                 IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA16-1026

                                 Filed: 6 June 2017

New Hanover County, No. 13 CRS 55758; 13 CRS 7020

STATE OF NORTH CAROLINA,

                v.

MICHAEL ANTHONY SCATURRO, JR., Defendant.


      Appeal by defendant from judgment entered 29 January 2015 by Judge Phyllis

M. Gorham in New Hanover County Superior Court. Heard in the Court of Appeals

5 April 2017.


      Attorney General Joshua H. Stein, by Assistant Attorney General Anne Goco
      Kirby, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Michele A.
      Goldman, for defendant-appellant.


      MURPHY, Judge.


      Michael Scaturro, Jr. (“Defendant”) appeals from his convictions for felony hit

and run and attaining habitual felon status. He was indicted for failing to remain at

the scene of the crash in which he was involved. On appeal, he contends that the trial

court erred by denying his motion to dismiss the felony hit and run charge on the

grounds that the record did not contain sufficient evidence to show that he willfully

and unlawfully failed to remain at the scene and, in the alternative, that his trial

counsel provided him with constitutionally deficient representation by failing to
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preserve that error for appellate review. If the Court finds no error on that basis,

Defendant instead argues he was denied his right to a unanimous jury verdict

because the trial court’s instructions permitted the jury to convict Defendant on the

basis of either failure to remain or failure to return. Finally, in the alternative to his

first two assignments of error, Defendant maintains that the trial court committed

plain error by failing to instruct on an essential element of the offense – that a

“willful” failure to remain or return is one “without justification or excuse.” After

careful consideration of Defendant’s challenges to the trial court’s judgments in light

of the record and applicable law, we conclude that the trial court’s judgments should

be overturned.

                                     Background

      On 6 July 2013, Christopher Jamie Eric Fisher (“Fisher”) left home on his

bicycle to go to his friend’s house. As he rode up Gordon Road and approached the

Farrington Farms Road intersection, he noticed a truck waiting to turn onto Gordon

Road from Farrington Farm Road. Rather than continuing straight on his route up

Gordon Road and thereby crossing in front of the truck, Jamie turned right onto

Farrington Farm Road, planning to make a U-turn around a median to get back onto

Gordon Road, so as to allow the truck a clear path. As he made the U-turn, Defendant

struck Fisher with his car. As a result, Fisher was thrown from his bicycle and the

left side of his head, shoulder, and elbow hit the pavement as he skidded across the



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road. The fall nearly severed Fisher’s left ear from his head, and he was left profusely

bleeding. Defendant got out of his car and told Fisher, “You pulled out in front of

me.” Then, Defendant retrieved a rag from his car and gave it to Fisher to hold

against his head.

      Fisher called 911, but as the emergency operator began speaking to him,

Defendant told Fisher that he would take him to the hospital. Fisher decided to go

with Defendant, and he reported that Defendant drove “like a maniac to get [him] to

the hospital.” Although at trial Fisher testified that Defendant refused to provide his

name during the drive to the hospital, Fisher, in an earlier, statement said that

Defendant did provide his name. Upon exiting his vehicle at Cape Fear Hospital,

Fisher made note of Defendant’s license plate number before Defendant drove away.

      After checking into the emergency room, Fisher was transferred to New

Hanover Hospital where he underwent surgery to remove his torn ear. He has had

to return to the hospital several times for additional surgeries as well.

      Around 4:45 p.m., Trooper Michael A. Kirk (“Trooper Kirk”) of the North

Carolina Highway Patrol was dispatched to the accident scene and arrived just as the

fire department was clearing it. At the time, Fisher’s bicycle was still lying in the

yard just off the roadway. Defendant did not return to the accident scene during the

30 to 45 minutes Trooper Kirk remained to wait for a wrecker and mark pertinent

evidence.   Moreover, Trooper Kirk did not receive any calls informing him that



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Defendant attempted to contact him, the highway patrol, or any other police agency

during his investigation of the scene.

      After completing his initial on-scene investigation, Trooper Kirk went to the

Cape Fear Hospital upon receiving information from the New Hanover County

Sheriff’s Department that a possible collision victim was being treated there. While

at the hospital, Trooper Kirk spoke with Fisher and his mother. Fisher reported

being hit by a car with Defendant’s license plate number. Trooper Kirk contacted

another trooper and asked him to respond to the address to which the vehicle bearing

that license plate number was registered. After spending approximately 10 minutes

at the hospital, Trooper Kirk returned to the accident scene for another 30 to 45

minutes in order to complete his investigation. Once again, Defendant did not return

to the scene during that period, and the trooper sent to his address was unable to

locate him there.

      On 8 July 2013 Trooper Kirk located Defendant and confronted him about the

accident. Defendant readily admitted to being involved, and Trooper Kirk arrested

him. After being read his Miranda rights, Defendant initially stated he was willing

to speak with law enforcement; however, upon placing two phone calls, he refused to

discuss the accident further.

      On 23 September 2013, Defendant was indicted for one count of felony hit and

run resulting in serious bodily injury in violation of N.C.G.S. § 20-166(a). Specifically,



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the indictment charged that Defendant “unlawfully, willfully, and feloniously did fail

to remain at the scene” in which he was involved until law enforcement completed its

investigation and authorized him to leave. He was also indicted for having attained

habitual felon status. Beginning on 28 January 2015, a jury trial was held in New

Hanover County Superior Court before the Honorable Phyllis Gorham. Defendant

moved to dismiss the charge of felony failure hit and run at the close of the State’s

evidence and at the close of all of the evidence, arguing that the State had not met its

burden beyond a reasonable doubt and that “there is no jury question as a matter of

law.” The trial court denied Defendant’s motions.

      The trial court instructed the jury that in order to find Defendant guilty of the

offense, the State must prove six things beyond a reasonable doubt:

             First, that the defendant was driving a vehicle.

             Second, that the vehicle was involved in a crash.

             Third, that a person suffered serious bodily injury in this
             crash. Serious bodily injury is bodily injury that creates or
             causes serious permanent disfigurement or permanent or
             protracted loss or impairment of the functions of any bodily
             member or organ.

             Fourth, that the defendant knew or reasonably should
             have known that the defendant was involved in a crash and
             that a person suffered serious bodily injury in this crash.
             A defendant’s knowledge can be actual or implied. It may
             be inferred where the circumstances proven such as would
             lead the defendant to believe that the defendant has been
             in a crash which resulted in serious bodily injury to a
             person.


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Fifth, that the defendant, after stopping, did not remain at
the scene of the crash until a law enforcement officer
completed the investigation or authorized the defendant to
leave. If a driver leaves the scene of a crash for the purpose
of rendering the person injured in the crash reasonable
assistance, including reasonable medical assistance, the
driver must return to the scene of the crash within a
reasonable period of time unless otherwise instructed by a
law enforcement officer.

Intent is a mental attitude seldom provable by direct
evidence. It must ordinarily be inferred by circumstances
from which it may be -- it must ordinarily be proved by
circumstances from which it may be inferred. You arrive
at the intent of a person by such just and reasonable
deductions from the circumstances proven as such a
reasonably prudent person would ordinarily draw
therefrom.

And, sixth, that the defendant’s failure to remain at the
scene of the crash was willful, that is intentional. I instruct
you to apply the definition of intent given in element
number five above.

If you find from the evidence beyond a reasonable doubt
that on about the alleged date the defendant was driving a
vehicle which was involved in a crash, that a person
suffered serious bodily injury in this crash, and that the
defendant knew or reasonably should have known that the
defendant was involved in a crash which resulted in serious
bodily injury to a person and that the defendant
intentionally failed to remain at the scene of the crash until
a law enforcement officer completed the investigation and
authorized the defendant to leave, it would be your duty to
return a verdict of guilty of felonious hit and run with
serious bodily injury. If you do not so find or have a
reasonable doubt as to one or more of these things, it would
be your duty to return a verdict of not guilty.



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Defense counsel did not object to the instruction.

        On 29 January 2015, the jury found Defendant guilty of felony hit and run

resulting in serious bodily injury. Defendant then stipulated to attaining habitual

felon status and pleaded guilty pursuant to an information charging him with

possession of heroin in case number 14 CRS 59132.           The trial court sentenced

Defendant on the hit and run charge as a habitual felon with a prior record level of

II, imposing a presumptive range sentence of 67 to 93 months confinement. As to the

possession charge, the trial court found that Defendant had a prior record level of III,

but imposed an intermediate sentence in the mitigated range of 4 to 14 months

confinement, which was suspended for 12 months, with a split sentence of 3 months

confinement. The trial court terminated Defendant’s probation upon completion of

the split sentence.

        On 11 January 2016, Defendant petitioned this Court to issue a writ of

certiorari to review the trial court’s decision. On 26 January 2016, we allowed that

petition.

                                       Analysis

   I.       Alleged Fatal Variance in Hit and Run Indictment

        In his first assignment of error, Defendant argues that his motion to dismiss

should have been granted because there was insufficient evidence to support the

charge of hit and run based upon failure to remain. Specifically, he submits that his



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failure to remain at the scene was not willful or felonious because he was expressly

permitted and excused pursuant to N.C.G.S. § 20-166(a) to leave the scene of the

accident for the purpose of seeking medical treatment for Fisher. Instead, Defendant

maintains that the State presented evidence of the charge of hit and run based upon

his failure to return to the scene of the accident, an entirely separate crime, and thus

there was a fatal variance between the indictment and the evidence submitted at

trial. We do not reach Defendant’s alleged fatal variance.

      “In order to preserve an issue for appellate review, a party must have

presented to the trial court a timely request, objection or motion, stating the specific

grounds for the ruling the party desired the court to make if the specific grounds were

not apparent from the context.” N.C. R. App. P. 10(a)(1); see also State v. Maness, 363

N.C. 261, 273, 677 S.E.2d 796, 804 (2009), cert. denied, 559 U.S. 1052, 176 L. Ed. 2d

568 (2010). In order to preserve a fatal variance argument for appellate review, a

defendant must specifically state at trial that a fatal variance is the basis for his

motion to dismiss. State v. Hooks, ___ N.C. App. ___, ___, 777 S.E.2d 133, 139 (2015);

State v. Curry, 203 N.C. App. 375, 384, 692 S.E.2d 129, 137, disc. review denied, 364

N.C. 437, 702 S.E.2d 496 (2010).

      In the instant case, at trial Defendant based his motion to dismiss solely on

insufficiency of the evidence, and a review of the trial transcript reveals that

Defendant never alleged the existence of a fatal variance between the indictment and



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the jury instructions. In fact, when the trial court asked the parties if they had any

additions, corrections, or comments as to the proposed jury instruction regarding

Defendant’s failure to return to the scene of the accident, which Defendant now

alleges is a separate offense than that which was charged in the indictment,

Defendant only argued that the jury should be instructed as to willfulness and never

asserted fatal variance.

         Defendant argues for the first time on appeal that the trial court erred by

denying his motion to dismiss due to a fatal variance between the indictment,

charging failure to remain, and the State’s proof at trial, demonstrating failure to

return. However, Defendant has waived his right to appellate review of this issue

because he failed to properly preserve it at trial. See Hooks, ___ N.C. App. at ___, 777

S.E.2d at 139; see also Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934) (“[T]he

law does not permit parties to swap horses between courts in order to get a better

mount” on appeal). Accordingly, we decline to address this issue. Moreover, although

Defendant requests in the alternative that we review this issue pursuant to Rule 2 of

the North Carolina Rules of Appellate Procedure, we decline to suspend our rules in

this case.

   II.       Plain Error in Failing to Instruct as to Willfulness

         We next consider Defendant’s argument that the trial court erred in failing to

provide an instruction as to willfulness.        According to Defendant, the evidence



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demonstrates that he only left the scene of the accident to take Fisher to the nearest

hospital, as is permitted by the language of N.C.G.S. § 20-166(a) and (b), and

therefore he did not willfully violate the statute.       In response, the State’s sole

argument is that Defendant was not entitled to an instruction on willfulness because

the statute does not permit a driver to leave the scene of an accident at all, even to

obtain medical assistance. Defendant did not object to the instruction as given at

trial, so we consider whether this instruction constitutes plain error. See N.C. R. App.

P. 10(a)(4); see also State v. Lawrence, 365 N.C. 506, 512, 723 S.E.2d 326, 330 (2012).

      The plain error standard requires a defendant to “demonstrate that a

fundamental error occurred at trial. To show that an error was fundamental, a

defendant must establish prejudice – that, after examination of the entire record, the

error ‘had a probable impact on the jury’s finding that the defendant was guilty.’ ”

Lawrence, 365 N.C. at 518, 723 S.E.2d at 334 (internal citation omitted) (quoting

State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)). “[P]lain error is to be

applied cautiously and only in the exceptional case” in which the defendant is able to

show that the error at issue is “one that seriously affects the fairness, integrity or

public reputation of judicial proceedings.” Lawrence, 365 N.C. at 518, 723 S.E.2d at

334 (alteration, citation, and quotations omitted). “For plain error to be found, it

must be probable, not just possible, that absent the instructional error the jury would




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have returned a different verdict.” State v. Juarez, ___ N.C. ___, ___, 794 S.E.2d 293,

300 (2016).

      In instructing the jury, it is well settled that “[t]he trial court has the duty to

‘declare and explain the law arising on the evidence relating to each substantial

feature of the case.’ ” State v. Snelling, 231 N.C. App. 676, 679, 752 S.E.2d 739, 742

(2014) (quoting State v. Hockett, 309 N.C. 794, 800, 309 S.E.2d 249, 252 (1983)); see

also State v. Ramos, 363 N.C. 352, 355, 678 S.E.2d 224, 226 (2009) (“A trial court

must instruct the jury on every essential element of an offense” (brackets, citation,

and quotations omitted)); State v. Harris, 306 N.C. 724, 727, 295 S.E.2d 391, 393

(1982) (“[A] judge has an obligation to fully instruct the jury on all substantial and

essential features of the case embraced within the issue and arising on the evidence”);

State v. Floyd, 241 N.C. 298, 300, 84 S.E.2d 915, 917 (1954) (“The defendant had a

substantial legal right to have the judge to declare and explain the law arising on this

evidence of his presented to the jury.”). A defendant’s failure to request an instruction

as to a substantial and essential feature of the case does not vitiate the trial court’s

affirmative duty. See State v. Morgan, 315 N.C. 626, 643, 340 S.E.2d 84, 95 (1986).

      Section 20-166 of the North Carolina General Statutes under which Defendant

was charged provides in pertinent part:

              (a) The driver of any vehicle who knows or reasonably
              should know:
                   (1) That the vehicle which he or she is operating is
                   involved in a crash; and


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                 (2) That the crash has resulted in serious bodily
                 injury, as defined in G.S. 14-32.4, or death to any
                 person;
            shall immediately stop his or her vehicle at the scene of the
            crash. The driver shall remain with the vehicle at the
            scene of the crash until a law-enforcement officer completes
            the investigation of the crash or authorizes the driver to
            leave and the vehicle to be removed, unless remaining at
            the scene places the driver or others at significant risk of
            injury.
               Prior to the completion of the investigation of the crash
            by a law enforcement officer, or the consent of the officer to
            leave, the driver may not facilitate, allow, or agree to the
            removal of the vehicle from the scene for any purpose other
            than to call for a law enforcement officer, to call for medical
            assistance or medical treatment as set forth in subsection
            (b) of this section, or to remove oneself or others from
            significant risk of injury. If the driver does leave for a
            reason permitted by this subsection, then the driver must
            return with the vehicle to the accident scene within a
            reasonable period of time, unless otherwise instructed by a
            law enforcement officer.       A willful violation of this
            subsection shall be punished as a Class F felony.

            ....

              (b) In addition to complying with the requirements of
              subsection[ ] (a) . . . the driver . . . shall render to any
              person injured in such crash reasonable assistance,
              including the calling for medical assistance if it is
              apparent that such assistance is necessary or is
              requested by the injured person. A violation of this
              subsection is a Class 1 misdemeanor.

(Emphasis added).

      The principles of statutory construction by which we are guided instruct that

we are to interpret statutes in a manner which does not render any of its words



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superfluous and gives each word meaning. State v. Coffey, 336 N.C. 412, 417-18, 444

S.E.2d 431, 434 (1994). It is significant, then, that N.C.G.S. § 20-166(a) penalizes

only willful violations of the statute. As confirmation of this fact, this Court has

confirmed that willfulness is an essential element of the offense of hit and run as

provided by the statute. State v. Acklin, 71 N.C. App. 261, 264, 321 S.E.2d 532, 534

(1984) (noting that one of “[t]he essential elements [is] . . . that the defendant’s failure

to stop was wil[l]ful, that is, intentional and without justification or excuse” (citing

N.C.G.S. § 20-166)).

       Although the General Assembly did not define “willful” for purposes of hit and

run, this Court has long recognized that “ ‘[w]illful’ is defined as ‘the wrongful doing

of an act without justification or excuse, or the commission of an act purposely and

deliberately in violation of law.’ ” Ramos, 363 N.C. at 355, 678 S.E.2d at 226 (quoting

State v. Arnold, 264 N.C. 348, 349, 141 S.E.2d 473, 474 (1965) (per curiam) (citations

omitted)). It “means something more than an intention to commit the offense.”

Ramos, 363 N.C. at 355, 678 S.E.2d at 226.

       We find persuasive support for this definition in the state’s pattern jury

instructions. N.C.P.I.—Crim. 271.50 provides specific instructions regarding the

element of willfulness in regard to hit and run on the bases of both failure to stop and

failure to remain. It states that the State must prove “that the defendant’s failure to

[stop the defendant’s vehicle] [remain at the scene of the crash] was willful, that is



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intentional (and without justification or excuse.)” A footnote to that paragraph states,

“7. If there is evidence of justification or excuse, the jury should be instructed

accordingly.”

       In the instant case, the trial court never instructed the jury that an act is

willful if it is without justification or excuse, as set out in the pattern jury

instructions. Instead, the trial court conflated willful acts with intentional ones.

However, as was the case here, a defendant might leave the scene of an accident

intentionally and still not “willfully” violate N.C.G.S. § 20-166(a) if his intentional

departure was justified or with excuse. Therefore, the trial court’s instruction was

erroneous as it did not satisfy the requirement that the jury be instructed as to

willfulness where, as here, that issue is an essential element of the offense and a

“substantial feature” of the case.

      In turning to whether that error constitutes plain error, a close inspection of

the record and trial transcript reflects that Defendant’s sole defense to the charge of

hit and run by failure to remain was that his departure from the accident site was

authorized, and actually required, by statute as he left in an effort to get Fisher

medical assistance. Further, to the extent Defendant failed to return to the scene,

again Defendant’s sole defense was willfulness – he was in an extremely emotional

state, traumatized by having just been involved in an accident with someone who

subsequently lost their ear, and did everything he could to aid Fisher before returning



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to his home. In this way, Defendant’s entire defense was predicated on the argument

that he neither willfully left the scene of the accident nor willfully failed to return to

it.

      Furthermore, there is evidence in the record to support a conclusion that

Defendant did not willfully violate the statute. Specifically, both Defendant and

Fisher testified at length as to Defendant’s decision to leave the scene to take Fisher

to the nearest hospital instead of waiting for emergency responders upon witnessing

Fisher covered in blood with “his ear . . . com[ing] off in his hand” and believing “he

was about to bleed to death.” Additionally, Defendant explained that after dropping

Fisher off at the hospital he remained shaking and in shock from the experience, but

also believed he had done all that he could to help him, and therefore returned home.

The trial court’s failure to provide an instruction on willfulness, then, deprived

Defendant of the gravamen of his basis for acquittal. Had he received the instruction,

it is at least probable that a jury would have concluded that Defendant had a

justification or excuse for leaving the scene and failing to return.

      We are mindful that it is the rare case in which a defendant on plain error

review is able to demonstrate that an unpreserved instructional error warrants

reversal. However, in conducting plain error review, we are required to examine the

entire record to determine whether the error “had a probable impact on the jury’s

finding that the defendant was guilty.” Lawrence, 365 N.C. at 518, 723 S.E.2d at 334.



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“In many cases, . . . an examination of the entire record reveals overwhelming and

uncontroverted evidence of guilt such that a defendant is unable to show the

probability of a different outcome.” State v. Coleman, 227 N.C. App. 354, 363, 742

S.E.2d 346, 352, writ denied, review denied, 367 N.C. 271, 752 S.E.2d 466 (2013). In

the case before us, the only controverted issue was whether Defendant willfully

violated the statute by failing to remain at the scene or to return to it. Therefore, this

is one of the rare cases in which the trial court’s failure to give an additional

instruction regarding the only controverted issue at trial – willfulness – had a

probable impact on the jury verdict. Accordingly, we reverse Defendant’s convictions

and remand this matter for a new trial.1

       To prevent future confusion and danger, we also take this opportunity to

address the State’s argument that N.C.G.S. § 20-166 prohibits a driver from leaving

the scene of an accident to obtain medical care for himself or others and instead only

authorizes a driver to temporarily leave to in order to call for help. While it is true

that subsection (a) instructs that a driver may not leave the scene of an accident “for

any purpose other than to call for a law enforcement officer, to call for medical

assistance or medical treatment,” we do not read statutory subsections in isolation.




       1  Having concluded that Defendant is entitled to a new trial on the basis of the erroneous jury
instruction, we need not address Defendant’s alternative assignments of error — (1) whether
Defendant received ineffective assistance of counsel at trial due to his attorney’s failure to object to
the alleged fatal variance; or (2) whether Defendant was deprived of his Sixth Amendment right to a
unanimous jury verdict.

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Instead, statutes dealing with the same subject matter must be construed in pari

materia and reconciled, if possible. See, e.g., Elec. Supply Co. of Durham, Inc. v.

Swain Elect. Co., Inc., 328 N.C. 651, 656, 403 S.E.2d 291, 294 (1991) (citing Great S.

Media, Inc. v. McDowell Cty., 304 N.C. 427, 430-31, 284 S.E.2d 457, 461 (1981)).

      Applying that principle here leads us to conclude that, even though N.C.G.S. §

20-166(a) instructs that drivers may only leave for the limited purpose of calling for

aid, that authorization is expanded by N.C.G.S. § 20-166(b)’s requirement that

drivers, among other things, “shall render to any person injured in such crash

reasonable assistance, including the calling for medical assistance” permitted by

subsection (a). (Emphasis added). The plain language of this provision indicates that

a driver’s obligation to an injured person permits him to take action including but not

limited to that which is authorized by subsection (a). Accordingly, it is clear that

taking a seriously injured individual to the hospital to receive medical treatment is

not prohibited by the statute in the event that such assistance is reasonable under

the circumstances.    In fact, the violation of that directive is itself a Class 1

misdemeanor.

                                     Conclusion

      Defendant failed to assert and preserve his argument that a fatal variance

existed between the indictment and the proof at trial. However, the trial court

erroneously failed to instruct the jury on the element of willfulness contained in



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N.C.G.S. § 20-166(a). After examining the whole record, this meets the standard for

plain error. Accordingly, we reverse Defendant’s convictions and remand this matter

for a new trial.

       REVERSED AND REMANDED.

       Judge CALABRIA concurs.

       Judge DIETZ concurs in result only.




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