                                                                                          11/15/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                Assigned on Briefs at Knoxville September 26, 2018

    STATE OF TENNESSEE v. JARVIS GRAY A/K/A PROPHET GRAY

              Direct Appeal from the Criminal Court for Shelby County
                       No. 15-05893      Lee V. Coffee, Judge



                            No. W2017-01731-CCA-R3-CD


A Shelby County jury convicted the Defendant, Jarvis Gray, of rape of a child and
aggravated sexual battery, and the trial court sentenced him to fifty-two years to be served
in the Tennessee Department of Correction. On appeal, the Defendant contends that the
trial court erred when it: did not allow his expert witness to testify; limited his
cross-examination of the victim; and admitted into evidence statements from a rape crisis
report. After a thorough review of the record and the applicable law, we affirm the trial
court’s judgments.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and ROBERT L. HOLLOWAY, JR., JJ., joined.

Robert Golder, Memphis, Tennessee, for the appellant, Jarvis Gray a/k/a Prophet Gray.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Amy P. Weirich, District Attorney General; E. Cavett Ostner and Dru
Carpenter, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                        OPINION
                                         I. Facts

       This case arises from the Defendant’s rape of the victim, a nine-year-old girl
whose family the Defendant had befriended at church and with whom he lived. Based
on this conduct, a Shelby County grand jury indicted the Defendant for rape of a child
and aggravated sexual battery.

                                         A. Trial
        The following evidence was presented at the Defendant’s trial: Elijah Marshall
testified that he worked as a pastor at the Apostolic Prophetic Assembly and had three
children, ages twelve, nine, and seven years. Mr. Marshall first met the Defendant at a
church function, and they developed a close relationship. Eventually the Defendant
became Mr. Marshall’s “right-hand-man” and pastoral assistant. Mr. Marshall allowed
the Defendant to move into his home in June or July of 2012. The Defendant was a “big
brother” figure to Mr. Marshall’s children and was alone with them for extended periods
of time. In July of 2013, Mr. Marshall received a call from the director of his children’s
daycare, and she informed him that his daughter, E.M., 1 said she had been
“inappropriately touched.” E.M. was approximately six years old at the time.

       On cross-examination, Mr. Marshall stated that E.M. had not made any complaints
to him regarding the Defendant. Mr. Marshall agreed that he had said in the past that
E.M. “has a tendency to lie concerning behavioral problems in school.” He agreed that
she had lied in the past to avoid punishment and had caused a school official to almost
lose his job.

       M.W., twelve years old at the time of trial, testified that he was Mr. Marshall’s son
and had two younger sisters. M.W. recalled the Defendant’s living with his family; Mr.
Marshall and his wife slept in one room, the three children slept in another, and the
Defendant slept in a third bedroom. The Defendant lived with their family for about a
year, during which time he was sometimes alone with the three children. The Defendant
was alone with one of M.W.’s sisters, E.M., on multiple occasions, sometimes in the
Defendant’s room with the door shut.

        Outside the presence of the jury, the Defendant informed the trial court that he
wished to question E.M. about an alleged prior false accusation of sexual abuse that she
had made against a school employee. The Defendant alleged that reports from the
Department of Children’s Services, unrelated to this case, had been discovered by his
team’s investigator and the reports apparently referenced this prior accusation. The trial
court noted that Mr. Marshall’s testimony regarding the prior accusation did not reference
that it was an accusation of sexual abuse, “just [an accusation] that involved somebody’s
job at school that almost caused somebody to get fired.” The trial court asked about the
Defendant’s sources for this prior accusation, to which the Defendant replied, “From
[E.M.’s] conversations with other family members, . . . they had personal knowledge of
these accusations.” The trial court stated that it would not allow the Defendant to
cross-examine E.M. based on a hearsay statement in a report; the trial court stated that it
found no good faith basis for the line of questioning on the basis that the source was “an

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    It is the policy of this court to refer to minors by their initials.

                                                                  2
investigator talking to some family members that may have had some knowledge of some
things and said that those things might have happened. That’s . . . rank hearsay.”
However, the trial court “out of an abundance of caution” allowed the Defendant to make
an offer of proof on this evidentiary issue and permitted the Defendant to ask E.M.
limited questions to allow for a complete record.

       In a jury-out hearing, the trial court asked E.M. if she had ever known a person
named Kole Barton. E.M. denied knowing anyone by that name. E.M. stated that she
had not previously made an allegation about someone touching her inappropriately, other
than her allegation about the Defendant.

       The jury returned to the courtroom, and E.M. testified that she was in the fourth
grade at the time of trial. She recounted that the Defendant lived with her family at
some point, during which time she and her siblings were sometimes left alone in their
house with him. She stated that “it” happened more than once, in the Defendant’s
bedroom, while her parents were out of the house. The door to the bedroom was closed,
and the Defendant placed E.M. on his bed and got on top of her. Her pants and
underwear were off and the Defendant’s clothes were off. The Defendant’s “middle
part” touched E.M.’s “private part,” and the Defendant was “going up and down” while
they were touching. E.M. recalled that “[s]omething yellow” came out of the
Defendant’s private part and “got on” her.

       E.M. testified that, one time when she was lying on the Defendant’s bed in his
bedroom, her brother knocked on the door. That time, the Defendant’s private part was
touching her private part but nothing came out of his private part. E.M.’s brother asked
where E.M. was, and the Defendant told E.M. to be quiet. E.M. then told her teacher
and daycare principal what had happened.

       On cross-examination, E.M. denied feeling pain when the Defendant’s “middle
part” touched her private part because “it really didn’t go inside me. It was on the
outside.” She stated that he “went” “more than once” “on the outside.”

       DeShannon Smith testified that she worked as a teacher at E.M.’s daycare and met
her when E.M. was three years old. One day, when E.M. was five years old, Ms. Smith
observed E.M. lying on her cot during naptime. E.M. was touching her vagina on the
inside of her underwear in a repetitive movement; Ms. Smith believed E.M. was
masturbating. Ms. Smith removed E.M. from the classroom and told her she was not in
trouble and asked what E.M. had been doing. E.M. told Ms. Smith that she had been
“touching herself” in her “private area” and when Ms. Smith asked her why, E.M.
responded, “Because he showed me how to do it.” E.M. clarified that “he” was the
Defendant, who Ms. Smith knew as E.M.’s “godbrother” and who had introduced himself

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to Ms. Smith personally. Ms. Smith asked E.M. again who was touching her, and she
replied that it was her “godbrother,” the Defendant, “Prophet Gray.” Ms. Smith told
E.M. that Ms. Smith would have to tell someone what had happened, and E.M. did not
want her to do that because E.M. was scared of getting in trouble.

       Ms. Smith recalled that the Defendant had introduced himself to her on a prior
occasion as “the Marshalls’ godbrother” and said his name was “Prophet Gray.” Ms.
Smith took E.M. to her supervisor, and they called the police.

       On cross-examination, Ms. Smith testified that when she caught E.M. touching
herself at school, E.M. “froze” and was “petrified.”

        Tiffany Wilson testified that she was the director at E.M.’s daycare when this
incident occurred. In July of 2013, Ms. Smith brought to Ms. Wilson’s attention that
E.M. had been masturbating in class. Ms. Wilson questioned E.M. about this report and
when she asked E.M. if anyone had ever “bothered” her “down there,” E.M. replied “yes”
and that her “boyfriend” “Prophet Gray” had put “it” in her. E.M. specifically stated
that the Defendant had put his private part inside her private part. E.M. told Ms. Wilson
that this happened when she was alone with the Defendant in the bedroom at her house.
Ms. Wilson asked E.M. who the Defendant was, and she replied, “the man who puts us
on the bus.” Ms. Wilson immediately called the owner of the daycare and the police.

       On cross-examination, Ms. Wilson stated that she asked E.M. open-ended
questions so as not to coerce her into saying anything untrue. Ms. Wilson agreed that
she had noticed in the past that E.M. was a bit “hypersexual” for a five-year-old child and
that she brought that to Mr. Marshall’s attention.

       Kristine Gable testified that she worked as a sexual assault nurse examiner at the
Rape Crisis Center. The trial court qualified her as an expert in the field of forensic
nursing. E.M. came to the Rape Crisis Center on July 31, 2013 to be examined. Ms.
Gable read from the report taken during E.M.’s examination; the Defendant objected to
statements in the report being read aloud. Ms. Gable stated that the examination had
been conducted by a nurse who had since moved out of state. Ms. Gable read the
following statement from the report:

             Five-year-old female disclosed vaginal penetration at . . . forensic
      interview. Mother stated that she learned from daycare director that [the
      Defendant], a twenty-four-year old minister living in the home at the time,
      had touched [E.M.] inappropriately. [E.M.] told mother after the exam
      that he had touched her with his private part.


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Ms. Gable testified that during the examination, a medical history was obtained from
E.M. and her family, and a physical examination was performed on the area where E.M.
reported to have been assaulted. E.M. was examined by a nurse at the center, and the
examination revealed no injuries, which was not uncommon according to Ms. Gable.

       Marlon Wright testified that he was a lieutenant with the Memphis Police
Department and was assigned to the Sex Crimes Unit in 2013. He responded to the call
to 911 from Ms. Wilson and arrived at E.M.’s daycare. While at the daycare, E.M.’s
parents and the Defendant arrived, and officers took the Defendant into custody.

        The Defendant made an offer of proof of the testimony of Dr. John McCoy, a
clinical psychologist experienced in counseling children who been sexually abused. Dr.
McCoy stated that he had testified in previous trials as to the suggestibility of child
witnesses and the impact of leading questions on their testimony about sexual abuse. The
trial court declared Dr. McCoy an expert in the field of child psychology. Dr. McCoy
testified that he had heard E.M.’s testimony in this case and had reviewed the transcript of
E.M.’s forensic interview. Dr. McCoy said that, based on his knowledge of the case, he
could testify to factors that might have caused E.M. to “drift astray” in her testimony, but
he could not testify as to whether she had actually been sexually assaulted. He testified
that the forensic interviewer was suggestive in her questioning of E.M. and did not ask
E.M. open-ended questions. Dr. McCoy testified that the forensic interviewer was not a
“trained, educated, smart sex abuse counselor” based on her questioning of E.M. His
opinion was that the interviewer was putting words in E.M.’s mouth.

         Dr. McCoy testified that because E.M. had been asked to retell the story of what
happened to her many times, she might have been influenced by other people suggesting
something had happened to her when it in fact had not. Dr. McCoy agreed that in this
case, there were multiple factors present that lead him to believe E.M.’s testimony had
been influenced. At the conclusion of Dr. McCoy’s testimony, the court concluded that
his opinion testimony regarding the possibility that E.M.’s testimony or statements had
been unduly influenced was irrelevant and inadmissible. The trial court stated that Dr.
McCoy’s proposed testimony would be an indirect comment on E.M.’s credibility, who
Dr. McCoy had never spoken to personally. As such, his testimony would have been
based on speculation, and thus the trial court concluded that he would not be allowed to
testify.

       Based upon the evidence presented at trial to the jury, the Defendant was convicted
of rape of a child and aggravated sexual battery. The trial court imposed consecutive
sentences of forty years for the rape of a child conviction and twelve years for the
aggravated sexual battery conviction for a total effective sentence of fifty-two years. It is
from these judgments that the Defendant now appeals.

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                                       II. Analysis

       On appeal, the Defendant asserts that the trial court erred when it: (1) barred Dr.
McCoy from testifying; (2) limited his ability to cross-examine E.M.; and (3) admitted into
evidence statements from a rape crisis report. The State responds that the trial court
properly excluded Dr. McCoy’s testimony and properly limited the Defendant’s
cross-examination of E.M. The State further responds that the trial court properly
admitted the statements from the rape crisis report pursuant to a hearsay exception.

                               A. Dr. McCoy’s Testimony

       The Defendant asserts that the trial court erred when it excluded Dr. McCoy’s
testimony. He contends that the testimony was reliable and “constitutionally necessary”
to present a defense to a case predicated solely on the testimony of E.M. The State
responds that the truthfulness or reliability of E.M.’s testimony was a question for the
jury alone and that Dr. McCoy’s testimony offering his opinion on the possible influences
on E.M.’s story would have “invaded the jury’s role in assessing the credibility” of E.M.

       The admissibility of expert testimony is governed by Rules 702 and 703 of the
Tennessee Rules of Evidence. See generally McDaniel v. CSX Transp., Inc., 955
S.W.2d 257 (Tenn. 1997). Rule 702 addresses the need for expert testimony and the
qualifications of the expert: “If scientific, technical, or other specialized knowledge will
substantially assist the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise.” Tenn. R. Evid. 702.
Rule 703 focuses on the reliability of expert opinion testimony. Generally, the
admissibility of expert testimony is a matter entrusted to the sound discretion of the trial
court, and no reversal occurs on appeal absent clear abuse of that discretion. See State
v. Scott, 275 S.W.3d 395, 404 (Tenn. 2010); State v. Copeland, 226 S.W.3d 287, 301
(Tenn. 2007). “A trial court abuses its discretion when it applies incorrect legal
standards, reaches an illogical conclusion, bases its decision on a clearly erroneous
assessment of the evidence, or employs reasoning that causes an injustice to the
complaining party.”           Scott, 275 S.W.3d at 404 (citing Konvalinka v.
Chattanooga–Hamilton County Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008)).

       In the case of a witness who seeks to testify as an expert in the area of child
forensic interview techniques, this court has upheld the trial court’s decision to exclude
such an expert in a case where the trial court deemed the testimony would not
substantially assist the jury or would lead to confusion within the jury. Recently, in
State v. William Rolandus Keel, a panel of this court affirmed the trial court’s decision to

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exclude a doctor’s testimony about the “impropriety of the interview techniques” utilized
when interviewing the sexual assault victim. No. M2016-00354-CCA-R3-CD, 2017
WL 111312, at *3-6 (Tenn. Crim. App., at Nashville, Jan. 11, 2017), perm. app. denied
(Tenn. April 13, 2017). We concluded that the doctor, who could not give an expert
opinion on whether in fact the victim was telling the truth or not, would be commenting
on the truthfulness of the victim’s testimony and “could certainly [lead] to juror
confusion.” Id. at *6. We further concluded that the lack of scientific methodology
behind the doctor’s conclusions justified the trial court’s decision that his expert opinion
would not “substantially assist” the trier of fact. Id.

       In this case, the Defendant made an offer of proof of Dr. McCoy’s testimony that,
based on the influential factors present in this case, it was possible that E.M.’s story that
she had been raped by the Defendant was in some way untruthful. The trial court
concluded that this was improper opinion testimony on E.M.’s credibility, which the trial
court stated was the result of speculation on the part of Dr. McCoy, who had never
questioned E.M. personally. Accordingly, the trial court ruled that Dr. McCoy’s proposed
testimony would be an improper opinion as to the veracity of E.M.’s testimony and
declined to allow Dr. McCoy to testify. Based on our review, we conclude that the trial
court did not abuse its discretion when it did not allow Dr. McCoy to testify. During the
offer of proof, Dr. McCoy agreed that he could only offer his opinion based on the
possibility that E.M.’s testimony had been influenced. This speculative opinion was not
based on scientific or technical knowledge and would have encroached on the jury’s task of
weighing the veracity and credibility of E.M.’s testimony, the crux of this case. Thus, the
trial court did not abuse its discretion when it excluded Dr. McCoy’s testimony.
Accordingly, the Defendant is not entitled to relief on this issue.

                          B. Cross-Examination of the Victim

        The Defendant contends that the trial court erred when it limited the
cross-examination of E.M. about a prior false sexual abuse allegation she made against a
school employee. He contends that the trial court impermissibly relied on Tennessee
Rule of Evidence 412, which limits the introduction of evidence of a victim’s prior sexual
behavior. The Defendant contends that E.M.’s prior allegation was not subject to this
rule and should have been admitted as evidence regarding her credibility. The State
responds that the Defendant did not have a good faith basis for questioning E.M. about
the prior false allegation because he had no evidence to substantiate the claim and
because E.M. denied having made the prior allegation. The State further responds that
the trial court limited the questioning based on Tennessee Rule of Evidence 608(b), not
Rule 412 as the Defendant contends, after the trial court held the required jury-out
hearing and determined that there was no factual basis. We agree with the State.


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       Under Rule 401, “‘Relevant evidence’ means evidence having any tendency to
make the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.” Tenn. R. Evid.
401. Rule 402 states, “All relevant evidence is admissible except as provided by the
Constitution of the United States, the Constitution of Tennessee, these rules, or other
rules or laws of general application in the courts of Tennessee. Evidence which is not
relevant is not admissible.” Tenn. R. Evid. 402. Finally, Rule 403 states, “Although
relevant, evidence may be excluded if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” Tenn. R. Evid. 403. “The decision regarding the admissibility of
[evidence] pursuant to these Rules lies within the sound discretion of the trial court and
will not be overturned on appeal absent a clear showing of an abuse of that discretion.”
State v. Young, 196 S.W.3d 85, 105 (Tenn. 2006) (citing State v. Banks, 564 S.W.2d 947,
949 (Tenn. 1978)).

       Tennessee Rule of Evidence 608(b) provides that specific instances of conduct
may be used to impeach a witness during cross-examination if the conduct is probative of
the witness’s character for truthfulness or untruthfulness. Tenn. R. Evid. 608(b). If the
witness denies the conduct, the party proffering the evidence must be satisfied with that
response and may not seek to prove the conduct by extrinsic evidence. See Tenn. R.
Evid. 608(b). Before a witness can be questioned about the specific instance of conduct,
the court, upon request, must hold a jury-out hearing “to determine that the alleged
conduct has probative value and that a reasonable factual basis exists for the inquiry.”
Tenn. R. Evid. 608(b)(1).

       This court addressed the admissibility of evidence that a sex crime victim made a
previous false allegation of sexual abuse in State v. Wyrick, 62 S.W.3d 751, 776-85
(Tenn. Crim. App. 2001). The panel discussed the conditions under which such
evidence would be admissible under Rule 404(b), as substantive proof of some matter
actually at issue on trial, and under Rule 608(b), as a specific instance of conduct used to
impeach the witness on cross-examination. Id. at 780. The panel emphasized that, “in
the absence of proof that [the witness] falsified the other allegation,” the prior allegation
is immaterial and, thus, inadmissible under either rule. Id.

        In this case, the trial court held a jury-out hearing, during which E.M. testified that
she had not made any prior accusations of sexual abuse. She denied knowing the person
against whom she had allegedly reported the abuse. At the conclusion of the hearing,
the trial court refused to allow the Defendant to cross-examine E.M. about the prior false
allegation, citing that the Defendant had no evidence that one had been made. The trial


                                              8
court stated that it would not allow a hearsay statement about a prior accusation to be the
basis for this line of questioning.

       Because the trial court complied with the procedural rules of Rule 608(b) by
holding a hearing and determining that a reasonable factual basis did not exist to establish
that E.M. had made a prior false allegation of sexual abuse, we will not overturn the trial
court’s decision to exclude the evidence absent an abuse of discretion. See Tenn. R.
Evid. 404(b).

        We conclude that the trial court did not abuse its discretion when it determined
that the evidence was not admissible under Rule 608(b), which requires a party to
establish a “factual basis” for the conduct in order to impeach a witness. Tenn. R. Evid.
608(b)(1). We conclude that the trial court did not abuse its discretion in refusing to
allow the cross-examination of E.M. on this issue. The Defendant is not entitled to
relief as to this issue.

                                 C. Rape Crisis Report

       The Defendant lastly contends that the trial court erred when it admitted into
evidence statements made by E.M. in the rape crisis report. He contends that these
statements were testimonial hearsay not admissible pursuant to any of the hearsay
exceptions. He also contends that the statements violated his right to confront the
witness. The State responds that the statements in the report were admissible pursuant
to the medical records exception to the hearsay exclusion rule found at Tennessee Rule of
Evidence 803(4). The State further responds that the Defendant’s confrontation right
was not violated because he was afforded the opportunity to cross-examine the witness,
E.M., at trial. We agree with the State.

        Hearsay evidence consists of out-of-court statements offered for the truth of the
matter they assert. Tenn. R. Evid. 801(c). There are concerns with reliability and the
inability to cross-examine such statements, which is why they are excluded as admissible
evidence. Tenn. R. Evid. 802. When the reliability of a statement can be verified,
generally by the context of the statement, that statement may fall under a hearsay
exception and then be admissible in court. One such exception is found at Tennessee
Rule 803(4), which states:

       Statements made for [the] purposes of medical diagnosis and treatment
       describing medical history; pain or present symptoms, pain, or sensations;
       or the inception or general character of the cause or external source thereof
       insofar as reasonably pertinent to diagnosis or treatment.


                                             9
The rationale behind this exception depends on the notion that people will be
forthcoming to medical professionals to ensure proper and appropriate treatment and
care. NEIL P. COHEN, ET AL., TENNESSEE LAW OF EVIDENCE, § 8.09[3][b] (5th ed.
2005).

       In State v. McLeod, the Tennessee Supreme Court held that statements by a child
pertaining to sexual abuse, about the general character, cause, or source, are admissible as
testimony from the person to whom the child told it, so long as there is a jury-out hearing
and an assurance that the child gave the statement for diagnosis and treatment. 937
S.W.2d 867, 870 (Tenn. 1996). When the trial court conducts a jury-out hearing to
address the indicia of reliability of the child victim’s statement, it should analyze “the
timing of the statement, the contents of the statement, whether the statement was made in
response to suggestive or leading questions, whether the statement was improperly
influenced by another, and any other circumstance that may undermine the statement's
trustworthiness such as a custody battle or family feud.” State v. Tucker, No.
M2005-00839-CCA-R3-CD, 2006 WL 547991, at *9 (Tenn. Crim. App., at Nashville,
Mar. 7, 2006) (citing McLeod, 937 S.W.2d at 870, State v. Stinnett, 958 S.W.2d 329, 332
(Tenn. 1997)), no Tenn. R. App. P. 11 application filed.

      The Sixth Amendment of the United States Constitution guarantees that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him[.]” U.S. Const. amend. VI. The Tennessee Constitution
provides the corresponding right “to meet witnesses face to face.” Tenn. Const. art. I, §
9.

       We conclude that the trial court did not abuse its discretion when it admitted the
statement under the medical diagnosis and treatment hearsay exception. Ms. Gable, a
nurse practitioner, testified that the purpose of the interview with E.M. was to obtain her
medical history and to conduct a physical examination of the area where E.M. stated that
she had been sexually assaulted. As such, her statement that she had been “vaginally
penetrated” was for the purposes of “medical diagnosis and treatment” and was then
followed by a physical examination of the victim. The statement read into the record by
Ms. Gable was simply the statement that directed the nurse examiner where to examine
her physically. Although the trial court was remiss in not holding a jury-out hearing in
regard to the circumstances surrounding the statement being made, Ms. Gable’s
testimony provided the trial court with sufficient information as to when and how E.M.’s
statement was made, from which the trial court could make a determination that the
statement was made for the purposes of medical diagnosis and treatment, and a
determination about the statement’s reliability. Accordingly, the trial court did not
abuse its discretion when it admitted E.M.’s statement into evidence pursuant to Tenn. R.
Evid. 803(4). The Defendant is not entitled to relief on this issue.

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                                  III. Conclusion

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


                                             _________________________________
                                               ROBERT W. WEDEMEYER, JUDGE




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