FOR PUBLICATION
                                                                       Sep 11 2014, 9:02 am




ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

STANLEY F. WRUBLE III                        GREGORY F. ZOELLER
South Bend, Indiana                          Attorney General of Indiana

                                             MICHAEL GENE WORDEN
                                             Deputy Attorney General
                                             Indianapolis, Indiana




                            IN THE
                  COURT OF APPEALS OF INDIANA

LEE TRAVIS GRIFFIN,                          )
                                             )
     Appellant-Defendant,                    )
                                             )
            vs.                              )        No. 71A03-1311-CR-458
                                             )
STATE OF INDIANA,                            )
                                             )
     Appellee-Plaintiff.                     )


                  APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                       The Honorable Elizabeth C. Hurley, Judge
                            Cause No. 71D08-1301-MR-1



                                 September 11, 2014


                            OPINION - FOR PUBLICATION


NAJAM, Judge
                            STATEMENT OF THE CASE

       Lee Travis Griffin appeals his convictions for robbery, as a Class A felony;

burglary, as a Class A felony; and felony murder, following a jury trial. Griffin presents

three issues for review:

       1.     Whether the State presented sufficient evidence to support his
              conviction for robbery.

       2.     Whether the trial court abused its discretion in allowing the State to
              present autopsy photographs.

       3.     Whether the trial court abused its discretion in refusing to give a
              proffered jury instruction.

       We affirm.

                       FACTS AND PROCEDURAL HISTORY

       On the night of December 27, 2012, Tyler Jordan, Autumn Jordan, and Christine

Jordan gathered at the home of Kent and Sandra Price (“the home”), who are relatives of

the Jordans. Also present at the home was Kent’s daughter, Klarisa, and a few of her

friends.

       At approximately 9:30 p.m., Tyler made his way from the home’s second-floor

bedroom to the home’s first floor kitchen, located at the rear of the home. While there,

Tyler heard a knock on the back door, which entered into the kitchen. When Tyler pulled

back the door’s curtains to see outside, Walter Neely forced open the door and entered

the home. Neely grabbed a knife from the kitchen butcher block and cut Tyler’s hands




                                            2
before pushing him to the floor. Four other men, including Griffin, then entered the

home wearing ski or surgical masks.1

        After the men entered, one of the men climbed on top of Tyler, placed his hand

over Tyler’s mouth, and instructed him “to shut up, to be quiet.” Tr. at 126 (Sept. 10-11,

2013) (hereinafter “Sept. 10 Tr.”).2 While some of the other men went upstairs, this man,

armed with a revolver, took Tyler to the basement. Tyler blacked out for a time soon

thereafter and, while he could not specifically recall, he subsequently reported that he

believed his attacker had knocked him unconscious.

        When Tyler regained consciousness, he “didn’t look up” but heard the man

searching the basement. Id. at 128. The man noticed that Tyler was awake and asked

Tyler whether he or his uncle knew the codes to the Prices’ safes. The man then went

upstairs, but, before doing so, he pointed his gun at Tyler, cocked it, and commanded

him, “[D]on’t move or I’ll kill you.” Id. Tyler could hear screaming and stomping

emanating from the home’s upper levels.

        Thereafter, at least two men—Neely and the man with the gun—“busted through

the door” to a second-floor bedroom where everyone but Klarisa and her friends had

gathered. Id. at 167. The two men stormed into the room. Kent was knocked down, and

Christine, who jumped onto Neely, was “slung” to the ground. Id. Neely swung at both

Kent and Christine with the knife.              The second man pointed the gun at Christine,

threatened her life, and ordered her to the bathroom. He also threatened to kill Sandra.

        1
            Neely wore a tan, brown, or beige coat and did not wear a mask.
        2
            For reasons unknown, the consecutively transcribed pages are not consecutively paginated.
The first two days of trial span two, consecutively-paginated pages. The third day of trial, however, holds
its own, independently-paginated volume.
                                                     3
       The men demanded money, jewelry, guns, and the home’s safes, and they

ransacked the bedroom. Meanwhile, a third intruder, also armed with a knife, made his

way to the third-floor bedroom where Klarisa and her friends were located. The man

searched the room for valuables, taking several items, but did not locate Klarisa or her

friends, who hid when they heard the commotion below.

       At some point, Klarisa and her friends were able to call 9-1-1. Christine had also

managed to call 9-1-1. Officers with the South Bend Police Department responded to the

calls and surrounded the home. As the intruders attempted to flee the home, the police

apprehended them. Griffin was among those apprehended, and he was still inside the

house when the police ordered him out. Griffin, accompanied by another intruder, exited

through the home’s rear entrance. When officers arrested him, Griffin wore black clothes

and a surgical mask but was unarmed.

       When the officers entered the home, they discovered Kent and Sandra had

sustained serious injuries from knife wounds from Neely’s attack. Sandra subsequently

died from her injuries, which included a wound to her neck. The officers also found

several items of property collected at the rear door of the home and a black duffel bag full

of the Prices’ property in the dining room.

       Officers transported Griffin to the South Bend Police Department. En route,

without being prompted or questioned, Griffin repeatedly expressed that he knew he had

acted wrongfully and stated that “he messed up, he messed up, he even drug his brothers

into this.” Id. at 55. While awaiting formal questioning at the station, Griffin talked to




                                              4
himself, and he expressed his belief that no confession would be needed because he and

his confederates had been caught, would tell the same story, and he would go to prison.

       The following day, the State charged Griffin with two counts of robbery and two

counts of burglary, all as Class A felonies. After Sandra died, the State amended its

information and charged Griffin with two counts of felony murder, which corresponded

to the State’s allegations that Griffin had committed robbery and burglary against Sandra.

The State’s allegations of robbery were based on a theory of accomplice liability.

       The court held Griffin’s jury trial on September 10 through September 12, 2013.

At trial, the State called Dr. Joseph Prahlow, a forensic pathologist, to testify regarding

Sandra’s cause of death. During the examination, the State offered Exhibits 42, 43, and

44, which were autopsy photographs that depicted the knife wounds to Sandra’s face and

neck. Griffin objected to the admission of these photographs on the basis that they were

gruesome and showed medically-altered wounds.               The trial court admitted the

photographs over Griffin’s objection.

       At the close of trial, Griffin proffered to the trial court his Jury Instruction No. 1,

which read:

       In determining whether the guilt of the accused is proven beyond a
       reasonable doubt, you should require that the proof be so conclusive as to
       exclude every reasonable theory of innocence.

Appellant’s App. at 117.       The trial court concluded that Griffin’s proposed Jury

Instruction No. 1 required a prior finding “that the only evidence on the actus reus of the

offense was circumstantial,” which the court did not consider appropriate. Tr. at 4-5




                                              5
(Sept. 12, 2013) (hereinafter “Sept. 12 Tr.”). Thus, the court refused to give Griffin’s

proposed instruction.

       The jury convicted Griffin on all counts. The trial court entered its judgment of

conviction on Count II (robbery of Kent), Count IV (burglary with injury to Tyler), and

Count V (felony murder, with the underlying felony being the robbery of Sandra). On

October 11, 2013, the court ordered Griffin to serve thirty years on Count II, thirty years

on Count IV, and fifty-five years on Count V, which were to be served consecutively for

a total aggregate term of 115 years. This appeal ensued.

                            DISCUSSION AND DECISION

                        Issue One: Sufficiency of the Evidence

       Griffin first contends that the State presented insufficient evidence to support his

robbery conviction. In essence, Griffin maintains that the evidence shows only that: (1)

at best, he was merely present at entry and on the first floor of the home and was not a

direct participant in the robberies, which occurred on other floors of the home; and (2) for

the same reason, he had no knowledge that the robberies were being perpetrated. Our

standard of review for sufficiency of the evidence claims is well-settled. Tobar v. State,

740 N.E.2d 109, 111 (Ind. 2000).

       In reviewing the sufficiency of the evidence, we examine only the probative
       evidence and reasonable inferences that support the verdict. We do not
       assess witness credibility, nor do we reweigh the evidence to determine if it
       was sufficient to support a conviction. Under our appellate system, those
       roles are reserved for the finder of fact. Instead, we consider only the
       evidence most favorable to the trial court ruling and affirm the conviction
       unless no reasonable fact-finder could find the elements of the crime proven
       beyond a reasonable doubt.



                                             6
Pillow v. State, 986 N.E.2d 343, 344 (Ind. Ct. App. 2013) (citations omitted) (internal

quotation marks omitted).

       In order to prove robbery, as a Class A felony, the State was required to show that

Griffin knowingly or intentionally took property from another person, or from the

presence of another person, by force or threat of force on any person or by putting any

person in fear, which resulted in serious bodily injury to someone other than Griffin.

Ind. Code § 35-42-5-1. The State charged Griffin as an accomplice, and “[a] person who

knowingly or intentionally aids, induces, or causes another person to commit an offense

commits that offense . . . .” Ind. Code § 35-41-2-4. Therefore, “[i]t is not necessary that

the evidence show the accomplice personally participated in the commission of each

element of the offense.” Wilson v. State, 455 N.E.2d 1120, 1123 (Ind. 1983). “[T]he

acts of one accomplice are imputed to all.” Collier v. State, 470 N.E.2d 1340, 1342 (Ind.

1984). So long as the State shows that one participated in the commission of an offense

as an accomplice, the accomplice “is criminally responsible for everything which follows

incidentally in the execution of the common design, as one of its natural and probable

consequences, even though it was not intended as part of the original design or common

plan . . . .” Johnson v. State, 605 N.E.2d 762, 765 (Ind. Ct. App. 1992) (citations and

quotations omitted), trans. denied.

       “The particular facts and circumstances of each case must be considered in

determining whether a person participated in the commission of an offense as an

accomplice.” Peterson v. State, 699 N.E.2d 701, 706 (Ind. Ct. App. 1998). For Griffin’s

conviction to stand, “there must be evidence of [his] affirmative conduct, either in the


                                            7
form of acts or words, from which an inference of a common design or purpose to effect

the commission of a crime may be reasonably drawn.” Id. “Each participant must

knowingly or intentionally associate himself with the criminal venture, participate in it,

and try to make it succeed.” Cohen v. State, 714 N.E.2d 1168, 1177 (Ind. Ct. App.

1999), trans. denied. That said, the State need not show that Griffin “was a party to a

preconceived scheme; it must merely demonstrate concerted action or participation in an

illegal act.” Rainey v. State, 572 N.E.2d 517, 518 (Ind. Ct. App. 1991).

       While it is true that mere presence at the scene of a crime is insufficient to make

one an accomplice, the Court may consider presence in conjunction with other factors

that tend to show that one acted as an accomplice to a crime. See Peterson, 699 N.E.2d at

706. There are four factors relevant to this inquiry, each of which Griffin asserts the

State failed to show: “(1) presence at the scene of the crime; (2) companionship with

another at the scene of the crime; (3) failure to oppose commission of crime; and (4)

course of conduct before, during, and after occurrence of crime.” Bruno v. State, 774

N.E.2d 880, 882 (Ind. 2002).

                                   Presence at the Scene

       The evidence shows that Griffin, dressed in black and wearing a mask, broke and

entered the home with four other men. He entered only after Neely cut Tyler’s hands

with a knife and pushed him to the floor. Griffin did not stop this assault or protest

Neely’s actions. Police apprehended Griffin at the scene, and Griffin was still in the

home when the officers arrived. Therefore, it was reasonable for the jury to draw the

inference that Griffin was in the home for the entire duration of the invasion.


                                             8
      Still, Griffin contends that “no testimony or evidence plac[ed] [him] on the second

or third floor of the home” or connected him to any of the weapons used. Appellant’s Br.

at 11. This, he concludes, proves that he was not present for the purposes of accomplice

liability. But we reject Griffin’s request to so limit the meaning of “presence” where

distinctions are drawn between the floors of a single-family home. Further, Griffin need

not have had direct ties to his confederates’ weapons for accomplice liability to attach;

through the acts of his confederates, the law imputes that connection to him. See Collier,

470 N.E.2d at 1342.

                              Companionship at the Scene

      The State also presented evidence that Griffin entered the home with four other

men, who were similarly dressed and concealed, after one of those men attacked Tyler.

He was present in the home as one man forced Tyler into the basement, threatened

Tyler’s life, and searched for safes and when the others went to the second and third

floors, where they attacked Kent, Sandra, and Christine with a knife, seriously wounding

Kent and murdering Sandra. Tyler could hear the screaming and commotion from the

basement, as could Klarisa on the third floor.      Griffin was in the home when his

confederates ransacked the upper floors looking for valuable property and when they

collected that property by the home’s rear entrance. Griffin exited the rear of the home

accompanied by a confederate, and later volunteered that he “got his brothers into this.”

Sept. 10 Tr. at 55. Griffin’s suggestion that “there is nothing placing [him] at the scene

or connecting him as a companion to any of the perpetrators” simply has no merit.




                                            9
Appellant Br. at 12. The State’s evidence plainly demonstrates Griffin’s companionship

with his confederates.

                         Failure to Oppose Commission of the Crime

       Griffin contends that the evidence does not support his conviction as an

accomplice because he was not aware that his confederates were committing a robbery in

the home. Thus, he maintains that he cannot be said to have failed to oppose the

commission of the robbery. But, again, the evidence shows that Griffin remained in the

home for the duration of invasion, and we decline to read Griffin’s narrow definition of

presence into the accomplice liability statute. Beyond this, the evidence demonstrates

that Griffin did not need to be physically present on the second and third floors of the

home to know what occurred there. From the basement, two floors below, Tyler heard

the screaming and stomping emanating from the second floor. Klarisa heard the same on

the third floor. Therefore, the jury could reasonably conclude that, no matter where

Griffin was in the home, he must have heard the commotion and did nothing to oppose

the crimes. Indeed, the evidence shows that Griffin did not oppose the knife attack on

Tyler but, instead, continued his unlawful entry into the residence. Finally, given the

statements Griffin made while in custody that he “got his brothers into this,” the jury

could reasonably conclude that he not only failed to oppose the robberies but was, in fact,

an active participant in them. Sept. 10 Tr. at 55.

                                    Course of Conduct

       For all the reasons explained above, the State presented sufficient evidence of

Griffin’s conduct before, during, and after the crimes to convict him as an accomplice.


                                             10
                                        Summary

       We hold that the State presented sufficient evidence to demonstrate that Griffin

knowingly or intentionally associated himself with a criminal venture, participated in it,

and tried to make it succeed. See Cohen, 714 N.E.2d 1168. Even if Griffin intended for

that venture to encompass a burglary only, a robbery and felony murder followed as

probable and natural consequences of the burglary. It does not matter whether Griffin

personally participated in each element of these offenses; the acts of his confederates are

imputed to him. See Collier, 470 N.E.2d at 1342; See Wilson, 455 N.E.2d at 1123.

Thus, we affirm on this issue.

                Issue Two: Admissibility of the Autopsy Photographs

       Griffin next challenges the admission, over his objection, of State’s Exhibits 42,

43, and 44. At trial, Griffin argued that these autopsy photographs were prejudicial

because of their gruesome nature and because the wounds depicted had been altered by

the pathologist. Sept. 10 Tr. at 205-06. On appeal, Griffin renews his prejudice objection

but does so on different grounds. In particular, Griffin contends the photographs have

low probative value because the “most probative evidence to be offered against him

would be that which would satisfy the [four] requirements [for finding an accomplice

relationship] [under] Bruno . . . , and [t]hese photographs offer no probative value to

those claims.” Appellant’s Br. at 15. He further asserts that they are prejudicial because

Neely, not Griffin, inflicted the wounds to Sandra. Id. He continues, “[T]hey remove the

Jury’s focus from the apparent lack of evidence connecting Griffin to the murder and

focus the jury’s attention on the heinous nature of Neely’s actions.” Id.


                                            11
        Because the grounds raised in support of his objection at trial are substantially

different than those he raises on appeal, we agree with the State that Griffin has waived

this issue for appeal. However, our decision is grounded in different authority than that

cited by the State.3

        As we explained in Showalter v. Town of Thorntown, 902 N.E.2d 338, 342 (Ind.

Ct. App. 2009), trans. denied:

        A party generally waives appellate review of an issue or argument unless
        that party presented that issue or argument before the trial court. However,
        that principle is not without limits. . . .

               The rule that parties will be held to trial court theories by the
        appellate tribunal does not mean that no new position may be taken, or that
        new arguments may not be adduced; all that it means is that substantive
        questions independent in character and not within the issues or not
        presented to the trial court shall not be first made upon appeal. Questions
        within the issues and before the trial court are before the appellate court,
        and new arguments and authorities may with strict propriety be brought
        forward. . . .

               This rule exists because trial courts have the authority to hear and
        weigh the evidence, to judge the credibility of witnesses, to apply the law to
        the facts found, and to decide questions raised by the parties. Appellate
        courts, on the other hand, have the authority to review questions of law and
        to judge the sufficiency of the evidence supporting a decision. The rule of
        waiver in part protects the integrity of the trial court; it cannot be found to
        have erred as to an issue or argument that it never had an opportunity to
        consider. Conversely, an intermediate court of appeals, for the most part, is
        not the forum for the initial decisions in a case. . . .

(Emphasis in original; citations and quotations omitted).

        3
          The authority cited by the State supports an analogous, but nonetheless different, position than
the State explores. This authority addresses the situation where counsel raised an entirely different
objection at trial than that argued on appeal. See Turner v. State, 953 N.E.2d 1039, 1058 (Ind. 2011)
(noting that counsel raised a hearsay objection at trial but argued relevance on appeal.); Lyons v. State,
976 N.E.2d 137, 141 (Ind. Ct. App. 2012) (noting that counsel objected to the form of the question at
trial—“speculation”—but, on appeal, contended that the opinion testimony elicited was based on an
improper foundation). Here, Griffin objected at trial under the same Indiana Evidence Rule that he raises
on appeal, Rule 403, but his current argument under that rule is substantially different than the one he
presented to the trial court.
                                                   12
       Here, the trial court did not have the opportunity to consider the argument that

Griffin presents on appeal. At trial, Griffin argued only that the photographs were

gruesome and depicted altered wounds. He made no mention of Neely’s involvement or

why that involvement might be prejudicial to his trial. Thus, we cannot state that the

argument Griffin makes here was a question fairly within the issues before the trial court.

Even though Griffin objected under the same rule of evidence both at trial and on appeal,

because the trial court never had an opportunity to consider the argument Griffin now

makes on appeal, the arguments raised here are independent in character and outside the

issues before the trial court. Therefore, Griffin waived this issue for appeal.

       Waiver notwithstanding, Griffin misstates the law. The Bruno factors provide a

starting point for determining an accomplice relationship, but Bruno is not the end of the

inquiry. The State still had the burden of proving every element of the offenses charged,

including felony murder, beyond a reasonable doubt. Stewart v. State, 945 N.E.2d 1277,

1290 (Ind. Ct. App. 2011), trans. denied. The photographs assisted the State in meeting

that burden. They assisted the testimony of the pathologist, Dr. Prahlow, in explaining

Sandra’s cause of death. Moreover, Dr. Prahlow explained that he and other doctors, not

Griffin, were responsible for those alterations. In such instances, Indiana courts have

repeatedly upheld the admission of autopsy photographs. See, e.g., Swingley v. State,

739 N.E.2d 132, 133-34 (Ind. 2000) (discussing Fentress v. State, 702 N.E.2d 721, 722

(Ind. 1998)); Jackson v. State, 973 N.E.2d 1128, 1127-28 (Ind. Ct. App. 2012), trans.

denied.




                                             13
                   Issue Three: Griffin’s Proffered Jury Instruction

       Finally, Griffin claims that the trial court abused its discretion when it failed to

issue his proffered jury instruction, which he based on our supreme court’s opinion in

Hampton v. State, 961 N.E.2d 480 (Ind. 2012). Our standard of review regarding the

issuance of jury instructions is well settled:

       The instruction of the jury lies largely within the trial court’s discretion.
       The instruction of the jury should inform it regarding the law applicable to
       the facts without misleading it and to enable the jury to understand the case
       and arrive at a just, fair, and correct verdict. In charging the jury, the court
       must state to them all matters of law which are necessary for their
       information in giving their verdict. In considering whether error has
       resulted from the refusal of a tendered instruction, the court on review
       determines [1] whether the instruction correctly states the law, [2] whether
       there is evidence in the record to support the giving of the instruction, and
       [3] whether the substance of the instruction is covered by other instructions
       which are given. A defendant must demonstrate that his substantial rights
       have been prejudiced in order to obtain a reversal for the trial court’s failure
       to instruct the jury.

Peterson, 699 N.E.2d at 706 (citations omitted).

       The decision in Hampton turned on the difference between direct and

circumstantial evidence. 961 N.E.2d at 482. Hampton distinguished the two types of

evidence as follows:

       Direct evidence means evidence that directly proves a fact, without an
       inference, and which in itself, if true, conclusively establishes that fact.
       Circumstantial evidence means evidence that proves a fact from which an
       inference of the existence of another fact may be drawn. . . . An inference
       is a deduction of fact that may logically and reasonably be drawn from
       another fact or group of facts.

Id. at 489 (internal citations and quotation marks omitted).




                                                 14
       Hampton found a “qualitative difference between direct and circumstantial

evidence with respect to the degree of reliability and certainty they provide as proof of

guilt.” 961 N.E.2d at 486. Consequently, our supreme court held that

       when the trial court determines that the defendant’s conduct required for the
       commission of a charged offense, the actus reus, is established exclusively
       by circumstantial evidence, the jury should be instructed as follows: In
       determining whether the guilt of the accused is proven beyond a reasonable
       doubt, you should require that the proof be so conclusive and sure as to
       exclude every reasonable theory of innocence.

Id. at 491 (emphasis in original).      Where appropriate, this “reasonable theory of

innocence instruction” provides “a safeguard urging jurors to carefully examine the

inferences they draw from the evidence presented, thereby helping to assure that the

jury’s reasoning is sound.” Id. at 486. It “informs the jury that if a reasonable theory of

innocence can be made of the circumstantial evidence, then there exists a reasonable

doubt, and the defendant is entitled to the benefit of that doubt.” Id. (emphasis in

original).

        We agree with the trial court that Griffin’s proposed instruction was not

appropriate because the State presented direct evidence to support its allegations. Griffin

concedes as much with respect to his burglary conviction. See Appellant’s Br. at 17

(“It is arguable that not all of the Counts were based exclusively on circumstantial

evidence . . . .”). Indeed, Tyler testified that he saw five men, some clad in black and

wearing masks, force entry into the home, and officers apprehended five men that

matched this description when they fled the home. This is direct evidence of a burglary.

       However, Griffin contends that his robbery conviction was based exclusively on

circumstantial evidence, and “Hampton does not require ‘all’ charged offenses to be
                                            15
based exclusively on circumstantial evidence, merely ‘a’ charged offense.” Id. But

Griffin’s argument neglects the principles of accomplice liability in his attempt to apply

Hampton to his robbery conviction.        Even if the evidence does not show that he

participated personally in the commission of each element of the offense, Wilson, 455

N.E.2d at 1123, Griffin is guilty as if he performed the acts himself, see Collier, 470

N.E.2d at 1342. Thus, the direct evidence tending to show the commission of the offense

by any accomplice applies equally to all accomplices. In other words, direct evidence

against the principals is attributable to Griffin as the accomplice. In contrast, Griffin’s

application of Hampton would turn nearly every accomplice liability prosecution into one

warranting a reasonable theory of innocence instruction, but Hampton itself implicitly

rejected such a reading. See 961 N.E.2d at 487-88, 490-91 (quoting Spears v. State, 272

Ind. 634, 401 N.E.2d 331, 335 (1980)) (“To hold otherwise would require a

circumstantial evidence instruction in every case involving a crime containing the

element of intent. Unnecessary confusion would result from such a course.”).

       As discussed in depth above, the State presented eyewitness testimony, which

constitutes direct evidence of a robbery committed by Griffin and his confederates. It

does not matter whether Griffin participated personally in every element of the offense;

the law imputes the actions of his confederates to him as if he acted out each element

individually. Consequently, this evidence applies to Griffin just the same as it does to his

confederates.




                                            16
      Because direct evidence supported all charges against him, we affirm the trial

court’s decision not to issue a reasonable theory of innocence instruction. As a result, we

do not reach the distinction Griffin raises regarding Hampton’s language.

                                    CONCLUSION

      In sum, we conclude that the State presented sufficient evidence to support

Griffin’s convictions. We also hold that Griffin waived any error related to the admission

of the autopsy photographs but, his waiver notwithstanding, the trial court did not abuse

its discretion when it admitted the photographs into the record. And we hold that the trial

court did not abuse its discretion when it refused to issue a reasonable theory of

innocence instruction on these facts. Thus, we affirm Griffin’s convictions.

      Affirmed.

BAILEY, J., and PYLE, J., concur.




                                            17
