         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs May 1, 2012

                     STATE OF TENNESSEE v. XAVIER BELL

               Direct Appeal from the Criminal Court for Shelby County
                        No. 10-05479     Paula Skahan, Judge




                 No. W2011-01424-CCA-R3-CD - Filed August 2, 2012


A Shelby County jury convicted the Defendant, Xavier Bell, of aggravated robbery, and the
trial court sentenced the Defendant, as a Range I, standard offender, to serve nine years in the
Tennessee Department of Correction. The Defendant appeals his conviction, contending that:
(1) the evidence is insufficient to support his conviction; and (2) the trial court erred when it
admitted recordings of the Defendant’s jail telephone conversations. After a thorough review
of the record and applicable law, we affirm the trial court’s judgment.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which D. K ELLY T HOMAS,
J R., and C AMILLE R. M CM ULLEN, JJ. joined.

Barry W. Kuhn (on appeal), Alisa Kutch (at trial), and James Greene (at trial), Memphis,
Tennessee, for the appellant, Xavier Bell.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; Amy P. Weirich, District Attorney General; Glen Baity and Stacy McEndree,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                           OPINION
                                        I. Background

       This case arises from the armed robbery of the victim, Ericka Coleman, while she sat
in her car outside a friend’s home. For this crime, a Shelby County grand jury indicted the
Defendant for aggravated robbery. At the Defendant’s trial, the parties presented the following
evidence: The victim testified that on January 1, 2010, she was in Memphis visiting friends.
 She recalled that she first went to a bank in Millington to withdraw money and then drove to
her friend Tara Davis’ home. The victim said that, at approximately 1:00 p.m., she sat in her
heated car while she waited for her friend. As she sat there, she saw the Defendant in her rear-
view mirror approaching her car. She said that, after seeing him, she locked the car doors. The
Defendant walked up to her car and began beating on the driver’s side window with a silver
pistol. The victim described the Defendant as “medium build” and wearing a white T-shirt,
black pants, and a white baseball hat. She noted that the Defendant was not wearing a coat or
anything to cover his face. The victim testified that the Defendant scared her but did not beat
on the window very long before she opened the car door and handed him her purse. At trial,
the victim identified the Defendant as the perpetrator of this crime.

       The victim testified that she had the $350 she had just withdrawn from the bank, a $15
Wal-Mart gift card, an EBT card, and two bank cards in her purse. She said that the Defendant
beat on her car window hard enough to leave a mark on the window. After the Defendant fled
with the victim’s purse, she called 911. When police arrived, the victim gave a statement, and
several days later she identified the Defendant in a photographic line-up. The document was
dated January 3, 2010, and, at the bottom of the page, the victim had written, “I was sitting in
my car. This guy hit my window with a silver pistol, and I opened the door and gave him my
purse.”

        Michael England, a Memphis Police Department officer, testified that he responded to
a robbery call on January 1, 2010. He spoke with the victim who he described as “very upset,”
“crying,” and “emotionally distraught.” The victim told Officer England that her purse had
been taken from her and that the perpetrator had run northbound away from her vehicle.
Officer England said that he observed chipped glass on the driver’s door window and fine glass
powder on the window. Officer England read the following description the victim provided
of the robber as a “male black around five foot, eleven, wearing a white cap - or hat - dark shirt
and blue jeans.”

        Christopher Valden, a Memphis Police Department sergeant, testified that he showed
the victim a photographic line-up, which included the Defendant’s picture. The victim quickly
identified the Defendant as the man who robbed her. Sergeant Valden described the victim’s
identification of the Defendant in the photographic line-up as “immediate” and “definitive.”

       April Gibson testified on behalf of the Defendant that she and the Defendant had five
children together. At the time of the robbery, Gibson and the Defendant lived together,
although the relationship had since ended. She stated that, at the time of the trial, she could
not “stand him.” Gibson recalled that she and the Defendant woke up at 10:00 a.m. or 11:00
a.m. on New Year’s Day. She said she cooked breakfast while the Defendant helped with their
children. Her mother was also at their home that morning and left between 12:30 p.m. and
1:00 p.m. Around this same time, the Defendant’s mother called and asked him to come over

                                               -2-
to her home to help her take down Christmas decorations. Gibson said that the Defendant’s
mother lived within walking distance, approximately five minutes away. The Defendant left
for between thirty minutes and an hour to help his mother and then returned home for the rest
of the day. Gibson was unsure of the exact time the Defendant went to his mother’s home, but
she recalled that it was after her mother had left. When the Defendant returned, he did not
have any money, credit cards, or a purse.

       On cross-examination, Gibson testified that she hated the Defendant because he cheated
on her. Gibson denied calling the Defendant while he was in jail, but she agreed that she
visited him in jail until she “got the truth out of him.” The last time she had visited the
Defendant in jail was a month before the trial. Gibson agreed that the Defendant’s mother’s
home was in close proximity to where the robbery occurred. Gibson testified that the
Defendant had no reason to rob someone because they were “never broke.” She stated, “if he
was to rob somebody, I don’t see why or how because, I mean, we’ve never been without.”
She explained that both she and the Defendant worked and that her family “helped [her].”

       The State called Juaquatta Harris, a Shelby County Sheriff’s County deputy, as a
rebuttal witness. Deputy Harris testified that she downloads and disseminates inmates’
telephone calls. Deputy Harris said that she received a fax on February 22, 2010, requesting
the recordings of the Defendant’s telephone conversations. Deputy Harris identified a disc of
downloaded telephone conversations dated March 9, 2011. Deputy Harris said that the disc
contained seventy telephone conversations between April Gibson and the Defendant.

       Three excerpts of the recorded conversations were played for the jury. The first was
from a conversation that took place on August 6, 2010.

        [Gibson]:            That’s not my fault. Ain’t nobody tell you to go run
                             around with Tameka on New Year’s.

        [The Defendant]:     Mane, look . . . so what you saying though? I’m . . . I’m
                             ...

        [Gibson]:            Oh, mane look back at New Year’s. Okay? You need to
                             think about it every year you wasn’t with me. So, why
                             the f**ck you trying to be with me now? You wasn’t
                             with me then. Don’t try to be with [me] now. That’s all
                             I’m trying to say.

        [The Defendant]:     Okay then. You know what I’m saying.



                                             -3-
        [Gibson]:           You wasn’t studying me and the kids then. Why you
                            studying me and the kids now so bad?

        [The Defendant]:    So, you telling me that I ain’t fixing to see them kids
                            period then, right? Right?

        [Gibson]:           I’m asking you. You wasn’t studying us then, so why
                            you studying us now?

        [The Defendant]:    Cause . . . I couldn’t get them, because then when I was
                            out, I would come to see them every day. Now, I can’t
                            see them, period.

The next excerpt played was recorded on August 8, 2010.

        [Gibson]:           Kids . . . mane . . . .

        [The Defendant]:    That ain’t got nothing to do with them folks. Any excuse
                            you make ain’t got nothing to do with my kids. You . .
                            ..

        [Gibson]:           Shut up, but every mother f**king New Year’s, every
                            mother f**king New Year’s you was with another bitch.

        [The Defendant]:    Naw . . . that ain’t true.

        [Gibson]:           I’m through. I’m through with it Zay.

        [The Defendant]:    Well, I ain’t say nothing about that. I’m talking about
                            my kids. What is that got to do with the kids.

The last excerpt played was also recorded on August 8, 2010.

        [The Defendant]:    I was . . . .

        [Gibson]:           . . . cause you wasn’t planning to do nothing.

        [The Defendant]:    Yes I was.

        [Gibson]:           I’m talking about you hang around with Rob and, and

                                             -4-
                               f**k off on the weekends, lie about the girls when I catch
                               you up, and then look there.

         [The Defendant]:      (Interrupting) I’m not fixing to do that. But look . . .
                               look . . . .

         [Gibson]:             . . . cause I was taking care of everything expensive for
                               these children and I can’t find you, and you act like,
                               “awe, I’ll see you when I’m done.” I saw you boy, all
                               down them streets. You saying you were going to do this
                               and that, but the problem was you were putting that s**t
                               up yo’ nose.

         [The Defendant]:      No I wasn’t, and you just shot the . . . .

         [Gibson]:             I ain’t do nothing.

         [The Defendant]:      How you make . . . .


       Mark Glanker, a Shelby County District Attorney’s Office investigator, testified that he
requested the Defendant’s recorded telephone conversations while in jail. After receiving the
recordings from Deputy Harris, he began listening to the conversations. Glanker testified that
he was familiar with both Gibson’s and the Defendant’s voices and recognized their voices on
the recorded telephone conversations.

       On cross-examination, Glanker agreed that the assistant district attorney assigned to this
case asked Glanker to request the telephone recordings. Glanker testified that he listened to
the recordings played for the jury for the first time the night before and conveyed to the
assistant district attorney assigned to this case the contents of the conversations that morning.

        Based upon the evidence, the jury convicted the Defendant of aggravated robbery. The
trial court ordered the Defendant to serve nine years for this conviction. It is from this
judgment that the Defendant now appeals.

                                          II. Analysis

       On appeal, the Defendant claims that: (1) the evidence is insufficient to support his
convictions; and (2) the trial court erred when it admitted recordings of the Defendant’s jail
telephone conversations.

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                               A. Sufficiency of the Evidence

       The Defendant claims that the evidence presented at trial is insufficient to sustain his
conviction for aggravated robbery because the victim’s testimony was uncorroborated. The
State responds that the jury could reasonably infer that the Defendant, while brandishing a
weapon, took the victim’s purse. 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 the absence of direct evidence, a criminal
offense may be established exclusively by circumstantial evidence. Duchac v. State, 505
S.W.2d 237, 241 (Tenn. 1973). The jury decides the weight to be given to circumstantial
evidence, and “[t]he inferences to be drawn from such evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence, are questions primarily
for the jury.” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (citations omitted). “The
standard of review [for sufficiency of the evidence] is the same whether the conviction is based
upon direct or circumstantial evidence.” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)
(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). In determining the sufficiency
of the evidence, this Court should not re-weigh or reevaluate 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); 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

                                               -6-
       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).

         In the case under submission, the Defendant was convicted of aggravated robbery.
Aggravated robbery is robbery: “(1) Accomplished with a deadly weapon or by display of any
article used or fashioned to lead the victim to reasonably believe it would be a deadly weapon
. . . .” T.C.A. § 39-13-402 (2010). Robbery is “the intentional or knowing theft of property
from the person of another by violence or putting the person in fear.” T.C.A. § 39-13-401
(2010).

        Considering the evidence in the light most favorable to the State, the proof at trial
showed that the Defendant lived near the location of the robbery and left his home around the
time of the robbery to go to his mother’s house, which was also in close proximity to the scene
of the robbery. The Defendant approached the victim’s car, where the victim sat waiting for
her friend. The Defendant hit the car’s driver side window with his pistol with such force that
it left marks. The victim opened her car door and handed the Defendant her purse, which
contained $350 in cash, bank cards, and gift cards. The Defendant then fled with the purse.
The victim provided the police with a description of the Defendant and, two days after the
robbery, she positively identified the Defendant in a photographic line-up. As to her ability
to identify the Defendant, the victim testified that, at the time of this incident, nothing
obstructed her view of the Defendant’s face. Based upon this evidence, we conclude that a
jury could find beyond a reasonable doubt that the Defendant committed an aggravated
robbery.

        The Defendant complains that the victim’s testimony was uncorroborated and, therefore,
insufficient to sustain his conviction. This Court, however, has held that the testimony of a
victim, by itself, is sufficient to support a conviction. State v. Strickland, 885 S.W.2d 85, 87
(Tenn. Crim. App. 1993). In addition to her in-court identification of the Defendant, the victim
identified the Defendant as the robber in a photographic line-up two days after the robbery and
at trial. The victim’s identification of the Defendant was described as “immediate” and
“definitive.” We conclude that her testimony is sufficient to sustain the Defendant’s
conviction.

                                              -7-
                           B. Admission of Telephone Recordings

       The Defendant contends that the trial court erroneously admitted the recorded telephone
conversations between he and Gibson in violation of Tennessee Rule of Criminal Procedure
12.1(b)(2) and Tennessee Rule of Evidence 404(b). The State responds that the trial court
properly admitted the recorded telephone conversations. We agree with the State.

        The admissibility of rebuttal evidence lies in the trial court’s discretion and will not be
overturned on appeal unless there has been a clear abuse of discretion. State v. Dellinger, 79
S.W.3d 458, 488 (Tenn. 2002). “An appellate court should find an abuse of discretion when
it appears that the trial court applied an incorrect legal standard, or reached a decision which
is against logic or reasoning that caused an injustice to the party complaining.” State v. James,
81 S.W.3d 751, 760 (Tenn. 2002) (internal quotations omitted). Rebuttal evidence includes
“any competent evidence which explains or is in direct reply to, or a contradiction of, material
evidence introduced by the accused.” Nease v. State, 592 S.W.2d 327, 331 (Tenn. Crim.
App.1979). Rebuttal evidence must be relevant and material to the facts at issue. State v.
Lunati, 665 S.W.2d 739, 747 (Tenn.Crim.App.1983).

                             1. Notice Response to Alibi Witness

        The Defendant contends that the trial court erred when it allowed the State to play
excerpts of recorded telephone conversations between he and Gibson to rebut Gibson’s
testimony that: (1) she never spoke with the Defendant on the phone; (2) the Defendant was
not with Gibson on New Year’s; and (3) Gibson did not accurately portray their financial
status. Specifically, the Defendant contends that the State should not have been allowed to
play the recorded conversations because the State failed to give notice of its intent to do so at
least ten days before trial, as required by Rule 12.1(b) of the Tennessee Rules of Criminal
Procedure.

       Tennessee Rules of Criminal Procedure, Rule 12.1 states:

         Upon written demand of the district attorney general stating the time, date, and
         place at which the alleged offense was committed, the defendant shall serve
         within ten days, or at such different time as the court may direct, upon the
         district attorney general a written notice of an intention to offer a defense of
         alibi. Such notice by the defendant shall state the specific place or places at
         which the defendant claims to have been at the time of the alleged offense and
         the names and addresses of the witnesses upon whom the defendant intends to
         rely to establish such alibi.



                                                -8-
        The rule further provides for the State to disclose, within ten days of receiving the
defense notice, the names and addresses of the witnesses upon whom the State intends to rely
to establish a defendant’s presence at the scene and any witnesses upon whom the State will
rely to rebut a defendant’s alibi. Tenn. R. Crim. P. 12.1(b).

      Tennessee Rule of Criminal Procedure 12.1(e) allows the trial court, for good cause
shown, to grant an exception to any of the requirements of Rule 12.1.

      Factors to be considered in determining whether a trial court abused its discretion in
excluding undisclosed alibi proof include:

        (1) the amount of prejudice that resulted from the failure to disclose, (2) the
        reason for nondisclosure, (3) the extent to which the harm caused by
        nondisclosure was mitigated by subsequent events, (4) the weight of the
        properly admitted evidence supporting the defendant’s guilt, and (5) other
        relevant factors arising out of the case.

State v. Looper, 118 S.W.3d 386, 423 (Tenn. Crim. App. 2003).

       The Defendant filed a Notice of Alibi Defense on February 23, 2011, and an amended
response on March 9, 2011. Deputy Harris made a disc of the phone conversations on March
9, 2011, and Glanker received the disc on March 14, 2011. The Defendant’s trial began on
March 21, 2011. After Gibson testified, the State requested that tape recorded conversations
between the Defendant and Gibson be admitted as rebuttal evidence. The Defendant’s attorney
objected and, after hearing from both parties, the trial court made the following finding:

        I’ve already stated that I certainly think this should have been turned over as
        soon as it was discovered by the state[.] It sounds like the investigator, after
        Ms. Gibson’s testimony in the February trial, had suspicions that she wasn’t
        being truthful; that she did have an ongoing relationship with the [D]efendant;
        that she probably [was] visiting with him on the phone; and requested all of the
        telephone calls. And just from my prior history, requesting those phone
        conversations, it does take a little bit of time to obtain them; and then
        according to the state’s attorney, his statement today, that he hasn’t had a
        chance to listen to them, and just, today, has gotten the transcripts. Those are -
        I think everybody in the courtroom who just listened to them, they were very
        difficult to understand. There’s a lot of street talk in them. It’s not - they’re
        not clear as far - they are not articulated words. Without the transcript, I
        couldn’t understand what these people were saying. . . . I think there is good
        cause shown.

                                              -9-
       Gibson testified that she “hate[d]” the Defendant, and she had no phone contact with
him. She further stated that they were financially stable negating the Defendant’s motive for
a robbery. Gibson testified that she was with the Defendant for all but approximately an hour
of New Year’s Day. The recordings of these telephone conversations, to some degree,
contradict Gibson’s testimony.

        The prejudice to the Defendant caused by the late notice was minimal. The Defendant
was an active participant in these phone calls and, thus, very much aware of their existence and
availability for trial use. Further, the State’s reason for nondisclosure is reasonable. Although
the assistant district attorney was aware of the disc of recordings, he was not aware of the
specific content of the conversations admitted until the day the recordings were admitted in
court. Other conversations the State sought to introduce which were discovered before the
trial, with sufficient time to provide notice to the defense, were properly excluded by the trial
court for failure to give notice. As we earlier discussed, there was sufficient evidence, aside
from the recordings, to convict the Defendant of aggravated robbery. The trial court found
good cause to allow an exception to the notice requirement, and we find no reason to disturb
its judgment. The Defendant is not entitled to relief as to this issue.

                                        2. Rule 404(b)

       The Defendant argues that the trial court improperly admitted the recorded telephone
conversations under Tennessee Rule of Evidence 404(b). The State responds that the trial
court complied with the 404(b) requirements and properly admitted the recordings.

        The trial court held a jury out hearing and concluded that the recordings directly
impeached Gibson’s testimony that: (1) she no longer cared for the Defendant; (2) she was
with the Defendant on “New Year’s;” and (3) the Defendant had no motive to rob the victim.
The trial court found that the evidence indicated the Defendant had a “drug problem.” The
trial court, in balancing the probative value versus the prejudicial effect, found that the
probative value of the recordings substantially outweighed the prejudicial effect.

       The Tennessee Rules of Evidence provide that all “relevant evidence is admissible,”
unless excluded by other evidentiary rules or applicable authority. Tenn. R. Evid. 402. Of
course, “[e]vidence which is not relevant is not admissible.” Id. Relevant evidence is defined
as 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.” Id. at 401. Even relevant evidence, however, “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

                                              -10-
presentation of cumulative evidence.” Id. at 403.

        Evidence of other crimes, wrongs, or bad acts is not admissible to prove the character
of a person to show action in conformity with that character. Id. at 404(b). Such evidence may
be admissible, however, for “other purposes.” Id. Our Supreme Court has determined that
such “other purposes” include demonstrating motive or intent. State v. Berry, 141 S.W.3d 549,
582 (Tenn. 2004). Such evidence is admissible for other purposes, provided that the trial court:
(1) upon request, holds a hearing outside the jury’s presence; (2) determines that a material
issue exists other than conduct conforming with a character trait and, upon request, states the
basis for its determination; (3) finds proof of the other crime, wrong, or act to be clear and
convincing; and (4) determines that the probative value of the evidence is not outweighed by
the danger of unfair prejudice. Tenn. R. Evid. 404(b). The safeguards in Rule 404(b) ensure
that defendants are not convicted for charged offenses based on evidence of prior crimes,
wrongs, or acts. State v. James, 81 S.W.3d 751, 758 (Tenn. 2002). When a trial court
substantially complies with the procedural requirements of Rule 404(b), the standard of
appellate review of the trial court’s decision is abuse of discretion. See State v. Powers, 101
S.W.3d 383, 395 (Tenn. 2003); State v. James, 81 S.W.3d 751, 759 (Tenn. 2002). If the strict
requirements of the rule are not substantially observed, the reviewing court gives the trial
court’s decision no deference. State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997).

        In allowing the Defendant’s statements to be admitted into evidence during the trial, the
trial court held a jury out hearing and found that the recorded telephone conversations went to
the truthfulness of the Defendant’s alibi witness. The trial court found that the telephone
conversations indicated that the Defendant had a drug problem, but the probative value of the
telephone conversations substantially outweighed the prejudicial effect. The Defendant clearly
offered proof, through his alibi witness, that he had no motive to commit this crime and the
crime was inconsistent with his financial stability. The trial court admitted the proof to rebut
the testimony that the Defendant had no motive to commit a robbery.

       We conclude that the trial court properly exercised its discretion in admitting the
recorded telephone conversations. Further, the trial court instructed the jury on the manner in
which it should consider the telephone call evidence, and this Court must presume that a jury
followed the trial court’s instructions. State v. Odom, 336 S.W.3d 541, 562 (Tenn. 2011). The
Defendant is not entitled to relief.

                                        III. Conclusion

        Based upon the foregoing and the record as a whole, we affirm the judgment of the
trial court.



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       _________________________________
       ROBERT W. WEDEMEYER, JUDGE




-12-
