Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/11/2017 09:07 AM CDT




                                                        - 738 -
                                  Nebraska Supreme Court A dvance Sheets
                                          296 Nebraska R eports
                                                  STATE v. WOOD
                                                 Cite as 296 Neb. 738




                                        State of Nebraska, appellee, v.
                                          Robyn J. Wood, appellant.
                                                   ___ N.W.2d ___

                                          Filed May 26, 2017.     No. S-16-190.

                1.	 Motions for New Trial: Appeal and Error. A trial court’s order deny-
                    ing a motion for new trial is reviewed for an abuse of discretion.
                2.	 Criminal Law: Evidence: Appeal and Error. In reviewing a suffi-
                    ciency of the evidence claim, whether the evidence is direct, circum-
                    stantial, or a combination thereof, the standard is the same: An appellate
                    court does not resolve conflicts in the evidence, pass on the credibility
                    of witnesses, or reweigh the evidence; such matters are for the finder
                    of fact. The relevant question for an appellate court is whether, after
                    viewing the evidence in the light most favorable to the prosecution, any
                    rational trier of fact could have found the essential elements of the crime
                    beyond a reasonable doubt.
                3.	 Judgments: Statutes: Appeal and Error. To the extent an appeal calls
                    for statutory interpretation or presents questions of law, an appellate
                    court must reach an independent conclusion irrespective of the determi-
                    nation made by the court below.
                4.	 Criminal Law: Statutes: Legislature: Intent. In reading a penal stat-
                    ute, a court must determine and give effect to the purpose and intent of
                    the Legislature as ascertained from the entire language of the statute
                    considered in its plain, ordinary, and popular sense.
                5.	 Statutes: Legislature: Intent: Appeal and Error. An appellate court
                    will not look beyond a statute to determine the legislative intent when
                    the words are plain, direct, or unambiguous.
                6.	 Sexual Assault: Words and Phrases. Under Neb. Rev. Stat. § 28‑322.04
                    (Reissue 2008), the word “subject” means to cause to undergo the action
                    of something specified.
                7.	 Jury Instructions: Appeal and Error. Harmless error analysis applies
                    to instructional errors so long as the error at issue does not categorically
                    vitiate all the jury’s findings.
                                   - 739 -
             Nebraska Supreme Court A dvance Sheets
                     296 Nebraska R eports
                              STATE v. WOOD
                             Cite as 296 Neb. 738

 8.	 Verdicts: Juries: Appeal and Error. In a criminal case tried to a jury,
     harmless error exists when there is some incorrect conduct by the trial
     court which, on review of the entire record, did not materially influ-
     ence the jury in reaching a verdict adverse to a substantial right of
     the defendant.
 9.	 Motions for New Trial: Proof. In order for a new trial to be granted,
     it must be shown that a substantial right of the defendant was adversely
     affected and that the defendant was prejudiced thereby.
10.	 Trial: Evidence: Appeal and Error. Because overruling a motion in
     limine is not a final ruling on admissibility of evidence and, therefore,
     does not present a question for appellate review, a question concerning
     admissibility of evidence which is the subject of a motion in limine is
     raised and preserved for appellate review by an appropriate objection to
     the evidence during trial.

  Appeal from the District Court for Douglas County: J
Russell Derr, Judge. Affirmed.
  Jim K. McGough, of McGough Law, P.C., L.L.O., for
appellant.
   Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
  Heavican, C.J., Wright, Miller‑Lerman, Stacy, K elch, and
Funke, JJ.
   K elch, J.
                       INTRODUCTION
   Following a jury trial, Robyn J. Wood appeals her convic-
tion of first degree sexual assault of a protected individual, a
Class III felony under Neb. Rev. Stat. § 28‑322.04(3) (Reissue
2008). The parties do not dispute the status of Wood and the
victim under the statute or the extent of the sexual contact.
Instead, Wood primarily argues that the evidence does not sup-
port the jury’s finding that she “subjected” the victim to sexual
penetration. We disagree, and we affirm.
                    BACKGROUND
  The State’s information charged Wood with first degree
sexual assault of a protected individual, in violation of
                              - 740 -
           Nebraska Supreme Court A dvance Sheets
                   296 Nebraska R eports
                         STATE v. WOOD
                        Cite as 296 Neb. 738

§ 28‑322.04(2) and (3). It alleged that on or about May 1
through July 31, 2014, in Douglas County, Nebraska, Wood
subjected T.Z., a protected individual, to sexual penetration,
as defined in Neb. Rev. Stat. § 28‑318 (Reissue 2016). The
incident that gave rise to the charge occurred while Wood
was an employee at Boys Town, a residential treatment cen-
ter for troubled youth, in Omaha, Nebraska. Boys Town is a
contractor of the Nebraska Department of Health and Human
services, and on the date of the offense, T.Z., then 17 years
old, resided there under the custody and the guardianship of
the State.
   Prior to trial, Wood filed a motion in limine. She sought to
exclude “[a]ny testimony or evidence regarding any evalua-
tions, treatment or therapy regarding [her] past sexual behav-
ior and/or sexual proclivities, including but not limited to
sexual addiction meetings, as such evidence violates Neb.
Rev. Stats. §§ 27‑608, 27‑414, 27‑404 and 27‑403.” This
included her attendance at “Sexaholics Anonymous.” The dis-
trict court’s ruling on the motion is not part of the record and
was not requested by any praecipe, but the district court orally
expressed an inclination to deny it, and the parties agree that
the district court overruled the motion.
   According to evidence at trial, when T.Z. arrived at Boys
Town in January 2014, he suffered from emotional and mood
dysregulation, and he was initially placed in a secured facil-
ity on the campus. At first, T.Z. displayed physical aggression
toward staff and other youth, which required staff to restrain
him. This behavior resulted in a standing order to call police
if T.Z. became aggressive. There was also testimony that T.Z.
had a history of being manipulative. After about a month,
T.Z.’s aggressive behavior improved, due in part to a medica-
tion change, and he moved to a “Sudyka,” a family‑style house
on campus, for juvenile boys. There, T.Z. had more freedom
than the secured facility had allowed, and he had the opportu-
nity to earn points to use toward certain privileges, including
off‑campus activities with family or Boys Town staff.
                             - 741 -
          Nebraska Supreme Court A dvance Sheets
                  296 Nebraska R eports
                        STATE v. WOOD
                       Cite as 296 Neb. 738

   At the time of T.Z.’s arrival, Wood was a shift manager
at the Sudyka. Wood had previously worked as a behavioral
health technician for several years, dealing directly with the
youth on a day‑to‑day basis to implement the behavioral and
medical programming. As a shift manager, Wood was some-
what involved with the youth, but her primary role was to
oversee the behavioral health technicians.
   Wood and other employees received training to handle
boundary issues with the youth. According to testimony at
trial, during T.Z.’s stay at the Sudyka, from March to June
2014, other staff noticed that Wood gave preferential treat-
ment to and had “poor boundaries” with T.Z. The jury heard
testimony that Wood allowed T.Z. to stay up late, prepared
special meals for him, and brought him cake and ice cream on
her day off.
   One of the staff members who worked at the Sudyka,
Samantha Cartwright, testified that Wood and T.Z. were often
alone together. She observed that Wood allowed T.Z. to be
alone with her upstairs while all of his other peers were down-
stairs, which was unusual. Once, Cartwright entered a locked
office and saw Wood and T.Z. alone; it appeared to Cartwright
that T.Z. had just left Wood’s lap as Cartwright came into the
room. Cartwright testified that Wood and T.Z. often went on
private walks together after nightfall, which was not part of
T.Z.’s treatment plan. According to Cartwright, Wood also
took T.Z. to exercise his off‑campus privileges, which was
unusual because typically a behavioral health technician took
the youth off campus while the shift managers supervised
the staff on campus. While it was not a rule violation for a
shift manager to accompany a resident off campus, it was
“not appropriate.”
   The program director tasked with overseeing all of the
staff and the day‑to‑day operations of the campus testified
that in approximately April 2014, Wood herself reported that
T.Z. made her uncomfortable because he was always looking
at her and often wanted to be where she was. The program
                              - 742 -
           Nebraska Supreme Court A dvance Sheets
                   296 Nebraska R eports
                         STATE v. WOOD
                        Cite as 296 Neb. 738

director advised Wood not to be alone with T.Z. and to report
any future concerns. After that, Wood did not report any
additional concerns. Cartwright testified that in May 2014,
she shared her concerns about Wood’s relationship with T.Z.
with her immediate supervisor, who reported it to the program
director. Cartwright testified that she was told that the matter
would be addressed, but the boundary issues between Wood
and T.Z. continued.
    According to testimony at trial, Wood eventually confided
in her roommate, Heather Hutchinson, who also worked at
Boys Town, about her relationship with T.Z. Hutchinson tes-
tified that in June 2014, Wood texted her and wanted to talk
about her “‘first time,’” which Hutchinson understood to mean
Wood’s first time having sex, since Hutchinson believed that
Wood had been a virgin. Hutchinson testified that later, in per-
son, Wood told her that she had had sex with T.Z. According
to Hutchinson, Wood told her that she and T.Z. were cleaning
a house on campus when T.Z. took her keys and went into a
bedroom, where Wood followed and where they began kissing
and ended up having sex. Hutchinson testified that Wood never
said, nor did she get the impression from Wood, that this sexual
encounter occurred against Wood’s will. Hutchinson opined
that Wood presented the encounter to her as “consensual.”
Hutchinson also testified that Wood told her about two prior
instances when Wood and T.Z. kissed in the Sudyka, once in
the basement and once on the stairs.
    Hutchinson testified that she reported the matter to Child
Protective Services, which prompted an investigation. Wood’s
resulting interview with the Boys Town police was recorded,
and an audio copy was received into evidence at trial, without
objection, and played for the jury.
    During her interview, Wood stated that on the evening of the
sexual encounter, she and T.Z. went alone to an unoccupied
building on campus to retrieve some items. T.Z. took her keys
and went into a bedroom, where Wood followed him. Wood
said that T.Z. kissed her on the lips and that she tried to push
                               - 743 -
           Nebraska Supreme Court A dvance Sheets
                   296 Nebraska R eports
                          STATE v. WOOD
                         Cite as 296 Neb. 738

him off. Wood recounted that T.Z. then pushed her onto the
bed and got on top of her. Wood tried to push T.Z. off with her
legs and arms, but she could not. Wood reported that she told
him to stop and said, “I don’t want to do that; leave me alone.”
However, T.Z. remained on top of Wood and grabbed at her
clothing. Wood said that T.Z. took off her pants and underwear
and his two sets of shorts. Wood states that after she unsuccess-
fully tried to push T.Z. off, she stopped fighting because she
thought she could be either “a statistic or a willing participant.”
Wood said that T.Z. inserted his penis into her vagina while on
top of her. She stated that during the encounter, which lasted
about 30 minutes, she told T.Z., “I don’t want to do it,” and
he responded, “You know you want to do it.” The encounter
ceased when Wood received a telephone call and T.Z. finally
complied with her order to stop. Then, they both got dressed
and returned to the Sudyka.
   Wood stated that she had been confused about whether she
had tacitly consented when she gave up “fighting not to be a
statistic,” but concluded that she had not consented. Later in
the interview, she described the situation as “partial consent.”
Wood admitted that part of her did not care and did not want to
try to stop after initially trying to push T.Z. off of her.
   Wood admitted that her relationship with T.Z. leading up to
the incident may have been viewed by others as flirtatious and
involving favoritism. Wood further stated that she had rebuffed
T.Z. on previous occasions when he had kissed her cheek and
hugged her and that he had also tried to hold her hand. She
admitted that she knew it was a bad idea to be alone with T.Z.
and admitted that when he entered the bedroom where they
had sex, she knew T.Z.’s possible motivation and the possible
outcome. However, Wood maintained that she did not want or
plan to have sex with T.Z., at least not under those circum-
stances. She said it would have been different if he had been
19 years old rather than “a kid” at Boys Town.
   In the interview, which was received without objection,
Wood volunteered that she attends Sexaholics Anonymous
                              - 744 -
           Nebraska Supreme Court A dvance Sheets
                   296 Nebraska R eports
                         STATE v. WOOD
                        Cite as 296 Neb. 738

for “this addiction.” She described Sexaholics Anonymous as
a 12‑step program for addiction to lust and craving more of
something. She stated that she attended the program because
she knew what her “[rock] bottom” was and did not want to hit
it, but that when she had the encounter with T.Z., she hit rock
bottom. She expressed shame and guilt over being “play[ed]”
by T.Z. She said that she did not report the incident because of
the shame, guilt, and possible consequences.
    At trial, T.Z. testified about his relationship with Wood and
the events leading up to their sexual encounter. He stated that
he and Wood spent a lot of time together after he moved into
the Sudyka. T.Z. testified that a few weeks before they had
sex, he and Wood kissed when they were alone in the base-
ment at the Sudyka. He characterized the kissing as mutual
and testified that Wood told him that “nobody could find out.”
T.Z. stated that a couple of days later, he and Wood went for
a drive and parked behind a store, where they kissed for 5 to
10 minutes. Again, the kissing was mutual and Wood reminded
T.Z. that nobody must find out.
    T.Z. testified that on June 4, 2014, a few days before he
left Boys Town, he and Wood went to an unoccupied house on
the Boys Town campus and had sex. T.Z. explained that they
went to the house to look for extra towels and that when they
went upstairs, he jokingly grabbed Wood’s keys and entered
one of the bedrooms. According to T.Z., Wood followed him
into the bedroom, they started kissing, he took off her clothes,
she undid his pants, and then they had sexual intercourse on
the bed.
    T.Z. testified that when Wood received a text message, she
asked him to stop and he complied. T.Z. testified that other-
wise, Wood never told him to stop or in any way indicated that
she did not want to have sex with him. He stated that after-
ward, Wood told him that nobody must find out. Then, T.Z.
recounted, they went back to the Sudyka, where Wood came to
T.Z.’s room, gave him her telephone number, and said he could
call her anytime.
                              - 745 -
           Nebraska Supreme Court A dvance Sheets
                   296 Nebraska R eports
                         STATE v. WOOD
                        Cite as 296 Neb. 738

   The jury instructions setting forth the elements of the
offense required the jury to determine, among other things,
whether Wood “subjected [T.Z.] to sexual penetration.” The
jury instructions further stated that “[s]ubject, or subjecting
an individual to something, means ‘to bring under control
or dominion.’” Neither the State nor Wood objected to these
instructions.
   The jury found Wood guilty of the crime charged: first
degree sexual abuse of a protected individual.
   Following the verdict, Wood moved for a new trial on the
basis that the verdict was not sustained by the evidence or was
contrary to law. At a hearing on the motion, the district court
received a transcript of T.Z.’s testimony. Wood’s counsel argued
in part that because T.Z. effectuated the sexual penetration, the
evidence did not support a finding that Wood “subjected” T.Z.
to sexual penetration, that is, a finding that the sexual penetra-
tion resulted from an exercise of control or dominion by Wood.
The district court overruled the motion.
   The district court subsequently sentenced Wood to a period
of 5 years’ probation, with various terms and conditions.
   This appeal followed.
                  ASSIGNMENTS OF ERROR
   Wood assigns, summarized and restated, that (1) the dis-
trict court erred in overruling her motion for new trial, (2) the
evidence was insufficient to support the jury verdict that she
had subjected T.Z. to sexual penetration, and (3) the district
court erred in overruling her motion in limine and allowing
the jury to consider evidence that she attended Sexaholics
Anonymous.
                  STANDARD OF REVIEW
   [1] A trial court’s order denying a motion for new trial is
reviewed for an abuse of discretion. State v. Stricklin, 290 Neb.
542, 861 N.W.2d 367 (2015).
   [2] In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combination
                              - 746 -
           Nebraska Supreme Court A dvance Sheets
                   296 Nebraska R eports
                         STATE v. WOOD
                        Cite as 296 Neb. 738

thereof, the standard is the same: An appellate court does not
resolve conflicts in the evidence, pass on the credibility of
witnesses, or reweigh the evidence; such matters are for the
finder of fact. The relevant question for an appellate court is
whether, after viewing the evidence in the light most favor-
able to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reason-
able doubt. State v. Dominguez, 290 Neb. 477, 860 N.W.2d
732 (2015).
                          ANALYSIS
                 Sufficiency of Evidence and
                    Motion for New Trial
   Wood assigns that the evidence was insufficient to support
the jury verdict. Similarly, she also assigns that the district
court erred in overruling her motion for new trial arguing that
the verdict was not sustained by the evidence.
   Wood was convicted of first degree sexual abuse of a pro-
tected individual pursuant to § 28‑322.04, which provides, in
relevant part:
        (1) For purposes of this section:
        (a) Person means an individual employed by the
     Department of Health and Human Services and includes,
     but is not limited to, any individual working in central
     administration or regional service areas or facilities of the
     department and any individual to whom the department
     has authorized or delegated control over a protected indi-
     vidual or a protected individual’s activities, whether by
     contract or otherwise; and
        (b) Protected individual means an individual in the care
     or custody of the department.
        (2) A person commits the offense of sexual abuse of
     a protected individual if the person subjects a protected
     individual to sexual penetration or sexual contact as
     those terms are defined in section 28‑318. It is not a
     defense to a charge under this section that the protected
                              - 747 -
           Nebraska Supreme Court A dvance Sheets
                   296 Nebraska R eports
                         STATE v. WOOD
                        Cite as 296 Neb. 738

      individual consented to such sexual penetration or sex-
      ual contact.
         (3) Any person who subjects a protected individual to
      sexual penetration is guilty of sexual abuse of a protected
      individual in the first degree.
Under § 28‑318(6), sexual penetration means, among other
things, “sexual intercourse in its ordinary meaning.”
   Wood does not dispute that she is a “person” under
§ 28‑322.04(2) or that T.Z. was a “protected individual” there-
under. Nor does she deny that sexual penetration occurred.
Instead, she argues that the State offered no evidence that she
“‘subject[ed]’” T.Z. to such sexual penetration as prohibited by
§ 28‑322.04(2) because she did not exercise “control or domin-
ion” over him. Brief for appellant at 11. To the contrary, Wood
asserts that T.Z. was the “aggressor” and exercised control or
dominion over her when he effectuated the sexual penetration
without Wood’s assistance or encouragement. Id. at 10. Wood
contends that to find that she “subjected” T.Z. to sexual pen-
etration would require an overly broad interpretation of the
statute defining sexual penetration, not supported by the plain
language of the statute. Id. at 12. We disagree.
   [3‑5] To the extent an appeal calls for statutory interpre-
tation or presents questions of law, an appellate court must
reach an independent conclusion irrespective of the determi-
nation made by the court below. State v. Kolbjornsen, 295
Neb. 231, 888 N.W.2d 153 (2016). In reading a penal stat-
ute, a court must determine and give effect to the purpose
and intent of the Legislature as ascertained from the entire
language of the statute considered in its plain, ordinary, and
popular sense. State v. Robbins, 253 Neb. 146, 570 N.W.2d
185 (1997). We will not look beyond a statute to determine
the legislative intent when the words are plain, direct, or
unambiguous. State v. Loyuk, 289 Neb. 967, 857 N.W.2d
833 (2015).
   In State v. Loyuk, supra, we applied the preceding rules
of statutory construction to determine the plain meaning of
                              - 748 -
           Nebraska Supreme Court A dvance Sheets
                   296 Nebraska R eports
                         STATE v. WOOD
                        Cite as 296 Neb. 738

“subjects” in Neb. Rev. Stat. § 28‑322.01 (Reissue 2016),
which addresses sexual abuse of an inmate or parolee. That
section, similar to the one at issue in this case, provides:
         A person commits the offense of sexual abuse of an
      inmate or parolee if such person subjects an inmate or
      parolee to sexual penetration or sexual contact as those
      terms are defined in section 28‑318. It is not a defense
      to a charge under this section that the inmate or parolee
      consented to such sexual penetration or sexual contact.
§ 28‑322.01. The appellant in Loyuk argued that he did not
“subject” the victim to sexual penetration as set forth in
§ 28‑322.01 because the victim was a voluntary participant. He
proposed that in the context of § 28‑322.01, “‘subject’” means
“‘“bring under control or dominion”’ or ‘“force to undergo or
endure.”’” Loyuk, 289 Neb. at 974, 857 N.W.2d at 842. We
expressly rejected these definitions, reasoning that they could
not be squared with the statement in § 28‑322.01 that consent
of the inmate or parolee is not a defense. Rather, we concluded,
“The plain meaning of ‘subject’ is ‘to cause to undergo the
action of something specified.’ Here, the thing specified is
sexual penetration and [the appellant] caused [the victim] to
undergo this action by participating in the sexual act.” Loyuk,
289 Neb. at 974, 857 N.W.2d at 842.
   [6] Both the statute at issue in Loyuk and the statute at
issue here prohibit a person in authority from subjecting a
person in his or her charge to sexual penetration or contact,
and both preclude the defense that the victim consented to the
sexual act. Given these similarities, we see no reason why the
reasoning of Loyuk and its consideration of the definition of
“subject” should not apply to § 28‑322.04. Therefore, we hold
that under § 28‑322.04, the word “subject” means to cause to
undergo the action of something specified.
   Applying this definition of “subject” and viewing the evi-
dence in the light most favorable to the prosecution, we con-
clude that the evidence supports a finding beyond a reasonable
doubt that Wood, a person as defined in § 28‑322.04(1)(a),
                              - 749 -
           Nebraska Supreme Court A dvance Sheets
                   296 Nebraska R eports
                         STATE v. WOOD
                        Cite as 296 Neb. 738

subjected T.Z., a protected individual, to sexual penetration.
Testimony by T.Z. and Hutchinson, along with Wood’s own
police interview, provided evidence that Wood caused T.Z. to
undergo sexual penetration by willingly participating in the
sexual act. And like T.Z.’s consent, his role in effectuating the
sexual penetration is immaterial. § 28‑322.04(2).
   [7,8] We acknowledge that the jury instructions in the
instant case defined “subject” as “to bring under control or
dominion,” a definition that we expressly rejected in State v.
Loyuk, 289 Neb. 967, 974, 857 N.W.2d 833, 843 (2015), in
favor of the broader “‘to cause to undergo the action of some-
thing specified.’” Harmless error analysis applies to instruc-
tional errors so long as the error at issue does not categorically
vitiate all the jury’s findings. State v. Abram, 284 Neb. 55, 815
N.W.2d 897 (2012). In a criminal case tried to a jury, harmless
error exists when there is some incorrect conduct by the trial
court which, on review of the entire record, did not materially
influence the jury in reaching a verdict adverse to a substantial
right of the defendant. See State v. McHenry, 250 Neb. 614,
550 N.W.2d 364 (1996). Although the district court should
have used our definition from Loyuk, the jury, as the trier of
fact, deliberated within the confines of the narrower definition
of “subject” and still found Wood guilty of the essential ele-
ments of the crime charged. See State v. Sandoval, 280 Neb.
309, 788 N.W.2d 172 (2010) (absent evidence to contrary, it is
presumed that jury followed instructions given in arriving at its
verdict). Thus, Wood suffered no harm as a result of the jury
instruction given.
   [9] Having rejected Wood’s claim that the jury lacked suf-
ficient evidence to convict her, we find no merit to her conten-
tion that the district court abused its discretion in denying her
motion for new trial, which Wood based on the same grounds.
In order for a new trial to be granted, it must be shown that a
substantial right of the defendant was adversely affected and
that the defendant was prejudiced thereby. State v. Faust, 269
Neb. 749, 696 N.W.2d 420 (2005). The evidence supported
                              - 750 -
           Nebraska Supreme Court A dvance Sheets
                   296 Nebraska R eports
                         STATE v. WOOD
                        Cite as 296 Neb. 738

Wood’s conviction. She suffered no violation of any substantial
right and no prejudice.
                       Motion in Limine
   [10] Finally, Wood assigns that the district court erred
in overruling her motion in limine and allowing the jury to
consider evidence that she attended Sexaholics Anonymous.
Although the parties agree that the district court overruled the
motion, the record does not contain any such ruling. However,
because overruling a motion in limine is not a final ruling on
admissibility of evidence and, therefore, does not present a
question for appellate review, a question concerning admis-
sibility of evidence which is the subject of a motion in limine
is raised and preserved for appellate review by an appropriate
objection to the evidence during trial. State v. Almasaudi, 282
Neb. 162, 802 N.W.2d 110 (2011). Wood did not object at
trial when the State presented evidence of her attendance at
Sexaholics Anonymous. Therefore, she did not preserve this
issue for our consideration on appeal.
                         CONCLUSION
  For the reasons set forth above, we affirm Wood’s conviction.
                                                   A ffirmed.
  Cassel, J., participating on briefs.
