                                                                                          FILLM
                                                                                    koOURT OF APPEALS
                                                                                        DIVI. ioN 71
                                                                                            S
                                                                               2013 JUL — AM 9: 06
                                                                                        2

                                                                                   STATE OF WAMINGTI114

                                                                                   U
                                                                                   SYF—
                                                                                     +         Y
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                             DIVISION II


STATE OF WASHINGTON,                                                    No. 42734 6 II
                                                                                  - -


                                    Respondent,

           V.




SCOTT EUGENE COLLINS,                                          UNPUBLISHED OPINION




           HUNT, P.J. —Scott    Eugene Collins appeals his jury trial convictions for possession of a

stolen vehicle and possession of methamphetamine. He argues that (1)the trial court erred in

denying his motion for a mistrial after a juror notified the trial court during the State's case in-
                                                                                                 -

chief that he was acquainted with a potential State rebuttal witnesses; 2) trial court erred in
                                                                        ( the

refusing to give his proposed jury instruction on credibility; and (3)cumulative error deprived

him of a fair trial. In his Statement of Additional Grounds (SAG),
                                                                 Collins challenges one of the

jury's implied findings and raises other issues that involve matters outside the trial record. We

affirm.


                                                  FACTS


                      I. POSSESSION OF STOLEN VEHICLE AND METHAMPHETAMINE


           Frank Medeiros is a long haul truck driver. He owns a white Chevy Silverado truck and
                                    -

lives alone with two pug dogs in Kelso, Washington. He has a friend watch his house and check

on   his   dogs twice daily while   he is away from home for extended   periods.
No. 42734 6 II
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       At 7:0 AM on the morning of November 18, 2010, Medeiros left Vancouver,
           0

Washington, to haul a load to Maryland. Expecting to be away until December 5, he arranged

for his friend Earl Mitchell to watch the house and to care for the dogs. Before leaving home,

Medeiros (1)placed his keychain on top of an eight foot bookshelf in the living room where no
                                                    -

one could see it; and (2)left his truck in the driveway, with the truck's title, registration, and

insurance documents inside the        glove    box.   Affixed to his keychain were keys to his Chevy

Silverado truck, the post office, and his front door. There was no damage to the truck's ignition

switch, steering column, or windows at the time.

       When Mitchell first checked on Medeiros' home and dogs the next morning, the truck

was still in the driveway; there was no damage to the house, and nothing appeared missing. But

when Mitchell returned that afternoon, Medeiros' truck was no longer in the driveway, the front

door to the house     was   open, the   dogs   were   loose, and   a   basement window   was   broken. The


inside of the house   was "a mess ":     Papers had been removed from Medeiros' filing cabinet and

thrown all over, and it looked like someone had been rummaging through the closet downstairs.

1 Verbatim Report of Proceedings (VRP)at 146. Mitchell notified Medeiros and reported the

truck missing to the police.

       At 2:0 AM on November 22, Officer Michael Berndt saw Scott Eugene Collins driving a
           2

white Chevy Silverado truck matching the description of the truck Mitchell had reported

missing;   a   male passenger   was     with Collins.       Berndt pulled behind the truck, saw several

personal items in the truck's bed (e. ., frame, blankets, etc.),
                                    g bed                     confirmed with dispatch that

the truck was stolen, waited for backup, and then pulled the truck over. Berndt arrested Collins

and his passenger. Searching Collins incident to arrest, Berndt found a bag with white crystal


                                                        2
No. 42734 6 II
          - -




substance in Collins' pocket. This substance later tested positive for methamphetamine. Berndt

also    apparently   seized   a   keychain   with three   keys. The police towed the truck to the police

station, conducted an inventory search, and found a methamphetamine pipe under the driver's

seat.


          Medeiros returned two weeks later and retrieved his truck and his keychain from

impound.      The truck's     ignition   was   damaged,    and the   key   was   difficult to turn. The truck's


windows were also damaged and looked as though someone had tried to pry them open with a

screwdriver. Medeiros also discovered several articles in the truck's bed that did not belong to

him, including a bed frame, a fifth wheel hitch, bolt cutters, clothes, and a backpack with tools

used for picking locks.

                                                  II. PROCEDURE


          The State charged Collins with possession of a stolen vehicle and possession of

methamphetamine. The State's witnesses testified to the facts previously described. In addition,

Medeiros testified that he had never met Collins or given him permission to possess his truck.

                                               A. Motion for Mistrial


          On cross examination, Collins asked Mitchell if he remembered speaking with a " eputy
                                                                                        D

Hammer" from the Sheriff's           Office. 1 VRP at 147. Hammer had not previously testified; he

was a potential rebuttal witness, although his name had not been included on the witness list that

had been read to the jury at the beginning of the case. When Mitchell responded, Yes,"
                                                                                 "   Collins

questioned Mitchell about inconsistencies between his trial testimony and his earlier statements




                                                          3
No. 42734 6 II
          - -



to Hammer about the time of day when he (Mitchell) had first discovered Medeiros' truck was

missing.' 1 VRP at 147.

       During the next recess, a juror informed the bailiff that he possibly knew Deputy

Hammer. Outside of the presence of the other jurors the trial court questioned this juror about

his relationship with Hammer. The juror responded that he had "[
                                                              grown] up"with Hammer and

that he had seen him " passing" twice in the last year when Hammer visited his (Hammer's)
                     in

parents' house. 1 VRP at 152. The juror testified that he waived to Hammer when he saw him,

but that he (the juror)had not associated with Hammer in about 15 years.

       The trial court asked the juror whether his acquaintance with Hammer would impair his

ability to evaluate Hammer's testimony the same as any other witness; the juror responded, Not
                                                                                           "

at all."1 VRP at 153.       Collins asked the juror whether he had any concerns about "cutting

Hammer] a break"if his testimony conflicted with other witnesses' testimony; the juror again

responded   that his   acquaintance with   Hammer would not affect his              ability   to   be   impartial.   1


VRP at 153. Satisfied with the juror's responses, the trial court allowed the bailiff to return the

juror to the jury room.

       Collins moved for      a   mistrial based   on   the   juror's familiarity   with Hammer. The trial


court denied the motion, noting that the juror's relationship with Hammer was "pretty ancient




 Mitchell had testified on direct exam that he had gone to Medeiros' home a second time on
November 19, between 2:0 and 3:0 PM. On cross examination, Collins' counsel suggested that
                          3        3
Mitchell had told Deputy Hammer that he did not return to the home a second time until 4:0 PM
                                                                                        0
and that this is when he had discovered the truck was missing and the home's basement window
was broken.




                                                        E
No. 42734 6 II
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lineage"and that the juror had indicated that he would not have a problem evaluating Hammer's

testimony the-ame as other witnesses. 1 VRP at 156.
             s

                                      B. Collins' Testimony

       Collins testified that (1)he had several earlier convictions for theft- and possession-

related crimes; 2)
                ( while driving Medeiros' truck on November 22, Berndt had pulled him over;

3) that time, he (Collins)had a key chain with "hree keys"on him and methamphetamine in
  at                                           t

his possession; 4)
                ( there was no damage to the truck's ignition and its key was not difficult to

turn; 5) had " urchased"the truck and a fifth wheel for $ 500 from a man, whom he thought
      ( he   p                                          1,

was Medeiros, at an AM/ M station in Kelso and did not know the truck was stolen; and (6)
                      P                                                                  he

had.met this man "twice"before finalizing the sale on November 19, but the man had never

signed off on the title to release his interest. 2 VRP at 187, 199.

       The State cross -examined Collins about inconsistencies between his testimony and the

stories he had told Berndt and Hammer about how he had come into possession of the truck: At

the time of his arrest, Collins had told Berndt that he had purchased the truck on November 15

from a man, whom he believed was Medeiros and had met at the AM/ M station; but Collins had
                                                               P

told Hammer that he had been introduced to Medeiros though his business partner /boss,"
                                                                                  "   Josh




2
  The trial court further noted that if the juror gave Hammer's testimony any favorable treatment,
it would likely be helpful to Collins' defense.
3
  More specifically, Collins admitted that he had previously been convicted of 1)
                                                                               ( second degree
burglary, 2)second degree theft, 3)first degree trafficking in stolen property, ( )financial
          (                         (                                              4
fraud, 5)
       ( three counts of second degree identity theft, 6)forgery, 7)three counts of second
                                                         (           (
degree possession of stolen property, and ( )
                                          8 making a false statement to a public servant.


                                                  5
No. 42734 6 II
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Evans, and that he had purchased the truck on November 19 when Medeiros was out of town. 2

VRP at 210.


       On rebuttal, the State called Berndt and Hammer, who corroborated Collins' inconsistent

statements.


                                       C. Jury Instructions

       Collins proposed the following credibility instruction: Whether or not the defendant was
                                                               "

in possession of drugs should not be used by you to determine his credibility."Clerk's Papers

CP)at 14. Collins took exception to the trial court's refusal to give this instruction, arguing that

under State v. Hardy, 133 Wn. d 701, 946 P. d 1175 (1997), ER 609(
                            2             2              and  1), not
                                                                 a)( could
                                                                   a jury

use evidence of a defendant's prior drug possession convictions to evaluate his credibility. The

trial court agreed that this proposed instruction was a "correct statement of the law, at least

insofar as evidence issues are concerned."2 VRP at 218. But the trial court refused to give the

instruction under the facts of Collins' case because one of Collins' current charges was a drug

possession crime and the trial court believed the instruction would amount to an improper

judicial comment on the evidence. Collins did not object to any other jury instructions.

       The jury found Collins guilty of possession of a stolen vehicle and possession of

methamphetaniine. Collins appeals.




                                                 2
No. 42734 6 II
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                                            ANALYSIS


                                        I. MISTRIAL MOTION


        Collins first argues that the trial court erred in denying his motion for a mistrial based on

a   juror's childhood acquaintance with    one   of the State's   potential   rebuttal witnesses.   We


disagree.

                           A. Standard of Review; Right to Impartial Jury

            W]ether to grant a motion for a mistrial is a matter addressed to the sound discretion
             h

of the trial court, and that court's discretion will be overturned on appeal only for abuse of

discretion. "'   State v. Applegate, 147 Wn. App. 166, 175 76, 194 P. d 1000 (2008) quoting
                                                           -        3               (

State v. Tigano, 63 Wn. App. 336, 342, 818 P. d 1369 (1991)). trial court abuses its discretion
                                            2              A

when it bases its decision on untenable grounds or reasons. State v. Smith, 124 Wn. App. 417,

428, 102 P. d 158 (2004), d,159 Wn. d 778, 157 P. d 873 (2007). The trial court should
          3             aff'      2             3

grant a motion for a mistrial " nly when the defendant has been so prejudiced that nothing short
                              o

of a new trial can insure that the defendant will be tried fairly."State v. Lewis, 130 Wn. d 700,
                                                                                         2

707, 927 P. d
          2       235 ( 1996).   Asa reviewing court, we give great deference to the trial court
because it was in the best position to discern prejudice for mistrial purposes. Lewis, 130 Wn. d
                                                                                             2

at 707;Smith, 124 Wn. App. at 428.

         Both the federal and state constitutions guarantee an impartial jury in criminal

prosecutions.     S                                               3, 22; State v. Davis, 141
                 U. . CONST. amend. VI,XIV; WASH. CONST. art. I, §§


Wn. d 798, 824 25, 10 P. d 977 (2000).RCW 2.6.further provides that a trial court shall
  2            -       3                  110
                                           3

excuse "any juror, who in the opinion of the judge, has manifested unfitness as a juror by reason

of bias,prejudice, indifference....by reason of conduct or practices incompatible with proper
                                or


                                                   7
No. 42734 6 II
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and efficient jury service."Emphasis added). Echoing this statute, CrR 6. also requires, If at
                             (                                          5                "

any time before submission of the case to the jury a juror is found unable to perform the duties
the court shall order the    juror discharged." Together, RCW 2.6. and CrR 6. "place a
                                                              110
                                                                3           5

continuous obligation' on the trial court to investigate allegations of juror unfitness and to

excuse jurors who are found to be unfit."State v. Elmore, 155 Wn. d 758, 773, 123 P. d 72
                                                                2                  3

2005)quoting State v. Jorden, 103 Wn. App. 221, 227, 11 P. d 866 (2000)).
      (                                                  3

           Actual bias exists when "the juror's    state of mind ...   satisfies the trial judge that the

challenged person cannot try the issues impartially and without prejudice to the substantial rights

of the    challenging party. " State v. Wilson, 141 Wn. App. 597, 606, 171 P. d 501 (2007).The
                                                                            3

party challenging the juror on the basis of actual bias bears the burden of demonstrating the facts

necessary to sustain the    challenge by   a   preponderance   of evidence.   Wilson, 141 Wn. App. at

606. In deciding whether a juror is actually biased, the trial judge has `fact-
                                                     "                        finding discretion, "'

which allows the judge to weigh the challenged juror's credibility based on the judge's

observations. Jorden, 103 Wn. App. at 229 (quoting Ottis v. Stevenson -Carson Sch. Dist. No.

303, 61 Wn. App. 747, 753, 812 P. d 133 (1991)). with other factual determinations made by
                                2             As

the trial court,we defer to its decision. Jorden, 103 Wn. App. at 229.




4
    Collins also argues that (1) juror had an "mplied bias"based on his childhood acquaintance
                               the            i
with Hammer because "[ t is human nature to want to believe your friend over that of a total
                     i]
stranger ";   and (2) implied bias denied him a fair trial. Br. of Appellant at 14 15 (
                     this                                                          - emphasis
added). Because Collins cites no authority in support, we need not consider this argument. RAP
a)( But even were we to address this argument, it would fail because the legislature has
10.   6).
      3(
not included childhood friendship on its exhaustive list of relationships between a potential juror
and   a   party from which the law implies bias. See RCW 4.4.
                                                         180.
                                                          4
No. 42734 6 II
          - -



                                    B. No Showing of Juror Bias

       Division Three of our court has previously rejected a juror bias argument similar to

Collins' argument. In Wilson, a juror notified the trial court'after the first day of trial that she

recognized   a   State witness.   Wilson,   141 Wn.   App.   at 601.   In response to the trial court's

questioning, the juror responded that she "did not know [the State's witness] personally" and

had never talked to him," she "knew that he worked in loss prevention" at the company
                        but

where she had     previously   worked.   Wilson, 141 Wn. App. at 602. The juror further explained

that her former employment with the company would not impact her ability to decide the case

fairly. Wilson,    141 Wn. App. at 602. Division Three held that the trial court did not err in


refusing to dismiss the juror on the basis of actual bias. Wilson, 141 Wn. App. at 608.

       Here, the trial court similarly questioned the juror outside of the presence of the other

jurors about his acquaintance with potential State rebuttal witness Hammer. The juror responded

that, although he had "[
                      grown] up"with Hammer, the juror had not associated with Hammer in

about "[ ifteen years"and had seen him only " n passing"twice in the last year. 1 VRP at 152,
      f]                                    i

153.   The juror further testified that his childhood acquaintance with Hammer would neither

affect his ability to be impartial nor cause him to evaluate Hammer's testimony differently than

other witnesses. The trial court evaluated the juror's demeanor and credibility and determined

that his relationship with Hammer was of ancient lineage" and that the juror could be fair and
                                         "

impartial. 1 VRP at 156. Again, we defer to the trial court on matters of credibility. Jorden,

103 Wn. App. at 229.

        Accordingly, we hold that ( )
                                  1 Collins fails to show that the juror was actually biased, and

2) trial court did not abuse its discretion in denying Collins' motion for mistrial.
 the


                                                   E
No. 42734 6 II
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                       II. JURY INSTRUCTION ON CREDIBILITY AND DRUG USE


       Collins next argues that the trial court erred in failing to give his proposed jury

instruction that "`[ hether or not the defendant was in possession of drugs should not be used. .
                 w]

 to determine his   credibility. "' Br. of Appellant at 7 (quoting CP at 14).
                                                                            Again, we disagree.

                                       A. Standard of Review


       We review a trial court's refusal to give a proposed jury instruction for abuse of

discretion. State v. Picard, 90 Wn. App. 890, 902, 954 P. d 336 (1998).A trial court abuses its
                                                        2

discretion when it bases its decision on untenable grounds or reasons. Smith, 124 Wn. App. at

428. It is reversible error to refuse to give a proposed instruction if the instruction properly states

the law and the evidence supports it. State v. Hathaway, 161 Wn. App. 634, 647, 251 P. d 253,
                                                                                     3

review denied, 172 Wn. d 1021 (2011);
                     2              State v. Ager, 128 Wn. d 85, 93, 904 P. d 715 (1995).
                                                         2                2

       Nevertheless, a specific instruction need not be given when a more general instruction
                     "`

adequately explains the law and enables the parties to argue their theories of the case."'
                                                                                         State v.

Brown, 132 Wn. d 529, 605, 940 P. d 546 (1997) quoting State v. Rice, 110 Wn. d 577, 603,
             2                  2              (                            2

757 P. d 889 (1988),
     2             cent. denied, 491 U. . 910 (1989)), denied, 523 U. . 1007 (1998).
                                      S             cent.           S

The trial court may also refuse to give a party's proposed instruction if the instruction is

repetitious or collateral to the instructions given. Brown, 132 Wn. d at 605
                                                                  2

                              B. Proposed Instruction Not Warranted

        Relying on Hardy, Collins argues that the trial court erred in refusing to give his

proposed instruction because he wanted the jury to understand that they " ould not use the mere
                                                                        c

fact of his methamphetamine possession to negatively reflect on the credibility of his trial

testimony."Br. of Appellant at 8. The facts in Hardy, however, are distinguishable from those


                                                  10
No. 42734 6 I1
          - -



here. Hardy was on trial for robbery, and the State sought to impeach his testimony under ER

609( )
   a with evidence of his prior felony drug conviction. Hardy, 133 Wn. d at 705 06. Noting
                                                                     2          -

the prejudicial nature of Hardy's prior conviction, the trial court allowed the conviction into

evidence but required that it be denominated an "unnamed felony."Hardy, 133 Wn. d at 706.
                                                                              2

         The                                               ( Prior convictions
               Washington Supreme Court reversed, holding, 1) "                         are ...   only

probative' under ER 609( )(the extent [ that] they are probative of the witness's
                    1) a to

truthfulness ";   and (2)w] find nothing inherent in ordinary drug convictions to suggest the
                          "[
                           e

person convicted is untruthful and conclude [that] prior drug convictions, in general, are not
probative of a witness's veracity under ER 609(
                                           1)."' 707 08, 709 10
                                              a)( 133 Wn.2d at
                                                Hardy,         - -
emphasis added).

         Unlike the facts in Hardy, here, the State did not seek to impeach Collins' testimony

under ER    609( )
               a with      evidence of   a   prior conviction for drug possession. Instead, Collins'

possession of methamphetamine charge was one of two current charges for which he was




5
    The Supreme Court also noted that prior drug convictions were not crimes of dishonesty or
                                                                                "`
false statement "'   within the meaning of ER 609(
                                              2). Wn. d at 707.
                                                 a)(
                                                   Hardy, 133 2
6
    ER 609( )
          a provides:
         For the purpose of attacking the credibility of a witness in a criminal or civil case,
         evidence that the witness has been convicted of a crime shall be admitted if
     elicited from the witness or established by public record during examination of
     the witness but only if the crime (1)was punishable by death or imprisonment in
     excess of 1 year under the law under which the witness was convicted, and the
     court determines that the probative value of admitting this evidence outweighs the
     prejudice to the party against whom the evidence is offered, or (2)involved
     dishonesty orfalse statement, regardless of the punishment.
Emphasis added.)



                                                    11
No. 42734 6 II
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presently   on   trial.   Thus, ER 609(
                                   1) the Supreme Court's analysis in Hardy are not
                                      a)(
                                        and

dispositive and do not control our analysis here.

       Significant here is that Collins' methamphetamine possession was substantive evidence

of his current crimes. The State also presented other evidence to discredit Collins' testimony,

including his numerous prior convictions for crimes of dishonesty or false statement and his prior

inconsistent statements to Berndt and Hammer. In light of the substantive nature of the State's

drug evidence and its other methods of impeaching Collins' testimony, it was not unreasonable

for the trial court to refrain from drawing attention to Collins' drug use and credibility issues for
                                                                       -

fear of appearing to be commenting on the evidence.
       Furthermore, to the extent that Collins was entitled to have the jury instructed that his

current drug possession charge could not be used as substantive evidence of his guilt for his

current possession of a stolen vehicle charge and that his drug possession charge was not

impeachment" evidence under ER 609( ), other jury instructions adequately covered these
                                  a the

points. For example, the trial court instructed the jury:

                  A   separate crime is charged in each   count.   You must decide each count
       separately. Your verdict on one count should not control your verdict on any
       other count.


CP at 24 (Instruction 5)emphasis added).
                         (



7
  A judge is prohibited by article IV, section 16 of the Washington Constitution from
conveying to the jury his or her personal attitudes toward the merits of the case' or instructing
a jury that `matters of fact have been established as a matter of law. "' State v. Levy, 156 Wn. d
                                                                                               2
709, 721, 132 P. d 1076 (2006) quoting State v. Becker, 132 Wn. d 54, 64, 935 P. d 1321
                   3                 (                                  2                  2
1997)) ( citing WASH. CONST. art. IV, § 16). To constitute an improper comment on the
evidence, the court need not have expressly conveyed to the jury its personal feelings on an
element of the offense; it is sufficient if these feelings are merely implied. Levy, 156 Wn. d at
                                                                                             2
721.



                                                  12
No. 42734 6 II
          - -



               Evidence that the defendant has previously been convicted of a crime is
       not evidence of the defendant's guilt. Such evidence may be considered by you in
       deciding what weight or credibility should be given to the testimony of the
       defendant and for no other purpose.

CP at 25 (Instruction 6)emphasis added). These instructions adequately explained the law and
                         (

enabled both parties to argue their theories of the case to the jury.

        Collins' proposed instruction was duplicative of these more general jury instructions, and

the jury was otherwise adequately instructed on the law. Therefore, we hold that the trial court

did not abuse its discretion in refusing to give Collins' proposed instruction.

                                     III. CUMULATIVE ERROR


       Last, Collins argues that cumulative error denied him a fair trial. "
                                                                           The cumulative error

doctrine applies where a combination of trial errors denies the accused a fair trial even where any

one of the errors, taken individually, may not justify reversal." In re Det. of Coe, 175 Wn. d
                                                                                           2

482, 515, 286 P. d 29 (2012). Because Collins' has not established any single trial error, his
               3

claim of cumulative error fails.


                                              IV. SAG


        In his SAG, Collins asserts that ( ) trial counsel " ied" him and told him that he had
                                         1 his             l     to

to testify; and (2) counsel told a witness who was to testify on his behalf that her testimony
                   his

was not needed and that she should not be present at his trial. SAG at 1. Because these issues

involve matters outside the trial record, Collins must raise them in a personal restraint petition.

State v. McFarland, 127 Wn. d 322, 335, 899 P. d 1251 (1995). We therefore do not further
                          2                  2

consider these arguments.




                                                  13
No. 42734 6 II
          - -




          Collins also asserts that the State presented evidence of a "dent puller"and inaccurately

suggested to the jury that the ignition on Medeiros' truck had been "pulled" and damaged

because, according Collins, the ignition was "perfect."SAG at 1. Collins' assertion that the

ignition was "perfect"conflicts with Medeiros' testimony that his truck's ignition was damaged

and its    key   was   difficult to turn when he retrieved the truck from   police impound.     The


persuasiveness, credibility, and weight of the evidence are matters for the trier of fact and are not

subject to our review. See State v. Camarillo, 115 Wn. d 60, 71, 794 P. d 850 (1990);
                                                     2                2             State v.

Walton, 64 Wn. App. 410, 415 16,824 P. d 533, review denied, 119 Wn. d 1011 (1992).Thus,
                             -       2                             2

Collins' assertion does not support reversal of his conviction.

          We affirm Collins' convictions.


          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

040,
2.6.it is so ordered.
  0




                                                    H un , P. .
                                                            J
We   concur:




Pen yar, J. `


Bj    en




                                                  14
