. He said that Petitioner stepped out of the bushes when the truck returned and fired
his gun directly at the truck. Mr. Scruggs said that none of the witnesses, including Mr. Prince, told
him that Petitioner hid and then fired directly at the truck. On cross-examination, Mr. Scruggs said
that he would not have called Mr. Prince as a witness if he had known that Mr. Prince would say at
trial that Petitioner had hidden prior to shooting at the truck.

         Mr. Scruggs said that he only spoke briefly with Petitioner about whether or not he would
testify at trial. The decision was not made until the trial, and Mr. Scruggs said he just leaned over
and told Petitioner he did not think he should testify. Petitioner agreed with Mr. Scruggs’
recommendation. Mr. Scruggs explained that he did not feel that Petitioner could elaborate any
further on the details contained in his statement, and the statement at least was not subject to cross-
examination. In retrospect, Mr. Scruggs said that he wished Petitioner had testified, primarily so that
Petitioner could establish a rapport with the jury. He admitted, however, that Petitioner’s prior drug
convictions would probably be disclosed during cross-examination and that Petitioner would not be
an articulate witness.

        Joel Dickerson was the driver of the truck. At the conclusion of his testimony at trial, the
State provided Mr. Scruggs with a copy of Mr. Dickerson’s prior statement to the police as Jencks
material. In his trial testimony, Mr. Dickerson said that the shooting occurred shortly before he
reached the stop sign at the intersection of Eleventh and Glass. In his prior statement, however, Mr.
Dickerson said that the shooting occurred further down the road at the corner of Ninth and Glass.
In addition, Mr. Dickerson’s description of the shooter varied between that given in his trial
testimony and the description previously provided the police. Mr. Scruggs said that he probably
should have requested a continuance because Mr. Dickerson’s statement supported Petitioner’s
theory that Mr. Cannon was the shooter. All the other witnesses, however, testified that the shooting
occurred at Eleventh Street, and the shell casings were found at that intersection.




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        Judge Donald P. Harris, a judge with the Williamson County circuit court, presided over
Petitioner’s trial and was called to testify at the post-conviction hearing. Judge Harris recalled that
he thought the evidence supporting premeditation was not very strong when the State rested its case.
He recollected that the driver of the truck had testified that he had driven by the scene of the shooting
once and that six or seven shots were fired. There was no evidence showing any contact between
Petitioner and the victim. Judge Harris, however, denied Petitioner’s motion for a judgment of
acquittal because the evidence showed that numerous shots had been fired in quick succession.
Judge Harris, however, observed that he was not sure if he could approve a verdict of first degree
murder in his capacity as thirteenth juror based on the evidence presented at the close of the State’s
proof.

         After the defense’s witnesses had testified, however, Judge Harris viewed the State’s case
of first degree murder as much stronger. He recalled that one of the defense witnesses said that the
truck circled the block several times, that Petitioner hid behind a tree, and that Petitioner then
stepped out and began shooting. Judge Harris said that he did not remember the issues concerning
Mr. Dickerson’s prior statement and could not say whether or not he would have granted a
continuance had Mr. Scruggs requested one. Judge Harris said that he never felt that Mr. Scruggs’
representation of Petitioner during the trial was anything less than competent.

        A number of the defense’s witnesses at trial testified at the post-conviction hearing. Dwight
Wall, Allen Prince and Tanya Andrews testified that they could not remember if they talked with
either Mr. Scruggs or Mr. Scott prior to trial. Shalandra Fitzgerald and Kizzy Wall said that they
talked to Mr. Scruggs and Mr. Scott prior to trial but were not adequately prepared to testify. On
cross-examination, both witnesses however, said that they would not have testified any differently
had their discussions with Mr. Scruggs been more lengthy.

         Timothy Prince testified that he told Mr. Scott about Petitioner hiding in the bushes prior to
trial. He also told Mr. Scott that Mr. Cannon yelled at him to warn him that the men in the truck
were coming back, and that Mr. Cannon was standing “five to ten miles” down the road when he
called out his warning. Mr. Prince said that no one told him what questions would be asked prior
to the trial.

        At the post-conviction hearing, Petitioner said that he did not testify at trial because Mr.
Scruggs said that it would not be “good” if he did. He said that Mr. Scruggs made the decision.
After the witnesses for the defense testified, Petitioner said that he wanted to testify but did not bring
up the subject because Mr. Scruggs had already told him he was not going to testify. Petitioner relied
on Mr. Scruggs’ advice. On cross-examination, Petitioner said that he did not tell Mr. Scruggs that
he wanted to testify.

        Joe Baugh, an attorney in Franklin, who was district attorney general at the time of
Petitioner’s trial and handled the prosecution of the matter, testified at the post-conviction hearing.
Mr. Baugh said that he recalled that the discrepancies between Mr. Dickerson’s trial testimony and



                                                   -5-
his statement to the police were not, in his opinion, significant. He said that he did not know why
the State waited until the trial to provide the defense with a copy of Mr. Dickerson’s statement.

       John Berringer, a member of the State’s prosecution team, said that the State decided to let
the defense call the witnesses who testified on Petitioner’s behalf so that they would have the
opportunity to ask leading questions during cross-examination.

         At the conclusion of the post-conviction hearing, the trial court denied Petitioner’s petition
for post-conviction relief. The trial court found that Mr. Scruggs’ strategy based on self-defense was
entirely reasonable based on the evidence discovered prior to trial and Petitioner’s own statement.
The evidence also supported an alternative shooter theory. Petitioner failed to present any other
strategy that would have led to a more favorable result. The trial court accredited Mr. Scruggs’
testimony that he interviewed all of the witnesses, including Timothy Prince, prior to trial. Further,
the witnesses failed to demonstrate any prejudice from a lack of preparation. The fact that Mr.
Prince’s testimony proved to be damaging at trial did not by itself support a finding that Mr. Scruggs
was ineffective. The trial court found that Petitioner also failed to demonstrate that his counsel’s
assistance was ineffective concerning Petitioner’s right to testify at trial. Specifically, the trial court
found that Mr. Scruggs consulted with Petitioner about this decision before the trial, and that
Petitioner accepted Mr. Scruggs’ recommendation that he not testify. Based on the video transcript
of the trial, the trial court found that Petitioner failed to prove that the results of his trial would have
been different had Mr. Scruggs asked for a continuance when he received a copy of Mr. Dickerson’s
prior inconsistent statement. Furthermore, the trial court found that “[Mr.] Scruggs skillfully used
the statement in an effective cross-examination of [Mr.] Dickerson.

III. Standard of Review

        A petitioner seeking post-conviction relief must establish his allegations by clear and
convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997). The trial court’s findings of fact in
a post-conviction hearing are afforded the weight of a jury verdict. Black v. State, 794 S.W.2d 752,
755 (Tenn. Crim. App. 1990). Therefore, this Court may not re-weigh or re-evaluate these findings
nor substitute its inferences for those of the trial judge unless the evidence in the record
preponderates against those findings. State v. Honeycutt, 54 S.W.3d 762, 763 (Tenn. 2001); State
v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). In addition, questions concerning the credibility of
witnesses and the weight and value given their testimony is resolved by the trial court, and not this
Court. Id. However, the trial court’s application of the law to the facts is reviewed de novo, without
a presumption of correctness. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). A claim that counsel
rendered ineffective assistance is a mixed question of fact and law and therefore also subject to de
novo review. Id.; Burns, 6 S.W.3d at 461.

       When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, he must establish that counsel’s performance fell below “the range of competence
demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). In
addition, he must show that counsel’s ineffective performance actually adversely impacted his


                                                    -6-
defense. Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 2067, 80 L. Ed. 2d 674
(1984). In reviewing counsel’s performance, the distortions of hindsight must be avoided, and this
Court will not second-guess counsel’s decisions regarding trial strategies and tactics. Hellard v.
State, 629 S.W.2d 4, 9 (Tenn. 1982). The reviewing court, therefore, should not conclude that a
particular act or omission by counsel is unreasonable merely because the strategy was unsuccessful.
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Rather, counsel’s alleged errors should be judged
from counsel’s perspective at the point of time they were made in light of all the facts and
circumstances at that time. Strickland, 466 U.S. at 690, 104 S. Ct. at 2066.

        A petitioner must satisfy both prongs of the Strickland test before he or she may prevail on
a claim of ineffective assistance of counsel. See Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997).
That is, a petitioner must not only show that his counsel’s performance fell below acceptable
standards, but that such performance was prejudicial to the petitioner. Id. Failure to satisfy either
prong will result in the denial of relief. Id. Accordingly, this Court need not address one of the
components if the petitioner fails to establish the other. Strickland, 466 U.S. at 697, 104 S. Ct. at
2069.

IV. Trial Strategy and Preparation of Witnesses

         Petitioner argues that Mr. Scruggs provided ineffective assistance of counsel in the
development of a reasonable trial strategy and the preparation of Petitioner’s witnesses for trial. The
crux of Petitioner’s argument revolves around the damaging testimony elicited from Timothy Prince
during the State’s cross-examination. Judge Harris testified that he felt the State’s proof as to
premeditation was weak and he did not know if he could have approved a verdict of first degree
murder in his capacity as thirteenth juror. After the testimony of the defense witnesses, however,
Judge Harris felt the State’s case supporting a verdict of first degree murder was much stronger.
Petitioner argues that Mr. Scruggs’ decision to pursue a trial strategy based on self-defense resulted
from inadequate preparation. Mr. Prince testified that he told Mr. Scott that Petitioner hid behind
some bushes and then shot directly at Mr. Dickerson’s truck prior to trial. Petitioner argues that
since Mr. Prince said that Mr. Cannon was five to ten miles away when he warned Petitioner and Mr.
Prince that the truck was returning shows that Mr. Scruggs did not adequately prepare Mr. Prince
to testify at trial.

        The fact that the testimony of a witness at trial proves less than helpful to the defense does
not necessarily lead to the conclusion that a defendant’s counsel was ineffective either in
investigating, preparing or calling the witness. “It is all too tempting for a defendant to second-guess
counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining
counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of
counsel was unreasonable.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Rather, we must
“evaluate the conduct from counsel’s perspective at the time” in light of all of the circumstances
faced by counsel at the time the decision was made. Id., 466 U.S. at 688, 104 S. Ct. at 2065.




                                                  -7-
        Counsel has the duty to make reasonable investigations into the case and to raise all available
defenses in a timely manner. State v. Burns, 6 S.W.3d 453, 462 (Tenn. 1999), (quoting Strickland,
466 U.S. at 691, 104 S. Ct. at 2052; Baxter, 523 S.W.2d at 932-33). Although counsel’s decisions
are entitled to a heavy measure of deference, uninformed choices based on inadequate preparation
may constitute ineffective assistance. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982) (quoting
United States v. DeCoster, 487 F.2d 1197, 1201 (D. C. Cir. 1973)).

         Mr. Scruggs testified that he began investigating Petitioner’s case as soon as he was retained.
Either he or Mr. Scott, or both, interviewed all of the witnesses. Petitioner’s mother assisted in
gathering the witnesses together and making them available to Mr. Scruggs and his investigator.
These interviews did not indicate any unfavorable testimony to Petitioner’s case. Mr. Scruggs
testified that if he had known Mr. Prince was going to testify as he did, he would not have called Mr.
Prince as a witness.

        There is no doubt that Mr. Prince’s testimony at trial was damaging. The trial court,
however, found that Mr. Scruggs interviewed all of the witnesses prior to trial and adequately
prepared for trial. In so doing, the trial court specifically accredited Mr. Scruggs’ testimony that Mr.
Prince did not tell him prior to trial that Petitioner was “hiding in the bushes.” The trial court had
the opportunity to view the demeanor of both Mr. Scruggs and Mr. Prince at the post-conviction
hearing. Questions concerning the credibility of witnesses and the weight and value to be given to
their testimony are resolved by the post-conviction court, not this Court. Burns, 6 S.W.3d at 461.

        The trial court further found that Mr. Scruggs presented reasonable alternative theories of
defense based on the information gathered from the witnesses and Petitioner’s statement to the
police. “The reasonableness of counsel’s actions may be determined or substantially influenced by
the defendant’s own actions or statements.” Strickland, 466 U.S. at 691, 104 S. Ct. at 2066. The
fact that even Mr. Scruggs, in hindsight, regrets putting on a defense at the close of the State’s proof
does not render his decision ill advised when viewed under the circumstances present at the time of
trial. See Hellard. 629 S.W.2d at 9-10.

        Based on a thorough review of the record, we find that the evidence does not preponderate
against the trial court’s finding that Mr. Scruggs’ assistance during the preparation and course of
Petitioner’s trial was effective and within the range of competence demanded of attorneys in criminal
cases. Petitioner is not entitled to relief on this issue.

V. Right to Testify

       Petitioner concedes that the procedures established in Momon v. State, 18 S.W.3d 152 (Tenn.
1999) to safeguard a defendant’s right to testify were not applicable in 1997 when Petitioner’s trial
occurred. Nonetheless, Petitioner argues that his right to testify is a fundamental right which may
only be personally waived. Id. at 161. Petitioner contends that Mr. Scruggs unilaterally made the
decision that Petitioner would not testify even though Petitioner wanted to testify after the damaging



                                                  -8-
testimony of the defense witnesses. Petitioner points out that he was eighteen years old at the time
of the trial and relied solely on the advice of his counsel.

         Mr. Scruggs testified that he did not have a lengthy discussion with Petitioner concerning
whether or not Petitioner would testify. He said, however, that they did discuss the benefits and
disadvantages attendant on Petitioner testifying. At the time, Mr. Scruggs felt that taking the stand
would not be in Petitioner’s best interest. Petitioner’s statement was already in the record and not
subject to cross-examination. In retrospect, Mr. Scruggs said that perhaps Petitioner should have
testified if for no other reason than to personalize the situation. Mr. Scruggs conceded, however, that
Petitioner had two prior drug convictions which would threaten any rapport he might establish with
the jury. Mr. Scruggs also admitted that Petitioner was not very articulate.

        The trial court accredited the testimony of Mr. Scruggs over that of Petitioner and found that
the record showed that Mr. Scruggs recommended to Petitioner that he not testify at trial, and that
Petitioner accepted that recommendation. Moreover, the trial court found that Petitioner had
previously been explained about his right to testify in another criminal proceeding. The evidence
does not preponderate against the trial court’s implicit finding that Petitioner made an informed
decision not to testify, and Petitioner is not entitled to relief on this issue.

VI. Failure to ask for a Continuance

        Following the conclusion of Mr. Dickerson’s testimony, the State provided Mr. Scruggs with
a copy of Mr. Dickerson’s prior statement to the police which contained both a different description
of the shooter and a different location for the shooting. Mr. Scruggs asked for a ten minute recess
to review the statement and then cross-examined Mr. Dickerson at length concerning the
discrepancies between his trial testimony and his statement to the police. Petitioner speculates that
further investigation of Mr. Dickerson’s earlier statement would have bolstered Petitioner’s
contention that another person fired the fatal shots.

        The trial court found that Mr. Scruggs’ cross-examination of Mr. Dickerson at trial as to the
discrepancies between his statement and his trial testimony was both skillful and effective.
Petitioner did not demonstrate at the post-conviction hearing that a continuance would have
produced any different result or produced anything to benefit him. See Best v. State, 708 S.W.2d
421, 422 (Tenn. Crim. App. 1985). The evidence does not preponderate against the trial court’s
finding that Petitioner failed to prove that he was prejudiced by Mr. Scruggs’ failure to ask for a
continuance. Petitioner is not entitled to relief on this issue.

                                          CONCLUSION

       After a thorough review of the record, we affirm the judgment of the trial court.

                                                       ____________________________________
                                                       THOMAS T. WOODALL, JUDGE


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