MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any
                                                                       May 29 2020, 12:22 pm
court except for the purpose of establishing
the defense of res judicata, collateral                                     CLERK
                                                                        Indiana Supreme Court
estoppel, or the law of the case.                                          Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Matthew J. McGovern                                     Megan M. Smith
Anderson, Indiana                                       Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Garrett Andrew Plumlee,                                 May 29, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-2553
        v.                                              Appeal from the Vanderburgh
                                                        Circuit Court
State of Indiana,                                       The Honorable David D. Kiely,
Appellee-Plaintiff.                                     Judge
                                                        The Honorable Gary J. Schutte,
                                                        Magistrte
                                                        Trial Court Cause No.
                                                        82C01-1905-F2-3303



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2553 | May 29, 2020                    Page 1 of 17
                                             Case Summary
[1]   Garrett Plumlee appeals his convictions for two counts of possession of a

      handgun by a serious violent felon, a Level 4 felony, claiming that the trial

      court erred in admitting two handguns into evidence because his rights were

      violated under the Fourth Amendment to the United States Constitution and

      Article 1, Section 11 of the Indiana Constitution. Plumlee argues that police

      officers unlawfully seized him and conducted a warrantless search of a vehicle

      that led to the discovery of the guns. Plumlee also asserts that his convictions

      must be reversed because the verdict forms submitted to the jury “eliminated

      the presumption of innocence.” Appellant’s Brief at 5.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On May 9, 2019, Evansville police officers Christopher Seibert and James

      Beard responded to a 911 call regarding two occupants who had been passed

      out in a running vehicle that was parked on a city street for nearly an hour.

      Neither the caller nor his neighbors recognized the occupants or the vehicle.

      The officers were concerned that the occupants were in distress because there

      had been a heroin overdose call in the same area in the preceding hour.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2553 | May 29, 2020   Page 2 of 17
[4]   When the officers arrived at the scene, Officer Beard requested dispatch to

      check the license plate on the vehicle. The dispatcher responded that the license

      plates were “fictitious.” Transcript Vol. II at 168.            As the officers approached

      the vehicle, they observed two men asleep or passed out with the seats fully

      reclined. They also noticed what appeared to be a large amount of cash sitting

      on the console. Officer Seibert knocked on one of the windows to rouse the

      occupants. When the men first awoke, they began “moving around a lot in the

      vehicle.” Id. at 151. Brandon White was identified as the driver, and Officer

      Seibert recognized Plumlee, the passenger, as a felon who was known to carry

      firearms and use drugs.


[5]   Concerned for the safety of themselves and the occupants, the officers retreated

      to the rear of the vehicle and radioed for backup assistance. Thereafter, Officer

      Seibert repeatedly asked the men what they were doing and he specifically

      asked Plumlee if he was able to speak. Neither man responded, and as Plumlee

      was stepping out of the vehicle, Officer Seibert saw a Ruger handgun on

      Plumlee’s seat. The officers escorted Plumlee away from the vehicle and

      handcuffed him while they searched the vehicle. During the search, Officer

      Beard located a second handgun “below the backseat.” Id. at 175. The

      weapons were loaded and it was subsequently determined that Plumlee’s DNA

      was on both guns.


[6]   Plumlee was charged with two counts of possessing a firearm as a serious

      violent felon. At the jury trial that commenced on August 26, 2019, Plumlee

      proffered the following verdict forms:

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2553 | May 29, 2020        Page 3 of 17
        We, the jury, find the Defendant, Garrett Andrew Plumlee, did
        knowingly or intentionally possess a firearm, to wit: a
        Taurus/Ruger handgun, on or about May 9, 2019.


                                                ....


        We, the jury, do not find that the Defendant, Garrett Andrew
        Plumlee, knowingly or intentionally possessed a firearm, to wit: a
        Taurus/Ruger handgun, on or about May 9, 2019.


Appellant’s Appendix Vol. II at 105. The trial court rejected those forms in favor

of the following



                                             COUNT I
                                             VERDICT

        We, the jury, find the Defendant, Garrett Andrew Plumlee, did
        knowingly or intentionally possess a firearm, to wit: a Ruger
        handgun on or about May 9, 2019, in Count 1.


                                             VERDICT

        We, the jury, find the Defendant, Garrett Andrew Plumlee, did
        not knowingly or intentionally possess a firearm, to wit: a Ruger
        handgun, on or about May 9, 2019, in Count l.


Id. at 127.

                                             COUNT 2
                                             VERDICT


        We, the jury, find the Defendant, Garrett Andrew Plumlee, did
        knowingly or intentionally possess a firearm, to wit: a Taurus
        handgun, on or about May 9, 2019, in Count 2.


Court of Appeals of Indiana | Memorandum Decision 19A-CR-2553 | May 29, 2020   Page 4 of 17
                                                      ....

                                                   VERDICT

              We, the jury, find the Defendant, Garrett Andrew Plumlee, did
              not knowingly or intentionally possess a firearm, to wit: a Taurus
              handgun, on or about May 9, 2019, in Count 2.


      Id. at 128.


[7]   Plumlee was found guilty as charged, and he admitted to being both a serious

      violent felon and a habitual offender. Thereafter, the trial court sentenced

      Plumlee to eight years on each of the handgun charges. Those sentences were

      ordered to run concurrently and enhanced by ten years on the habitual offender

      count for an aggregate term of eighteen years. Plumlee now appeals.


                                     Discussion and Decision
                                           I. Search and Seizure

[8]   Plumlee claims that the trial court erred in admitting the handguns into

      evidence because the encounter with the police officers amounted to an

      unlawful seizure and the subsequent search of the vehicle violated his rights

      under the Fourth Amendment to the United States Constitution and Article I,

      Section 11 of the Indiana Constitution.


[9]   We generally review the trial court’s ruling on the admission or exclusion of

      evidence for an abuse of discretion. Rogers v. State, 130 N.E.3d 626, 629 (Ind.

      Ct. App. 2019). We will reverse a ruling on the admission of evidence for an

      abuse of discretion, which occurs only when the ruling is clearly against the

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2553 | May 29, 2020   Page 5 of 17
       logic and effect of the facts and circumstances, and the error affects a party’s

       substantial rights. Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013). We will not

       reweigh the evidence and we will consider all conflicting evidence in favor of

       the lower court’s ruling. Pierce v. State, 29 N.E.3d 1258, 1264 (Ind. 2015). The

       trial court’s ruling may be sustained on any reasonable basis apparent in the

       record. Jeter v. State, 888 N.E.2d 1257, 1267 (Ind. 2008).


                                        A. The Fourth Amendment

[10]   The Fourth Amendment to the United States Constitution provides in part that,

       “[t]he right of the people to be secure in their persons, houses, papers, and

       effects, against unreasonable searches and seizures, shall not be violated. . . .”

       The purpose of the Fourth Amendment is to protect people from unreasonable

       search and seizure, and it applies to the States through the Fourteenth

       Amendment. Krise v. State, 746 N.E.2d 957, 961 (Ind. 2001). Hence, a

       warrantless search or seizure is presumptively unreasonable, and the State bears

       the burden to show that one of the well-delineated exceptions to the warrant

       requirement applies. M.O. v. State, 63 N.E.3d 329, 331 (Ind. 2016).


[11]   One of the exceptions to the warrant requirement is the emergency aid doctrine.

       In accordance with this exception, a police officer may act without a warrant

       where the officer had “an objectively reasonable basis for believing that medical

       assistance was needed, or persons were in danger.” Michigan v. Fisher, 558 U.S.

       45, 49 (2009); M.O., 63 N.E.2d at 332. Emergency circumstances involving

       injury or imminent danger to a person’s life justify governmental intrusion for

       the purpose of preventing further injury or aiding those injured. M.O., 63
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       N.E.3d at 333. “[T]he test is objective, and the government must establish that

       the circumstances as they appear[ed] at the moment of [the stop] would lead a

       reasonable, experienced law enforcement officer to believe that someone inside

       the [vehicle] required immediate assistance.” Id. at 334 (quoting Trotter v. State,

       933 N.E.2d 572, 577 (Ind. Ct. App. 2010)). On the other hand, police officers

       “do not need ironclad proof of a likely serious, life-threatening injury to invoke

       the emergency aid exception.” Fisher, 558 U.S. at 49, see also Randall v. State,

       101 N.E.3d 831, 840 (Ind. Ct. App. 2018), trans. denied. Hence, it is not

       necessary for police to have a warrant to enter a place “when the facts suggest a

       reasonable belief that a person within the premises is in need of aid.” Stewart v.

       State, 688 N.E.2d 1254, 1257 (Ind. 1997) (quoting Geimer v. State, 591 N.E.2d

       1016, 1019 (Ind. 1992)).


[12]   The circumstances here are akin to those presented in both Cruz-Salazar v. State,

       63 N.E.3d 1055 (Ind. 2016), and Randall. In Cruz-Salazar, a police officer

       responded to a report of a running vehicle that had been parked in front of a

       residence for thirty minutes. When the officer arrived, he noticed that the

       defendant was either sleeping or passed out. Because the defendant did not

       respond to the officer’s knock on one of the windows, the officer opened the car

       door to check on the defendant because he “didn’t know why he was asleep, if

       there was a medical problem.” Cruz-Salazar, 63 N.E.3d at 1055-56. When the

       defendant awoke, he showed signs of intoxication and admitted that he had

       been drinking. The defendant was arrested for public intoxication after




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2553 | May 29, 2020   Page 7 of 17
       registering 0.184 on a portable breath test and during a search incident to the

       arrest, the defendant was found in possession of cocaine.


[13]   In concluding that the police officer’s warrantless entry into the vehicle was

       permissible under both the United States and Indiana Constitutions, our

       Supreme Court held that “the report of a stationary vehicle that had been

       running for thirty minutes, in the early hours of a cold December morning,”

       was sufficient to merit further investigation, because those circumstances could

       “be an indicator of distress.” Id. at 1056. The Court opined that “Cruz-Salazar

       was at the wheel of the vehicle and was not responsive when [the officer] both

       shined his flashlight through the windows or when he tapped on the window.

       At this point the officer had an objectively reasonable basis to open the door

       and check on Cruz-Salazar’s well-being.” Id. (Emphasis in original).


[14]   In Randall, a hospital security officer observed the defendant sitting in a car in

       the facility’s parking lot with the driver’s door open and the ignition off. The

       officer pulled in behind the vehicle to conduct a welfare check because the

       defendant-driver appeared to be “slumped over” the steering wheel. Randall,

       101 N.E.3d at 835. A few seconds later, the defendant suddenly exited the car

       and quickly walked toward the officer. After the defendant complied with the

       officer’s directive to return to the vehicle, the officer approached the car and

       began conversing with the defendant. At some point, the officer noticed a

       folded square of aluminum foil on the dashboard. Suspecting that the foil pack

       was consistent with narcotics use, the officer asked the defendant: “[W]hat else

       in the vehicle he would not want a canine officer to find,” and the defendant

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2553 | May 29, 2020   Page 8 of 17
       responded that there was a marijuana pipe in the car. Id. The defendant was

       ordered from the vehicle and detained following a brief scuffle. Additional

       officers arrived, searched the vehicle, and discovered methamphetamine and

       two marijuana pipes. The defendant was arrested and charged with

       methamphetamine possession and possession of paraphernalia.


[15]   Following the trial court’s denial of the defendant’s motion to suppress, the

       defendant sought interlocutory review by this court. We affirmed the trial court

       on the grounds that the seizure of the defendant was permissible under the

       emergency aid doctrine and determined that the officer’s observations “could

       give rise to a reasonable concern that emergency medical assistance was

       needed, prompting further investigation.” Id. at 840. Thus, we concluded that

       because the officer had an objectively reasonable basis to believe that the

       defendant needed medical assistance upon his initial observation of the vehicle,

       the brief seizure of the defendant was justified under the emergency aid

       exception to the warrant requirement. Id. at 840-41.


[16]   Here, Plumlee and White were passed out or sleeping in a parked vehicle with

       the engine running for almost an hour, thus prompting a resident in the

       neighborhood to contact 911. As there had been a recent report of a drug

       overdose in the same area, the officers were concerned about their well-being.

       Moreover, one of the officers recognized Plumlee as a known drug user. When

       Officer Seibert knocked on one of the car windows, Plumlee began “moving

       around a lot in the vehicle.” Transcript Vol. II at 151. Plumlee could not—or

       would not—respond to Officer Seibert’s direct and repeated inquiries to him.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2553 | May 29, 2020   Page 9 of 17
       Officer Seibert noticed the handgun on the seat prior to having the opportunity

       to thoroughly inquire about the occupants’ well-being or make any

       determination as to whether they were in danger and may have required

       medical attention. In our view, it was reasonable for the officers to ask Plumlee

       and White to exit the vehicle for officer safety, and the circumstances were

       sufficient to warrant further investigation so the officers could determine

       whether medical assistance was needed. See Randall, 101 N.E.3d at 840.


[17]   That said, we reject Plumlee’s claim that the result reached in M.O. and Madison

       v. State, 357 N.E.2d 911 (Ind. 1976) should control the outcome here. In M.O.,

       a gas station clerk called police and reported a woman “stuck underneath her

       vehicle in the parking lot.” M.O., 63 N.E.3d at 330. When the responding

       police officer arrived at the scene, the dispatcher had already advised the officer

       that the woman was leaving the gas station. As the officer observed the vehicle

       pulling away, he initiated a traffic stop because he “was concerned that [the

       driver] potentially could have been seriously injured. . . .” Id. During a verbal

       exchange, the defendant-driver explained to the officer that she had become

       “stuck” because her car “has a manual transmission, and she had neglected to

       engage her parking brake, causing it to roll backwards as she exited.” Id. at 331.

       The defendant also stated that she was “fine” and declined an offer of medical

       care. Id. Although the officer did not observe any signs of physical injury, he

       continued to engage in conversation with the defendant and noticed signs of

       impairment and the odor of alcohol. Id.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2553 | May 29, 2020   Page 10 of 17
[18]   The defendant was arrested and charged with operating a vehicle while

       intoxicated as a class A misdemeanor. The trial court denied the defendant’s

       motion to suppress, and our Supreme Court reversed. The Court determined

       that the circumstances did not support the officer’s concern for the defendant

       because he had learned that the defendant freed herself before he had arrived at

       the gas station, she operated her vehicle normally, and the officer had not

       witnessed any traffic infractions or criminal conduct. As a result, no exigency

       existed to sufficiently justify stopping the defendant’s car. Id. at 333-34.


[19]   In Madison, the arresting officers were on routine patrol when they noticed the

       defendant’s vehicle parked legally near a picnic area. The officers approached

       and found the defendant groggy and nearly asleep. The defendant immediately

       told the officers that he was “okay” and after being asked for identification, he

       exited the vehicle. At that point, the officers “noticed a belt buckle which

       appeared to be a hash pipe.” 357 N.E.2d at 912. Upon looking into the

       vehicle, the officers observed bags of marijuana under both front visors. The

       defendant was arrested and convicted of possession of a controlled substance

       and possession of an instrument used in smoking a controlled substance.


[20]   In reversing the convictions, our Supreme Court determined that the

       circumstances did not warrant investigation beyond an inquiry into the

       defendant’s well-being because the “only testimony offered . . . that Madison

       appeared ‘half asleep’ and ‘groggy’. . . [did] not support a rational inference of

       criminal activity and . . . therefore, . . . the subsequent detention was unlawful.”

       Id. at 913. The Court noted that “[w]e certainly cannot fault the officers for

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2553 | May 29, 2020   Page 11 of 17
       approaching the parked car to see if everything was alright. However, once

       Madison replied that he was okay, the basis for the initial inquiry was satisfied

       and no further investigation was warranted.” Id.


[21]   Unlike the circumstances in M.O., and Madison, Plumlee did not respond to the

       officers’ inquiries about his well-being and the officers did not stop Plumlee’s

       vehicle or otherwise restrict his movement when they approached him.

       Moreover, the defendants in M.O. and Madison acknowledged to the officer that

       they were fine and did not require medical assistance.


[22]   In this case, it is apparent that the officers engaged Plumlee to discern whether

       medical assistance was needed and, as Plumlee exited the vehicle, Officer

       Seibert saw the handgun on the seat. Plumlee had not responded to Officer

       Seibert’s inquiry about his well-being, and Officer Seibert was not able to

       determine whether either of the men needed medical assistance. Plumlee’s

       apparent inability to answer supported a continued reasonable belief that

       emergency aid may have been required. The officers here took only the

       investigatory measures needed to determine whether Plumlee required help

       before they noticed the handgun on the seat; whereas in Madison, the police

       officers engaged in further investigation and found evidence of criminal activity

       only after the defendant indicated that he did not need assistance. Madison, 357

       N.E.2d at 912.


[23]   For these reasons, the holdings in M.O. and Madison do not demonstrate that

       the officers’ actions here violated the Fourth Amendment. Thus, we conclude


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2553 | May 29, 2020   Page 12 of 17
       that the officers’ actions were justified under the emergency aid exception to the

       warrant requirement.


                                       B. The Indiana Constitution

[24]   In a separate argument, Plumlee claims that his right to be free from

       unreasonable search and seizure was violated under Article 1, Section 11 of the

       Indiana Constitution. While Article 1, Section 11 shares the same language as

       the Fourth Amendment, our courts have interpreted and applied the state

       protection independently. State v. Bulington, 802 N.E.2d 435, 438 (Ind. 2004).

       Rather than “focusing on the defendant’s reasonable expectation of privacy, we

       focus on the actions of the police officer, and employ a totality of the

       circumstances test to evaluate the reasonableness of the officer’s actions.”

       Duran v. State, 930 N.E.2d 10, 17 (Ind. 2010). This court affords Article 1,

       Section 11 “a liberal construction in favor of protecting individuals from

       unreasonable intrusions on privacy.” Rush v. State, 881 N.E.2d 46, 52 (Ind. Ct.

       App. 2008).


[25]   There are three non-exclusive factors that we regularly balance in determining

       whether police conduct was reasonable under the Indiana Constitution: “1) the

       degree of concern, suspicion, or knowledge that a violation has occurred, 2) the

       degree of intrusion the method of the search or seizure imposes on the citizen’s

       ordinary activities, and 3) the extent of law enforcement needs.” M.O., 63

       N.E.3d at 334 (quoting Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005)). In

       analyzing the emergency aid exception, “the degree of concern, suspicion, or

       knowledge that a violation has occurred” should be analyzed in the context of
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2553 | May 29, 2020   Page 13 of 17
       the “degree of concern that emergency medical assistance was needed.”

       Randall, 101 N.E.3d at 841.


[26]   In this case, Plumlee and White appeared to be unconscious for nearly an hour

       in a running vehicle that nearby residents did not recognize. The situation was

       concerning enough to prompt a 911 call from a neighborhood resident. Both

       officers believed that Plumlee and White may have suffered an overdose,

       particularly because a similar report was made only an hour before in the same

       area, and Plumlee was a known drug user. The evidence demonstrates that the

       officers had an objective reasonable concern in these circumstances that medical

       assistance may have been required. That degree of concern was high in this

       case.


[27]   As for the second factor, the officers did not impede the movement of the

       vehicle or its occupants during their investigation. The vehicle was parked and

       Plumlee was asked to merely exit the vehicle as the officers were attempting to

       ascertain whether medical aid was needed. Hence, the degree of intrusion was

       minimal.


[28]   Finally, we note that because the officers held a reasonable belief that the

       occupants of the vehicle could have been in distress and in need of medical

       care, the extent of law enforcement needs was high. Put another way, the

       officers were properly exercising their community-caretaking function in

       investigating the 911 report to assess whether Plumlee and the driver required

       help. Thus, when the high degree of concern and the extent of law enforcement


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2553 | May 29, 2020   Page 14 of 17
       needs are balanced with the low level of intrusion, the officers’ brief seizure of

       Plumlee was permissible under Article 1, Section 11 of the Indiana

       Constitution. Hence, we conclude that the admission of the handguns into

       evidence did not violate either the Fourth Amendment to the United States

       Constitution or Article 1, Section 11 of the Indiana Constitution.


                                              II. Verdict Forms

[29]   Plumlee claims that his convictions must be reversed because the trial court’s

       verdict forms negated his presumption of innocence. Plumlee maintains that

       the verdict forms were “constitutionally infirm” because they erroneously

       instructed the jury that he was required to prove his innocence, thus “flipping

       the presumption of innocence on its head.” Appellant’s Brief at 23.


[30]   Verdict forms are essentially instructions to the jury and those forms are

       reviewed under the same abuse of discretion standard that applies to jury

       instructions. Fox v. State, 497 N.E.2d 221, 224-25 (Ind. 1986). Thus, verdict

       forms are reviewed in conjunction with the jury instructions as a whole. Knapp

       v. State, 9 N.E.3d 1274, 1284-85 (Ind. 2014). An abuse of discretion occurs only

       when a decision is clearly against the logic and effect of the facts and

       circumstances before the court. Hauk v. State, 729 N.E.2d 994, 1001 (Ind.

       2000). Reversal is warranted if the defendant’s substantial rights were

       prejudiced by the trial court’s failure to tender the requested instruction to the

       jury. Bragg v. State, 695 N.E.2d 179, 180 (Ind. Ct. App. 1998).




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2553 | May 29, 2020   Page 15 of 17
[31]   As noted above, the trial court rejected Plumlee’s verdict forms that provided

       “[w]e, the jury do not find that . . . the defendant . . . knowingly or intentionally

       possessed a . . . Taurus/Ruger handgun. . . .” Appendix Vol. II at 104-06.

       Instead, the trial court’s verdict forms to the jury stated “[w]e the jury, find . . .

       Plumlee . . . did not knowingly or intentionally possess a firearm, to wit:

       [Ruger/Taurus] handgun. . . .” Id. at 127-28.


[32]   Plumlee’s claim regarding the varying language in the verdict forms amounts to

       a distinction without a difference when examining them in conjunction with all

       the jury instructions that were given. Specifically, the record reflects that the

       jury was properly instructed in accordance with Ind. Code § 35-47-4-5, which

       provides that a serious violent felon who knowingly or intentionally possesses a

       firearm commits the offense of unlawful possession of a firearm by a serious

       violent felon. The jury was also instructed that neither Plumlee’s arrest nor the

       filing of charges were to be considered as evidence of guilt, that it was to

       consider all preliminary and final instructions together, and that Plumlee’s

       failure to testify could not be held against him. Moreover, the trial court

       instructed the jury that Plumlee was presumed innocent, that the State had the

       burden of proof and was required to prove each element of the offense beyond a

       reasonable doubt, and that if the evidence was susceptible to two reasonable

       interpretations, it was required to adopt the interpretation consistent with

       Plumlee’s innocence.


[33]   When considering all of these instructions in conjunction with the verdict

       forms, we reject Plumlee’s claim that the verdict forms shifted the burden of

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2553 | May 29, 2020   Page 16 of 17
proof and negated the presumption of innocence by “requiring the jury to find

that [Plumlee] proved his innocence before he could get a not guilty verdict.”

Appellant’s Brief at 25.


Judgment affirmed.


Bailey, J. and Crone, J., concur.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2553 | May 29, 2020   Page 17 of 17
