        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs November 10, 2011

        STATE OF TENNESSEE v. ANTHONY BERNARD GARRETT

             Direct Appeal from the Criminal Court for Davidson County
                       No. 2009-D-3084 Steve Dozier, Judge




               No. M2010-01722-CCA-R3-CD - Filed December 20, 2011


A Davidson County jury convicted the Defendant, Anthony Bernard Garrett, of simple
possession or casual exchange of cocaine, fourth offense, and resisting arrest, and the trial
court sentenced him to an effective sentence of six years. On appeal, the Defendant contends
that: (1) the evidence is insufficient to support his conviction for resisting arrest; and (2) the
trial court erred when it denied his motion to suppress. After a thorough review of the record
and applicable law, we affirm the judgments of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right ; Judgments of the Criminal Court Affirmed

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and J OHN E VERETT W ILLIAMS, JJ., joined.

Emma Rae Tennent (on appeal), and Chase Smith (at trial), Nashville, Tennessee, for the
appellant, Anthony Bernard Garrett.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; J. Wesley King, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                           OPINION
                                            I. Facts

      This case arises from police officers’ search of the Defendant, during which they
found cocaine in the front pocket of his pants.

                                    A. Motion to Suppress
       The Defendant filed a motion to suppress the evidence found by the officers during
the search. At the hearing on that motion to suppress, the follow evidence was presented:
Officer Matthew Grindstaff, with the Metropolitan Nashville Police Department, testified
that on March 27, 2008, he and other officers went to the Hallmark Inn located on West
Trinity Lane in Nashville. He explained that there were often people in the parking lot of the
Inn who did not have rooms, and the Inn’s management had asked police officers to remove
these people for trespassing.

        Officer Grindstaff said he was driving through the parking lot of the Inn when he saw
a group of men standing next to a pick-up truck. He noticed the “strong odor of marijuana
coming from the group.” Officer Grindstaff said he got out of his patrol car and spoke with
the men, who initially told him that someone had just walked by smoking marijuana. The
officer said, “I asked the [D]efendant for consent to search, he g[a]ve consent to search.”
When searching the Defendant, the officer felt something in his front pocket that he believed
to be crack cocaine. As soon as the officer grabbed the substance, the Defendant started to
resist. The officer had to be assisted by other officers in order to place the Defendant’s hands
behind his back, and get him into custody and finish the search. The officer then recovered
from the Defendant’s front pocket a dollar bill with multiple white rocks, which field tested
positive for cocaine.

       On cross-examination, the officer agreed that there were several men standing around
the pick-up truck when he arrived. He said he did not see any of the men smoking, but, after
he arrested the Defendant and gave the Defendant Miranda warnings, the Defendant admitted
that he had smoked marijuana. The Defendant’s admission confirmed the officer’s
suspicions, which were based upon the strong odor of marijuana that was emanating from
the Defendant. Officer Grindstaff agreed that no weapon or drugs were found on the
Defendant when the Defendant was first searched. Officer Grindstaff then searched the
Defendant a second time during which he found the crack cocaine.

       The Defendant testified that, in March 2008, he was staying at the Hallmark Inn. He
said that earlier in the day, before his arrest, he had gotten off work and returned to the Inn
with one of his employees and a friend. His friend was bringing him some food, and the men
congregated near a truck, talking. The Defendant said “all of the sudden” five or six police
cars pulled up around them. Officer Grindstaff jumped out of his car and said the officers
were going to search the men, and the officers started patting down all of the men. The
officers searched the Defendant for about ten minutes. The Defendant said the officers
obtained identification for all of the men and then asked the Defendant if he lived at the Inn.
The Defendant testified he told the officers he lived in room 139, immediately after which
the officer began “patting on him.” The Defendant said he never gave the officer consent
to search him and he never admitted to smoking marijuana.

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        On cross-examination, the Defendant denied smoking marijuana and testified that he
did not know why he smelled like marijuana. He said the truck he was standing near
belonged to his friend, Sammy Hill, who did not live at the Inn. Hill had only come to the
Inn to bring the Defendant food. The Defendant maintained he never gave Officer Grindstaff
consent to search him and that he never spoke to Officer Grindstaff at all before the search.
He also denied resisting arrest. The Defendant agreed that he had several previous felony
convictions, including six burglary convictions, and that, also, while he was on bond for this
case, he was arrested for another drug-related felony.

      Based upon this evidence, and the arguments of counsel, the trial court denied the
Defendant’s motion to suppress. In so doing, it found:

       [The Defendant’s] testimony does differ quite a bit with the officer’s in that I
       would have to, in the Court’s opinion, find that Officer Grindstaff is inaccurate
       about smelling marijuana because there was none being smoked, or second
       inaccurate about the statement of the [D]efendant admitting smoking
       marijuana earlier in the evening. And thirdly inaccurate about [the Defendant]
       giv[ing] consent. I just don’t find that that has occurred in that Officer
       Grindstaff would perjur[e] himself at the time that the warrants are signed,
       which those statements are there as well at the time of [the Defendant’s arrest]
       over a year ago and here today.

               So I do credit the officer[’]s testimony about smelling marijuana, about
       [the Defendant] smoking marijuana earlier, but the important issue here for
       this suppression motion would be the fact that [the Defendant] gives consent.
       I mean, . . . if this truly is a second search, [t]he [Defendant] would have the
       ability to say I don’t consent to the search and then we could determine
       whether there was additional probable cause for this alleged second search.
       He would have, under this voluntary encounter with officer Grindstaff, the
       right to say I’m leaving.

               But as I’ve stated I do credit the officer’s testimony in that consent was
       given and that makes that a voluntary consensual search where probable cause
       is not needed.

                                           B. Trial

        The Defendant was then tried on the charges of possession of cocaine and resisting
arrest. At his trial, the parties presented the following evidence: Matthew Grindstaff, with
the Metropolitan Nashville Police Department testified that on March 27, 2008, at around

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7:26 p.m., he worked in a unit assigned to high-crime areas. The officer was ordered to go
to the Hallmark Inn where there was typically a high volume of drug use and drug-related
problems. As he drove through the parking lot of the Inn, he saw a group of six people,
including the Defendant, all standing around a truck. The officer smelled marijuana “coming
from the group,” so he parked his car and approached the group.

       Officer Grindstaff testified that he told the group that it smelled like marijuana and
asked if anyone had been smoking. The group told him that it was not anyone in their group
but that someone had walked by smoking marijuana. Officer Grindstaff smelled the odor of
marijuana most strongly on the Defendant, and he asked the Defendant if he could search
him. The Defendant gave him consent, and the officer began patting down the Defendant.
When the officer felt a rock-like substance in the Defendant’s pocket, that the officer
believed was crack cocaine, the Defendant began to resist. The officer said other officers,
including Officer King, had to assist him in “physically restrain[ing]” the Defendant so the
officer could complete the search. During the completion of the search, Officer Grindstaff
found a dollar bill folded around a yellow rock-like substance located inside the Defendant’s
“watch pocket.” The yellow substance field tested positive for crack cocaine.

       Officer Grindstaff testified that, after the substance returned positive for cocaine, he
offered the Defendant his Miranda warnings. He then spoke with the Defendant, who
admitted that he had smoked marijuana earlier. Inside the truck parked nearby, officers
found “loose” marijuana. The officer said he then arrested the Defendant.

        On cross-examination, Officer Grindstaff testified that another officer, Officer
Douglas, rode with him while the two were on patrol. When the first arrived at the scene,
Officer Michael Warren searched the Defendant and did not find anything. He explained that
Officer Warren was “in training” and that it was “not uncommon for somebody that’s in
training to . . . miss narcotics.” Officer Grindstaff said that the Defendant became
increasingly nervous and, based on the officer’s experience, he believed that the Defendant
possessed drugs. The officer maintained that the Defendant gave him consent to search him
and that the Defendant could have, but did not, stop the consent. Officer Grindstaff testified
that the Defendant was not “stopping consent” when the Defendant grabbed his hand; rather,
the Defendant was trying at that point to “get away.” Officer Grindstaff agreed that another
officer’s report about the arrest indicated that the cocaine was found in a clear plastic bag,
which was an error.

       Isaac Martinez, an officer with the property and evidence division of the Metropolitan
Nashville Police Department, testified that he received the evidence in this case and sealed
the evidence with non-tampering tape. He then sent the evidence to the laboratory at the
Tennessee Bureau of Investigation (“TBI”) to be tested. On cross-examination, Officer

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Martinez testified that the property was checked in by Officer Douglas. Officer Martinez did
not physically see Officer Douglas check in the property, as Officer Douglas deposited the
property in the night safe.

      Jennifer Gillis, an agent with the TBI Crime Laboratory, testified that she received the
evidence in this case and placed it in the TBI vault. Her records indicated that Donna
Flowers Jacobson was the agent who tested the substance that police submitted for analysis.
Agent Jacobson, a TBI forensic chemist, testified that she tested the evidence in this case and
determined it was 0.6 grams of cocaine.

       Michael Warren, with the Metropolitan Nashville Police Department, testified that he
was present when officers arrested the Defendant. Officer Warren said that he was in
training at the time and that he performed a search of the Defendant. After Officer Warren
searched the Defendant, Officer Grindstaff searched the Defendant while Officer Warren
observed. Officer Warren recalled that Officer Grindstaff located a white substance in the
Defendant’s “coin watch” pocket. At that point, the Defendant started resisting, so officers
handcuffed the Defendant.

        Based upon this evidence, the jury convicted the Defendant of simple possession and
resisting arrest. The trial court then explained to the jury that the State was also alleging that
the Defendant had committed the offense of possession on prior occasions. The State read
the indictment, in which it alleged that this was the Defendant’s fourth offense for
possession. The State then presented certified copies of the Defendant’s previous
convictions. After deliberating, the jury convicted the Defendant of simple possession,
fourth offense. The trial court sentenced the Defendant, a Career Offender, to a six-year
effective sentence.

                                           II. Analysis

      On appeal, the Defendant contends that: (1) the evidence is insufficient to support his
conviction of resisting arrest; and (2) the trial court erred when it denied his motion to
suppress.

                                   B. Sufficiency of Evidence

        The Defendant contends the evidence is insufficient to sustain his conviction for
resisting arrest. He notes that the statute under which he was charged lists several separate
instances during which it is a crime to resist (1) a stop, (2) a frisk, (3) a halt, (4) an arrest, or
(5) a search. He states that the use of the conjunction “or” necessitates the State making a
choice when indicting the Defendant. He asserts that the jury was instructed that they must

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find that the Defendant resisted “an arrest” only, which he says is not supported by the
evidence. The State counters that the evidence presented did not fatally vary from the
indictment and that the evidence was sufficient to support his conviction. We agree with the
State.

        When an accused challenges the sufficiency of the evidence, this Court’s standard of
review is whether, after considering the evidence in the light most favorable to the State,
“any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Tenn. R. App. P.
13(e), State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d
247, 276 (Tenn. 2002)). This rule applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of both direct and circumstantial evidence. State
v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). In determining the
sufficiency of the evidence, this Court should not re-weigh or re-evaluate the evidence. State
v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor may this Court substitute
its inferences for those drawn by the trier of fact from the evidence. State v. Buggs, 995
S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956).
“Questions concerning the credibility of the witnesses, the weight and value of the evidence,
as well as all factual issues raised by the evidence are resolved by the trier of fact.” State v.
Bland, 958 S.W.2d 651, 659 (Tenn. 1997); See also Liakas, 286 S.W.2d at 859. “A guilty
verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses for
the State and resolves all conflicts in favor of the theory of the State.” State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978) (quoting State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973)).
The Tennessee Supreme Court stated the rationale for this rule:

       This well-settled rule rests on a sound foundation. The trial judge and the jury
       see the witnesses face to face, hear their testimony and observe their demeanor
       on the stand. Thus the trial judge and jury are the primary instrumentality of
       justice to determine the weight and credibility to be given to the testimony of
       witnesses. In the trial forum alone is there human atmosphere and the totality
       of the evidence cannot be reproduced with a written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523
(Tenn. 1963)). This Court must afford the State of Tennessee the strongest legitimate view
of the evidence contained in the record, as well as all reasonable inferences which may be
drawn from the evidence. Goodwin, 143 S.W.3d at 775 (citing State v. Smith, 24 S.W.3d
274, 279 (Tenn. 2000)). Because a verdict of guilt against a defendant removes the
presumption of innocence and raises a presumption of guilt, the convicted criminal defendant
bears the burden of showing that the evidence was legally insufficient to sustain a guilty
verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).

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        In this case, the indictment charged that the Defendant resisted an arrest, and the jury
was instructed that the Defendant was charged with resisting an arrest. A person commits
the offense of preventing or obstructing an arrest by intentionally preventing, by force, a
person known to be a law enforcement officer from making an arrest. T.C.A. § 39-16-602
(2010). The evidence presented at trial proved that Officer Grindstaff, along with other
officers, drove to the Hallmark Inn, an area they knew to have a high quantity of drug-related
activity. Officer Grindstaff smelled the odor of marijuana coming from the men, and stopped
to inquire about this smell. The Defendant gave Officer Warren consent to search him, and
Officer Warren found nothing illegal during this search. The officers then obtained the
Defendant’s identification, and Officer Grindstaff again searched the Defendant. During this
search, Officer Grindstaff felt what he believed to be crack cocaine in the Defendant’s
pocket. The Defendant began resisting. Officer Warren testified that the Defendant was
resisting while multiple officers participated in subduing the Defendant to handcuff him,
actions by which they were placing him under arrest. This evidence is sufficient to sustain
the Defendant’s conviction for resisting arrest, and he is not entitled to relief on this issue.

                                   A. Motion to Suppress

        The Defendant cites two reasons that the trial court erred when it denied his motion
to suppress. First, the Defendant contends that his alleged consent was “gained in
exploitation of an unlawful detention that preceded the alleged grant of consent.” Further,
he contends that the State failed to demonstrate that the consent was sufficiently attenuated
from the prior unlawful detention. The State counters that the officers had probable cause
to believe that a crime was being committed when they smelled marijuana coming from the
group of men. Therefore, the search was legal. The State further asserts that the search was
legal based upon the Defendant’s consent.

        The standard of review for a trial court’s findings of fact and conclusions of law in
a suppression hearing was established in State v. Odom, 928 S.W.2d 18 (Tenn. 1996). This
standard mandates that “a trial court’s findings of fact in a suppression hearing will be upheld
unless the evidence preponderates otherwise.” Id. at 23; see State v. Randolph, 74 S.W.3d
330, 333 (Tenn. 2002). The prevailing party in the trial court is “entitled to the strongest
legitimate view of the evidence adduced at the suppression hearing as well as all reasonable
and legitimate inferences that may be drawn from that evidence.” Odom, 928 S.W.2d at 23.
Furthermore, “[q]uestions of credibility of the witnesses, the weight and value of the
evidence, and resolution of conflicts in the evidence are matters entrusted to the trial judge
as the trier of fact.” Id. However, this Court reviews the trial court’s application of the law
to the facts de novo, without any deference to the determinations of the trial court. State v.
Walton, 41 S.W.3d 75, 81 (Tenn. 2001). The defendant bears the burden of demonstrating

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that the evidence preponderates against the trial court’s findings. Odom, 928 S.W.2d at
22-23; State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

       The Fourth Amendment to the United States Constitution protects against
unreasonable searches and seizures, and “article 1, section 7 [of the Tennessee Constitution]
is identical in intent and purpose with the Fourth Amendment.” State v. Downey, 945
S.W.2d 102, 106 (Tenn. 1997) (quoting Sneed v. State, 221 Tenn. 6, 423 S.W.2d 857, 860
(1968)). Under these provisions, a warrantless search or seizure is presumed unreasonable,
and evidence discovered as a result of such a search or seizure should be suppressed unless
the search or seizure was conducted pursuant to one of the narrowly defined exceptions to
the warrant requirement. Yeargan, 958 S.W.2d at 629.

       As stated, there are recognized exceptions to the warrant rule, and the warrantless
search of the defendant’s person may be valid if the search falls within one of the exceptions.
The most common of these exceptions include: (1) a stop and frisk situation; (2) a search
incident to a lawful arrest; (3) consent to search; (4) probable cause to search with exigent
circumstances; (5) hot pursuit; and (6) plain view. State v. Day, 263 S.W.3d 891, 901 n. 9
(Tenn. 2008) (citations omitted). Our Supreme Court recently reminded us that the
exceptions must remain “well-delineated,” “jealously and carefully drawn,” and “narrowly”
defined. State v. Ingram, 331 S.W.3d 746, 755 (Tenn. 2011) (citations omitted).

       Consent voluntarily and understandingly given is an exception to the constitutional
requirement of a search warrant. State v. Ingram, 331 S.W.3d 746, 760 (Tenn. 2011)
(discussing consent to search a person’s residence). The consent, to be valid, must be
“unequivocal, specific, intelligently given, and uncontaminated by duress or coercion.” State
v. Berrios, 235 S.W.3d 99, 109 (Tenn. 2007) (quoting State v. Simpson, 968 S.W.2d 776, 784
(Tenn. 1998) (internal quotation marks omitted)). “Whether an individual voluntarily
consents to a search is a question of fact to be determined from the totality of the
circumstances.” Id. The sufficiency of consent depends largely upon the facts and
circumstances in a particular case. State v. Jackson, 889 S.W.2d 219, 221 (Tenn. 1993). The
burden is on the prosecution to prove that consent was freely and voluntarily given. State v.
Jackson, 889 S.W.2d 219, 221 (Tenn. Crim. App. 1993).

        From our review of the record, we find that it contains ample evidence, when viewed
in the light most favorable to the party prevailing in the trial court, to support that court’s
ruling as to each search. The officers stopped where the Defendant was standing with
several other people after the officers smelled the odor of marijuana coming from the group.
Officer Warren then asked the Defendant for consent to search him, and the Defendant
granted his consent. Officer Warren, who was an officer in training at the time, found
nothing of interest during this search. Officer Grindstaff noticed the Defendant’s

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increasingly nervous demeanor as they were speaking. Officer Grindstaff testified multiple
times that he asked the Defendant for consent, and the Defendant granted Officer Grindstaff
consent to search him.

        The Defendant contends that between Officer Warren’s search and Officer
Grindstaff’s search, the officers asked for his identification and that this request represented
“an unlawful further detention not supported by further reasonable suspicion or probable
cause.” The Defendant testified at the suppression hearing that he consented to the first
search only and that the officers then spoke to him further, asked for his identification, and
searched him again. This testimony contradicts the testimony of Officer Grindstaff, who said
that the Defendant consented to Officer Grindstaff’s request to search the Defendant. Both
officers indicated that the searches occurred in close succession, and neither indicated that
the Defendant’s identification was obtained between the two searches. The trial court
accredited Officer Grindstaff’s testimony. Questions of credibility of the witnesses, the
weight and value of the evidence, and resolution of conflicts in the evidence are matters
entrusted to the trial judge as the trier of fact. See Odom, 928 S.W.2d at 23

        In this case, Officer Grindstaff did not find the crack cocaine until after the Defendant
was placed in handcuffs and, thereby, arrested. Courts have designated three categories of
police-citizen interaction: (1) a full-scale arrest, which must be supported by probable cause,
see Brown v. Illinois, 422 U.S. 590, 598 (1975); State v. Ferrante, 269 S.W.3d 908, 913
(Tenn. 2008); (2) a brief investigatory detention, which must be supported by reasonable
suspicion of criminal activity, see Terry v. Ohio, 392 U.S. 1, 27 (1968); State v. Williams,
185 S.W.3d 311, 315 (Tenn. 2006); and (3) a brief police-citizen encounter that requires no
objective justification, see Florida v. Bostick, 501 U.S. 429, 434(1991); State v. Daniel, 12
S.W.3d 420, 424 (Tenn. 2000). An arrest is “the taking, seizing, or detaining of the person
of another, either by touching or putting hands on him, or by any act which indicates an
intention to take him into custody.” West v. State, 425 S.W.2d 602, 605 (Tenn. 1968). A law
enforcement officer may, incident to a lawful arrest, search the person arrested and the
immediate surrounding area. See Chimel v. California, 395 U.S. 752, 762-63 (1969); State
v. Crutcher, 989 S.W.2d 295, 300 (Tenn. 1999). A search incident to a lawful arrest is
justified by the need to protect the arresting officer and others from harm and the need to
prevent the concealment or destruction of evidence. See Knowles v. Iowa, 525 U.S. 113, 116
(1998); Crutcher, 989 S.W.2d at 300.

       In State v. Richards, 286 S.W.3d 873, 878 (Tenn. 2009), our Supreme Court
explained:

       In order to justify a warrantless search as incident to a lawful arrest, four
       conditions must be met: (1) the arresting officer must have probable cause to

                                               -9-
       believe that the defendant had engaged or was engaging in illegal activity . .
       .; (2) the probable cause must attach to an offense for which a full custodial
       arrest is permitted-i.e., there must be statutory grounds for a warrantless arrest
       . . .; (3) the arrest must be consummated either prior to or contemporaneously
       with the search . . .; (4) the search must be incident to, not the cause of, the
       arrest.

Id. (internal citations omitted).

       As to the first requirement, “[w]hether probable cause is present depends upon
whether the facts and circumstances and reliable information known to the police officer at
the time of the arrest ‘were sufficient to warrant a prudent man in believing that the
[individual] had committed an offense.’” State v. Downey, 945 S.W.2d 102, 106 (Tenn.
1997) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)). As to the second requirement,
Tennessee Code Annotated section 40-7-103(a)(3) provides that a police officer may arrest
a person without a warrant “[w]hen a felony has in fact been committed, and the officer has
reasonable cause for believing the person arrested has committed the felony.”

       In this case, Officer Grindstaff smelled the odor of marijuana emanating from the
Defendant. The Defendant was in an area known by officers to be laden with drug users.
The officer then obtained the Defendant’s consent to search the Defendant, and, during his
search, the officer felt what he believed to be crack cocaine in the Defendant’s pocket. The
Defendant then began to resist the officer’s efforts to continue the search of the Defendant’s
person. Because these facts and circumstances caused the officer to believe the Defendant
was engaging in unlawful activity, he had the requisite probable cause to arrest the
Defendant. Therefore, the search, during which he discovered the crack cocaine, was
incident to this lawful arrest. We conclude that the trial court did not err when it denied the
Defendant’s motion to suppress, and he is not entitled to relief on this issue.


                                       III. Conclusion

       In accordance with the aforementioned reasoning and authorities, we affirm the trial
court’s judgments.


                                                     _________________________________
                                                     ROBERT W. WEDEMEYER, JUDGE




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