                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                          September 26, 2017




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 STATE OF WASHINGTON,                                                 No. 49164-8-II

                                Respondent,

         v.

 ROBERT RICHARD REED,                                           UNPUBLISHED OPINION

                                Appellant.

       JOHANSON, P.J. — Robert Reed appeals his convictions for second degree child rape and

second degree child molestation. He argues that his attorney provided ineffective assistance of

counsel for (1) failing to elicit certain testimony regarding the victim’s prior abuse by a third party

and (2) failing to object to the prosecutor’s improper “vouching” for the victim during closing

statements. Reed also argues that (3) even if neither ineffective assistance claim succeeds,

cumulative errors at trial warrant reversal. Because all of Reed’s arguments fail, we affirm.
No. 49164-8-II


                                             FACTS

                                        I. BACKGROUND

       After living with his father, Reed, for two months, 12-year-old JR1 reported that Reed was

sexually abusing him. After a jury trial, Reed was convicted of second degree child rape and

second degree child molestation.

                            II. STATE WITNESSES’ TRIAL TESTIMONY

       In 2003, JR’s mother, Michelle Crippen, and Reed divorced. Reed had no contact with JR

until 2013. During the summer of 2013, when JR was 12 years old, he expressed a desire to meet

his father, and his mother arranged a meeting. JR and Reed began to meet more often and,

eventually, JR began spending weekends and Wednesdays with Reed. JR at the time lived with

his grandmother, Jeanette Gilson, when he was not with Reed.

       In October 2013, JR went to live with Reed full time when JR’s grandmother was having

a difficult time managing JR’s behavioral issues. JR lived with Reed in October and November

2013. During JR’s visits and while JR lived with Reed, Reed touched JR’s private parts in the

shower and forced JR to engage in a number of sexual activities, including performing and

receiving oral sex with Reed.

       Over Thanksgiving weekend in 2013, JR told his grandmother about Reed’s sexual abuse.

JR’s grandmother contacted JR’s mother, and the police began to investigate the abuse allegation.

       In December 2013, Kristen Mendez at the Children’s Justice and Advocacy Center

conducted a forensic interview of JR. The interview was observed by Detective Todd McDaniel



1
 We refer to the juvenile victim by his initials to protect his privacy interests. Gen. Order 2011–
1 of Division II, In re Use of Initials or Pseudonyms for Child Witnesses in Sex Crime Cases
(Wash. Ct. App.).
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No. 49164-8-II


of the Cowlitz County Sheriff’s Office. Detective McDaniel investigated further and interviewed

Reed. Reed was charged with second degree child rape and second degree child molestation.

       At trial, JR testified regarding the details of his sexual abuse by Reed. During cross-

examination, Reed’s counsel asked JR about the quality of his memory. Reed’s counsel asked JR

about his prior hospitalization for behavior problems and asked about specific instances of JR’s

prior behavior issues. Reed’s counsel confronted JR about whether he voluntarily, without Reed’s

prompting, put his face in Reed’s private parts, touched Reed’s butt, and exposed his penis to Reed.

JR denied ever engaging voluntarily in these activities. Reed’s counsel also asked JR whether he

had the door open when he went to the bathroom at Reed’s home, and JR denied this. In addition,

Reed’s attorney asked JR whether anyone told JR what to say when he testified. JR responded,

“[G]randma only told me to tell the truth.” 3 Report of Proceedings (RP) at 176. Reed’s counsel

also asked about Christmas presents that JR allegedly received after he stopped living with Reed.

       Reed’s attorney asked JR about one of his mother’s former boyfriends named Joe, and JR

stated that the former boyfriend was JR’s “friend.” 3 RP at 172. Reed’s attorney also asked if he

had been babysat by Kizzy Woodard, and JR said he had. Reed’s attorney did not ask JR whether

he told Woodard about prior abuse by his mother’s boyfriend.

       Several witnesses, including JR’s mother, his former special education teacher Shawna

Driscoll, and the forensic interviewer Mendez testified at trial regarding JR’s behavior issues and

disabilities. JR’s mother testified that he suffered from autism and attention deficit hyperactivity

disorder (ADHD) and that his maturity level was equivalent to that of a typical 8- or 9-year-old.

JR’s former special education teacher Driscoll testified that she taught JR when he was in seventh

and eighth grade but that he was developmentally disabled and was reading at a first-grade level


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No. 49164-8-II


and doing math at a second- or third-grade level. Driscoll stated that JR could only develop simple

plans. Mendez, who had forensically interviewed JR and had experience interviewing almost a

thousand children, testified that during her interview with JR, she noticed his manner of speaking

and behaviors were less mature than the average 12-year-old. She stated that because JR was less

mature for his age level, she interviewed him like she would interview an 8- to 10-year-old to make

sure he understood. Officer McDaniel testified that during his interview of Reed, Reed stated that

JR was 12 but read at a first-grade level.

                       III. DEFENSE WITNESSES’ TRIAL TESTIMONY

       When JR lived with Reed, Reed’s neighbor, Woodard, took care of JR on weekday

mornings after Reed left for work. Woodard woke JR up, made him breakfast, gave him medicine,

and escorted him to the school bus.

       Just before Woodard was called as a witness, the prosecutor informed the court that Reed’s

attorney intended to have Woodard testify that JR told her that “his mom’s boyfriend did bad things

to him.” 5 RP at 433. The court ruled that JR did not have an opportunity under ER 613 to confront

the out-of-court statement for the statement to be admitted and also held that Woodard could not

testify to hearsay from JR. Reed’s attorney stated that he would instruct Woodard not to “say

something she’s not supposed to and what she cannot say.” 5 RP at 439.

       When Woodard testified, Reed’s counsel asked whether Reed provided any information

about JR to Woodard so that she would be better prepared to babysit him. Woodard responded

that Reed had told her that “there are certain things that [JR] had been through and certain things

to watch for. . . . He was molested by the mother’s boyfriend, ex-boyfriend, or fiancé, and that he




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No. 49164-8-II


would do things to himself, sort of watch for that.” 5 RP at 452. On cross-examination, the State

engaged with the following exchange with Woodard:

       [State].       The defendant told you his -- the defendant, Mr. Reed, told you
                      that [JR’s] mom’s boyfriend --
       [Woodard].     [JR] also told me as well, sir.
                      [Defense Counsel]. Objection.
       [Woodard].     I’m sorry.
       [State].       You need to answer my question.
       [Woodard].     Okay. Yes, sir.
       [State].       Did he tell you his mom’s boyfriend molested him? That’s what
                      you testified to to the attorney.
       ....
       [Woodard].     Yes, sir.

5 RP at 457.

       The court did not rule on the objection and the testimony was heard by the jury.

       Reed testified that he told Woodard that he believed JR had been molested by someone and

stated that it was possibly one of JR’s mother’s ex-boyfriends. However, Reed did not testify that

JR had disclosed this abuse to him, only that “it was my opinion.” 5 RP at 542. When asked

whether he had told Woodard that JR was certainly abused by one of the ex-boyfriends, Reed said

no.

       Reed also testified that JR had voluntarily exhibited sexual behaviors including putting his

face in Reed’s private parts, touching Reed’s butt, exposing his penis to Reed, and watching Reed

shower. Reed also testified that JR’s grandmother and mother were using JR to frame Reed.

                                  IV. CLOSING ARGUMENT

       During closing argument, the prosecutor stated that JR was developmentally disabled and

had autism and ADHD.         The prosecutor referred to testimony regarding JR’s challenges

controlling emotions when his routine was disrupted. The prosecutor argued that JR’s behavior


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No. 49164-8-II


difficulties did not make him “more likely to come with some master plan or some scheme to

frame his father.” 5 RP at 584. The prosecutor argued that this would not be expected of someone

with a developmental disability:

       [E]ven though he’s 12 years old at the time this happened, he’s more like maybe an
       eight-year-old or something like that range maturity-level-wise. . . .
                ....
                That doesn’t make him somehow more likely to concoct something like
       that. If anything, it makes it less likely because he doesn’t have the sophisticated
       thought to come up with that type of plan that sort of is. So . . . a master plan . . .
       it’s just not going to happen with him.
                And the other part is when a child is young or at a young level, they say
       things straight out, it’s like the child who sees the person at the grocery store and
       says something you wish they hadn’t said if you’ve had a young child like someone
       is wearing something funny or why is that person doing that.
                At his lower maturity level, it’s similar. He’s going to be just speaking
       things straight out.

5 RP at 583-84.

       Reed’s counsel did not object to the prosecutor’s remarks during closing argument.

       In Reed’s closing argument, his counsel asserted, “We don’t know if [Reed] did what [JR]

said he did, or if somebody else did it and [JR] is taking it out on [Reed] by blaming him for things

that are frustrating him that have been going on in his life for a long period of time.” 5 RP at 604.

Reed’s counsel argued that JR’s ongoing behavior issues resulted from abuse by a third party,

saying, “Who was [JR] reacting to? What has happened to him in the past? Did he just start acting

out when he got together with [Reed], or had he been acting out all of his entire life.” 5 RP at 608.

Reed specifically named JR’s mother’s previous boyfriends and suggests that they may be the

actual source of the abuse, saying, “It could have been this fellow named Joseph, it could have

been Brent [Crippen’s ex-boyfriend], it could have been anybody. It’s a private-type situation.




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No. 49164-8-II


Nobody knows who did it. It sounds like somebody certainly did something.” 5 RP (Apr. 15,

2016) at 613.

                                            ANALYSIS

                             I. INEFFECTIVE ASSISTANCE OF COUNSEL

       Reed argues that he received ineffective assistance of counsel when his attorney (1) failed

to question JR about statements he allegedly made to his neighbor regarding prior abuse by his

mother’s boyfriend and (2) failed to object to the prosecutor’s “improper vouching” during closing

argument. Br. of Appellant at 31. We disagree because, even assuming without deciding that

there was error, there is no prejudice.

                                          A. RULES OF LAW

       Ineffective assistance of counsel is a mixed question of law and fact that we review de

novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). The federal Sixth Amendment

protects defendants from ineffective assistance of counsel. Strickland v. Washington, 466 U.S.

668, 684-85, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

       To establish a claim of ineffective assistance of counsel, a defendant must show (1) that

counsel’s performance was deficient and (2) the deficient performance prejudiced the defense.

State v. Carson, 184 Wn.2d 207, 216, 357 P.3d 1064 (2015). “A failure to satisfy either prong is

fatal to an ineffective assistance of counsel claim.” State v. McLean, 178 Wn. App. 236, 246, 313

P.3d 1181 (2013) (citing Strickland, 466 U.S. at 687).

       A defendant establishes prejudice by showing that there is a reasonable probability that the

result of the proceeding would have been different but for counsel’s deficient performance. State

v. Grier, 171 Wn.2d 17, 34, 246 P.3d 1260 (2011). “‘A reasonable probability is a probability


                                                 7
No. 49164-8-II


sufficient to undermine confidence in the outcome.’” Grier, 171 Wn.2d at 34 (quoting Strickland,

466 U.S. at 694).

                                          B. NO PREJUDICE

       Reed appears to argue that he was prejudiced by his counsel’s failure to question JR about

the prior abuse because he was denied the opportunity to “fully cross-examine [JR] to determine

his credibility and to introduce relevant evidence that would assist the jury in determining [his]

credibility.” Br. of Appellant at 29. Reed says he was denied the opportunity to show that a third

party was actually the source of JR’s abuse, which denied him the ability to present a full defense.

       However, there was no prejudice to Reed from the alleged ineffective assistance of counsel

because the neighbor testified to both (1) Reed’s statement to the neighbor that the victim told

Reed about prior abuse by the mother’s boyfriend and (2) the victim’s statement to the neighbor

that he had been abused by the mother’s boyfriend. Reed, in his own statement of facts, states,

“[JR] also told Ms. Woodard that he had been molested by one of Ms. Crippen’s boyfriends,” and

he cites to the trial transcript of Woodard’s testimony. Br. of Appellant at 9-10. Thus, Reed

acknowledges that Woodard did, in fact, testify to the very matter that Reed now claims his counsel

failed to elicit. So the jury heard the very testimony that Reed now claims was not admitted. While

he is correct that the judge directed Reed’s counsel not to ask Woodard about the statements, she

offered it in testimony and the trial court admitted it.

       In addition, Reed was not denied the opportunity to fully cross-examine JR. As discussed

above, Reed’s counsel cross-examined JR extensively. Furthermore, Reed’s counsel argued at

length that a third party, and not Reed, was responsible for JR’s abuse. In Reed’s closing argument,

his counsel asserted, “We don’t know if [Reed] did what [JR] said he did, or if somebody else did


                                                   8
No. 49164-8-II


it and [JR] is taking it out on [Reed] by blaming him for things that are frustrating him that have

been going on in his life for a long period of time.” 5 RP at 604. Reed’s counsel argued that JR’s

ongoing behavior issues resulted from abuse by a third party: “Who was [JR] reacting to? What

has happened to him in the past? Did he just start acting out when he got together with [Reed], or

had he been acting out all of his entire life.” 5 RP at 608. Reed even specifically named JR’s

mother’s previous boyfriends and suggested that they may be the actual source of the abuse,

saying, “It could have been this fellow named Joseph. It could have been Brent [Crippen’s ex-

boyfriend], it could have been anybody. It’s a private-type situation. Nobody knows who did it.

It sounds like somebody certainly did something.” 5 RP at 613. Furthermore, Reed’s counsel

generally argued that JR was not credible due to his behavioral issues and disabilities. He also

stated that JR could not answer open-ended questions which suggested he had been coached.

       Given these statements by Reed’s counsel, Reed was able to fully argue that a third party

abused JR and that JR was not a credible witness. Despite hearing these arguments, the jury

convicted Reed. Thus, Reed was not prejudiced because there is no reasonable probability that

the result of the proceeding would have been different but for counsel’s failure to question JR

about his statements of prior abuse. See Grier, 171 Wn.2d at 34.

                          C. FAILURE TO OBJECT TO “IMPROPER VOUCHING”

       Reed and the State agree that Reed’s counsel failed to object to the prosecutor’s closing

argument and thus waived a claim of prosecutorial misconduct on appeal. However, Reed asserts

that in failing to object to the closing argument, Reed’s attorney provided ineffective assistance of

counsel. We reject this argument.




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No. 49164-8-II


1.     RULES OF LAW

       When a defendant bases his or her ineffective assistance of counsel claim on a trial

counsel’s failure to object, the defendant must show that the objection would have succeeded.

State v. Gerdts, 136 Wn. App. 720, 727, 150 P.3d 627 (2007).

       A defendant has a fundamental right to a fair trial. U.S. CONST. amends. VI, XIV; WASH.

CONST. art. 1, § 22. This right may be denied if the prosecutor engages in misconduct. In re Pers.

Restraint of Glasmann, 175 Wn.2d 696, 703-04, 286 P.3d 673 (2012).                 To prevail on a

prosecutorial misconduct claim, a defendant must prove that the prosecutor’s conduct was both

improper and prejudicial. Glasmann, 175 Wn.2d at 704. Prejudice is established if there is a

substantial likelihood that the misconduct affected the jury’s verdict. State v. Dhaliwal, 150 Wn.2d

559, 578, 79 P.3d 432 (2003); State v. Stenson, 132 Wn.2d 668, 718-19, 940 P.2d 1239 (1997). In

addition, if the defendant did not object to a prosecutor’s conduct at trial, the defendant is deemed

to have waived the error unless the misconduct was so flagrant and ill intentioned that an

instruction could not have cured the resulting prejudice. State v. Emery, 174 Wn.2d 741, 760-61,

278 P.3d 653 (2012).

       In closing argument, the prosecutor has “‘wide latitude in making arguments to the jury

and prosecutors are allowed to draw reasonable inferences from the evidence.’” State v. Fisher,

165 Wn.2d 727, 747, 202 P.3d 937 (2009) (quoting State v. Gregory, 158 Wn.2d 759, 860, 147

P.3d 1201 (2006), overruled by State v. W.R., Jr., 181 Wn.2d 757, 336 P.3d 1134 (2014)). The

trial court reviews the prosecutor’s closing argument “in the context of the entire argument, the

issues in the case, the evidence addressed in the argument, and the jury instructions.” State v.

Sakellis, 164 Wn. App. 170, 185, 269 P.3d 1029 (2011) (citing Dhaliwal, 150 Wn.2d at 578).


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No. 49164-8-II


       A prosecutor commits misconduct by personally vouching for a witness’s credibility or

veracity. State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995). “Improper vouching generally

occurs (1) if the prosecutor expresses his or her personal belief as to the veracity of the witness or

(2) if the prosecutor indicates that evidence not presented at trial supports the witness’s testimony.”

State v. Ish, 170 Wn.2d 189, 196, 241 P.3d 389 (2010) (emphasis added). When a prosecutor

argues only facts in evidence or suggest reasonable inferences from the evidence, there is no

misconduct. See State v. Smith, 104 Wn.2d 497, 510-11, 707 P.2d 1306 (1985). Prejudicial error

will not be found for improper vouching unless it is “‘clear and unmistakable’ that counsel is

expressing a personal opinion.” Brett, 126 Wn.2d at 175 (quoting State v. Sargent, 40 Wn. App.

340, 344, 698 P.2d 598 (1985)).

       A prosecutor’s remarks, even if they would otherwise be improper, are not misconduct if

they were “‘invited, provoked, or occasioned’” by defense counsel. State v. Davenport, 100 Wn.2d

757, 761, 675 P.2d 1213 (1984) (quoting State v. La Porte, 58 Wn.2d 816, 822, 365 P.2d 24

(1961)).

2.     NO DEFICIENCY: FAILURE TO OBJECT TO “IMPROPER VOUCHING”

       Reed argues that his counsel was deficient in failing to object to the prosecutor’s closing

argument. Specifically, Reed asserts that his counsel should have objected to the prosecutor’s

following arguments:

       “Even though he’s 12 years old at the time this happened, he’s more like maybe an
       eight-year-old or something like that range maturity-level-wise. . . . That doesn’t
       make him somehow more likely to concoct something like that. If anything, it
       makes it less likely because he doesn’t have the sophisticated thought to come up
       with that type of a plan that sort of is. So . . . a master plan . . . it’s just not going
       to happen with him.
       And the other part is when a child is young or at a young level, they say things
       straight out, it’s like the child who sees the person at the grocery store and says

                                                  11
No. 49164-8-II


       something you wish they hadn’t said if you’ve had a young child like someone is
       wearing something funny or why is that person doing that.
       At his lower maturity level, it’s similar. He’s going to be just speaking things
       straight out.”

Br. of Appellant at 32 (quoting 5 RP at 583-84).

       To succeed on this ineffective assistance claim based on his attorney’s failure to object to

the prosecutor’s alleged “vouching,” Reed must show the objection would have been successful.

Gerdts, 136 Wn. App. at 727. Reed has failed to make this showing. The State’s arguments about

JR’s credibility were “‘reasonable inferences’” based on the testimony and facts presented at trial.

Fisher, 165 Wn.2d at 747 (quoting Gregory, 158 Wn.2d at 860).

       At trial, several witnesses, including JR’s mother, his former special education teacher

Driscoll, and the forensic interviewer Mendez testified regarding JR’s behavior issues and

disabilities. JR’s mother testified that he suffered from autism and ADHD and that his maturity

level was equivalent to that of a typical eight- or nine-year-old.

       JR’s former special education teacher Driscoll testified that she taught JR when he was in

seventh and eighth grade but that he was developmentally disabled and that he was reading at a

first-grade level and doing math at a second- or third-grade level. Driscoll stated that JR could

only develop simple plans.

       Mendez, who had forensically interviewed JR and had experience interviewing almost a

thousand children, testified that during her interview with JR, she noticed his manner of speaking

and behaviors were less mature than the average twelve-year-old. She stated that because JR was

less mature for his age level, she interviewed him like she would interview an eight- to ten-year-

old to make sure he understood. Officer McDaniel testified that during his interview of Reed,

Reed stated that JR was twelve but read at a first-grade level.

                                                 12
No. 49164-8-II


       Each of these facts supports the reasonable inference suggested by the prosecutor that JR

“doesn’t have the sophisticated thought” to frame Reed for abuse. 5 RP at 584. Immediately

before discussing that JR is “less likely” to create lies about Reed, the prosecutor referred to

numerous facts from testimony regarding JR’s immaturity, including JR’s disabilities and

developmental delay. It is evident the prosecutor relied on evidence from the record and not his

personal opinions or beliefs to draw the inferences regarding JR’s maturity level and propensity to

scheme and lie about Reed’s abuse.

       In addition, the prosecution’s closing statements were not improper because they were

“‘invited, provoked, or occasioned’” by defense counsel. Br. of Resp’t at 29 (quoting Davenport,

100 Wn.2d at 761). Reed testified that JR was participating in a scheme with his mother and

grandmother to lie about Reed’s abuse. Thus, the State, in making its remarks about JR’s reduced

maturity and developmental delays, was properly responding to the defense argument that JR was

capable of participating in a scheme to frame Reed. See Davenport, 100 Wn.2d at 761.

       Because the prosecutor argued only facts in evidence and suggested reasonable inferences

from the evidence and because the State’s arguments were in response to the defense claim that

JR fabricated the abuse allegations in a scheme with his mother and grandmother, there was no

misconduct. See Smith, 104 Wn.2d at 510-11; Davenport, 100 Wn.2d at 761.

3.     NO PREJUDICE: FAILURE TO OBJECT TO “IMPROPER VOUCHING”

       Reed argues that the prosecutor’s closing argument was prejudicial because JR was the

most important State witness, and “[JR’s] credibility was the main issue the jury had to determine.”

Br. of Appellant at 34. However, Reed fails to explain how the prosecutor’s closing statements

impacted the ultimate outcome of the trial. And prejudicial error will not be found for improper


                                                13
No. 49164-8-II


vouching unless it is “‘clear and unmistakable’ that counsel is expressing a personal opinion.”

Brett, 126 Wn.2d at 175 (quoting Sargent, 40 Wn. App. at 344). Even if the prosecutor’s

statements were improper, there is no evidence that the prosecutor expressed a personal opinion

about JR’s credibility. Instead, he relied on inferences from the trial record. Thus, there is no

prejudice. Brett, 126 Wn.2d at 175.

                                      II. CUMULATIVE ERROR

       Reed also argues that, even if there is no ineffective assistance of counsel, the “combined

effect of trial errors” should result in reversal. Br. of Appellant at 35. We reject this argument.

       “The cumulative error doctrine applies where a combination of trial errors denies the

accused of a fair trial, even where any one of the errors, taken individually, would be harmless.

The test to determine whether cumulative errors require reversal of a defendant’s conviction is

whether the totality of circumstances substantially prejudiced the defendant and denied him a fair

trial.” In re Pers. Restraint of Cross, 180 Wn.2d 664, 690, 327 P.3d 660 (2014) (citations omitted).

The petitioner bears the burden of showing multiple trial errors and that the accumulated prejudice

impacted the trial outcome. Cross, 180 Wn.2d at 690.

       In an effort to establish cumulative error, Reed points to his counsel’s failure to question

JR about his prior statements about being abused and his counsel’s failure to object to the State’s

alleged “vouching” for JR’s credibility. As discussed above, we hold that Reed has failed to

establish any prejudicial error. At most, we assume without deciding that a single error occurred;

but even so, Reed has not established multiple prejudicial errors as is required to prove cumulative

error. See Cross, 180 Wn.2d at 690. Because Reed has not met his burden to show multiple trial

errors resulting in prejudice, his cumulative error claim fails.


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No. 49164-8-II


        We affirm.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                    JOHANSON, P.J.
 We concur:



 LEE, J.




 MELNICK, J.




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