Filed 10/2/14 P. v. Smith CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A138710
v.
CLAUDE THOMAS SMITH,                                                 (Napa County
                                                                     Super. Ct. No. CR163544)
         Defendant and Appellant.


         After a jury trial, defendant Claude Thomas Smith was convicted of mayhem and
other assault crimes committed against his partner in a domestic relationship as well as
grand theft against the same victim. He contends the trial court erred in (1) failing to
sever the theft offense and try it separately from the other crimes; (2) imposing a five-
year sentence enhancement under Penal Code1 section 12022.7, subdivision (e); and
(3) choosing the aggravated term of eight years for mayhem. We find no merit in
defendant’s contentions, and affirm the judgment.
                                               I. BACKGROUND
         Defendant was charged by information with mayhem (§ 203; count one), assault
with intent to commit mayhem (§ 220, subd. (a)(1); count two), assault with caustic
chemicals (§ 244; count three), assault with a deadly weapon (§ 245, subd. (a)(1);
count four), battery with serious bodily injury (§ 243, subd. (d); count five), inflicting
corporal injury on a spouse (§ 273.5, subd. (a); count six), grand theft (§ 487, subd. (a);


         1
             All statutory references are to the the Penal Code unless otherwise indicated.
count seven), and receiving stolen property (§ 496, subd. (a); count eight). The
information alleged as to several counts that defendant personally used a deadly weapon
(§ 12022, subd. (b)(1); counts one, two, five, six) and inflicted great bodily injury under
circumstances involving domestic violence (§ 12022.7, subd. (e); counts one, two, three,
four, six), and it alleged a prior strike conviction (§ 1170.12, subds. (a)–(d)) and a prior
serious felony conviction (§ 667, subd. (a)(1)). Defendant pleaded not guilty to all counts
and denied the special allegations.
       A jury trial commenced on March 12, 2013.
A. Prosecution Case
       Defendant and the victim, Joann Maher, had a romantic relationship spanning 40
years, but never married. They had a 37-year-old son. Defendant had five adult children
from an earlier marriage. Maher and defendant jointly owned a mobile home in
Calistoga and a house in San Francisco. In 2012, Maher was living in the Calistoga
mobile home. Defendant was working in San Francisco and living in the San Francisco
house during the week. He stayed in Calistoga most weekends.
       By October 2012, Maher had decided to end her relationship with defendant, and
was planning to move out of their mobile home. She had met another man and began
dating him that month. Maher had successfully bid to purchase another mobile home in
the same mobile home park. As of October 14, 2012, she had not yet told defendant she
was ending their relationship.
       Ms. Maher spent the day out with friends on Sunday, October 14, 2012, while
defendant remained in the mobile home. Before leaving, she placed her car keys on the
kitchen counter and mentioned to defendant she was not taking them with her because
they were too bulky. Maher had written about her new relationship and mentioned the
name of the man she was dating in her journal, which she kept in her car.
       Defendant confronted Maher about her new relationship when she returned home
on Sunday. Maher confirmed she was dating someone and told defendant she would be
moving out. Defendant appeared to take the news calmly and did not seem angry. After
defendant left, Maher discovered her journal was missing from her car.


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       The next day Maher got into her car and reached for a plastic bottle of water while
she waited for the car to warm up. She immediately noticed the water had an extremely
bitter, foul taste. She recapped the bottle and threw it in a trash can when she got to her
destination. No one other than defendant had access to her car in that time period.
       On October 16, Maher went to sleep around 9:30 p.m. The doors and windows of
the mobile home were locked. Around 1:45 a.m., Maher was awakened by feeling
someone striking her head with something. The room was dark and she was unable to
see her attacker or the object she was being struck with. It felt like plastic. She could
hear liquid sloshing and the crack of the plastic bottle. She sat up screaming, and tried to
fend off the attacker. After striking Maher around eight times, the attacker fled without
saying a word. Maher got up and ran out of the house after the attacker. He followed an
exit route from her bedroom through a second bedroom and bathroom and out though a
side entrance to the mobile home. Only someone familiar with the home would have
been aware of the side entrance. Maher went the other way past the kitchen, and exited
out of a side door to the carport. When she reached the carport, she saw a car she
believed was defendant’s. She knew the license plate on his car and was able to see it,
and she was very familiar with defendant’s car which he had driven for the past several
years. She saw the door close on the car and the back car lights come on before the car
started up and sped off.
       Ms. Maher’s nightgown was wet from the attack, and she began to feel a burning
sensation in her eyes, as well as pain in her ear. She went back inside the house and
called 911. She told the dispatcher she thought her husband had attacked her.
       Officer Perreault was dispatched to Maher’s residence. She was injured and
frantic. She had a large laceration in the top portion of her right ear, and two large areas
of swelling on her right forearm and wrist. Maher, who was a retired nurse, was holding
a wet wash cloth to her eyes and complaining of eye pain. As Perreault checked the
residence, Maher stated several times she was sure the attacker was her husband and she
had seen his car leaving the scene.



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       By the time Maher arrived at the hospital, her skin felt like it was on fire. She had
chemical burns on her upper body and both her corneas, and bruising to her face, arms,
and legs. She also had a severe laceration to the upper part of her right ear that cut all the
way through the cartilage. The treating physician who sutured her ear explained the
cartilage rupture was normally a permanent injury. It will not heal or grow back and is
only held in place by the surrounding skin.
       Evidence collected later that day from the mobile home included Maher’s bed
sheets, pillow, and pillowcase, which were all wet with liquid, as well as Maher’s
nightgown. On the floor by the bed, Officer Perreault found a cream-colored,
rectangular, plastic container, measuring two inches by four inches by six inches. The
label on the bottle indicated it contained sulfuric acid. From his previous employment at
Home Depot, Officer Perreault recognized that type of container is for battery acid, and is
typically packaged and sold along with a replacement battery for a tractor or motorcycle.
He was also familiar with the odor of battery acid. That smell emanated from the bottle
and the wet sheets.
       Officer Perreault reached defendant on his cell phone at 7:00 a.m. on October 17,
2012, five hours after the attack, and asked defendant to come to Calistoga for
questioning. Defendant denied being in Calistoga at the time of the attack. Defendant
was arrested after the interview and police searched his house in San Francisco the next
day. In a garbage can in defendant’s kitchen, Officer Perreault found a cream-colored
plastic cap that matched the sulfuric acid bottle. He did not find any bottles fitting with
that cap in or around the garbage can. The cap had a funnel tip and vent lid typical of
bottles of sulfuric acid sold with batteries. Officers later placed the cap on the acid bottle
recovered from Maher’s home and found it was a perfect fit. The cap found in
defendant’s San Francisco home and the bottle recovered from the mobile home are
exactly the same color and are made of the same plastic.
       Police also found a San Francisco Chronicle newspaper in defendant’s car dated
October 16, 2012. The newspaper had brown spots later determined to be sulfuric acid
stains. Mail addressed to Maher was also found in defendant’s car.


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       About a week after the attack, Maher discovered her jewelry was missing. She
kept her jewelry in a pouch, secured in a file cabinet in her bedroom. Besides herself,
only defendant knew where she kept her jewelry. The last time she recalled seeing the
jewelry was during the week before the assault.
       Ms. Maher also kept a binder with the deeds to her and defendant’s property in
another drawer in the file cabinet, and she discovered the deeds were missing from the
binder. Also taken from her home were documents about the new mobile home for
which her bid had been accepted. She had printed out the documents the morning of
October 14, before defendant arrived at the Calistoga home.
       About one week after the assault, Maher took a bottle of water from her
refrigerator. The bottle had been pushed to the back of the refrigerator when she placed
newly purchased bottles in. She noticed the seal of the bottle was broken and there was
lipstick on the top, suggesting she had previously opened and sipped from that bottle.
When she took a drink from the bottle, however, she experienced the same foul, bitter
taste she recalled from the discarded bottle she had taken a sip from in her car. She
turned the bottle over to the police.
       Chemical analysis of the acid bottle, cap, bed sheets, pillow case, pillow, and
nightgown revealed the presence of sulfuric acid. The substances found on the bed
sheets, the pillow case, and the newspaper found in defendant’s car were all consistent
with one another. Chemical analysis of the foul-tasting bottle of water turned over by
Maher revealed the water was an extremely basic solution of 11.7 pH, rendering it close
to the level California designates as hazardous. The chemist opined the chemical
composition and base level of the adulterated water was consistent with someone having
added a drain cleaning compound such as Drano to the water.
       A wireless technology expert conducted an analysis of cell phone tower records
for defendant’s cell phone number. That analysis showed defendant was in the area of
his house in San Francisco until sometime after midnight on October 17. At 12:45 a.m.,
defendant’s cell phone made a data connection with a Novato cell phone tower that
provides service for northbound traffic on U.S. Highway 101. At 1:21 a.m., defendant’s


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cell phone connected to a cell phone tower in Calistoga covering Maher’s mobile home
park. At 1:58 a.m., defendant’s cell phone made a data connection with another tower
indicating he was leaving Calistoga, traveling west. At 2:55 a.m., defendant’s car was
photographed by the automated toll system on the Golden Gate Bridge, reflecting he was
traveling south, entering San Francisco.
       Officers reviewed defendant’s telephone calls made from jail to his daughter,
Jinetta Scott. In the calls, defendant discussed Maher’s jewelry, which he had given to
Scott. Officers obtained a warrant for Scott’s home and confronted Scott. She turned
over the pouch of missing jewelry and a binder containing the deeds Maher reported
missing.
       Ms. Maher testified defendant had purchased all of the stolen jewelry items, save
for two pieces, an emerald ring and a cameo. An expert appraiser valued the emerald
ring at around $1,800. Together, all the stolen jewelry items appraised for over $25,000.
B. Defense Case
       The defense rested on the state of the evidence. In closing, the defense argued
Maher’s memory of the attack and initial identification of defendant’s car were
unreliable, and defendant was not the person who attacked her. Regarding the grand theft
and receiving stolen property charges, the defense argued the evidence was insufficient to
prove defendant had intended to make an unconditional gift of the jewelry to her.
C. Verdict, Sentencing, and Appeal
       The jury was instructed that count five was a lesser included offense of count one
and that counts seven and eight were charged in the alternative. The jury returned guilty
verdicts on counts one, two, three, four, six, and seven, and found the enhancements true.
The court found true the prior conviction allegations.
       On May 2, 2013, the court sentenced defendant to 28 years 4 months in state
prison calculated as follows: the high term of 8 years for mayhem, doubled to 16 years
because of the prior strike; plus a consecutive term of 16 months for grand theft,
representing one-third the midterm, for a total of 17 years 4 months; plus an additional
one-year term for the use of a deadly weapon enhancement (§ 12022, subd. (b)(1)), an


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additional five-year term for the great bodily injury enhancement (§ 12022.7, subd. (e)),
and an additional five-year term for the prior manslaughter conviction (§ 667,
subd. (a)(1)). The court stayed sentence on counts two, three, four, and six, pursuant to
section 654. Defendant timely appealed.
                                    II. DISCUSSION
       Defendant contends the trial court erred in (1) denying his motion to sever the
assault and theft charges, (2) imposing sentence for the great bodily injury enhancement,
and (3) imposing the aggravated term for mayhem.
A. Denial of Severance Motion
       Prior to the trial, defendant moved to sever the grand theft and receiving stolen
property charges from the remaining charges alleging assaultive crimes against the
person. He argued the theft charges were not in the same class of crimes as the assault
charges and the alleged crimes were not connected in their commission for purposes of
section 954.2 (See People v. Saldana (1965) 233 Cal.App.2d 24, 30 (Saldana)
[“Legislature did not intend the phrase ‘two or more different offenses connected together
in their commission’ to apply to two wholly unrelated crimes merely because they were
committed on the same day or even . . . at the same time”].)
B. Relevant Law
       Under section 954, an accusatory pleading may charge two or more different
offenses if the offenses are either “connected together in their commission” or “of the
same class.” (§ 954; People v. Soper (2009) 45 Cal.4th 759, 771 (Soper).) The court
may nonetheless order separate trials of properly joined charges “in the interests of
justice and for good cause shown.” (§ 954.) It is the defendant’s burden in that case to
demonstrate there is a substantial danger of prejudice requiring that the charges be tried
separately. (Soper, at p. 773.) “Because consolidation ordinarily promotes efficiency,
the law prefers it.” (People v. Ochoa (1998) 19 Cal.4th 353, 409.)

       2
         Section 954 provides in relevant part that “[a]n accusatory pleading may charge
two or more different offenses connected together in their commission . . . or two or more
different offenses of the same class of crimes or offenses, under separate counts . . . .”


                                             7
       Assuming proper joinder, a trial court’s denial of a motion to sever must be
evaluated in light of the facts and circumstances apparent to the court at the time of its
ruling, and is reviewed for abuse of discretion. (Soper, supra, 45 Cal.4th at pp. 774–775,
776, fn. 10.) If the trial court’s ruling is correct at the time it was made, a defendant is
only entitled to relief on appeal if joinder actually resulted in “ ‘gross unfairness’ ”
amounting to a denial of due process. (Id. at p. 783.)
       The courts have identified certain criteria to provide guidance in ruling upon and
reviewing a motion to sever. (Soper, supra, 45 Cal.4th at p. 774.) First, “we consider the
cross-admissibility of the evidence in hypothetical separate trials. [Citation.] If the
evidence underlying the charges in question would be cross-admissible, that factor alone
is normally sufficient to dispel any suggestion of prejudice and to justify a trial court’s
refusal to sever properly joined charges.” (Id. at pp. 774–775.) Second, if the evidence
would not be cross-admissible in separate trials, we must take into account the possible
prejudicial “spill-over” effect of evidence of other crimes on the jury in its deliberations
over the evidence of defendant’s guilt for each set of crimes. (Id. at p. 775.) We analyze
whether some of the charges are likely to inflame the jury against the defendant, or
whether a weak case has been joined with a strong case or another weak case “so that the
totality of the evidence may alter the outcome” as to the weak or noninflammatory
charges. (Ibid.) We then balance the potential for prejudice to defendant from a joint
trial to the countervailing benefits to the state. (Ibid.) These principally include the
conservation of judicial resources and public funds. (Id. at pp. 774, 782.)
C. Application
       As an initial matter, we reject the proposition that the theft and assaultive crimes
alleged were not connected in their commission. Saldana, cited by defendant, is
inapposite. The defendant in Saldana was charged with and tried for rape and marijuana
possession. (Saldana, supra, 233 Cal.App.2d at p. 25.) The only evidence connecting
the two offenses was that the marijuana was found in clothing worn by the defendant at
the time of the rape. (Id. at pp. 29–30.) The Court of Appeal held “[s]uch a showing
clearly did not constitute a sufficient basis for consolidation under Penal Code


                                               8
section 954.” (Id. at p. 30.) Here, the evidence connecting the two classes of crimes was
far stronger than in Saldana. The charged theft and assault crimes targeted the same
victim, occurred in the same time frame, and sprang from the same motive—punishing
and taking revenge on the victim for ending her relationship with defendant.
       The requirement that offenses be “ ‘connected together in their commission’ ”
does not require that the offenses be part of the same transaction or occur at the same
time. (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1218.) All that is required is
there exist a “ ‘common element of substantial importance in their commission.’ ” (Id. at
p. 1219.) Thus, in Alcala evidence that each of the five charged murders committed over
a 19-month period involved sexually motivated assaults sufficiently tied the crimes
together to support joinder. (Id. at p. 1219.) Alcala specifically found that the intent or
motivation with which different acts are committed can qualify as a “ ‘common element
of substantial importance’ in their commission and establish that such crimes were
‘connected together in their commission.’ ” (Ibid.)
       The jury could infer from the evidence presented in this case that defendant
learned of Maher’s relationship with another man on Sunday, October 14, when he was
visiting Calistoga for the weekend, and was left alone in the mobile home and had access
to Maher’s car keys and journal. The jury could also infer it was most likely during this
time period when defendant put noxious chemicals in Maher’s water bottles in the car
and the refrigerator, and when he removed her jewelry, which she last recalled seeing
about a week before she was attacked. He took other items having no economic value
from Maher’s possession at the same time—including deeds for their properties and
documents pertaining to Maher’s mobile home purchase. All of these events occurred in
the same time frame immediately following defendant’s discovery that Maher was seeing
someone else and ending their relationship. A common thread of substantial importance
to all of these acts—as well as to the beating and acid attack a few days later—was
animus toward Maher and a desire to hurt and take revenge against her. In our view, the
theft and assaultive offenses were properly joined under section 954.



                                              9
       Defendant fails to establish the joinder of the theft offenses substantially
prejudiced his defense on the mayhem and other alleged assault crimes. First, we find
evidence of the theft charges would have been admissible in a separate trial on the assault
offenses under Evidence Code section 1101, subdivision (b). Subject to the trial court’s
discretion to weigh the probative value of the evidence against its potential prejudicial
effect, section 1101, subdivision (b) allows evidence of the defendant’s commission of
another crime when offered to prove certain relevant facts such as identity, motive, intent,
or plan. (People v. Kipp (1998) 18 Cal.4th 349, 369, 371.) Evidence of other criminal
acts against the same victim is admissible to explain the defendant’s motive in
committing the charged offense. (See People v. Kelley (1997) 52 Cal.App.4th 568, 578–
579 [prior molestation of the victim was relevant and admissible in prosecution for
stalking to show defendant’s motive to place the victim in fear]; see also People v.
Zambrano (2007) 41 Cal.4th 1082, 1129, disapproved on other grounds in People v.
Doolin (2009) 45 Cal.4th 390, 421, fn. 22 [“we have frequently held that evidence of
other offenses is cross-admissible to prove motive”].) Here, evidence of all of the hostile
acts defendant committed against Maher in the immediate aftermath of learning she was
seeing someone else, including the theft of her jewelry, would have been admissible to
show his motive for attacking her on October 17, 2012. Proof of the presence of a motive
is material evidence tending to refute the presumption of innocence. (People v. Scheer
(1998) 68 Cal.App.4th 1009, 1017.) The admissibility of the theft evidence in a
hypothetical separate trial on the mayhem and assault offenses, by itself, refutes
defendant’s claim the trial court abused its discretion in denying his motion to sever.
(Soper, supra, 45 Cal.4th at pp. 774–775; see Zambrano, at p. 1129 [it is sufficient the
assaults were admissible to show motive in the murder case; “two-way” cross-
admissibility is not required].)
       Even assuming for the sake of analysis the cross-admissibility of the theft
evidence was not conclusive of defendant’s prejudice claim, neither of the other factors
used to evaluate potential prejudice weigh in defendant’s favor either. The jewelry theft
charges are obviously less inflammatory than the mayhem and other assault charges, and


                                             10
less likely than the latter to inflame the jury against defendant. Defendant makes no
argument to the contrary. With regard to the relative strength of the theft and assault
crimes evidence, we reject defendant’s claim that the evidence against him as to the
assault crimes was “not overwhelming” whereas the theft evidence was “fairly strong.”
The mayhem and assault evidence was, in fact, completely compelling. Maher
recognized defendant’s car and license plate as he was fleeing the crime scene. The cell
phone and photographic evidence from the bridge toll system independently placed
defendant near the crime scene at the time of the attack—a location he had no innocent
explanation for being in at that time of night during a weekday. His false statement to
police concerning his whereabouts showed a consciousness of guilt. The bottle cap found
in defendant’s home, and the acid-stained newspaper found in his car both tied him
directly to the crime. Defendant’s access to the residence, the lack of forced entry, and
the route he took to escape all pointed to him as the perpetrator. Independent of the theft
evidence, it is impossible to fairly characterize the case for defendant’s guilt on the
assault charges as weak.
       Defendant fails to demonstrate any substantial danger of prejudice from trying the
theft and assault charges together, or any abuse of discretion by the trial court in denying
his motion to sever.
D. Great Bodily Injury Enhancement
       Under section 12022.7, subdivision (e)3 defendant received an additional five-year
term as an enhancement to his eight-year sentence for mayhem (which was doubled to
16 years due to his prior “strike” conviction). He asserts “[t]he imposition of sentence for
the great bodily injury enhancement constituted an improper dual use of facts since great
bodily injury is an element of mayhem.”



       3
        Section 12022.7, subdivision (e) states in relevant part: “Any person who
personally inflicts great bodily injury under circumstances involving domestic violence in
the commission of a felony or attempted felony shall be punished by an additional and
consecutive term of imprisonment in the state prison for three, four, or five years.”


                                             11
       Defendant relies in part on section 12022.7, subdivision (g), but that reliance is
misplaced. Subdivision (g) states in relevant part: “Subdivisions (a), (b), (c), and (d)
shall not apply if infliction of great bodily injury is an element of the offense.” By its
terms, subdivision (g) does not preclude a sentence enhancement under subdivision (e)
even if great bodily injury is an element of the underlying felony. Subdivision (g) has no
application to this case.
       Defendant also cites People v. Pitts (1990) 223 Cal.App.3d 1547, decided under
an earlier version of section 12022.7. Pitts, which was not a domestic violence case, held
the enhancement for great bodily injury could not be applied to mayhem because great
bodily injury was an element of mayhem. (Id. at pp. 1559–1560.) Former
section 12022.7 read in relevant part as follows: “Any person, with the intent to inflict
such injury, who personally inflicts great bodily injury . . . in the commission . . . of a
felony shall, in addition and consecutive to the punishment prescribed for the felony . . .
be punished by an additional term of three years, unless infliction of great bodily injury is
an element of the offense of which he is convicted.” (Italics added; now subds. (a), (g).)
Former section 12022.7 thus contained a blanket prohibition against imposition of the
enhancement if great bodily injury was an element of the underlying offense. The
version of the statute in effect during the commission of the offense in issue here—
specifically the language now found in subdivision (g)—excludes enhancements based on
subdivision (e) from the prohibition on double use of the fact of personal infliction of
great bodily injury. Pitts is unpersuasive.
       Defendant also cites California Rules of Court, rule 4.420(d), which provides that
“[a] fact that is an element of the crime upon which punishment is being imposed may
not be used to impose a greater term.” The rule applies in the context of selecting a
determinate prison term under section 1170, subdivision (b). It does not trump the
Legislature’s choice of language in section 12022.7, subdivision (g), which authorizes
imposition of a great bodily injury enhancement in cases involving domestic violence
even if great bodily injury is an element of the underlying felony. (See People v.
Hawkins (2003) 108 Cal.App.4th 527, 531.)


                                              12
       The trial court properly applied section 12022.7.
E. Upper Term Sentence for Mayhem
       The trial court stated it was imposing the aggravated term of eight years for
mayhem because of “[t]he nature of the crime” and “the methods used by defendant in
committing the crime.” According to defendant, this violated the principle that a fact
constituting an element of the crime cannot be used to impose the aggravated sentence for
committing it. (See People v. Scott (1994) 9 Cal.4th 331, 350 (Scott); Cal. Rules of
Court, rule 4.420(d).) Defendant maintains the court’s reference to the “nature of the
crime” is “akin to saying that the upper term is justified because the crime was mayhem.”
He argues the “methods used” similarly adds nothing to the elements of the offense in
that the methods used in this case were merely “those necessary to commit the offense of
mayhem.”
       The Attorney General points out defendant forfeited this claim by failing to raise it
at his sentencing. (See Scott, supra, 9 Cal.4th at pp. 352–353 [waiver doctrine applies to
claims involving the trial court’s failure to properly make or articulate its discretionary
sentencing choices, including failing to state any reasons or give a sufficient number of
valid reasons].) In any event, the nature of and methods used in the attack in this case did
exceed the bare elements of the mayhem offense. This was a particularly aggravated and
heinous crime. Defendant repeatedly struck the victim’s head, severing the ear cartilage,
and cruelly doused her face and eyes with sulfuric acid. Defendant’s assertion “[t]here
was nothing about the ‘methods used’ by [him] to commit the crime which made it
distinctively worse than ordinary” flies in the face of the facts proven at trial. Imposition
of an aggravated term was more than justified in this case. (See People v. Black (2007)
41 Cal.4th 799, 813 [“the existence of a single aggravating circumstance is legally
sufficient to make the defendant eligible for the upper term”].)
                                    III. DISPOSITION
       The judgment is affirmed.




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                                 _________________________
                                 Margulies, J.


We concur:


_________________________
Humes, P.J.


_________________________
Banke, J.




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