This opinion is subject to administrative correction before final disposition.




                                Before
                 CRISFIELD, HITESMAN, and GASTON,
                       Appellate Military Judges

                        _________________________

                          UNITED STATES
                              Appellee

                                     v.

                      Darrius D. UPSHAW
           Hospital Corpsman Third Class (E-4), U.S. Navy
                            Appellant

                             No. 201600053

            Argued: 2 August 2019–Decided: 4 December 2019.

 Appeal from the United States Navy-Marine Corps Trial Judiciary.
 Military Judge: Lieutenant Colonel Mark Sameit, USMC (arraign-
 ment) and Lieutenant Colonel Jeffrey Munoz, USMC (motions and
 trial). Sentence adjudged 28 February 2018 by a general court-martial
 convened at Marine Corps Base Camp Pendleton, California, con-
 sisting of officer and enlisted members. Sentence approved by the
 convening authority: reduction to pay grade E-1, confinement for 36
 months, and a dishonorable discharge.

 For Appellant: Lieutenant Clifton E. Morgan III, JAGC, USN.

 For Appellee: Lieutenant Timothy Ceder, JAGC, USN (argued); Cap-
 tain Luke Huisenga, USMC (on brief); Lieutenant Kimberly Rios,
 JAGC, USN (on brief).

 Senior Judge HITESMAN delivered the opinion of the Court, in which
 Chief Judge CRISFIELD and Judge GASTON joined.

                        _________________________
              United States v. Upshaw, NMCCA No. 201600053


                 PUBLISHED OPINION OF THE COURT

                          _________________________

HITESMAN, Senior Judge:
   Appellant was convicted, contrary to his pleas, of two specifications of
abusive sexual contact in violation of Article 120, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 920 (2012).
    Appellant raises three assignments of error (AOE): (1) the instructional
error this Court found in Appellant’s first trial was not harmless beyond a
reasonable doubt, (2) a recused military judge played a substantive role in
the case by consulting with the successor military judge on important legal
issues in the case, and (3) the successor military judge abused his discretion
by not recusing himself after being challenged by the Defense based on his
consultation with the recused judge.
   AOE 2 and AOE 3 are combined and analyzed together below. We find no
prejudice and affirm.

              I. FACTUAL AND PROCEDURAL BACKGROUND

    This case is before us for the second time. At his first trial, Appellant was
convicted of two specifications of abusive sexual contact and one specification
of sexual assault in violation of Article 120, UCMJ, involving two separate
victims. The military judge had instructed the members that they could use
proof of the charged assault on Victim 1 to prove Appellant committed the
assault against Victim 2, and vice versa. Between Appellant’s initial trial and
his first appeal, the Court of Appeals for the Armed Forces (CAAF) issued its
decision in United States v. Hills, holding the use of charged offenses as pro-
pensity evidence under Military Rule of Evidence (Mil. R. Evid.) 413 under-
mines an accused’s right to the presumption of innocence and the correspond-
ing propensity instruction is constitutional error. 75 M.J. 350, 357 (C.A.A.F.
2016). This Court applied that ruling to Appellant’s case, upheld his convic-
tion of the offenses against Victim 1, set aside his conviction of the offenses
against Victim 2, set aside the sentence, remanded the case to the convening
authority (CA), and authorized a rehearing. United States v. Upshaw, No.
201600053, 2017 CCA LEXIS 363 (N-M. Ct. Crim. App. 31 May 2017) (unpub.
op.) (Upshaw I). Because Victim 2 subsequently decided not to participate in
the rehearing, the CA dismissed the charges pertaining to him and ordered a
sentencing rehearing for the convictions involving Victim 1.
     The underlying offenses stem from two separate incidents involving two
different male Marines. The circumstances surrounding the two allegations


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                 United States v. Upshaw, NMCCA No. 201600053


were very similar. Appellant met both victims at the same bar in Oceanside,
California. Both victims were very intoxicated by the time Appellant gave
them a ride home. Both victims awoke to sexual contact by Appellant, and
both displayed visible shock and distress to witnesses who observed them
shortly after the assaults. While giving him a ride to his barracks, Appellant
unzipped Victim 1’s pants and touched his groin and penis without his con-
sent and while he was incapable of consenting due to impairment by alcohol.
After giving Victim 2 a ride to Victim 2’s apartment, Appellant allegedly pen-
etrated Victim 2’s anus with an object without his consent and while he was
incapable of consenting due to impairment by alcohol.
    During arraignment on the rehearing, before Victim 2 elected not to par-
ticipate, the trial defense counsel (TDC) challenged the presiding military
judge, Judge Sameit, and requested that he recuse himself. The TDC based
his challenge on the “risk of undermining public confidence in the judicial
process,” 1 since Judge Sameit was the military judge in Appellant’s first trial
and issued the members’ instruction that was found to be erroneous under
Hills. Judge Sameit did not rule on the challenge against him, but stated that
he would issue a written ruling if he remained assigned to the case after dis-
cussing the matter with the detailing judge. Judge Munoz was then detailed
to the case and Judge Sameit did not issue a ruling.
    Although the case ultimately resulted in only a resentencing hearing, the
parties engaged in substantive motions practice before Victim 2 declined to
participate. Prior to presiding over the motions session, Judge Munoz con-
sulted Judge Sameit regarding the Mil. R. Evid. 413 issue. When asked dur-
ing TDC voir dire of the military judge, Judge Munoz disclosed this consulta-
tion. As a result, the TDC challenged Judge Munoz and moved for him to
recuse himself because he had consulted with Judge Sameit regarding the
same issue that resulted in the Hills error and the remand of Appellant’s
case. Judge Munoz denied the recusal motion explaining, “[t]he fact that I
consulted with a fellow military judge after I had formed my own opinion or
conclusion . . . would not cause a reasonable member of the public to believe
that I am somehow not impartial.” 2
   Additional facts necessary to resolve the AOE’s raised are addressed be-
low.




   1 Record   at 10.
   2 Record   at 42.




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              United States v. Upshaw, NMCCA No. 201600053


                               II. DISCUSSION

A. Instructional Error
    During Appellant’s first appeal, this Court held that the military judge’s
instruction regarding the use of charged offenses as propensity evidence was
erroneous and violated Appellant’s constitutional right to the presumption of
innocence and his “right to have all findings made clearly beyond a reasona-
ble doubt.” Upshaw I, 2017 CCA LEXIS 363 at *2, *6 (quoting Hills, 75 M.J.
at 356) (internal quotation marks omitted). The Court then considered
whether the constitutional violation prejudiced Appellant’s rights or was
harmless beyond a reasonable doubt. Id. (citing Hills, 75 M.J. at 357). The
Court reversed Appellant’s conviction for sexually assaulting Victim 2 be-
cause the instructional error was not harmless beyond a reasonable doubt.
Id. at *20–21. However, the Court found that the instructional error was
harmless beyond a reasonable doubt regarding the offenses involving Victim
1 because the strength of evidence of Appellant’s guilt was “so overwhelm-
ing.” Id. at *16. Specifically, the Court found that despite Victim 1’s intoxica-
tion, “his memories of the circumstances surrounding the allegation of abu-
sive sexual contact [we]re detailed and largely intact”; there was substantial
corroborating evidence supporting Victim 1’s testimony; Appellant’s decision
to stop the car along a highly trafficked road supported Victim 1’s assertion
that something upsetting occurred on the ride back to his barracks; Appel-
lant’s uncorroborated claim that Victim 1 experienced “a severe episode of
survivor syndrome suggests the appellant’s consciousness of guilt about the
need” to stop; and Victim 1’s “excited utterances on the phone and via text
message [we]re credible evidence of his sudden distress, the sexual nature of
what prompted it, and the sense of vulnerability that prompted him to cry for
help.” Id. at *14–15.
    Appellant now challenges this Court’s holding in Upshaw I that the in-
structional error with regard to Victim 1 was harmless beyond a reasonable
doubt. Appellant argues that this Court must set aside Appellant’s conviction
for the offenses involving Victim 1, relying on United States v. Williams, 77
M.J. 459 (C.A.A.F. 2018). Appellant avers that the facts in Williams are so
analogous that we must reconsider our previous decision. We disagree.
    Under the law-of-the-case doctrine, a court should not normally reconsid-
er a decision unless it was “clearly erroneous and would work a manifest in-
justice.” See United States v. Riley, 50 M.J. 410, 420 (C.A.A.F. 1999) (Craw-
ford, J., dissenting) (quoting Christianson v. Colt Industries Operating Corp.,
486 U.S. 800, 817 (1988)). In other words, a court’s decision on a rule of law
should continue to govern the same issues in later stages of the case. Arizona
v. California, 460 U.S. 605, 618 (1983). While some of the factual and eviden-
tiary circumstances in Williams are similar to Appellant’s case, the issue is


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              United States v. Upshaw, NMCCA No. 201600053


whether this Court based its previous ruling on factual error or an erroneous
view of the law.
    The CAAF decided Williams after Appellant’s trial but before this Court
ruled on his first appeal. In Williams, the CAAF found that the Mil. R. Evid.
413 propensity evidence instruction error was not harmless beyond a reason-
able doubt and reversed the Army Court of Criminal Appeals (ACCA) deci-
sion. Williams, 77 M.J. at 464. In Hills, the CAAF reversed the lower court’s
decision based on an unconstitutional use of evidence of charged misconduct
under Mil. R. Evid. 413 to prove that the appellant had the propensity to
commit other charged misconduct. Id. at 460 (citing Hills, 75 M.J. at 356).
This was also the basis for the reversal in Appellant’s case for offenses re-
garding Victim 2. In Williams, the CAAF noted flaws in the ACCA’s determi-
nation that there was an exception to Hills when the court could determine
that an offense was first proven beyond a reasonable doubt, then used as pro-
pensity evidence, because the propensity instruction only flowed in one direc-
tion. Williams, 77 M.J. at 463-64. The CAAF disagreed because it recognized
no exceptions to its Hills decision, the order in which members address the
offenses is not something that can be ascertained, and the erroneous instruc-
tion only required that the propensity evidence be proved by a preponder-
ance. Id. at 464.
    Despite the reversal in Williams, the CAAF did not change the law or the
standard regarding the use of propensity evidence under Mil. R. Evid. 413 as
outlined in Hills and applied in Appellant’s first appeal. This Court applied
the correct standard of law to the facts of Appellant’s case and we find that
our previous ruling was not “clearly erroneous and would [not] work a mani-
fest injustice.” Riley, 50 M.J. at 420. While courts have the authority to re-
consider their own decisions, we are not persuaded to do so here.

B. Recusal
    Appellant contends that Judge Munoz should have disqualified himself
because he consulted on substantive legal issues in the case with Judge
Sameit, who had recused himself. Specifically, Appellant argues that in light
of Judge Sameit’s recusal and consultation with Judge Munoz, Judge Munoz
“should have recused himself and avoided any appearance of conflict.” While
we find that Judge Munoz believed that Judge Sameit had recused himself
and therefore Judge Munoz should not have consulted with him on substan-
tive legal issues in the case, we hold that under the circumstances of this case
reversal is not required and Appellant’s rights to a fair proceeding were not
prejudiced.
    We review a military judge’s decision not to recuse himself for an abuse of
discretion. United States v. McIlwain, 66 M.J. 312, 314 (C.A.A.F. 2008) (citing


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              United States v. Upshaw, NMCCA No. 201600053


United States v. Butcher, 56 M.J. 87, 90 (C.A.A.F. 2001)). The abuse of discre-
tion standard is a strict one, calling for more than a mere difference of opin-
ion. The challenged action must be “ ‘arbitrary, fanciful, clearly unreasona-
ble,’ or ‘clearly erroneous.’ ” United States v. McElhaney, 54 M.J. 120, 130
(C.A.A.F. 2000) (quoting United States v. Miller, 46 M.J. 63, 65 (C.A.A.F.
1997)). “An accused has a constitutional right to an impartial judge.” Butcher,
56 M.J. at 90 (quoting United States v. Wright, 52 M.J. 136, 140 (C.A.A.F.
1999)). “There is a strong presumption that a judge is impartial, and a party
seeking to demonstrate bias must overcome a high hurdle[.]” United States v.
Quintanilla, 56 M.J. 37, 44 (C.A.A.F. 2001). Accordingly, the “moving party
has the burden of establishing a reasonable factual basis for disqualification.
More than a mere surmise or conjecture is required.” Wilson v. Ouelette, 34
M.J. 798, 799 (N.M.C.M.R. 1991) (citing United States v. Allen, 31 M.J. 572,
601 (N.M.C.M.R. 1990), aff’d, 33 M.J. 209 (C.M.A. 1991)).
    Disqualification of a military judge may result from either the appearance
of bias or actual bias. RULE FOR COURTS-MARTIAL (R.C.M.) 902(a) & (b),
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.). “The appearance
standard is designed to enhance public confidence in the integrity of the judi-
cial system.” Quintanilla, 56 M.J. at 45 (citing Liljeberg v. Health Services
Acquisition Corp., 486 U.S. 847, 860 (1988)). “Th[is] rule also serves to reas-
sure the parties as to the fairness of the proceedings[.]” Id.

   1. Judge Sameit recused himself
    Whether a military judge has acted inconsistent with his recusal is a
mixed question of law and fact that we review de novo. United States v.
Roach, 69 M.J. 17, 19 (C.A.A.F. 2010). In Roach, the Chief Judge of the Air
Force Court of Criminal Appeals (AFCCA) recused himself from the case and
then made a recommendation to the Air Force Judge Advocate General re-
garding who should replace him on the case. Id. at 19. The new AFCCA panel
included the recommended replacement judge. AFCCA heard the case and
affirmed the lower court’s conviction. Id. The CAAF reversed the AFCCA de-
cision and provided all military judges with a clearly defined rule: “Once
recused, a military judge should not play any procedural or substantive role
with regard to the matter about which he is recused.” Id. at 20. The CAAF
reinforced this rule in United States v. Witt, finding that appellate judges who
were present for duty but elected not to participate in an en banc decision
were de facto disqualified from participating in a vote to reconsider and the
subsequent rehearing. 75 M.J. 380, 384 (C.A.A.F. 2016). In either case, the
CAAF has made it clear that a recused judge is “prohibited from further par-
ticipation in the case.” Witt, 75 M.J. at 384. For the purposes of this issue, we
find that Judge Sameit was recused and that his consultation with Judge



                                       6
                 United States v. Upshaw, NMCCA No. 201600053


Munoz on substantive legal issues constituted substantive participation in
Appellant’s case.
    At the Art. 39(a), UCMJ, arraignment hearing prior to Appellant’s second
trial, TDC challenged Judge Sameit “based on the risk of undermining the
public confidence in the judicial process” because he presided as the military
judge for Appellant’s first trial and his instructional error resulted in reversal
and remand for a new trial. As we noted above, Judge Sameit’s trial instruc-
tion to the members regarding propensity evidence was legally correct at the
time he gave it, and only the subsequent CAAF decision in Hills required the
case to be reversed and remanded. Although Judge Sameit did not rule on the
challenge against himself as required by R.C.M. 902(d)(1), Judge Munoz was
detailed to the remainder of Appellant’s case.
    During a later Art. 39(a), UCMJ, hearing to argue a Government motion
to pre-admit Mil. R. Evid. 413 propensity evidence, Judge Munoz revealed on
voir dire that he had consulted with Judge Sameit earlier that morning in
preparation for the motion. Specifically, Judge Munoz consulted with Judge
Sameit regarding his preliminary conclusions to “see what his thoughts
were.” 3 Judge Munoz told the parties that he and Judge Sameit shared the
same opinion that the Government’s proposed propensity evidence was ad-
missible in accordance with Mil. R. Evid. 413 and Hills. This issue was close-
ly related to the reason the case was first reversed and remanded by this
Court and was the basis for the TDC’s challenge against Judge Sameit. When
asked about Judge Sameit’s recusal, Judge Munoz stated that he believed
that Judge Sameit was not required to recuse himself but that he had done so
“to remove any possible doubt whatsoever” and “out of an abundance of cau-
tion.” 4
    While Judge Sameit never ruled on the recusal motion as required by
R.C.M. 902(d), Judge Munoz clearly believed Judge Sameit had in fact
recused himself, as that is what he relayed to the parties. When the presiding
judge informs the parties on the record that the prior judge recused himself,
neither they nor this Court need inquire further into that as fact. Whether
legally required or merely prudential, such recusal severs that judge from
any further procedural or substantive role in the case. Roach, 69 M.J. at 20.
Whereas Witt involved clearly substantive participation and Roach involved
clearly procedural participation, both types of further participation are pro-
hibited. Here, we find that consultation on the Mil. R. Evid. 413 issue consti-


   3   Record at 30.
   4   Record at 34.




                                        7
                 United States v. Upshaw, NMCCA No. 201600053


tuted substantive participation because it involved an important, then-
pending evidentiary issue that was also the basis for challenge against Judge
Sameit. Based on the record before us, we find that Judge Sameit was
recused and that by consulting on an important evidentiary issue, he contin-
ued to participate substantively in Appellant’s case.

   2. Judge Munoz abused his discretion
    After conducting extensive voir dire of Judge Munoz regarding his inter-
actions with Judge Sameit and other issues, TDC challenged Judge Munoz,
asking him to recuse himself and arguing that in light of Judge Sameit’s con-
tinued involvement, an objective person would question the impartiality of
the court. After clarifying his interactions with Judge Sameit, Judge Munoz
relied on R.C.M. 902, United States v. Quintanilla, 56 M.J. 37 (C.A.A.F.
2001), and the general propriety of consulting with other judges to deny the
defense motion to recuse. The Government contends that Judge Sameit was
not required to recuse himself, so there was no legal basis requiring Judge
Munoz to recuse himself due to his interaction with Judge Sameit. We disa-
gree.
    Judge Munoz clearly stated that Judge Sameit had no “impact on any rul-
ing that [he] may issue in this case,” and we do not question the veracity or
sincerity of that statement. Judge Munoz also correctly stated the law under
Quintanilla and R.C.M. 902 regarding the challenge against him as the mili-
tary judge. However, Judge Munoz explained: “[t]he law is the law is the law,
and consulting other military judges about what they think the law is is cer-
tainly within the bounds of propriety.” 5 This reasoning failed to address the
nuance presented by Judge Sameit’s recusal prior to their consultation. While
we agree as a general matter that military judges can and should consult
other military judges, this principle does not extend to substantively consult-
ing military judges regarding cases from which they have been recused.
Roach, 69 M.J. at 19–20; Witt, 75 M.J. at 384. Irrespective of whether Judge
Sameit was required to recuse himself, Judge Munoz believed he had done so,
and that is precisely what Judge Munoz informed the parties had occurred.
Once recused, Judge Sameit was barred from further participation in the
case. Therefore, we conclude that Judge Munoz clearly erred in consulting
Judge Sameit about substantive legal issues in the case.
    Appellant raises only the appearance of impartiality in his appeal. That
test under R.C.M. 902(a) is an objective standard concerning whether there



   5   Record at 42.




                                      8
              United States v. Upshaw, NMCCA No. 201600053


was “[a]ny conduct that would lead a reasonable man knowing all the circum-
stances to the conclusion that the judge’s impartiality might reasonably be
questioned.” Butcher, 56 M.J. at 91 (quoting United States v. Kincheloe, 14
M.J. 40, 50 (C.M.A. 1982)) (internal quotation marks omitted). While per-
forming this test, we consider the facts and circumstances through an objec-
tive lens, “not in the mind of the military judge himself, but ‘rather in the
mind of a reasonable [person] . . . who has knowledge of all the facts’” at the
time of the military judge’s decision. Wright, 52 M.J. at 141 (quoting United
States v. Sherrod, 22 M.J. 917, 920 (A.C.M.R. 1986). Based on our review of
the record and in light of the interaction between Judge Sameit and Judge
Munoz, we find that at the time of Judge Munoz’s ruling, reasonable observ-
ers, aware of the facts and circumstances surrounding the challenge against
and subsequent recusal of Judge Sameit, could reasonably question the mili-
tary judge’s impartiality. Accordingly, in light of Roach, we hold that Judge
Munoz abused his discretion in denying Appellant’s recusal motion.

   3. No prejudice occurred
   Finally, we must look at whether prejudice has occurred. See Butcher, 56
M.J. at 92; Roach, 69 M.J. at 20. To determine prejudice and whether relief is
warranted, we look to the Liljeberg factors established by the Supreme Court
and relied upon in Witt. 75 M.J. at 384 (citing Liljeberg v. Health Services Ac-
quisition Corps., 486 U.S. 847, 862, 864 (1988)). The Liljeberg factors are: (1)
the risk of injustice to the parties in the particular case; (2) the risk that the
denial of relief will produce injustice in other cases; and (3) the risk of un-
dermining the public’s confidence in the judicial process. 486 U.S. at 862, 864;
Witt, 75 M.J. at 384.
    Regarding the first Liljeberg factor, we find Appellant suffered no injus-
tice in this case. After the recusal issue arose but prior to Appellant’s rehear-
ing, Victim 2 decided not to participate in the retrial for the charged offenses
against him. As a result, the CA ordered a sentence rehearing only for Appel-
lant’s offenses against Victim 1, which this Court had affirmed in Upshaw I.
Therefore, the Mil. R. Evid. 413 propensity issue that Judge Sameit and
Judge Munoz discussed regarding Appellant’s second trial was rendered
moot. Additionally, Appellant was resentenced by members, further negating
any possible taint by either military judge on the proceeding. See Butcher, 56
M.J. at 92. Appellant does not allege, and we do not find, any additional er-
rors committed by Judge Munoz in connection with the sentence rehearing.
Accordingly, we find that Appellant suffered no injustice.
    Likewise, regarding the second Liljeberg factor, we find that denying Ap-
pellant relief will not produce injustice in any other cases. We reach this con-
clusion in the context of the case as a whole, including the circumstances of
the prior judge’s recusal, and cognizant of the military trial judges’ general


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              United States v. Upshaw, NMCCA No. 201600053


sensitivity to the kind of issue posed in this case. See Butcher, 56 M.J. at 93.
In this case, “[i]t is not necessary to reverse the results of the present trial in
order to ensure that military judges exercise the appropriate degree of discre-
tion in the future.” Id.
    The third Liljeberg factor is at issue in this case and considers the public’s
confidence in the military judicial process. “A military judge who acts incon-
sistently with a recusal, no matter how minimally, may leave a wider audi-
ence to wonder whether the military judge lacks the same rigor when apply-
ing the law.” Roach, 69 M.J. at 21. In a military justice system where mili-
tary judges are also military officers, “it is all the more important for partici-
pants to engage in their assigned duties without blurring legal and ethical
lines; however well intentioned.” Id. Unlike our analysis of the challenge
against the military judge at a specific point in the trial, we “review the en-
tire proceeding” when considering the third Liljeberg factor. United States v.
Martinez, 70 M.J. 154, 160 (C.A.A.F. 2011). While we acknowledge the prece-
dent set in Roach and Witt, the facts of this case do not pose a significant
“risk of undermining the public’s confidence in the judicial process.” Witt, 75
M.J. at 384 (citing Liljeberg, 486 U.S. at 864). Judge Munoz’s ruling occurred
while charges were still pending rehearing regarding Victim 2. After Victim 2
decided not to participate in the rehearing, the CA withdrew the charges per-
taining to him and ordered a resentencing hearing only for the remaining
findings of guilty regarding Victim 1, as affirmed by this Court. That mooted
the Mil. R. Evid. 413 propensity evidence issue giving rise to the challenge
against both Judge Munoz and Judge Sameit, and Appellant then opted for
members to determine his sentence. Finally, Judge Munoz issued limited rul-
ings and sentencing instructions in connection with the sentencing proceed-
ings, and no other allegations of error or bias are raised. See Butcher, 56 M.J.
at 92-93. Accordingly, we conclude that reasonable public observers, when
taking into account the entirety of these court-martial proceedings, would
have full confidence in the military judicial process.

                               III. CONCLUSION

    The approved findings and sentence are correct in law and fact and no er-
ror materially prejudicial to Appellant’s substantial rights occurred. Arts. 59,
66, UCMJ. The findings and sentence are AFFIRMED.




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        United States v. Upshaw, NMCCA No. 201600053


Chief Judge CRISFIELD and Judge GASTON concur.


                        FOR THE COURT:




                        RODGER A. DREW, JR.
                        Clerk of Court




                             11
