             This opinion is subject to revision before final
                  publication in the Pacific Reporter.

                              2015 UT 56

                                IN THE
      SUPREME COURT OF THE STATE OF UTAH
                           ———————
                           JOHN R. PINDER,
                              Appellant,
                               v.
                        STATE OF UTAH,
                           Appellee.
                        ———————
                         No. 20121038
                      Filed July 21 , 2015
                        ———————
                  Fourth District, Heber Dep’t
                 The Honorable Lynn W. Davis
                        No. 060500155
                        ———————
                          Attorneys:
     Brent Gold, Park City, Andrew Parnes, Ketchum, Idaho,
                           for appellant

   Sean Reyes, Att’y Gen., Brett J. DelPorto, Ass’t Att’y Gen.,
                  Salt Lake City, for appellee
                        ———————
ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in
which CHIEF JUSTICE DURRANT, JUSTICE DURHAM, JUSTICE PARRISH,
               and JUDGE CHRISTIANSEN joined.

Due to his retirement, JUSTICE NEHRING did not participate herein;
    COURT OF APPEALS JUDGE MICHELE M. CHRISTIANSEN sat.

   JUSTICE DENO G. HIMONAS became a member of the Court on
     February 13, 2015, after oral argument in this matter, and
                 accordingly did not participate.
                          ———————

 ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
  ¶1 John Pinder was convicted of two counts of aggravated
murder and related crimes in 2000. We affirmed those convictions
in State v. Pinder, 2005 UT 15, 114 P.3d 551. Pinder subsequently
filed a petition for relief under the Post-Conviction Remedies Act
                          PINDER v. STATE
                       Opinion of the Court


(PCRA). The district court dismissed Pinder’s PCRA claims on
summary judgment, and this appeal followed.
  ¶2 Pinder asserts two sets of claims for relief. First, he presents
testimony from two new witnesses, purportedly to establish that
he was not the killer. Second, he asserts that the State knowingly
introduced perjured testimony and fabricated evidence at trial, in
violation of his right to due process. Pinder challenges the district
court’s dismissal of those claims. And he also finds error in the
court’s refusal to grant his motions for discovery and to amend
his PCRA pleadings.
  ¶3 We affirm. Pinder’s newly discovered evidence claims fail
on their merits, as he has failed to demonstrate that a reasonable
jury could not enter a judgment of conviction in light of the new
testimony he identifies. The due process claims, on the other
hand, are procedurally barred. And finally, there was no abuse of
discretion in the denial of Pinder’s discovery motion and motion
to amend.
                                  I
  ¶4 John Pinder owned a sprawling ostrich ranch in Duchesne
County. He and his ranch-hand, Filomeno Ruiz, were accused
(and ultimately convicted) of murdering June Flood and Rex Tan-
ner. Flood and Tanner also worked on Pinder’s ranch.
  ¶5 According to the evidence at trial, 1 Ruiz staged a fight with
his girlfriend, Mandy Harris, on the day of the alleged murder.
The purpose of the staged fight was to get Harris away from the
ranch. Ruiz called 911 during this staged altercation. Harris left
after the police showed up. And the 911 call was recorded by the
local dispatch.
  ¶6 That evening, Pinder, his girlfriend Barbara DeHart, Ruiz,
and Pinder’s employees Joe Wallen and David Brunyer (along
with Brunyer’s wife) gathered around a campfire to drink. At
some point the conversation turned to the “shrunken heads” that
Pinder and DeHart had seen at a curiosity shop in Seattle. Even-
tually Pinder spoke of his hopes to someday acquire one. Pinder


 1 The statement of facts below is presented in a light favorable to
the prosecution, and consistent with the judgment of conviction.

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said to Ruiz, “let’s go get some heads.” Ruiz responded with a
question: “four or two?” Pinder replied, “two.”
  ¶7 After grabbing a baseball bat, Pinder and Ruiz drove to the
home where Flood and Tanner resided. Pinder violently assaulted
Flood and Tanner, kidnapped them, and then shot them both with
a 10 mm pistol. Pinder and Ruiz then left the murder scene and
later returned with ammonium nitrate and dynamite, packed the
bodies with the explosives, and set them off.
  ¶8 Pinder later got others to help him hide the remains. Fol-
lowing a day of bulldozing the blast site, Pinder and Ruiz
dropped several black garbage bags of body parts into a barrel
and set them ablaze. Pinder, DeHart, and Ruiz then met with the
Brunyers for dinner, after which Pinder and Ruiz returned to the
lake to collect more parts for burning.
  ¶9 Tuesday morning, at Pinder’s behest, Ruiz and Brunyer
went to the Flood home armed with a bottle of alcohol and some
rags to remove fingerprints and tidy up. After returning, Brunyer
complained about the smell of the Flood residence, to which
Pinder quipped, “[T]hat’s because [Tanner] shit his pants when I
shot him.” Pinder, Ruiz, and Brunyer then spent the day bulldoz-
ing and gathering more body parts for disposal. After coming
across Tanner’s wrist watch, Pinder callously joked that it must
have been a Timex, because “it was still ticking.” Eventually the
bulldozer ran out of gas. And when they went to get more,
Brunyer asked Pinder why he killed Flood and Tanner, to which
Pinder replied, “[T]hey were liars, thieves and maggots, and now
they’re vaporized . . . no one will miss them anyway.” Upon arriv-
ing home that evening, Brunyer’s daughter could see he was up-
set. He recounted the gruesome tale to his daughter. She took
notes and then taped them to the inside of her dresser drawer af-
ter having Brunyer read over and approve them.
  ¶10 By Thursday, October 29th, Pinder and DeHart had left the
state, eventually arriving in Cataldo, Idaho. That Sunday, DeHart
contacted her daughter Melissa Cowles and told her that over the
last couple of days Pinder “had admitted to killing some people
on the ranch”; that they had been “[c]leaning up the evidence”;
that she had found “a bag of . . . what looked like bloody hair and
scalp” in Pinder’s truck, which she then threw away; and that


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they had “thrown the murder weapon off [a] bridge and into the
river.” DeHart had said they were “like Bonnie and Clyde, always
on the run.” That same day DeHart called her father, Bernie
Knapp, and told him “she helped clean blood and mess out of
[John Pinder’s] truck,” that “they had some bloody clothing and
items in bags that they had [tossed in dumpsters in] little towns
on the way up on their trip,” and that they “either had gotten rid
of a gun or were in the process of getting rid of a gun.”
  ¶11 Meanwhile, back at the ranch, an investigation was under-
way. One of Flood’s friends reported her missing, and police of-
ficers searched the Flood residence. Police discovered the home in
utter disarray, with blood on the bed sheets and the backrest of a
chair in the living room. They also found a pair of excrement-
stained pants in the bathroom. After leaving the home, the inves-
tigating officer saw and approached Brunyer, who was standing
nearby. Brunyer appeared “[v]ery agitated, very nervous, [and]
scared to death,” but handed the officer the letter his daughter
had written and the bottle of alcohol with which he had assisted
in cleaning up the home.
  ¶12 Pinder and DeHart arrived back in Salt Lake on November
4th. On that day they decided to appear on KSL News for a televi-
sion interview about the murders. Shortly thereafter, Pinder, Ruiz,
and DeHart were all arrested. Investigators later searched
Pinder’s ranch and found a gruesome assortment of the victims’
remains strewn about the area, stuck in bushes, and hanging from
trees. They also searched Pinder’s truck and found a 10 mm shell
casing, one of the victim’s thumbprints on the inside of a window,
and some bloodstains (one identified as Pinder’s, the other uni-
dentified). Police also determined that the rear windows had been
wiped down and cleaned, as well as the mid-section of the door
jam.
  ¶13 Ruiz pled guilty to two counts of murder. He denied being
the shooter, accusing Pinder instead. DeHart was charged with
and later convicted of obstruction of justice. State v. DeHart, 2001
UT App 12, 17 P.3d 1171. And Pinder was charged with two
counts of aggravated murder, two counts of aggravated kidnap-
ping, two counts of tampering with evidence, one count of burgla-
ry of a dwelling, one count of possession of explosives, and two
counts of desecration of a body.

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  ¶14 While being held in the Summit County Jail before his pre-
liminary hearing, Pinder met an inmate named Newly Welch.
Pinder bragged to Welch about killing Tanner and Flood and
blowing up their bodies. He told Welch that the day of the mur-
ders, he and Ruiz staged a fight with Ruiz’s girlfriend to get her
off of the ranch. Welch then asked Pinder what it was like to kill
someone. And in response, Pinder put his hand on Welch’s
shoulder and said, “[T]here’s no bigger rush[,] especially when
you know you’re going to get away with it.” Pinder was convicted
on all counts and sentenced to life with the possibility of parole on
the aggravated murder charges, and to consecutive statutory
terms on the other counts.
  ¶15 Pinder filed a motion for a new trial. For various reasons,
the motion took two years to resolve. During the eventual eviden-
tiary hearing on the new trial motion, Pinder presented several
newly discovered witnesses—Joey Silva (an inmate who allegedly
spent time with Ruiz), Robert Brunyer (David Brunyer’s brother),
and Kristy Barnes. Each of these witnesses testified, in one way or
another, that Ruiz and David Brunyer were actually the killers.
The district court found none of the new witnesses credible; in-
deed, the court expressly found each of them to be seriously lack-
ing in trustworthiness and accordingly denied the motion. Pinder
appealed, and we unanimously affirmed his conviction. State v.
Pinder, 2005 UT 15, 114 P.3d 551.
  ¶16 Pinder filed this petition for post-conviction relief in 2006.
He presented two main theories of relief. First, he claimed that
newly discovered evidence would exonerate him. Pinder brought
affidavits from two more inmates who had spent time with Ruiz
while incarcerated: Beau Heaps and Danny Alvarez. The Alvarez
affidavit stated that while in the Duchesne County Jail, Ruiz told
Alvarez that he and a “gavacho” 2 committed the murders but that
Pinder had “nothing to do with it.” The Heaps affidavit stated
that Heaps met Ruiz at the Utah State Prison and that Ruiz simi-
larly told him that Ruiz and another man—not Pinder—were the
murderers.


 2 This was an apparent reference to Pinder, or at least to a white
man. See WEBSTER’S NEW WORLD SPANISH DICTIONARY 229 (1992)
(defining “gabacho,” as used in Mexico, as “foreigner”).

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  ¶17 Pinder’s second claim was based on the allegation that the
State had violated his due process rights by knowingly presenting
perjured testimony from Welch and by falsifying evidence con-
cerning the 911 recording of the fight between Ruiz and Harris. To
support his claims regarding Welch, Pinder provided an affidavit
from a defense investigator who claimed that Welch admitted to
lying on the stand but that he would not testify regarding his own
perjury until “he was released from probation.” With respect to
the 911 tapes, Pinder submitted lengthy expert analyses of the 911
recordings of the Ruiz/Harris “fight.” This analysis concluded
that the 911 call recordings from the days of October the 24th and
25th were “not pristine,” had in some way been “altered” and
“tampered with by exporting and editing,” and that these files
could not “be deemed reliable.” Based on these expert reports,
Pinder concluded that: (1) the police had altered the recordings of
the 911 call to make the Ruiz/Harris fight appear to have hap-
pened on Sunday the 25th rather than on Saturday the 24th; and
(2) the State then used this fabricated date as a “baseline” in order
to coax witnesses at trial to believe that all the events happened
on Sunday rather than Saturday.
  ¶18 Discovery lasted three years, largely because of a drawn
out battle over disqualification of the district court judge. During
this time, both Ruiz and Alvarez were deposed. In 2009, at the
close of discovery, the State moved for summary judgment on
several grounds. The State first addressed the newly discovered
evidence claims, arguing that they “could . . . have been discov-
ered through the exercise of reasonable diligence,” UTAH CODE
§ 78B-9-104(1)(e)(i), were merely cumulative of other evidence,
were merely for impeachment, and in any event would not have
changed the outcome of trial. Turning to the due process claims,
the State first invoked the procedural bar limitations in the PCRA.
UTAH CODE § 78B-9-106(1)(c). It argued that the due process
claims “could have been but [were] not raised at trial or on ap-
peal,” or during Pinder’s new trial motion. Id. Next, the State ar-
gued that Pinder failed to establish that the State “knew or had
reason to believe Welch’s testimony was false.” Over a year later,
Pinder filed a response, a motion to amend the petition, and a mo-
tion for additional discovery.



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  ¶19 The district court granted summary judgment in favor of
the State. It first held, with respect to new evidence, (1) Pinder
failed to show that the Heaps and Alvarez testimony could not
have been discovered by the exercise of reasonable diligence,
(2) the evidence was merely cumulative and merely for impeach-
ment, and (3) even if the evidence were considered, it did not es-
tablish that the newly discovered evidence would make it impos-
sible for a reasonable jury to render a guilty verdict. Turning to
the due process claims, the court dismissed them both as proce-
durally barred because they could have been brought “during
Pinder’s motion for a new trial or on appeal.” The court also ruled
on the merits of both the Welch claim and the 911 claim, holding
that Pinder had failed to shoulder his burden of showing that the
State knew or should have known that both the Welch testimony
and the 911 tapes were false. The court never expressly addressed
Pinder’s motion for additional discovery. But it effectively denied
the motion by granting the State’s motion for summary judgment.
As for the motion to amend, the court denied it in its order grant-
ing summary judgment, but without explaining its reasons for do-
ing so.
  ¶20 Pinder filed this appeal. In considering his challenge to the
district court’s summary judgment decision, our review is de no-
vo. Archuleta v. Galetka, 2011 UT 73, ¶ 25, 267 P.3d 232. As for the
district court’s mixed determinations denying Pinder’s motion to
conduct further discovery and motion to amend, we review them
under an abuse of discretion standard. See Workers Comp. Fund v.
Utah Business Ins. Co., 2013 UT 4, ¶ 7, 296 P.3d 734; Dahl v. Dahl,
2015 UT 23, ¶ 162, 345 P.3d 566.
                                 II
  ¶21 The PCRA provides post-appeal means for challenging a
prior conviction. UTAH CODE § 78B-9-104(1). Two of the PCRA’s
provisions for relief are implicated here. First is the provision au-
thorizing a person to seek relief based on a showing that “newly
discovered material evidence exists that requires the court to va-
cate the conviction.” Id. § 78B-9-104(1)(e). Second is a provision
authorizing a person to challenge a conviction that “was obtained
. . . in violation of the United States Constitution.” Id. § 78B-9-
104(1)(a). Pinder brings two claims under each of these provisions.
As to new evidence, Pinder claims that the testimony of Heaps

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and Alvarez demonstrates that Ruiz and Brunyer were the killers.
And as to the claim that his conviction was obtained in violation
of the Constitution, he contends that the testimony of Newly
Welch was perjured and that the date of the 911 call was falsified,
such that use of this evidence violated his rights to due process.
We reject each claim for the reasons set forth below.
  ¶22 First, neither the Heaps nor the Alvarez testimony could
have been discovered with reasonable diligence. So Pinder’s ar-
gument can advance beyond that phase of the inquiry. But Pinder
fails to show that no reasonable fact finder could convict him in
light of this new evidence. We reject his newly discovered evi-
dence claims on that basis.
  ¶23 Second, both of Pinder’s due process claims are procedural-
ly barred because they could have been but were not brought at
trial or on appeal. Moreover, Pinder has not properly invoked any
of the so-called common law exceptions to the PCRA available to
him as a pre-2008 filer under Hurst v. Cook, 777 P.2d 1029 (Utah
1989).
  ¶24 Finally, we see no abuse of discretion by the district court
in denying Pinder’s motions for additional discovery and to
amend. The district court did not give its reasons for denying the-
se motions, but we affirm on grounds apparent on the record—
because both motions were filed at an advanced stage of the litiga-
tion and because the discovery motion was never properly no-
ticed for decision.
                  A. Newly Discovered Evidence
  ¶25 Pinder’s first assertion in his petition is that he has discov-
ered new evidence—the testimony of inmates Beau Heaps and
Danny Alvarez—that would eliminate any basis for a reasonable
judgment of conviction. See UTAH CODE § 78B-9-104(1)(e). Both
inmates alleged that Ruiz confessed that he was in fact the trig-
german and that his accomplice was not Pinder but Brunyer. In
the State’s view, however, Pinder has failed to shoulder his bur-
den of showing that he did not know (or could not have known
through the exercise of reasonable diligence) about Heaps’s testi-




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mony in time to include it in Pinder’s post-trial motion,3 see id.
§ 78B-9-104(e)(i); that the evidence is more than “merely cumula-
tive of evidence that was known” and more than “merely im-
peachment evidence,” id. § 78B-9-104(e)(ii)–(iii); and that when
taken together “with all the other evidence” this testimony
demonstrates that “no reasonable trier of fact could have found”
Pinder guilty. Id. § 78B-9-104(1)(e)(iv). We agree with Pinder on
the first point. But we affirm on the ground that the evidence
would not have made any difference anyway.
  ¶26 First, we conclude that Pinder has met his burden of show-
ing that the Heaps testimony was not known to Pinder and “could
not have been discovered through the exercise of reasonable dili-
gence,” id. § 78B-9-104(1)(e)(i), at least when the reasonable infer-
ences due Pinder as the nonmoving party are taken into account.
See Torrie v. Weber Cnty., 2013 UT 48, ¶ 7, 309 P.3d 216 (“[We] . . .
view[] the facts and all reasonable inferences drawn therefrom in
the light most favorable to the nonmoving party.” (internal quota-
tion marks omitted)). As Pinder notes, Heaps testified in his affi-
davit that “he met Ruiz at the State prison.” Moreover, Pinder as-
serts—and it is undisputed—that Pinder was housed in the Wa-
satch County Jail throughout the proceedings in the trial court
(including the new trial motion). 4 These allegations may not man-
date the conclusion that Pinder was ignorant of the Heaps-Ruiz
conversation. It is conceivable that Pinder and Heaps knew each
other prior to Pinder’s transfer to the state prison. Or that they
were corresponding while Pinder was housed at the Wasatch
County Jail during Pinder’s proceedings in the trial court. But re-
quiring Pinder to disprove that series of events through direct ev-
idence is not what is required on summary judgment. Pinder is
required only to put on evidence that produces a reasonable infer-


 3 Below, the State conceded the reasonable diligence prong of
the newly discovered evidence analysis. Surprisingly, the district
court nonetheless held that Pinder could have discovered this ev-
idence by the exercise of reasonable diligence. On appeal the State
confesses error as to this matter. Accordingly, we address only the
reasonable diligence inquiry with respect to the Heaps testimony.
 4 Though he did have a small stint at the Duchesne County Jail.
Supra ¶ 16.

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ence that he did not know about the conversation between Heaps
and Ruiz until after his new trial motion. And we are convinced
that he has done so.
  ¶27 Similarly, we are satisfied that Pinder has met his burden
of demonstrating that “the exercise of reasonable diligence”
would not have led him to have discovered the Heaps testimony
before he filed the new trial motion. Perhaps counsel could have
subpoenaed and deposed every inmate with whom Ruiz may
have had contact while being housed at the state prison. But the
PCRA does not require such heroic efforts; it requires only rea-
sonable diligence.
  ¶28 That said, Pinder still falls short of carrying the burden as-
signed to him under the PCRA. To succeed in advancing his new
evidence claims under the PCRA, Pinder must establish three oth-
er elements. First, he must demonstrate that the evidence was not
“merely cumulative of evidence that was known.” Id. § 78B-9-
104(1)(e)(ii). Second, he must establish that it was not “merely im-
peachment evidence.” Id. § 78B-9-104(1)(e)(iii). And finally, he
must demonstrate that the newly discovered evidence—when
“viewed with all the other evidence”—is such that “no reasonable
trier of fact could have found the petitioner guilty.” Id. § 78B-9-
104(1)(e)(iv). These elements are listed separately. But as applied
here, they overlap substantially, in a manner reinforcing a unify-
ing principle: a petitioner seeking to challenge a new conviction
on the basis of new evidence must establish that the new evidence
is truly new and clearly would have made a difference.
  ¶29 The elements of a newly discovered evidence claim under
the PCRA trace their roots to the historical standard governing
motions for a new trial—a standard first articulated in Berry v.
State, 10 Ga. 511 (Ga. 1851). Long before the adoption of the
PCRA, our court embraced the standard set forth in Berry. 5 The




 5  See State v. Gellatly, 449 P.2d 993, 995–96 (Utah 1969) (“Newly
discovered evidence, to be a ground for a new trial, must fulfill
the following requirements: (1) It must be such as could not with
reasonable diligence have been discovered and produced at the
trial; (2) it must not be merely cumulative; (3) it must be such as to

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Berry test listed the consideration of the merely “cumulative” na-
ture of the evidence as separate from the analysis of the effect on
the result. Id. at 527–28. Yet under longstanding caselaw, these el-
ements are viewed as overlapping and mutually reinforcing.
 ¶30 The Virginia Supreme Court may have put it best:
       Evidence is said to be cumulative when it is of the
       same kind, to the same point, and the discovery of
       such evidence after verdict is, as a rule, no ground
       for a new trial. Its exclusion, however, is not by virtue
       of any independent rule, but rather as a corollary of the
       rule that the newly discovered evidence must be such
       as would probably produce a different result on the mer-
       its. Generally, evidence that is merely cumulative,
       corroborative, or collateral, ought not and probably
       would not produce a different result on the merits,
       and for that reason is excluded . . . .
Johnson v. Commonwealth, 101 S.E. 341, 343 (Va. 1919) (em-
phasis added).
  ¶31 Thus, evidence that is cumulative (going to the same point
already made at trial) or that is for impeachment (showing that a
witness might not have been credible) is singled out as being par-
ticularly unlikely to change the result of the trial. So, under the Ber-
ry test, when courts inquire as to whether something is “merely
cumulative” or “merely” for impeachment, they are ultimately
asking whether newly discovered evidence is weighty enough to
have changed the verdict. 6 All three inquiries reinforce a central
theme. Evidence is “merely cumulative” or “merely” for “im-
peachment” if it is unlikely to have affected the outcome of trial.
  ¶32 Our longstanding caselaw in the new trial setting is to this
effect. When we have spoken of “cumulative” evidence in the new

render a different result probable on the retrial of the case.”); ac-
cord Klopenstine v. Hays, 57 P. 712, 714 (Utah 1899).
 6  3 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND
PROCEDURE, FEDERAL RULES OF CRIMINAL PROCEDURE § 584, at 461–
62 (4th ed. 2011) (“The requirement that the evidence be material
and not cumulative is closely related to the requirement that the
evidence be such that it would probably produce an acquittal.”).

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trial context, it has been in highlighting such evidence as especial-
ly unlikely to change the outcome of a trial. 7 Our more recent cas-
es are along the same lines. 8
  ¶33 We interpret subsections 104(1)(e)(ii) and (iii) of the PCRA
to incorporate the term-of-art-usage of “merely cumulative” and
“merely impeachment” evidence as those terms are employed in
the context of a new trial motion. We hold, specifically, that evi-
dence is “merely cumulative” or “merely impeachment” evidence
if it is insufficient to sustain the conclusion that “no reasonable
trier of fact could have found the petitioner guilty.” UTAH CODE
§ 78B-9-104(1)(e)(iv). And we affirm the judgment in this case on
the ground that Pinder has failed to make such a showing.



 7  State v. Molitz, 122 P. 86, 88 (Utah 1912) (affirming denial of
new trial motion because the newly discovered evidence “merely
confirm[ed] or impugn[ed] the statements of other witnesses, and
hence nothing [was] really added to the weight of the evidence either
way” (emphasis added)); State v. Haworth, 73 P. 413, 414 (Utah
1903) (“Newly-discovered evidence which is impeaching is
looked upon with equal distrust as cumulative evidence, and in
no instance should a new trial be granted unless it clearly appears
that the newly-discovered evidence would probably change the result on
a retrial.” (emphasis added)); Larsen v. Onesite, 59 P. 234, 235 (Utah
1899) (affirming denial of new trial motion based on allegedly
newly discovered witnesses because the testimony “was cumula-
tive in its character” and if produced, “the findings of the trial
court would [not] have been different from what they were”); Fos-
ter v. Reich, 1 Utah 192, 192 (Utah Terr. 1875) (affirming denial of a
new trial motion because “newly discovered evidence” was only
“cumulative,” in that “most of it would have been unimportant up-
on the trial, had it been known and used at that time” (emphasis
added)).
 8 See, e.g., State v. James, 819 P.2d 781, 794–95 & n.41 (Utah 1991)
(overturning trial court’s decision that newly discovered evidence
was “merely cumulative” because the evidence was “different [in]
kind and nature” than the evidence introduced at trial, and hence
“certainly could have a different quality in the eyes of the jurors
who assess[ed] the credibility of witnesses”).

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  ¶34 The Heaps and Alvarez testimony would have supported
Pinder’s theory at trial (and on the new trial motion) that Ruiz
was the triggerman. And it would have marginally eroded Ruiz’s
credibility. But there was still plenty of evidence to sustain a rea-
sonable judgment of conviction. At trial, David Brunyer testified
that Pinder told him: “I shot [Tanner],” that Flood and Tanner
were “liars, thieves and maggots,” and that Pinder “vaporized”
them both. And the evidence suggested that Pinder then ordered
Brunyer and others to help sanitize of the crime scene. Brunyer
conveyed all of this to his daughter, who copied it down in a let-
ter. According to DeHart’s father and daughter, Pinder “admitted
to killing some people on the ranch,” and that Pinder and DeHart
spent a few days like “Bonnie and Clyde” “[c]leaning up the evi-
dence” and “throw[ing] the murder weapon off [a] bridge into the
river.” Welch also testified of Pinder’s confessions. 9 According to
Welch, Pinder told him nonpublic information about the case and
gloated about the “rush” of killing someone “when you know
you’re going to get away with it.”
  ¶35 Adding the evidence advanced by Pinder in his new trial
motion—the testimony of Robert Brunyer, Kristy Barnes, and Joey
Silva—changes the evidentiary picture only marginally. After var-
ious hearings on the motion, the district court found all of these
witnesses to be seriously wanting in credibility. As to Robert
Brunyer, the court found that he was “not credible” and that
“much of his testimony is inconsistent with absolutely estab-
lished, known undisputed facts.” Kristy Barnes fared no better.
Her testimony was filled with “lie[s],” and contradicted by both
state and defense witnesses. And as for Joey Silva, the court found
him to be a “‘bamboozler’ and professional scam artist.” The court
found “it difficult to conceive of a less trustworthy witness.”
   ¶36 The addition of the Heaps and Alvarez testimony adds
something to Pinder’s theory that Ruiz was the one who shot Flood
and Tanner. But a reasonable jury would still be well within its
prerogative to convict Pinder based on the evidence it had before
it. The “mere possibility” that new evidence “might have helped


 9  As noted below, any claim that Welch’s testimony was per-
jured and that its introduction violated Pinder’s due process
rights is procedurally barred. Infra ¶¶ 37–41.

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                       Opinion of the Court


the defense or might have affected the outcome” is insufficient to
merit relief under the PCRA. Medel v. State, 2008 UT 32, ¶ 50, 184
P.3d 1226 (internal quotation marks omitted). 10 Accordingly, we
affirm the district court’s grant of summary judgment in favor of
the State as to Pinder’s newly discovered evidence claims.
                       B. Due Process Claims
  ¶37 Pinder’s next grounds for relief under the PCRA are in his
claims that his conviction “was obtained . . . in violation of the
United States Constitution.” UTAH CODE § 78B-9-104(1)(a). In this
claim, Pinder argues that the State violated his rights to due pro-
cess under the Fourteenth Amendment when it (1) knowingly put
on Welch’s perjured testimony and (2) knowingly used a falsified
version of the 911 tapes to guide witnesses’ testimony as to the
date of the Ruiz/Harris “fight” (and hence the murders). See
Mooney v. Holohan, 294 U.S. 103, 113 (1935) (holding that the Due
Process Clause prohibits the knowing use of falsified testimony or
evidence by the prosecution). The State responds by asserting that
both of these claims are procedurally barred, that Pinder has not
properly invoked any exceptions to the procedural bar, and that
in any event the claims fail on their merits.
  ¶38 We agree with the State, at least in part. For reasons ex-
plained below, we hold that both the Welch claim and the 911
tapes claim are procedurally barred because they “could have
been but [were] not raised at trial or on appeal.” UTAH CODE
§ 78B-9-106(1)(c). We also conclude that Pinder has failed to
properly invoke any of the so-called common law exceptions to
the pre-2008 PCRA’s procedural bar requirements under Hurst v.
Cook, 777 P.2d 1029 (Utah 1989). And we therefore affirm without
reaching the merits of Pinder’s due process claims.
                         1. Procedural Bar
  ¶39 Because the State has invoked the procedural bar provi-
sions of the PCRA, the burden to disprove the elements of proce-
dural bar falls on Pinder. UTAH CODE § 78B-9-105(2). Thus, it falls

 10  See also Taylor v. State, 2012 UT 5, ¶ 26, 270 P.3d 471 (“[U]nder
the PCRA . . . newly discovered evidence merits post-conviction
relief only if the evidence would create a reasonable doubt as to
the defendant’s guilt.” (internal quotation marks omitted)).

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                        Opinion of the Court


on Pinder to show that his due process claims are not ones that
“could have been . . . raised at trial or on appeal.” Id. § 78B-9-
106(1)(c).
  ¶40 Pinder claims that he could not have raised the Welch
claim or the 911 tapes claim previously—at trial, in time for his
new trial motion, on a motion to amend his new trial motion
(once he became aware of Welch’s recantation and some problems
with the tapes), or on his direct appeal. He advances two argu-
ments in support of this assertion. First is the notion that the
PCRA’s procedural bar has no application to post-verdict pro-
ceedings prior to an appeal. Pinder claims to find that limitation
in the text of Utah Code section 78B-9-106(1)(c)—in the terms lim-
iting the procedural bar to claims that could have been raised “at
trial or on appeal.” Because a post-trial motion is not “at trial” in
Pinder’s view, he contends that a claim that could have been as-
serted (if at all) only post-trial is not subject to the statutory proce-
dural bar.
  ¶41 This argument finds some plausible support in the terms of
the statute. As Pinder indicates, we sometimes speak of a “trial”
as a reference to the proceedings that begin with opening state-
ments and end with a verdict. But that is not the only sense of this
term. We may also speak of the “trial” proceedings as encompass-
ing everything that happens in the trial court. And that is the sense
of “at trial” in the PCRA.
  ¶42 We base that conclusion on the statutory context of the
phrase “at trial”—on the fact that this phrase appears in a statute
foreclosing claims that could have been asserted at earlier stages,
and in a clause contrasting “at trial” with proceedings “on ap-
peal.” In this setting “at trial” cannot plausibly be understood to
be limited to the proceeding beginning with opening statements
and ending in a verdict. Such a construction would produce trou-
bling loopholes in the PCRA’s procedural bar provision—
loopholes that would bar claims that could have been raised before
the verdict or during the appeal, but not before opening statements
(pre-trial) or after the verdict (post-trial). We see no rational way
to attribute to the legislature the intent to condone such loopholes.
And we accordingly construe section 104(e)’s reference to “trial”




                                   15
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                       Opinion of the Court


to encompass all claims that could have been raised in the trial
court. 11
  ¶43 That brings us to Pinder’s second basis for avoiding the
PCRA’s procedural bar—the argument that even if claims that
could have been asserted at the post-trial stage are covered by
statute, these claims are not barred because they came to light too
late. In support of this argument, Pinder asserts that the evidence
sustaining his due process claims came to light only after his new
trial motion was filed, and after what he views as a limitation on
amendments to new trial motions in the rules of criminal proce-
dure. See UTAH R. CRIM. P. 24 (requiring new trial motion to be
filed within 10 days of entry of sentence, without mentioning the
possibility of an amendment). The parties devote substantial at-
tention to this issue in their briefs, with Pinder relying on what he
views as a negative inference from criminal rule 24, and the State
asserting that civil rule 15 should be construed to apply in a crim-
inal case (and to allow an amendment to a new trial motion). We
need not and do not reach that question. We resolve the matter
instead on the ground that Pinder’s due process claims could have
been raised at trial, or at least by the time he filed his new trial
motion.
  ¶44 Our cases establish that a defendant “could have” raised a
claim when he or his counsel is aware of the essential factual basis
for asserting it. 12 And that conclusion holds even when the de-


 11  See, e.g., State v. Barela, 2015 UT 22, ¶¶ 42–44, 349 P.3d 676
(choosing a construction of statutory text on grounds that the al-
ternative would produce anomalies that cannot be attributed to
the legislature).
 12 See, e.g., Taylor, 2012 UT 5, ¶ 19 (finding procedural bar where
the “facts underlying the[] claims arose” during earlier proceed-
ings and were available to counsel for over twenty years); Gardner
v. State, 2010 UT 46, ¶ 76, 234 P.3d 1115 (holding that due process
claims “could have” been raised in a prior post-conviction pro-
ceeding and were thus procedurally barred because the petitioner
“became aware” of the factual basis for his claims during the first
post-conviction proceeding); Gardner v. Galetka, 2004 UT 42, ¶¶ 9–
13, 94 P.3d 263 (holding that challenge to the knowledge element

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                       Opinion of the Court


fendant later discovers additional evidence providing further
support for the claim. 13 The exception to this general rule is set
forth by statute: “Notwithstanding Subsection (1)(c), a person may
be eligible for relief on a basis that the ground could have been
but was not raised at trial or on appeal, if the failure to raise that
ground was due to ineffective assistance of counsel.” UTAH CODE
§ 78B-9-106(3). Thus, the general rule is that the procedural bar
applies to claims known to a defendant or his counsel; the excep-
tion kicks in when the failure to assert a known claim results from
ineffective assistance of counsel.
  ¶45 We find Pinder’s due process claims to be barred under
these standards. The grounds for asserting claims regarding the
Newly Welch testimony and the 911 tapes were known to Pinder
at the time of trial, and accordingly “could have” been brought
then or in his post-trial motion. At most Pinder has identified ad-
ditional evidence supporting these claims, and that is insufficient
to avoid the procedural bar under our cases.
                     a. Newly Welch testimony
  ¶46 Pinder asserts that Welch perjured himself at trial and that
the State knowingly presented that perjured testimony. He bases
this claim—as well as his attempt to justify his failure to assert it
sooner—on an affidavit of Todd Gabler, an investigator hired by
Pinder’s counsel. The Gabler affidavit asserts that on March 7,
2002, Welch recanted the essence of his testimony at trial—
specifically, his assertion that Pinder had told Welch that he shot


of a jury instruction “could have” been brought on direct appeal
or in a first post-conviction petition based merely on the “pres-
ence of the erroneous . . . instruction in the record”).
 13 See Taylor, 2012 UT 5, ¶ 25 (although the petitioner discovered
prosecutor’s voir dire notes during federal habeas investigation
leading him to raise claim that a juror was struck based on reli-
gious affiliation, claim could have been raised on direct appeal
because trial counsel was present during voir dire “and knew that
potential jurors were being questioned about their religious affili-
ation,” “knew which jurors the prosecution removed with per-
emptory challenges,” and should have been aware “that LDS
members comprised approximately 78 percent of the jury pool”).

                                 17
                          PINDER v. STATE
                       Opinion of the Court


and beat Tanner and Flood. 14 It also indicates that Welch told Ga-
bler that he would not confess to his perjury at trial under oath
until after his release from probation.
  ¶47 In light of this evidence, Pinder contends that he could not
have raised a constitutional claim based on Welch’s alleged per-
jury until after Welch got off probation. And because Welch’s pro-
bation did not end until after Pinder filed his new trial motion,
Pinder asserts that his due process claim regarding the knowing
presentation of perjured testimony could not have been presented
during the post-trial proceedings on that motion.
  ¶48 We disagree. Pinder’s claim does not hinge on the Gabler
affidavit. That affidavit may have provided some additional evi-
dence in support of the claim that Welch perjured himself, but the
defense had plenty of grounds for this assertion at trial, or in a
post-trial motion. 15 And the affidavit says nothing about the key


 14  The State objects to the use of the Gabler affidavit as inadmis-
sible hearsay, which cannot be used to establish a material issue of
fact on summary judgment. That may be a winning argument. But
it is one the State never raised below. It was accordingly forfeited.
See, e.g., D & L Supply v. Saurini, 775 P.2d 420, 421 (Utah 1989)
(holding that “[i]t is true that inadmissible evidence cannot be
considered in ruling on a motion for summary judgment,” but re-
jecting an argument that summary judgment evidence contained
hearsay because the party “failed to object at the trial court”); see
also id. (collecting cases).
 15  The grounds for a charge of perjury by Welch at the time of
trial were extensive: (1) that a fellow inmate testified that Welch
told him that Welch was getting out of jail soon because he was
going to testify against a “guy” facing murder charges, that Welch
said he was going to testify that the “guy” confessed to him, and
that the fellow inmate asked him if the confession had really oc-
curred, and Welch shook his head, “no”; (2) that Welch admitted
on cross-examination that he had made false statements to police
about what Pinder said and that he hoped his testimony would
help him get out of prison early; (3) that Welch told police that
Pinder admitted using a sawed-off shotgun to commit the mur-
ders, but a medical examiner testified that medium-caliber bullets

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                       Opinion of the Court


element of the State’s knowledge of Welch’s alleged perjury at the
time of trial—as there is no indication that the State was aware of
the contents of the Gabler affidavit at the time it presented the
Welch testimony at trial.
  ¶49 We deem the Welch claim procedurally barred on this ba-
sis. The Gabler affidavit adds marginally to Pinder’s assertion of
perjury by Welch, but it is hardly necessary to the allegation of
perjury. And, significantly, the affidavit says nothing about the
State’s knowledge of the alleged perjury. We therefore conclude
that Pinder has failed to establish that the Welch claim is one not
available at trial or at least on his post-trial motion.
  ¶50 Pinder has not sought refuge in the statutory exception to
procedural bar; he has not asserted that the Welch claim was not
raised at trial “due to ineffective assistance of counsel.” UTAH
CODE § 78B-9-106(3). 16 And absent such an argument, we find the
Welch claim procedurally barred given that the essential basis of
the claim was available to Pinder at trial or at least at the time of
his post-trial motion.
                            b. 911 tapes
  ¶51 Pinder’s second due process claim fails on similar grounds.
This claim is rooted in the allegation that the State knowingly pre-
sented doctored 911 tapes to establish that the crime in question
was committed on Sunday, October 25, 1998. According to the ev-


(not shotgun pellets) were the cause of death; (4) that Welch ad-
mitted that he had access to the television while in jail and that he
had seen a broadcast about Pinder two months before meeting
him; and (5) that correctional officers testified that Pinder “pretty
much kept to himself, kept in his room,” making it unlikely that
Pinder would confess to anyone, let alone “a manipulative inmate
who always wanted attention and who lied to get what he need-
ed.”
 16 Indeed, Pinder’s briefing on this appeal underscores the fail-
ure to allege ineffective assistance. Instead of establishing that he
asserted such a claim, Pinder requests a remand to allow him to
do so. There is no procedural mechanism for such a remand,
however. And Pinder’s failure to raise this claim only reinforces
the propriety of the district court’s decision below.

                                 19
                           PINDER v. STATE
                        Opinion of the Court


idence at trial, this was both the date of the murders and the date
of the staged fight between Ruiz and Harris. Pinder claims that
the State falsified the 911 tapes to change the true date of the fight
(and hence the murders) from October 24, 1998, to October 25,
1998. The tapes themselves were never entered into evidence. But
Pinder asserts that they were used to “refresh” the memories of
various witnesses, including Pinder himself, so that they would
testify to the “baseline” date of October 25. And Pinder claims
that the date mattered because he had an alibi (through DeHart)
on October 24.
  ¶52 On post-conviction review, Pinder presents the testimony
of expert witnesses who analyzed the tapes from October 24 and
25. Those experts concluded that the recordings were “not pris-
tine,” and had in some unspecified way been “altered” and “tam-
pered with by exporting and editing,” and thus could not “be
deemed reliable.”
   ¶53 Pinder offers no clear ground for his assertion that this
claim could not have been presented at trial or on a post-trial mo-
tion. When asked at oral argument to identify what alerted the de-
fense team to the possibility of a problem with the date, counsel
simply stated that at some point they decided that “the only way
. . . [to] have a valid claim . . . was to see if there was an alteration
of the tapes.” That does not support the conclusion that this claim
could not have been pursued sooner. Pinder has not identified
any factual grounds for this claim that were not available at trial
but only came to light more recently. He has merely asserted that
counsel decided only at the post-conviction phase to pursue the
matter further. That is insufficient. The same basis for the investi-
gation by post-conviction counsel was as readily available to trial
counsel. And that is enough to sustain the conclusion that the
claim “could have” been brought at trial.
  ¶54 Pinder had ample grounds for pursuing an investigation
into the date of the staged fight and subsequent 911 recording at
the time of the trial. DeHart had testified to one date (October 24)
in her obstruction of justice trial, but identified a different date
(October 25) at Pinder’s trial. And the difference in dates clearly
mattered to Pinder at the time of trial—as he allegedly had an ali-
bi for the former date but not the latter. Yet Pinder did not chal-
lenge the October 25 date at trial; nor did he pursue an investiga-

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                        Opinion of the Court


tion into the 911 tapes. He clearly could have done so then; he had
every motivation and opportunity to do so at the time of trial or in
anticipation of a post-trial motion.
  ¶55 This is accordingly a claim that “could have” been brought
previously. Granted, the defense team did not have the results of
the expert analysis during the trial and post-trial proceedings. But
they had everything else, and the additional evidence provided by
the expert’s nebulous conclusions 17 is insufficient in this context to
undermine the conclusion that this claim “could have” been
brought earlier. As with the Welch claim, Pinder has not sought to
avoid the procedural bar on the grounds spelled out in the
PCRA—by asserting that the 911 tapes claim was not raised at tri-
al “due to ineffective assistance of counsel.” UTAH CODE § 78B-9-
106(3). And absent such an argument, we find this claim proce-
durally barred given that the essential basis of the claim was
available to Welch at trial or at least at the time of his post-trial
motion.
                  2. Exceptions to Procedural Bar
  ¶56 Pinder also bears the burden of establishing the applicabil-
ity of any exception to the procedural bar under Hurst v. Cook, 777
P.2d 1029 (Utah 1989). Hurst established common law “excep-
tions” to the limitations of the PCRA. Those exceptions, in turn,
were repudiated by the legislature in 2008, in a provision clarify-
ing that the PCRA is the “sole remedy” for post-conviction relief.
UTAH CODE § 78B-9-102(1); see also Taylor v. State, 2012 UT 5, ¶ 11
n.3, 270 P.3d 471 (noting that Utah Code subsection 102(1) renders
the Hurst exceptions inapplicable for all claims filed on or after
May 5, 2008). Thus, the Hurst exceptions are available only for
claims filed before May 5, 2008.
  ¶57 The Hurst exceptions are available to Pinder because his
PCRA petition was filed on May 31, 2006. But Pinder has failed to
carry his burden of establishing the applicability of any exception
set forth in Hurst. His attempts to preserve the argument in the
district court were minimal, and probably deficient, as he did little


 17 It is worth noting that Pinder’s experts have not asserted that
the date was altered in the 911 tapes. They state only that the re-
cordings on both days had been altered in some fashion.

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                        Opinion of the Court


more than cite Hurst—with a vague reminder that the court “re-
tain[ed] the right to address the merits of the claims if good cause
exists.”
  ¶58 But even if the issue was preserved in the district court,
Pinder failed to carry his burden on appeal. His opening brief
made no mention of the threshold burden under Hurst—of estab-
lishing that the claims were “not withheld for tactical reasons.”
Carter v. State, 2012 UT 69, ¶ 25, 289 P.3d 542 (internal quotation
marks omitted)). That alone is a fatal misstep, as we typically do
not consider issues raised for the first time in a reply brief. See Al-
len v. Friel, 2008 UT 56, ¶¶ 8, 16–18, 194 P.3d 903 (declining to ad-
dress claim by PCRA petitioner raised for the first time in reply
brief because such issues “are considered waived and will not be
considered by the appellate court” (internal quotation marks
omitted)).
  ¶59 Even assuming the viability of Pinder’s argument on reply,
however, he still has failed to carry his burden under Hurst. The
reply brief says only that his due process claims could not have
been withheld for tactical reasons because “the factual bas[e]s for
the claims were not known either at trial or on appeal.” That as-
sertion fails on grounds set forth above. Because we have con-
cluded that Pinder could have asserted his due process claims at
trial (or on a post-trial motion), he has not carried his burden un-
der Hurst. 18




 18 As an alternative basis for its ruling, the district court reached
the merits of both due process claims. Pinder claims that this was
error. He bases that argument on the assertion that the State never
moved for summary judgment on the merits of those claims, lim-
iting its motion to procedural bar. Pinder is right that the State did
not move for summary judgment on the merits of the 911 tapes
claim. But the State did move on the merits of the claim regarding
the Welch testimony—a point made clear by the fact that Pinder
responded to the State’s argument in his reply brief. It was ac-
cordingly error for the district court to reach the merits of Pinder’s
911 tapes claim. But since we affirm on the basis of procedural
bar, the error was harmless.

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                         Cite as: 2015 UT 56
                        Opinion of the Court


                C. Discovery and Motion to Amend
  ¶60 Pinder also challenges the district court’s (effective) denial
of his motion for further discovery and the district court’s denial
of the motion to amend without explanation. The district court
never expressly ruled on Pinder’s motion for additional discovery.
It effectively denied it by granting summary judgment in favor of
the State. And though the district court did expressly rule on the
motion to amend, it did so in a single line in its summary judg-
ment order without articulating the basis for that decision.
  ¶61 We affirm. A denial of a motion to amend usually requires
explanation. But we may affirm such a decision where the reasons
for denial are apparent on the face of the record. See Hudgens v.
Prosper, Inc., 2010 UT 68, ¶ 19, 243 P.3d 1275. That is the case here.
Four years had passed between the time Pinder filed his petition
in the district court and the filing of his motion to amend. The mo-
tion to amend, moreover, came a full year after the State filed its
motion for summary judgment. Such eleventh-hour pleas to
amend, filed on the eve of or during the pendency of a summary
judgment motion, are often denied as untimely. 19 Pinder had
plenty of time to discover the facts purportedly meriting an
amendment. The district court’s decision to deny Pinder’s mo-
tion—and instead to grant a summary judgment motion that had
been pending for over a year—was not an abuse of discretion.



 19  See, e.g., Roberts v. Ariz. Bd. of Regents, 661 F.2d 796, 798 (9th
Cir. 1981) (no abuse of discretion when motion to amend “raised
at the eleventh hour, after discovery was virtually complete” and
a motion for summary judgment “was pending before the court”);
Neztsosie v. Meyer, 883 P.2d 920, 922 (Utah 1994) (no abuse of dis-
cretion in denying motion to amend that came three years after
filing of complaint, and a month after grant of summary judg-
ment); Kelly v. Hard Money Funding, Inc., 2004 UT App 44, ¶¶ 29,
30, 87 P.3d 734 (“[M]otions to amend are typically deemed un-
timely when they are filed in the advanced procedural stages of
the litigation process . . . . [And] regardless of the procedural pos-
ture of the case, motions to amend have typically been deemed
untimely when they were filed several years into the litigation.”
(collecting cases)).

                                  23
                          PINDER v. STATE
                       Opinion of the Court


  ¶62 The district court also acted within its discretion in denying
Pinder’s discovery motion. First, Pinder never properly submitted
the motion for decision under Utah Rule of Civil Procedure 7. See
UTAH R. CIV. P. 7(d) (“If no party files a request [to submit for de-
cision], the motion will not be submitted for decision.”). Second,
Pinder’s decision to seek additional discovery did not invoke rule
56(f), as required, in seeking a continuance. See UTAH R. CIV. P.
56(f) (recognizing court’s discretion to deny motion for summary
judgment if it “appear[s] from the affidavits of a party opposing
the motion that the party cannot for reasons stated present by af-
fidavit facts essential to justify the party’s opposition”). And even
if he had, the district court would have been within its discretion
to deny such a motion as dilatory. As with the motion to amend,
the motion for additional discovery came after years of litigation
and after the filing (and one year pendency) of a dispositive mo-
tion for summary judgment. Thus, we see no abuse of discretion
in the district court’s denial of Pinder’s motion for additional dis-
covery.
                           ——————




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