                                                                                               04/04/2017


                                          DA 15-0584
                                                                                           Case Number: DA 15-0584

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2017 MT 76



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

BRAD EDWARD DAFFIN,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Twenty-First Judicial District,
                       In and For the County of Ravalli, Cause No. DC-14-28
                       Honorable Jeffrey H. Langton, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Colin M. Stephens, Nick K. Brooke, Smith & Stephens, P.C., Missoula,
                       Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant
                       Attorney General, Helena, Montana

                       William E. Fulbright, Ravalli County Attorney, Hamilton, Montana



                                                   Submitted on Briefs: February 1, 2017

                                                               Decided: April 4, 2017


Filed:

                       __________________________________________
                                         Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Brad Edward Daffin (Daffin) appeals the judgment entered by the Twenty-First

Judicial District Court, Ravalli County, convicting him of eight counts of Sexual

Intercourse Without Consent, three counts of felony Sexual Assault, three counts of

Sexual Abuse of Children, and two counts of Criminal Distribution of Dangerous Drugs,

and sentencing him to a cumulative total of five consecutive life sentences.1 We affirm

and restate the issues as follows:

       1. Did the District Court abuse its discretion by admitting evidence of prior
       acts under M. R. Evid. 404(b)?

       2. Did the District Court err in applying § 45-5-511(2), MCA, Montana’s
       Rape Shield Law?

                  FACTUAL AND PROCEDURAL BACKGROUND

¶2     On January 9, 2014, R.S. disclosed to her school counselor that she had been

sexually assaulted by Daffin, at the end of the previous summer, while she was 12-13

years old. Later that day, at Emma’s House, a Children’s Advocacy Center in Hamilton,

R.S. participated in a forensic interview with Valerie Widmer (Widmer), a licensed

clinical social worker with specialized training in forensic interviews. R.S. stated that she

had met Daffin through her friend B.M., whose father worked for Daffin. During the

interview, R.S. revealed that Daffin had forced or coerced her to have sex multiple times,

and induced her to send him a topless photo of herself. R.S.’s allegations resulted in



1
  Daffin was sentenced to thirteen life sentences and three one-hundred-year sentences. Some of
these sentences run concurrently and some run consecutively.
                                             2
Daffin being charged with two counts of Sexual Intercourse Without Consent, two counts

of Sexual Assault, and one count of Sexual Abuse of Children.

¶3    Widmer conducted a forensic interview of B.M. the following day at Emma’s

House. B.M. reluctantly revealed that she also had been coerced to have sex and was

sexually assaulted multiple times by Daffin during the previous summer, while she was

13 years old. B.M.’s allegations resulted in Daffin being charged with three counts of

Sexual Intercourse Without Consent.

¶4    As the investigation continued, additional victims, former victims, and witnesses

were identified. The victims and witnesses provided evidence covering a 20-year period

of sexually predatory behavior by Daffin, as well as his use and distribution of dangerous

drugs. The victims and witnesses provided details of how Daffin selected and groomed

young female victims, eventually leading to him sexually assaulting them. From these

reports Daffin was charged with additional counts of Sexual Intercourse Without

Consent, Sexual Assault, and Sexual Abuse of Children, along with other crimes.

¶5    A.K. was one of the additional victims located during the investigation. A.K. was

18 years old at the time of her forensic interview. She revealed that, during the time she

was 13-16 years old, she had been sexually assaulted by Daffin on multiple occasions;

engaged in sex with Daffin in exchange for drugs; recruited other young girls to have

sexual relations with Daffin; and helped to transport young girls and drugs, from Idaho to

Montana, for Daffin. A.K.’s allegations resulted in Daffin being charged with two counts




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of Sexual Intercourse Without Consent, one count of Criminal Distribution of Dangerous

Drugs, and one count of Sexual Abuse of Children.

¶6       A.K.’s older sister, K.C., testified that she had known Daffin her entire life

because he and her father were friends. K.C. testified to “partying” with her father and

Daffin as a young child. When she was 12 years old, K.C.’s father was sent to prison and

Daffin began to “flirt” with her. From the time she was 12 years old until she was

approximately 18 years old, she was sexually assaulted by Daffin; had sex with Daffin in

exchange for drugs and money; recruited other young girls to have sex with Daffin in

exchange for drugs and money; and transported drugs and young girls for Daffin. K.C.’s

allegations resulted in Daffin being charged with one count of Sexual Intercourse

Without Consent, one count of Sexual Assault, one count of Criminal Distribution of

Dangerous Drugs, and one count of Sexual Abuse of Children.

¶7       K.D., a former victim, also came forward. K.D. testified that Daffin sexually

assaulted her when she was 15 years old, shortly after she had completed a youth drug

treatment program. K.D.’s allegation resulted in Daffin being charged with one count of

Sexual Intercourse Without Consent.

¶8       At trial, these five girls and women testified in detail concerning Daffin’s process

of selecting, grooming, sexually assaulting, and, finally, coercing them to secrecy.

Additionally, the State called 29 other witnesses. These witnesses testified to aspects of

the investigation and about their knowledge of Daffin’s patterns of victim grooming and

abuse.

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¶9     After R.S. made her initial disclosure concerning Daffin, a third-party reported to

the school counselor that R.S. had been sexually assaulted in a park by a group of teen

boys. When the school counselor questioned R.S. about this, R.S. denied making any

such allegation, and said “no one had done anything” to her. Later, R.S. wrote letters of

apology to the boys who had been named in the incident.             While not explicitly

acknowledging she had made false sexual allegations, she offered that the matter was

intended as a joke. Around the same time, R.S. recanted her allegations against Daffin.

Based on this information, Daffin requested a hearing pursuant to State ex rel. Mazurek v.

Dist. Court of the Montana Fourth Judicial Dist., 277 Mont. 349, 922 P.2d 474 (1996), to

present evidence of the false allegations made by R.S. and her recantation. After hearing

the testimony, the District Court applied § 45-5-511(2), MCA, by ruling that evidence

about the alleged sexual assault in the park by the boys was inadmissible, but that the

evidence concerning R.S.’s recantation was admissible because it related directly to

R.S.’s allegations against Daffin.

¶10    Daffin also moved in limine to exclude “other acts” evidence under M. R. Evid.

404(b). The District Court reserved ruling until trial, citing “the highly inflammatory

nature of the evidence of sexual conduct.”       Later, it denied the motion in limine,

reasoning:

       The State has adequately explained how it intends to use the evidence to
       show motive, intent and mental state, knowledge, and identity, which are
       all permissible purposes for admitting other acts evidence. Daffin’s
       arguments that such evidence should be precluded because it is remote, is
       beyond the statute of limitations, and/or does not constitute a criminal

                                         5
      offense are without merit—none of these bear on relevance or justify
      precluding admissible other acts evidence.

¶11   Daffin was convicted of 16 of the 17 charges against him. He appeals, challenging

the District Court’s admission of “other acts” evidence and the court’s application of

§ 45-5-511(2), MCA, Montana’s Rape Shield Law.

                             STANDARDS OF REVIEW

¶12   District courts have broad discretion to determine the admissibility of evidence.

State v. Madplume, 2017 MT 40, ¶ 19, 386 Mont. 368, ___ P.3d ___ (citing State v.

Spottedbear, 2016 MT 243, ¶ 9, 385 Mont. 68, 380 P.3d 810). We review evidentiary

rulings for an abuse of discretion, which occurs when a district court acts arbitrarily

without conscientious judgment or exceeds the bounds of reason, resulting in substantial

injustice. Madplume, ¶ 19 (citing Spottedbear, ¶ 9). To the extent an evidentiary ruling

is based on a district court’s interpretation of the Montana Rules of Evidence, our review

is de novo. Madplume, ¶ 19 (citing Spottedbear, ¶ 9).

¶13   We review a district court’s application of a statute for correctness. State v.

Aguado, 2017 MT 54, ¶ 9, 381 Mont. 1, ___ P.3d ___ (citing State v. Colburn, 2016 MT

41, ¶ 6, 382 Mont. 223, 366 P.3d 258).

                                     DISCUSSION

¶14 1. Did the District Court abuse its discretion by admitting evidence of prior acts
under M. R. Evid. 404(b)?

¶15   M. R. Evid. 404(b) states that “[e]vidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show action in conformity

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therewith.” Rule 404(b) is designed to ensure that jurors “do not impermissibly infer that

a defendant’s prior bad acts make that person a bad person, and therefore, a guilty

person.” Madplume, ¶ 22, (citing State v. Dist. Court of the Eighteenth Judicial Dist.,

2010 MT 263, ¶ 47, 358 Mont. 325, 246 P.3d 415 (hereinafter “Salvagni”)). However,

evidence of prior bad acts, including uncharged crimes, is admissible for other purposes

such “as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.”       M. R. Evid. 404(b).      “The distinction between

admissible and inadmissible Rule 404(b) evidence turns on the intended purpose of the

evidence, not its substance.” Madplume, ¶ 23 (citing Salvagni, ¶¶ 47, 62-63). “To

prevent the permissible uses from swallowing the general rule barring propensity

evidence, the trial court must ensure that the use of Rule 404(b) evidence is “‘clearly

justified and carefully limited.’” Madplume, ¶ 23 (quoting State v. Aakre, 2002 MT 101,

¶ 12, 309 Mont. 403, 46 P.3d 648). Rule 404(b) other acts evidence is admissible if the

proponent can “clearly articulate how that evidence fits into a chain of logical inferences,

no link of which may be the inference that the defendant has the propensity to commit the

crime charged.” State v. Clifford, 2005 MT 219, ¶ 48, 328 Mont. 300, 121 P.3d 489

(quoting and citing United States v. Himelwright, 42 F.3d 777, 782 (3rd Cir. 1994)).

¶16    Daffin launches a broad-based attack on the State’s overall case, arguing that the

District Court abused its discretion by “allowing a mountain of prejudicial and confusing

evidence regarding [his] alleged past conduct.” Daffin urges us to turn a “jaundiced eye”

toward the “mountain of irrelevant, prejudicial propensity evidence” used against him by

                                         7
the State. Daffin’s legal claims are that: (1) the State broadly failed to demonstrate a

proper purpose for introducing evidence of Daffin’s prior bad acts; (2) the sheer amount

of evidence admitted was overwhelming and prejudiced the jury; and (3) the District

Court failed to fulfill its gatekeeping function under M. R. Evid. 403. The State responds

that evidence of Daffin’s prior bad acts was admissible because it was “inextricably

linked to and explanatory of” his conduct and was admitted to prove identity, motive,

purpose and knowledge, and absence of mistake or accident. The State’s “inextricably

linked” argument is improperly drawn from the transaction rule, which the District Court

did not address, and which is not at issue here. See § 26-1-103, MCA; State v. Stout,

2010 MT 137, ¶ 39, 356 Mont. 468, 237 P.3d 37 (“Application of the transaction rule

should not be used to avoid Rule 404 . . . .”). Rather, we examine the purposes offered

by the State under Rule 404(b), some of which overlap, for introduction of the challenged

evidence. We then address the District Court’s balancing of the factors in Rule 403.

M. R. Evid. 404(b).

      A. Identity

¶17   Evidence is admissible to demonstrate that a defendant employs a particular

grooming pattern or uses “distinctive or idiosyncratic methods to lure victims into

vulnerable positions that enable sexual assault.” Aakre, ¶ 20 (citation omitted). “This

identity exception is often used ‘[t]o prove other like crimes by the accused so nearly

identical in method as to earmark them as the handiwork of the accused.’” Salvagni, ¶

60 (quoting State v. Kordonowy, 251 Mont. 44, 49, 823 P.2d 854, 857 (1991)).

                                         8
“[S]imilarity between the prior crime and the alleged crime on trial is sufficient for

admissibility, especially in the context of sex crimes.” Aakre, ¶ 22 (citation omitted).

¶18    Here, the testimony of the former victims and other witnesses was used to

establish Daffin’s methods of victim selection and grooming. Some common elements of

Daffin’s “criminal signature” included: supplying his victims with alcohol and drugs;

driving his victims around in his vehicle; “partying”2 with his victims; taking them

“mudding”3; and, eventually, assaulting them.        Testimony about Daffin’s pattern of

sexual abuse detailed a process that started with “flirting”; escalated to sexual

conversation and touching that bordered on sexual; proceeded to sexual contact; and

concluded by telling the victims they were at fault or complicit in the abuse, and swearing

them to silence.

       B. Motive

¶19    Evidence is admissible to show motive when separate acts can be explained by the

same motive. State v. Crider, 2014 MT 139, ¶ 25, 375 Mont. 187, 328 P.3d 612 (“[A]

prior bad act may evidence the existence of a motive without supplying the motive. In

such cases, the motive is the cause and both the prior acts and the act at issue are

effects.”); Salvagni, ¶ 59 (“[T]he motive is cause, and the charged and uncharged acts are

effects; that is, both acts are explainable as a result of the same motive. The prosecutor
2
  Some parties occurred in the mountains, at campgrounds or other recreational spots, and
involved drinking alcohol and injecting, smoking, or snorting a variety of drugs, including
methamphetamines, opiates, ketamine, and marijuana. Other such parties took place at Daffin’s
or one of his friend’s houses.

3
 The victims and witnesses used a variety of terms to describe off-road mountain driving, such
as fourbying, four-wheeling, mudding, and rock climbing.
                                           9
uses the uncharged act to show the existence of the motive, and the motive in turn

strengthens the inference of the defendant’s identity as the perpetrator of the charged

act.”).

¶20       The testimony of former victims and witnesses demonstrated Daffin’s

longstanding sexual fixation with underage teen girls, particularly living in vulnerable

family situations, and provided the motive for his crimes. The record reflected that

Daffin pursued a sexual interest in underage females for approximately 20 years.

          C. Purpose and Mental State

¶21       In State v. Stewart, 2012 MT 317, ¶ 64, 367 Mont. 503, 291 P.3d 1187, we stated

that a typical prosecution is reducible to three components: “(1) someone committed the

actus reus (i.e., forbidden act) alleged in the indictment or information; (2) that person

possessed the requisite mens rea (i.e., criminal intent or state of mind); and (3) that

person was the defendant.” (Citation omitted.) At trial, Daffin challenged the first and

second components. He claimed that he did not abuse or sexually assault any of the

victims of the charged crimes, and that any contact he had with them was appropriate.

¶22       The State’s array of former victims and other witnesses demonstrated that Daffin’s

actions with the victims—including those actions, such as recreating in the mountains,

that would be innocent and appropriate in circumstances of normative behavior—were

perversely intended to abuse the victims, or set up that abuse. As we have previously

stated, the use of other-acts evidence to prove either the actus reus or mens rea does not

necessarily violate Rule 404(b). Stewart, ¶ 65. The testimony of Daffin’s ex-wife,

                                           10
long-time acquaintances, and former victims about Daffin’s behaviors served to prove

that he knowingly groomed and sexually assaulted the victims of the charged crimes.

¶23    While we could analyze the evidence under other factors listed in Rule 404(b), the

above-referenced factors are sufficient to establish that the State’s overall evidentiary

case, as challenged here, was admitted for proper purposes. Further, given the large

number of sexual charges the State had to prove, spanning many years, admission of the

volume of sexual evidence was not an abuse of discretion, and the District Court properly

fulfilled its gatekeeping function.

M. R. Evid. 403.

¶24    Daffin argues, “[a]ssuming arguendo some of the evidence was admissible for

non-propensity reasons, the record reflects [that] the district court took no steps to

balance the non-propensity value with [Daffin’s] interest in a fair trial.”

¶25    “All relevant evidence is admissible, except as otherwise provided by constitution,

statute, these rules, or other rules applicable in the courts of this state.” M. R. Evid. 402.

Rule 403 provides that 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.” “District courts have broad discretion to weigh the

relative probative value of evidence against the risk of unfair prejudice.” Madplume, ¶ 32

(citing Stewart, ¶ 68). While probative evidence is generally prejudicial to one side or

the other, “[e]vidence rises to the level of being unfairly prejudicial only ‘if it arouses the

                                          11
jury’s hostility or sympathy for one side without regard to its probative value, if it

confuses or misleads the trier of fact, or if it unduly distracts from the main issues.’”

Madplume, ¶ 33 (quoting and citing State v. Hicks, 2013 MT 50, ¶ 24, 369 Mont. 165,

296 P.3d 1149). “Even if evidence is potentially unfairly prejudicial, the Rule 403

balancing test favors admission—the risk of unfair prejudice must substantially outweigh

the evidence’s probative value.” Madplume, ¶ 33.

¶26    The District Court denied Daffin’s Rule 403 objection, reasoning:

       [T]he Court is not persuaded that the danger of unfair prejudice
       substantially outweighs the probative value of the evidence. Although the
       other acts evidence is prejudicial, it is also highly probative in view of
       Daffin’s defense theory that the victims of the offenses of which he is
       charged are lying and conspired to make their accusations against him. The
       jury should be able to hear and weigh this other acts evidence.

¶27    Under the standards stated above, we conclude that the District Court did not

abuse its discretion by admitting the other acts evidence after balancing its prejudicial

effect against its probative value. The challenged evidence was particularly probative of

the lengthy and detailed process used by Daffin to systematically, over many years,

obtain control over certain kinds of potential victims, groom them for abuse, physically

abuse them, and coerce their secrecy about the abuse.

¶28 2. Did the District Court err in applying § 45-5-511(2), MCA, Montana’s Rape
Shield Law?

¶29    Montana’s Rape Shield Law is designed to prevent victims “from being exposed at

trial to harassing or irrelevant questions concerning their past sexual behavior.” Colburn,

¶ 22 (citation omitted).    Section 45-5-511(2), MCA, reflects Montana’s interest in

                                        12
preventing the trial of the charge against the defendant “from becoming a trial of the

victim’s prior sexual conduct.” Colburn, ¶ 22 (citing State v. Higley, 190 Mont. 412,

422, 621 P.2d 1043, 1050-51 (1980)). Section 45-5-511(2), MCA, states:

       Evidence concerning the sexual conduct of the victim is inadmissible in
       prosecutions . . . except evidence of the victim’s past sexual conduct with
       the offender or evidence of specific instances of the victim’s sexual activity
       to show the origin of semen, pregnancy, or disease that is at issue in the
       prosecution.

(Emphasis added.)      The Rape Shield Law is balanced against the defendant’s

constitutional rights to confront his accusers and present evidence in his defense, because

“[n]either the Rape Shield Law nor the defendant’s right to confront and present evidence

are absolute.” Colburn, ¶ 25 (citation omitted). We have explained that:

       The Rape Shield Law therefore cannot be applied to exclude evidence
       arbitrarily or mechanistically and it is the trial court’s responsibility to
       strike a balance in each case between the defendant’s right to present a
       defense and a victim’s rights under the statute. A court balancing the
       interest of the defendant with those protected by the Rape Shield Law
       should require that the proffered evidence is not merely speculative or
       unsupported.

Colburn, ¶ 25 (internal citations omitted). In cases involving an alleged prior false sexual

accusation made by a victim, we have adopted a threshold inquiry to “establish both the

fact of the accusations and the falsity thereof . . . before defense counsel launches into

cross-examination.” State ex rel. Mazurek, 277 Mont. at 358, 922 P.2d at 480 (internal

quotation omitted). Under this inquiry:

       the defendant must establish, by a preponderance of the evidence, that (1)
       the accusation or accusations were in fact made; (2) that the accusation or
       accusations were in fact false; and (3) that the evidence is more probative
       than prejudicial. If the defendant satisfies these three conditions, the trial
                                          13
       court will authorize cross-examination of the complaining witness
       concerning the alleged false accusations. The defendant may thereafter
       present extrinsic evidence of the false accusations only if the complaining
       witness denies or fails to recall having made such accusations.

State ex rel. Mazurek, 277 Mont. at 358, 922 P.2d at 480 (internal punctuation and

citation omitted).

¶30    Daffin requested a Mazurek hearing concerning evidence related to one of the

victims, R.S. At the hearing, Shannon McMillan (McMillan), the mother of one of the

boys who had been named in the story about R.S. being sexually assaulted in the park,

testified that: (1) R.S. had sent texts to McMillan’s son claiming that she loved him;

(2) R.S. had “tried breaking up my son” from his girlfriend, who was R.S.’s friend; (3)

R.S. “was really angry because [McMillan’s son] still wouldn’t date her, so she got

several of her friends to threaten to beat him up for a couple weeks”; (4) R.S.

“reported . . . to the school that a group of several boys had assaulted her sexually in a

park after school”; (5) McMillan’s son had received an apology note written by R.S.; and

(6) as a result of the events concerning her son McMillan questioned R.S.’s veracity,

concluding that “I believe that [R.S.] will lie to get herself not only out of trouble but to

get attention, and I believe that she’s - - she really needs a lot of mental help, because

she’s making accusation against lots of people and it’s very damaging.” Upon cross-

examination, McMillan admitted that she did not know R.S. personally and that her

testimony was largely based upon things her son and others had told her.

¶31    School Resource Officer Randy Eppinger (Eppinger) testified, stating that: (1) the

initial allegation against McMillan’s son was reported to the school counselor by a
                                         14
student who had overheard two other students talking about it; (2) the school counselor

had told him R.S. denied making the allegation; (3) he had spoken to R.S. and told her

not to contact McMillan’s son; and (4) McMillan’s son told him R.S. had not contacted

him after their conversation. Patricia Thomas (Thomas), one of Daffin’s friends and the

mother of one of R.S.’s friends, testified about R.S.’s recantation of her allegations

against Daffin.

¶32    The District Court held that the threshold showing had been established for

Thomas’ testimony about R.S.’s recantation of her allegations against Daffin, and the

evidence would be admitted. The District Court denied Daffin’s request to introduce

evidence about R.S.’s false allegation against the boys, reasoning that McMillan’s

testimony was based solely upon hearsay. The District Court stated, “[i]n the absence of

any competent evidence to show that [R.S.] made a false allegation of sexual assault

against . . . McMillan’s son and other students, Daffin cannot establish even the first

prong of the Mazurek test.”

¶33    On appeal, Daffin urges that the failure to admit McMillian’s testimony prohibited

him from exploring and attacking R.S.’s credibility, and thus prejudiced his defense. He

argues that R.S. suffers from mental illness, she made a false accusation to seek attention,

and that McMillan’s testimony would have both supported Thomas’s testimony about

R.S.’s recantation as well as called into question R.S.’s credibility. Further, Daffin

asserts that most of the evidence presented at the Mazurek hearing did not relate to R.S.’s




                                         15
sexual conduct, but instead to her mental health, which formed the basis of R.S.’s need to

lie to seek attention.

¶34    To the extent the District Court applied § 45-5-511(2), MCA, to conduct other

than R.S.’s sexual conduct, Daffin’s argument is correct: the Rape Shield Law was

inapplicable. Most of the evidence presented at the hearing did not relate to R.S.’s sexual

conduct. However, that does not mean the evidence was admissible. McMillan’s and

Eppinger’s testimony about R.S.’s alleged false accusation was based on hearsay and

hearsay within hearsay, and much of McMillan’s testimony was inadmissible at trial on

that basis. Further, while Daffin now argues that he wanted to offer the theory that R.S.’s

mental health problems led her to make the accusation against him, this theory is based

on a brief observation made by Eppinger, at trial, that R.S. “just wanted her mother’s

attention,” which is hardly a basis to frame such a defense. “We will affirm the district

court when it reaches the right result, even if it reaches the right result for the wrong

reason.” State v. Ellison, 2012 MT 50, ¶ 8, 364 Mont. 276, 272 P.3d 646 (citing City of

Billings v. Staebler, 2011 MT 254, ¶ 9, 362 Mont. 231, 262 P.3d 1101). For these

reasons, to the extent the District Court erred in applying the Rape Shield Law, the error

was harmless.

¶35    Affirmed.


                                                 /S/ JIM RICE




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We concur:

/S/ JAMES JEREMIAH SHEA
/S/ MICHAEL E WHEAT
/S/ DIRK M. SANDEFUR
/S/ BETH BAKER




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