J-A07024-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 ETHAN W. RIPPEY                          :
                                          :
                    Appellant             :   No. 627 MDA 2019

     Appeal from the Judgment of Sentence Entered February 20, 2019
  In the Court of Common Pleas of York County Criminal Division at No(s):
                        CP-67-CR-0001230-2017


BEFORE: OLSON, J., DUBOW, J., and McLAUGHLIN, J.

MEMORANDUM BY DUBOW, J.:                            FILED MARCH 20, 2020

      Ethan W. Rippey (“Appellant”) appeals from the Judgment of Sentence

imposed after a jury convicted him of Rape by Forcible Compulsion,

Involuntary Deviate Sexual Intercourse by Forcible Compulsion, Sexual

Assault, and Simple Assault. He asserts an evidentiary error and challenges

the discretionary aspect of his aggregate sentence of 17 to 34 years’

incarceration. After careful review, we affirm.

      The underlying facts, as gleaned from the record and the trial court’s

Pa.R.A.P. 1925(a) opinion, are as follows. On August 21, 2016, K.H. (“the

victim”) and Appellant, both college students, were drinking at a college party

in York when Appellant invited K.H. and others over to his house. Appellant

and the victim went alone to the house to play beer pong. They kissed a bit,

and then toured the house, ending up in Appellant’s bedroom. They kissed

some more and Appellant digitally penetrated the victim’s vagina. When the
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penetration became rough, however, the victim asked him to stop. He did not

stop, and she pushed him away. Appellant then grabbed her and forced his

penis into her mouth.    Although the victim pushed him away again, and

continually said “no,” Appellant pushed her onto his bed, strangled her, and

anally and vaginally raped her. After Appellant climaxed, he called the victim

a “dirty little slut” as she ran crying out of the house and back to the party.

Her friends took her to the York Hospital where a forensic nurse conducted a

SAFE rape examination. One week later, the victim reported the incident to

the college’s campus security and eventually she reported it to the York City

Police Department.

      The Commonwealth charged Appellant with the above offenses. Prior

to trial, Appellant filed a Motion in limine, requesting, among other things,

that the court preclude the Commonwealth’s sexual assault forensic expert

from testifying that the victim’s injuries were consistent with “non-consensual

sex.” The court granted the Motion, in part, and precluded the expert from

using the phrase “consistent with non-consensual sex.” N.T. Trial, 11/13/18,

at 21-22. The court noted, without objection from Appellant, that the expert

would be allowed to opine on whether the injuries were caused by force.

      At Appellant’s three-day jury trial, the Commonwealth presented the

testimony of the victim, the SAFE nurse examiner, and the sexual assault

forensic expert, among others. The victim testified regarding the evening of

the rape and her extensive physical and psychological injuries.     On cross-

examination, she testified that she had had one prior incident with Appellant

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in the spring of 2016 where all she remembered was drinking and playing

video games with Appellant and two others before waking up bent over

Appellant’s bed with Appellant standing behind her pulling up his pants, and

her crying because she did not know what had occurred. She also recalled

that she was bleeding anally later that evening.

      The nurse examiner testified regarding the extensive injuries to the

victim’s body, stating that of 270 SAFE rape examinations she had conducted,

the examination of the victim revealed the most injuries she had ever had to

document. She stated that the victim had numerous lacerations, abrasions,

and bruises in her vagina and anus, including a large laceration in the victim’s

anus “caused by blunt force trauma.” N.T. Trial, 11/15/18, at 340. The nurse

also testified that she was unable to conduct a full internal examination

because the victim was in too much pain.

      The sexual assault expert testified that she reviewed the victim’s

medical chart and opined that the lacerations the victim received on August

21, 2016, resulted from “blunt force trauma,” and were “consistent with

force.” Id. at 367-68, 371.

      Appellant testified that the August 2016 encounter was consensual

rough sex, and stated “it takes two to tango.” Id. at 418. When counsel

acknowledged that Appellant had been in the courtroom throughout all of the

testimony presented by the Commonwealth, Appellant responded, “Yeah. I’ve

missed a lot of class because of it.” Id. at 430.




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        The jury convicted Appellant of the above charges. The court ordered a

presentence investigation (“PSI”), and the Sexual Offenders Assessment

Board (“SOAB”) evaluated Appellant.1

        The court held Appellant’s sentencing hearing on February 20, 2019.

The Commonwealth presented a statement from the victim and her aunt. A

few of Appellant’s friends and family members presented statements, and the

court acknowledged that Appellant had provided many letters of support from

other friends and family members. The sentencing court noted its review of,

inter alia, the PSI report, the SVP report, the victim’s impact statement, and

the many letters written on behalf of Appellant.           The court also noted

Appellant’s prior record score of zero before it imposed a sentence of 7½ to

15 years’ incarceration on the Rape by Forcible Compulsion conviction, a

consecutive term of 9½ to 19 years’ incarceration on the IDSI by Forcible

Compulsion conviction, and a concurrent term of 3 to 6 months’ incarceration

for the simple assault conviction, for an aggregate of 17 to 34 years’

incarceration.2

        Appellant filed a Post-Sentence Motion, which the court denied. This

direct appeal followed. Appellant filed a Pa.R.A.P. 1925(b) Statement; the trial

court filed a responsive Opinion.

        In his Brief, Appellant raises the following issues for our review:
____________________________________________


1   The Board concluded that Appellant is not a sexually violent predator.

2   The conviction for Sexual Assault merged for purposes of sentencing.


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       1. Did the lower court manifestly abuse its discretion by imposing
       two consecutive sentences for a single criminal episode, each of
       which was above the aggravated range of the sentencing
       guidelines, by improperly focusing on certain statutory factors
       while ignoring others, and imposing a harsh and unreasonable
       sentence on Appellant, a first-time offender?

       2. Did the trial court improperly permit a Commonwealth expert
       witness to testify that injuries were caused by force, thereby
       depriving the jury of its role as the sole arbiter of credibility?

Appellant’s Brief at 5.

       Appellant avers that, in imposing consecutive sentences, each of which

was over the sentencing guidelines’ aggravated range, the trial court imposed

an unfairly excessive sentence. He contends that he was a first-time offender

and, as such, the court erred in failing to consider his potential for

rehabilitation and his “excellent characteristics and [ ] strong support network,

along with his lack of problems in custody[.]”       Id. at 20, 22.3 Appellant

contends that the sentence “reveals scant consideration of anything other than

victim impact and the court’s impulse for retribution on the victim’s behalf.”




____________________________________________


3 For Rape by Forcible Compulsion and IDSI by Forcible Compulsion, both
graded as first-degree felonies, the Pennsylvania Commission on Sentencing
recommends a standard range sentence of 48-66 months’ incarceration, plus
12 months for an aggravated sentence, where the offender has a prior record
score of zero. Here, Appellant’s Rape conviction earned him a sentence one
year above the suggested aggravated sentence, i.e., minimum 7½ years, and
his IDSI conviction earned him a sentence 3 years above the aggravated
range, i.e., minimum 9½ years. Neither sentence exceeds the statutory
maximum of 20 years’ incarceration. See 18 Pa.C.S. § 1103(1).

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Id. at 21, quoting Commonwealth v. Coulverson, 34 A.3d 135, 148 (Pa.

Super. 2011).

      A challenge to the discretionary aspects of sentencing is not

automatically reviewable as a matter of right. Commonwealth v. Hunter,

768 A.2d 1136, 1144 (Pa. Super. 2001). Prior to reaching the merits of a

discretionary sentencing issue:

         We conduct a four part analysis to determine: (1) whether
         appellant has filed a timely notice of appeal, see Pa.R.A.P.
         902 and 903; (2) whether the issue was properly preserved
         at sentencing or in a motion to reconsider and modify
         sentence, see [Pa.R.Crim.P. 720]; (3) whether appellant’s
         brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether
         there is a substantial question that the sentence appealed
         from is not appropriate under the Sentencing Code, 42
         Pa.C.S.[]. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (citations

omitted).

      In the instant case, Appellant has satisfied the first three requirements

by filing a timely Notice of Appeal, properly preserving the issue in a Post-

Sentence Motion to modify his sentence, and by including a Rule 2119(f)

Statement in his Brief to this Court.

      As to whether Appellant has presented a substantial question, we note:

      The determination of what constitutes a substantial question must
      be evaluated on a case-by-case basis. A substantial question
      exists only when the appellant advances a colorable argument
      that the sentencing judge’s actions were either: (1) inconsistent
      with a specific provision of the Sentencing Code; or (2) contrary
      to the fundamental norms which underlie the sentencing process.




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Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations

and quotation marks omitted).

      Claims that the sentencing court did not adequately consider mitigating

factors generally do not raise a substantial question. See Commonwealth v.

Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (“This Court has held on

numerous occasions that a claim of inadequate consideration of mitigating

factors   does   not   raise   a   substantial   question   for   our   review.”);

Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014) (“[W]e have

held that a claim that a court did not weigh the factors as an appellant wishes

does not raise a substantial question.”). It is also well-settled that a bare

challenge that the trial court erred in imposing consecutive sentences does

not raise a substantial question. Id. at 133; Commonwealth v. Moury,

supra at 171-72 (Pa. Super. 2010) (“The imposition of consecutive, rather

than concurrent, sentences may raise a substantial question in only the most

extreme circumstances, such as where the aggregate sentence is unduly

harsh, considering the nature of the crimes and the length of imprisonment.”).

      However, a claim that the sentencing court imposed an unreasonable

sentence by sentencing outside the guidelines presents a substantial question.

Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa. Super. 2004).

Additionally, a substantial question exists when a defendant alleges that the

court relied on improper factors in imposing his sentence. Commonwealth

v. Downing, 990 A.2d 788, 792 (Pa. Super. 2010).


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      Appellant contends that the court abused its discretion and imposed an

unreasonable sentence outside the guidelines because “[t]here were excellent

reasons to not impose aggravated range sentences, much less to run them

consecutively.” Id. at 17. Appellant avers that the court failed to consider

that Appellant was 20 years old at the time of the offenses, with no prior

record, who “started a business, went to school, overcame [ADHD], [and] had

an extensive support network[.]” Appellant’s Brief at 18, 25. Appellant states

that the court improperly considered the impact of the crime on the victim in

imposing consecutive sentences, and states that “[c]onflating a support

system, which favors rehabilitation and a reasonable sentence, with the

gravity of the offense is an improper balancing of the [Section] 9781(d)

statutory factors.” Id. at 19. We conclude Appellant has raised a substantial

question and will, thus, address the merits of his claim.

      Sentencing is a matter vested in the sound discretion of the sentencing

judge, and a sentence will not be disturbed on appeal absent a manifest abuse

of discretion. In this context, an abuse of discretion is not shown merely by

an error in judgment. Rather, the appellant must establish, by reference to

the record, that the sentencing court “ignored or misapplied the law, exercised

its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a

manifestly unreasonable decision.” Commonwealth v. Raven, 97 A.3d 1244,

1253 (Pa. Super. 2014) (citation omitted).




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      The   sentencing    guidelines    promulgated    by    the   Pennsylvania

Commission on Sentencing are instructive and advisory, but are not binding

on the sentencing court. The court is obligated to consider the guidelines, but

is under no duty to sentence a particular defendant within the guidelines or to

impose the minimum possible confinement consistent with the guidelines.

Commonwealth v. Walls, 926 A.2d 957, 964 (Pa. 2007); Commonwealth

v. Dodge, 957 A.2d 1198, 1200 (Pa. Super. 2008). In general, a sentencing

judge must consider pertinent facts, sentencing factors, and the force of the

evidence and may not commit an error of law or inflict punishment that

exceeds statutory prescriptions. Commonwealth v. Youngkin, 427 A.2d

1356, 1369 (Pa. Super. 1981).

      Where the trial court has the benefit of a PSI report, our Supreme Court

has held that “it is presumed that the court is aware of all appropriate

sentencing factors and considerations, and that where the court has been so

informed, its discretion should not be disturbed.” Commonwealth v.

Ventura,      975      A.2d     1128,        1135     (Pa.    Super.     2009)

(discussing Commonwealth v. Devers, 546 A.2d 12, 18–19 (Pa. 1988)).

      It is well-settled that the sentencing judge has discretion to impose a

sentence concurrently or consecutively to other sentences being imposed at

the same time or to sentences already imposed. See Commonwealth v.

Mastromarino, 2 A.3d 581, 586 (Pa. Super. 2010); Commonwealth v.

Marts, 889 A.2d 608 (Pa. Super. 2005). See also 42 Pa.C.S.A. § 9721(a). A


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defendant is “not entitled to a volume discount for his or her crimes.”

Mastromarino, supra at 586 (citation omitted).

     The court also determines whether aggravating circumstances exist. A

sentencing judge “has wide discretion in sentencing and can, on the

appropriate record and for the appropriate reasons, consider any legal factor

in imposing a sentence in the aggravated range.” Commonwealth v.

Stewart, 867 A.2d 589, 593 (Pa. Super. 2005).

     In addition, a court may consider uncharged criminal conduct for

sentencing purposes. Commonwealth v. P.L.S., 894 A.2d 120, 131 (Pa.

Super. 2006). See also 204 Pa.Code § 303.5(d). “Not only does the case law

authorize a sentencing court to consider unprosecuted criminal conduct, the

sentencing guidelines essentially mandate such consideration when a prior

record score inadequately reflects a defendant’s criminal background.”

P.L.S., supra at 131.

     Where a trial court imposes a sentence outside of the sentencing

guidelines, the trial court must provide, in open court, a “contemporaneous

statement of reasons in support of its sentence.” 42 Pa.C.S. § 9721(b);

Commonwealth v. Bowen, 55 A.3d 1254, 1264 (Pa. Super. 2012).

     The court . . . must demonstrate on the record, as a proper
     starting point, its awareness of the sentencing guidelines. Having
     done so, the sentencing court may deviate from the guidelines, if
     necessary, to fashion a sentence which takes into account the
     protection of the public, the rehabilitative needs of the defendant,
     and the gravity of the particular offense as it relates to the impact
     on the life of the victim and the community, so long as it also


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       states of record the factual basis and specific reasons which
       compelled it to deviate from the guideline range.

Id. at 1264 (brackets and citation omitted).

       This Court may only vacate and remand a case for resentencing if we

first conclude that “the sentencing court sentenced outside the sentencing

guidelines and the sentence is unreasonable.” 42 Pa.C.S. § 9781(c)(3). The

Sentencing Code does not define the term “unreasonable.” However, our

Supreme Court has made clear that “rejection of a sentencing court’s

imposition     of    sentence    on    unreasonableness      grounds   would       occur

infrequently, whether the sentence is above or below the guideline ranges,

especially when the unreasonableness inquiry is conducted using the proper

standard of review.” Walls, 926 A.2d 957, 964 (Pa. 2007).

       Here, prior to imposing sentence, the court considered Appellant’s PSI

and SVP reports, and other pertinent aggravating and mitigating information

(including the letters and testimony in support of Appellant), as well as the

impact of the crime upon the victim. The court acknowledged the sentencing

guidelines,    but    concluded     that    they    were   inappropriate   under    the

circumstances. N.T. Sentencing, 2/20/19, at 61-62. Additionally, the court

did not agree with all the findings of the SVP report.4 The court explained its

sentencing decision on the record, which it summarized in its 1925(a) Opinion:



____________________________________________


4The court agreed with the SVP report’s ultimate conclusion that Appellant is
not a sexually violent predator.

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     While [Appellant] has no prior record, the Court finds him to be a
     violent person, and therefore dangerous. At trial, [Appellant]
     testified about his enjoyment of rough sexual intercourse and how
     he intentionally anally sodomized the victim after she said no to
     his advances in that record. He also complained how the trial cut
     into his class schedule, with no apparent remorse for the impact
     his actions had upon his victim.

     The court considered [Appellant’s] rehabilitative potential at the
     time of sentencing. . . . While [Appellant] had no prior record
     score, which was in fact considered at sentencing, during the
     course of the trial the defense sought to elicit testimony regarding
     a prior sexual interaction between [Appellant] and the victim.
     What was revealed during this defense questioning was that the
     victim was extremely intoxicated and in no state of mind to be
     able to consent to that prior sexual encounter. She woke up not
     knowing what had occurred, bent over [Appellant’s] bed with her
     pants down, with [Appellant] pulling up his pants. This evidence
     was considered as relevant to show that [Appellant] engaged in
     sexual misconduct with the same victim on a prior occasion and
     has a modus operandi as it relates to this victim. Specifically while
     [Appellant] did not have a prior criminal record, the defense
     revealed that he had previously forced himself upon the
     intoxicated victim for nonconsensual sex after isolating her, just
     as he did in the instant case.

     This was also considered in assessing the danger of [Appellant]
     reoffending in the future, a point where the Court parted ways
     with the SVP report conclusion that [Appellant] had no prior
     history of sexual offenses.

                                         ***
     The [c]ourt also properly considered the severity of injuries to the
     victim, and found there to be unusual cruelty in this case. Ms.
     Jenkins testified that of the 270 SAFE exams of sexual assault
     victims she had previously conducted, she rated this case as the
     worst case she had seen in terms of physical injuries to the victim.
     As a result of deep and lengthy rectal tears, the victim had to
     endure the humiliation of incontinence, soiling herself repeatedly
     in the days and weeks following this assault. . . . [The victim] took
     medical leave from college . . . , her mental health eroded, and
     she lost her sense of who she was and what she wanted from life.
     The [c]ourt found these physical, emotional, and mental injuries
     were recklessly inflicted by [Appellant] with no regard for the

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      suffering of the victim. He, in fact, called her a “dirty little slut” as
      he shoved her out the door of the house where he just raped and
      sodomized her, in order to cruelly maximize the extent to which
      she was degraded.

      As the severity of the harm and the brutality of the forcible anal
      sodomy was distinct in severity and impact upon the victim,
      beyond that suffered in the rape, the Court held that a consecutive
      sentence was appropriate and just. Considering all the above
      information[,] the court found [Appellant] not to have
      rehabilitative potential for his lack of remorse for his actions and
      the trauma he caused the victim.

Trial Ct. Op. at 5-8 (citations to N.T. omitted). See also N.T. Sentencing,

2/20/19, at 61-82.

      Based on our review of the sentencing transcript and the relevant case

law, we conclude that the sentencing court did not “ignore[] or misappl[y] the

law, exercise[] its judgment for reasons of partiality, prejudice, bias or ill will,

or arrive[ ] at a manifestly unreasonable decision.” Raven, supra. At the

sentencing hearing, the court explained on the record why the sentencing

guidelines did not apply, why consecutive rather than concurrent sentences

were appropriate, and how it considered not only Appellant’s age and potential

for rehabilitation, but also the severity of the crime, the impact on the victim,

and Appellant’s lack of remorse. The court also considered the PSI and SVP

reports, indicating it had reviewed all of the sentencing factors. Although the

sentences imposed for the Rape by Forcible Compulsion and IDSI by Forcible

Compulsion exceeded the recommended sentencing guidelines, the sentences

do not exceed the statutory maximums.




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      In light of the facts of the case, we conclude Appellant’s sentence is not

“manifestly unreasonable,” and the court did not abuse its discretion in

ordering consecutive rather than concurrent sentences.                Accordingly,

Appellant’s challenge to the discretionary aspects of his sentence is without

merit and fails.

      In his second issue, Appellant complains that the court erred in allowing

the Commonwealth’s sexual assault expert to testify that the injuries

sustained by the victim were caused by “force.” Appellant’s Brief at 25-26.

He contends that because “forcible compulsion” was an element of the Rape

and IDSI crimes charged, allowing the expert to use to the words, “forced

trauma,” “blunt force trauma,” and “force,” “invaded the jury’s exclusive role

as the arbiter of credibility as it resolved an important issue between the

complaining witness and Appellant in the former’s favor.” Id. at 26. Because

Appellant’s counsel did not object before or during the expert’s testimony, he

has waived this issue.

      Our standard of review pertaining to a challenge to the admissibility of

evidence is as follows:

      The admissibility of evidence is a matter for the discretion of the
      trial court and a ruling thereon will be reversed on appeal only
      upon a showing that the trial court committed an abuse of
      discretion. An abuse of discretion may not be found merely
      because an appellate court might have reached a different
      conclusion, but requires a result of manifest unreasonableness, or
      partiality, prejudice, bias, or ill-will, or such lack of support so as
      to be clearly erroneous.




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Commonwealth v. Johnson, 42 A.3d 1017, 1027 (Pa. 2012) (citations and

quotation marks omitted).

       Pa.R.E. 704 permits expert opinion testimony on the ultimate issue.

Pa.R.E. 704 (“An opinion is not objectionable just because it embraces an

ultimate issue.”). The court has discretion to admit or exclude expert opinions

on the ultimate issue, “depending on the helpfulness of the testimony versus

the potential to cause confusion or prejudice.” McManamon v. Washko, 906

A.2d 1259, 1278-79 (Pa. Super. 2006) (citations omitted).

       However, it is axiomatic that, in order to advance a claim of error in a

ruling to admit or exclude evidence, a party must make a specific and timely

objection. See Pa.R.E. 103(a)(1). “We have long held that ‘[f]ailure to raise

a contemporaneous objection to the evidence at trial waives that claim on

appeal.’ ” Commonwealth v. Tha, 64 A.3d 704, 713 (Pa. Super. 2013)

(citations omitted). See Pa.R.A.P. 302(a)(“Issues not raised in the lower court

are waived and cannot be raised for the first time on appeal.”).

       Our review of the notes of testimony, from both the hearing on the

Motion in Limine and the trial, reveals that at no time did Appellant object to

the expert’s use of the terms “force,” “forced trauma” or “blunt force trauma.”

Accordingly, Appellant did not preserve his objection and this issue is waived.5

____________________________________________


5 Moreover, the trial court gave the following jury instruction: “Nurse Huggins
[testified] that the injuries received by [the victim] were caused by forcible
penetration. That was a medical conclusion. It is up to the jury to decide



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       Judgment of Sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/20/2020




____________________________________________


whether or not that testimony establishes beyond a reasonable doubt the legal
element of force[.]” N.T. Trial, 11/15/18, at 60, 64-65. We presume that the
jury followed the trial court’s cautionary instruction and that any potential
prejudice regarding Ms. Huggins’ testimony was cured. See Commonwealth
v. Simpson, 66 A.3d 253, 269 (Pa. 2013) (presuming that juries follow
instructions); Commonwealth v. Counterman, 719 A.2d 284, 300 (Pa.
1998) (concluding that any prejudice that the defendant may have faced in
murder case based on the coroner witness’s use of the word “homicide” was
cured by the trial court’s cautionary instruction that it was the jury’s
responsibility to decide the ultimate issue in the case).

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