                           NOT DESIGNATED FOR PUBLICATION

                                               No. 120,578

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                           STATE OF KANSAS,
                                               Appellee,

                                                     v.

                                       THOMAS CANAL DAVIS,
                                           Appellant.

                                    MEMORANDUM OPINION

        Appeal from Shawnee District Court; DAVID DEBENHAM, judge. Opinion filed July 24, 2020.
Affirmed in part, reversed in part, and remanded with directions.


        Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant.


        Jodi Litfin, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.


Before ARNOLD-BURGER, C.J., WARNER, J., and LAHEY, S.J.


        PER CURIAM: Thomas Davis appeals his convictions for aggravated criminal
sodomy and attempted aggravated criminal sodomy. After carefully reviewing the record
and Davis' multiple claims of error, we agree that there was insufficient evidence for the
attempted aggravated criminal sodomy offense, as the State failed to prove both
alternative means it had charged for that crime. We reverse that conviction and remand
the case for a new trial on the one means supported by the evidence. We affirm Davis'
conviction for aggravated criminal sodomy.




                                                      1
                        FACTUAL AND PROCEDURAL BACKGROUND

       In 2017, D.A., who was 20 years old, lived with Davis and his wife. When D.A.
was a baby, she suffered epileptic seizures that caused her to suffer developmental delays
and affected her ability to communicate. Davis and D.A. were home alone together
frequently while other family members were out of the house and working.


       At some point during the evening of June 7, 2017, D.A. approached her
grandmother, who also lived at the home, and stated that Davis had tried to do something
sexual with her that morning. D.A.'s grandmother recalled D.A. telling her that Davis
woke her up, made her take a shower, bent her over the bed, and commented that "he
couldn't do nothing because she was on her monthly." D.A. also told her grandmother
that Davis had been orally sodomizing her and that she was afraid to say anything
because she did not want to get in trouble. The next morning, D.A. told her mother
(Davis' wife) that Davis had been making her "do some things that she did not want to
do." D.A. did not tell her mother any specifics about what Davis had done to her. D.A.'s
mother promptly kicked Davis out of the house, called the police, and took D.A. to the
hospital.


       Detective Grant Mink of the Topeka Police Department met D.A. and her mother
at the hospital to investigate the allegations against Davis. Due to D.A.'s difficulty
communicating, Mink set up a forensic interview at Life House Child Advocacy Center.
Later that day, D.A. met with a social worker trained in conducting forensic interviews
with children who have been abused. While D.A. had some difficulty explaining what
had happened and remembering certain details, she relayed that Davis had been anally
and orally sodomizing her on a nearly daily basis for the past year. D.A. described white
"spills" coming out of Davis' penis and going on to the floor in her bedroom and further
stated that Davis had abused her in other rooms in the house when no one else was home.
D.A. also referred to Davis touching himself "to get that juice stuff out."



                                              2
          Although D.A. explained that Davis had been forcing her to do sexual things
frequently over the past year, she specifically talked about Davis' actions on the past two
days, June 6 and 7:


   • D.A. told the interviewer that Davis had anally sodomized her on June 6, and
          white "spills" had come out of his penis and fell onto the floor of her bedroom.
          She stated that Davis did not clean up the spill and that it was still on the floor in
          her room.


   • D.A. told the interviewer that on June 7, Davis bent her over the bed and pulled
          her pants down. She believed he was going to put his penis in her bottom, but he
          did not because she was menstruating. She stated nothing came out of his penis
          that day.


          After D.A.'s forensic interview, a SANE/SART-trained nurse performed a sexual-
assault examination. The nurse noted that there were no injuries to D.A.'s anal or vaginal
areas, but she also concluded the absence of injury did not conclusively indicate anal
intercourse did not occur. The nurse also took a swab of D.A.'s anus and sent it to the
Kansas Bureau of Investigation for analysis. The swab did not contain any semen or
DNA.


          After the interview and examination, Detective Mink accompanied D.A. and her
mother back to their house. D.A. showed him the stain on the floor of her bedroom where
she described Davis had ejaculated. Detective Mink took photographs and a sample of the
stain to send to the KBI for analysis. He stated it "appeared that there was some kind of
fluid or dried fluid . . . looked like it had been sticky at some point, but it had dried on the
floor."



                                                 3
       Two months later, Detective Mink interviewed Davis at the police station. Davis
voluntarily participated in the interview and repeatedly denied the accusations against
him. He speculated that D.A.'s mother and grandmother had manufactured the story and
told D.A. what to say because they wanted him out of the house. Detective Mink told
Davis about the sexual-assault examination and the sample taken from D.A.'s bedroom
floor and asked Davis if he would consent to giving a DNA sample; Davis agreed to do
so.


       Ultimately, the sample taken from the bedroom floor was determined to be semen
and was consistent with Davis' DNA profile. The sample also contained another source of
DNA, but there was not enough present to determine if it was D.A.'s.


       After receiving the KBI report, Detective Mink interviewed Davis a second time.
Mink informed Davis that the sample taken from D.A.'s floor was semen and matched his
DNA profile. Davis was incredulous and insisted that he had never touched or had sex
with D.A. Detective Mink told Davis that D.A. had taken him straight to the spot in her
room where his semen was located and asked why she would know that it was his semen.
Davis responded that one day he was masturbating while watching his wife bathe and
D.A. had come up the stairs, so he ran to the nearest room (which happened to be D.A.'s)
and ejaculated on the floor. Davis explained that he never cleaned up his semen from
D.A.'s room because he was high and forgot about it.


       The State charged Davis with two counts of aggravated criminal sodomy, alleging
one to have occurred on June 6, 2017, and the other on June 7, 2017. At Davis' trial, the
court instructed the jury on each count. The only difference between the two instructions,
other than date of the alleged offense, was that the instruction on count one specified that
"Sodomy means: (1) anal penetration, however slight, of a female by any body part or
object," whereas the instruction on count two stated that "Sodomy means: (1) oral contact



                                             4
of the male genitalia; or (2) anal penetration, however slight, of a female by any body
part or object."


       The jury found Davis guilty of aggravated criminal sodomy on count one and
attempted aggravated criminal sodomy (a lesser included offense) on count two. Davis
was sentenced to a controlling 346-month prison sentence followed by a lifetime term of
postrelease supervision.


       Davis appeals. We include additional facts as they become relevant to our
discussion.


                                        DISCUSSION

   1. Davis' conviction of attempted aggravated criminal sodomy (count two) is not
      supported by sufficient evidence.

       In count two of its indictment, the State charged that Davis had engaged in
aggravated criminal sodomy on June 7, 2017. At trial, the district court instructed the
jury, at the State's suggestion, that sodomy was defined as "(1) oral contact of the male
genitalia; or (2) anal penetration, however slight, of a female by any body part or object."
This same definition of sodomy was included, again at the State's suggestion, in the
court's instruction concerning the lesser included offense of attempted aggravated
criminal sodomy.


       The jury ultimately found Davis guilty of the attempted aggravated criminal
sodomy. Davis contends this conviction must be reversed because the instruction
provided alternative means of committing the offense—through attempted oral contact of
Davis' penis or attempted anal penetration of D.A. Davis argues the State provided no
evidence that he had engaged in, or attempted to engage in, oral sodomy with D.A. on
June 7. We agree.



                                             5
       When a defendant challenges the sufficiency of the evidence in a criminal case, an
appellate court reviews all the evidence at the jury's disposal in a light most favorable to
the prosecution. State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018). For the
evidence to be sufficient, "there must be evidence supporting each element of a crime."
State v. Kettler, 299 Kan. 448, 471, 325 P.3d 1075 (2014). We will not set aside a
conviction for insufficient evidence if we "'[are] convinced a rational factfinder could
have found the defendant guilty beyond a reasonable doubt.'" Chandler, 307 Kan. at 668.
We do not reweigh evidence, resolve evidentiary conflicts, or make determinations on
witness credibility. 307 Kan. at 668.


       A jury must unanimously agree the defendant committed the charged crime before
it can find a defendant guilty of that offense. See K.S.A. 22-3421; State v. Brooks, 298
Kan. 672, 677, 317 P.3d 54 (2014). This is straightforward when a crime can only be
committed one way. Some crimes, however, can be committed in multiple ways—that is,
there are alternative avenues of committing the crime. See State v. Brown, 295 Kan. 181,
192, 284 P.3d 977 (2012). When the State charges (or the court instructs on) elements of
a crime in the alternative with multiple means of committing the crime, the State must
present sufficient evidence to support a conviction for each of those means. See Brooks,
298 Kan. at 677. That way, the court and parties can be sure the jury reached a
unanimous verdict.


       At its core, alternative-means jurisprudence is rooted in the principle that the State
must prove every element of its claim beyond a reasonable doubt. For this reason, an
alternative-means error cannot be excused as harmless even if the State presented
compelling evidence supporting one of the means to commit the offense. State v. Wright,
290 Kan. 194, 205, 224 P.3d 1159 (2010).




                                              6
       Our Kansas Supreme Court has held that the statutory definition of sodomy creates
three alternative means of engaging in that conduct: "(1) oral contact with male or female
genitalia; (2) anal penetration of a male or female; and (3) sexual acts between a person
and an animal." State v. Britt, 295 Kan. 1018, 1024-25, 287 P.3d 905 (2012); see also
State v. Dern, 303 Kan. 384, 396, 362 P.3d 566 (2015) (statutory definition of sodomy
provides three "alternative means" of committing the crime). The State alleged the first
two of those means applied here. And the court instructed the jury on both of those two
alternative ways of committing the offense.


       Having reviewed the trial record, we find there was ample evidence that Davis
attempted to engage in anal sex with D.A. on June 7. According to D.A., Davis forced her
to take a shower because she was menstruating and then bent her over her bed and
removed her pants, though he did not anally penetrate her and instead ejaculated on her
bedroom floor. But there was no evidence that Davis attempted to have D.A. engage in
oral contact with his genitalia on June 7. Because the State chose to argue oral and anal
sodomy as alternative means of committing the offense on that day, it was required to
present evidence of both of those means. It did not do so.


       The State concedes that it did not present specific evidence of oral sodomy
occurring on June 7. But it maintains that D.A.'s extensive testimony about Davis
sodomizing her—both orally and anally—on an almost daily basis over the prior year
sufficed to support the conviction. It is true that the Kansas Supreme Court has found on
occasion that an error in the date in a charging document or instruction is not fatal to a
conviction. See State v. Stafford, 296 Kan. 25, 55, 290 P.3d 562 (2012) (error in
instructing that a rape occurred on one of two dates, when a reasonable person would
understand the language to mean it occurred between the two dates, did not require
reversal of a conviction); see also State v. Colston, 290 Kan. 952, 963, 235 P.3d 1234
(2010) ("on or about" language was imprecise in referring to a date), overruled on other




                                              7
grounds by State v. Dunn, 304 Kan. 773, 375 P.3d 332 (2016). But that rule does not
apply here.


       Instead, it is evident from the charging documents and the instructions that the
State intended to charge Davis with two instances of aggravated criminal sodomy, one on
June 6 and one on June 7. These dates were not meaningless. Otherwise, taken to its
logical conclusion, the State's argument could result in Davis being charged twice for the
same conduct—with both charges potentially encompassing conduct occurring on both
days. Neither party asserts this to be the case.


       "When there is insufficient evidence . . . to support the defendant's conviction of
each alternative means of committing a crime, the proper remedy is to reverse the
defendant's conviction and remand for a new trial only on the alternative means
supported by sufficient evidence in the first trial." State v. Shay, 56 Kan. App. 2d 721,
Syl. ¶ 3, 437 P.3d 78, rev. denied 310 Kan. 1070 (2019). We thus reverse Davis'
conviction for attempted aggravated criminal sodomy and remand the case for a new trial
on the charge that Davis attempted to engage in anal sodomy with D.A. on June 7, 2017.


   2. The State did not commit prosecutorial error during closing argument.

       Davis next contends the State committed prosecutorial error in closing argument
by commenting on the credibility of witnesses, mischaracterizing the evidence, and
inflaming the passions of the jury.


       "Appellate courts employ a two-step analysis when evaluating claims of reversible
prosecutorial error. These two steps are simply described as error and prejudice."
Chandler, 307 Kan. 657, Syl. ¶ 5. Under this analysis, we first must decide whether the
challenged actions fall outside of the wide latitude afforded to prosecutors to conduct the
State's case. If a prosecutor engaged in impermissible conduct, we consider whether that



                                              8
error is reversible. 307 Kan. 657, Syl. ¶ 6. That is, we must determine whether the
prosecutor's actions prejudiced the defendant's right to a fair trial under the constitutional
harmless-error standard in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed.
2d 705 (1967). The State must prove there was no reasonable possibility that the error
contributed to the trial's outcome. Chandler, 307 Kan. 657, Syl. ¶ 7.


       Questions of credibility are matters for the jury to evaluate based on the jurors'
observations and collective experience. For this reason, prosecutors are not generally
permitted to offer their personal opinions about the credibility of witnesses. State v. Sean,
306 Kan. 963, 979, 399 P.3d 168 (2017); State v. Hart, 297 Kan. 494, 505, 301 P.3d 1279
(2013). But prosecutors may argue the evidence—including reasonable inferences that
may be drawn about witness credibility from the evidence presented. Sean, 306 Kan. at
979; see State v. Duong, 292 Kan. 824, 831-32, 257 P.3d 309 (2011) (prosecutor's
comments about witnesses' credibility not improper because they were reasonable
inferences based on the evidence at trial and prosecutor directed jury to that evidence);
State v. Davis, 275 Kan. 107, 122-23, 61 P.3d 701 (2003) (prosecutor argued reasonable
inferences based on evidence in stating witness should be believed and that witness was
more likely to tell truth in first police interview than second).


       Davis points out a number of instances in the State's closing argument when the
prosecutor did just that—argued reasonable inferences from the evidence. For example,
the State argued that, in light of the facts presented at trial, the "most reasonable
interpretation" would be that Davis sodomized D.A. even though he denied it in his
interviews. The State also pointed out potential holes in Davis' account for how his semen
ended up on D.A.'s bedroom floor or how he believed D.A.'s mother and grandmother
convinced D.A. to fabricate her accusations, particularly when comparing that story to
D.A.'s consistent explanation of the events.




                                               9
       The prosecutor certainly used the word "credible" at times in his closing argument.
But reading that argument as a whole, we find his argument was based on the evidence
and reasonable inferences drawn therefrom. The prosecutor consistently framed his
argument in terms of the evidence presented, stating that he merely wanted to contrast the
evidence that had been presented by both sides. Not only did the prosecutor emphasize
the evidence presented in his argument, he also clarified that his opinion was irrelevant,
stating, "[W]hat I'm going to do right now is discuss [the] evidence with you and ask you
to return a verdict consistent with that evidence. . . . Now, I cannot give you my opinion
about the evidence. . . . [O]ur opinion does not matter."


       A prosecutor is permitted to argue that the evidence presented and any
inconsistencies in a defendant's statements tend to reflect poorly on his or her credibility.
State v. Brown, 300 Kan. 542, 560, 331 P.3d 781 (2014). And our Kansas Supreme Court
has stated that in situations where credibility determinations are central, the "parties may
advocate for reasonable inferences based on evidence suggesting that certain testimony is
not believable," so long as the ultimate conclusion about witness credibility is left to the
jury. Hart, 297 Kan. at 505-06.


       Because the prosecutor in this case did not offer his personal opinion on the
credibility of witnesses, presented reasonable inferences based on the evidence, and
stressed that the jury was required to come to its own conclusions about witness
credibility, his argument did not fall outside the wide latitude he was afforded.
Accordingly, we find no prosecutorial error occurred.


       We note, however, that even if some aspect of the prosecutor's comments treaded
too closely to the jury's credibility assessments, the evidence that Davis committed
aggravated criminal sodomy on June 6—the conviction remaining following our reversal
of count two—was overwhelming. The evidence against him for that offense, including



                                             10
among other things D.A.'s statement and Davis' semen found on D.A.'s floor, all
indicated he anally sodomized D.A. on that day.


       And the district court instructed the jury before closing arguments that it must
disregard statements made by counsel that were not supported by evidence introduced at
trial: "Statements, arguments, and remarks of counsel are intended to help you in
understanding the evidence and in applying the law, but they are not evidence. If any
statements are made that are not supported by evidence, they should be disregarded."
When a district court instructs a jury to disregard any statements by counsel not
supported by evidence, this court presumes the jury followed that instruction. State v.
Barber, 302 Kan. 367, 383, 353 P.3d 1108 (2015). And the prosecutor reiterated this
same sentiment throughout his argument.


       We conclude the State did not commit prosecutorial error during closing
argument. And even if there were an error, the prosecutor's statements, when viewed in
light of the record as a whole and the evidence against Davis, did not alter the jury's
verdict.


   3. The district court did not err in admitting the recorded forensic interview of D.A.
      and the testimony of the forensic interviewer describing that discussion.

       D.A. was the State's first witness at trial and described her experiences with Davis.
A few witnesses later, the State called the social worker who conducted the forensic
interview with D.A. on June 8, 2017, the day D.A. was taken to the hospital, to provide
foundation for introducing the video recording of the interview. The prosecutor asked the
social worker if D.A. had disclosed any sexual abuse and, "Generally speaking, what did
she say?" Davis objected to this line of questioning and the introduction of the video as
cumulative evidence that was "redundant" since D.A. "already testified [about] what she
said in the interview." The court overruled Davis' objection.



                                             11
       A district court is granted the discretion to admit cumulative evidence; its decision
will only be reversed for an abuse of discretion. State v. Dupree, 304 Kan. 43, 65, 371
P.3d 862 (2016); State v. Rodriguez, 295 Kan. 1146, 1156, 289 P.3d 85 (2012); State v.
Rice, 261 Kan. 567, 585, 932 P.2d 981 (1997). A court abuses its discretion if no
reasonable person would take the view it adopted or if its decision is based on an error of
law or fact. State v. Boysaw, 309 Kan. 526, 539, 439 P.3d 909 (2019).


       Unless excluded by law, all relevant evidence is admissible. K.S.A. 60-407(f). A
claim that evidence is "cumulative" does not challenge its relevance, but rather asserts
that the evidence is repetitive of other evidence already admitted and unnecessary to the
point of becoming unduly prejudicial. State v. Hickles, 261 Kan. 74, 88, 929 P.2d 141
(1996). These determinations—similar to the number of witnesses or amount of evidence
presented—are matters traditionally left to the sound judgment of the trial court.


       Davis focuses his argument on appeal on a challenge to this court's decision in
State v. Kackley, 32 Kan. App. 2d 927, 92 P.3d 1128, rev. denied 278 Kan. 849 (2004),
but that argument is misdirected. Kackley held that prior consistent statements of rape
victims may be introduced to corroborate the victims' statements. 32 Kan. App. 2d at 935.
Davis argues Kackley was wrongly decided and misapplied Kansas Supreme Court
caselaw.


       Davis' argument is flawed in several respects. But most notably, the rule in
Kackley was not the reason the district court admitted the video or the social worker's
testimony. And Davis provides no argument or explanation, apart from his disagreement
with Kackley and the Kansas Supreme Court caselaw on which it relied, as to why the
ruling in that case has any bearing on the court's admission of the challenged evidence
here or why the admission of that evidence was an abuse of the court's discretion.




                                            12
       We find it was not. Davis had consistently challenged the veracity of D.A.'s story.
He presented his case as a battle of his and D.A.'s credibility. And Kansas courts have
often allowed witnesses to give cumulative testimony on the same subject. See State v.
Torres, 280 Kan. 309, 333, 121 P.3d 429 (2005); Rice, 261 Kan. at 585; State v. Johnson,
231 Kan. 151, 156-57, 643 P.2d 146 (1982). Particularly here, where Davis argued D.A.
was being persuaded by her mother and grandmother to provide a false statement, Davis
has not shown the district court abused its discretion in admitting the video of the
forensic interview or in allowing the social worker to testify.


   4. The DNA analyst did not provide improper expert testimony.

       At trial, a DNA analyst testified that the semen found on D.A.'s bedroom floor was
consistent with Davis' DNA profile. During cross-examination, Davis' attorney asked the
analyst whether any seminal fluid was found on the rectal swab from D.A.'s
SANE/SART examination. The analyst indicated there was not. When the prosecutor
examined the analyst on redirect examination, the following exchange occurred:


       "Q. . . . Does the lack of detection of sperm or semen in the rectal swab indicate to you
       that [D.A.] was not sodomized?
       "A. No, it's possible that sexual contact or penetration did occur and no seminal fluid
       would be identified.
       "Q. Can you explain to the jury why that might be?
       "A. There are many reasons. It could include the male had some kind of disease that
       lowered their sperm count, they were vasectomized, or they had worn a condom at the
       time of penetration.
       "Q. Is one possibility that ejaculation did not occur in or on the body?
       "A. Yes, that is possible as well.
       "Q. So if a person ejaculated on the floor there might not be DNA around her anus?
       "A. That is correct."




                                                   13
       The defense attorney then broached the subject again on recross-examination ,
asking the analyst, "Your findings of the rectal swab don't indicate there was sodomy
either?" The analyst responded, "That is correct."


       On appeal, Davis argues that this testimony—about what the absence of semen in
a rectal sample might demonstrate—is beyond the common experience of the jury. Davis
argues that the analyst was not qualified to provide expert testimony beyond analyzing
the DNA report.


       As a preliminary matter, we question whether the argument Davis raises was
properly preserved. Davis objected to the State's initial question on redirect-examination
for lack of "foundation"—a different argument from what he now makes on appeal—and
did not otherwise object to the analyst's testimony. K.S.A. 60-404 requires a party to
timely object to the admission of evidence to seek reversal of a judgment based on its
erroneous admission. State v. Breeden, 297 Kan. 567, 581, 304 P.3d 660 (2013). Under
this statute, a verdict or judgment will not be reversed "by reason of the erroneous
admission of evidence unless there appears of record objection to the evidence timely
interposed and so stated as to make clear the specific ground of objection." K.S.A. 60-
404; see also State v. King, 288 Kan. 333, 336, 204 P.3d 585 (2009) (compliance with
K.S.A. 60-404 is required to preserve evidentiary issues for appellate review).


       K.S.A. 60-404's requirement of a timely and specific objection allows a district
court to act as the evidentiary gatekeeper at trial. Appellate courts have often noted the
importance of a district court's gatekeeping role in cases involving the admission of
expert testimony. See Smart v. BNSF Ry. Co., 52 Kan. App. 2d 486, 496, 369 P.3d 966
(2016). We are not convinced that Davis' objection to the "foundation" of the analyst's




                                             14
testimony apprised the court that Davis believed she was providing unvetted expert
testimony or allowed the court to act as an evidentiary gatekeeper in this regard.


       But even if Davis' evidentiary claim were properly before us, we would not find it
persuasive. The analyst's answers to the prosecutor's questions on redirect-examination—
and the answers she provided during recross-examination—were not expert opinions.
Instead, her answers essentially indicated that there might be lots of reasons why a DNA
sample would not include any semen. For example, if a person wore a condom or did not
ejaculate in the tested location, the sample would not show any seminal fluid. This
testimony was not an expert opinion, but rather an answer based on logic and human
experience. Accord K.S.A. 2019 Supp. 60-456(a)(1) (describing non-expert opinion or
inference testimony). Davis has not apprised us of error in the analyst's responses.


   5. Davis has not shown cumulative error.

       In his final claim on appeal, Davis argues cumulative error deprived him of a fair
trial. This court analyzes a claim of cumulative error under a de novo standard. State v.
Ross, 310 Kan. 216, 227, 445 P.3d 726 (2019). If there is no error or only a single error
found, there is no error to accumulate and therefore no basis to reverse a conviction. See
State v. Gonzalez, 307 Kan. 575, 598, 412 P.3d 968 (2018); State v. Haberlein, 296 Kan.
195, 212, 290 P.3d 640 (2012).


       Although we conclude there was insufficient evidence to convict Davis for the
alternative means charged for attempted aggravated criminal sodomy, the remedy for that
error is to reverse Davis' conviction for that offense and remand for a new trial on the
means supported by the evidence in his original trial. We do so. But aside from the
evidentiary deficiency based on the manner this offense was charged, we have found no
other errors in Davis' trial. Davis' allegation of cumulative error therefore fails.




                                              15
       We affirm Davis' conviction for aggravated criminal sodomy for his conduct on
June 6, 2017. We reverse his conviction for attempted aggravated criminal sodomy and
remand for a new trial on that charge, limited solely to the question as to whether Davis
attempted to engage in anal sodomy with D.A. on June 7, 2017.


       Affirmed in part, reversed in part, and remanded with directions.




                                            16
