                  THE STATE OF SOUTH CAROLINA 

                       In The Supreme Court 


           The State, Respondent,

           v.

           Shawn Reaves, Petitioner.

           Appellate Case No. 2014-000813



      ON WRIT OF CERTIORARI TO THE COURT OF APPEALS



                        Appeal from Marion County 

                  William H. Seals, Jr., Circuit Court Judge 



                            Opinion No. 27569 

                Heard May 6, 2015 – Filed September 2, 2015 



                                AFFIRMED


           Appellate Defender LaNelle C. DuRant, of Columbia, for
           Petitioner.

           Attorney General Alan M. Wilson and Assistant Attorney
           General Mark R. Farthing, both of Columbia, for
           Respondent.


     JUSTICE HEARN:             Shawn Reaves was convicted of voluntary
manslaughter after the shooting death of Keshawn Applewhite. He now argues
that deficiencies in the police investigation—including the loss of potentially
exculpatory evidence and the failure to ascertain the identity of a second shooter—
deprived him of a fair trial, and delays occasioned by the State's faulty
investigation deprived him of the right to a speedy trial. Reaves asks the
indictment be dismissed. We disagree and therefore affirm.

                    FACTUAL/PROCEDURAL HISTORY

       Police responded to a call about a fight in progress in Marion. On their way
to the scene, the officers were notified that shots had been fired. When they
arrived, officers found Applewhite slumped inside the rear passenger seat of a
white Crown Victoria with apparent gunshot wounds. Applewhite was transported
to the hospital, but later died as a result of his injuries.

       An autopsy revealed that Applewhite had been shot five times. Three of the
bullets passed through his body. Another bullet entered and remained lodged in
Applewhite's shoulder. The fifth bullet, which was determined to be the fatal one,
entered Applewhite's upper back, struck his lung, aorta, and liver, and ultimately
stopped in his colon. A South Carolina Law Enforcement Division (SLED) analyst
determined the fatal bullet was a .38 or .357 caliber likely fired from a revolver,
and the shot lodged in his shoulder was a 9mm caliber likely fired from a
semiautomatic pistol. Accordingly, the analyst concluded the two shots were fired
from different guns.

      As the police investigation progressed, witnesses identified sixteen-year-old
Reaves as one of the shooters. Police obtained a warrant for Reaves' arrest, and he
was apprehended in Philadelphia in May of 2007, where he had fled after the
shooting. Reaves was transported back to South Carolina and charged with murder
and assault and battery with intent to kill. After more than three years had passed
while incarcerated, Reaves made a speedy trial motion in August of 2010. Reaves'
case was called for trial later that same month.

       During the first day of Reaves' trial, an eyewitness to the shooting, Jackie
McGill, and multiple police officers testified. After the jury was excused for the
day, defense counsel had the opportunity to review a number of documents in the
investigator's file which were previously unknown to either party. Among these
documents was a signed statement from a hearsay witness saying that Jeremy
Vereen, not Reaves, was the shooter who fired the fatal bullet. Also among the
materials was a handwritten note from the lead investigator in the case indicating
that Vereen may have been the second shooter. Reaves moved for a mistrial based
on the possible exculpatory value the documents presented, and because he had not
been provided them pursuant to his request for disclosure under Rule 5,
SCRCrimP. The State agreed a mistrial was appropriate. The trial judge granted a
mistrial.

       Prior to his second trial, Reaves moved for dismissal of the indictment on
due process grounds. Reaves also made a motion to dismiss the case because his
right to a speedy trial had been violated. Both motions were denied.

       At the second trial, McGill again testified about the shooting. McGill stated
he and Applewhite, along with Applewhite's cousin, Karen Graves, and McGill's
friend, Travis Lane, drove together to see Applewhite's former girlfriend, Joemilla
Wilson. Applewhite and Wilson had been living together in Atlanta as recently as
a month before the shooting. However, Wilson was then at the house of her new
boyfriend, Deshawn Bellamy.

      According to McGill, Applewhite called Wilson out of the house to talk and
the two started walking down the street, arguing. They soon started fist-fighting,
and Applewhite threw Wilson to the ground. After McGill broke up the fight and
put Applewhite back in the car, Wilson came over and spit on Applewhite through
an open window. Applewhite then got back out of the car and chased after Wilson,
who retreated to the porch of the house. Applewhite followed, but was intercepted
by Reaves, who met him at the bottom of the porch steps. It was at this point that
Reaves shot Applewhite.

        McGill's testimony was corroborated by Wilson, who stated she saw Reaves
fire a revolver at Applewhite. Additionally, the initial lead investigator in the case,
Captain Jim Gray, testified to his investigation of the shooting and the second lead
investigator, Lieutenant Farmer Blue, who took over after Captain Gray became ill,
testified about his identification of Reaves as the shooter. This was Lt. Blue's first
murder investigation, and he conceded "there would have been a lot of other things
I would have done different (sic) in the case."

       Over the course of the trial, it became clear there were serious problems with
the investigation into Applewhite's death. The crime scene had not been properly
sealed, and the crime scene log of people entering and exiting the area was not
accurately maintained.1 A number of pieces of physical evidence—including two
hats, a credit card bearing the name of William A. Bellamy, three cell phones, and
a Bluetooth headset—were collected at the scene but not tested. Three gold chains,
which Wilson testified were snatched off Reaves' neck by Applewhite moments
before the shooting, were collected at the scene but were missing at the time of
trial. Further, Applewhite's clothing, which was collected by police from the
hospital, was also lost or destroyed. Additionally, five witness statements, written
by McGill, Lane, Graves, and two other people, were purportedly taken by police
officers at the scene that night but were unaccounted for at trial.

       The problems with the investigation coincided with three main discrepancies
in the facts of the case. First, although there was information Vereen was involved
in Applewhite's death, the second shooter had not been definitively identified at the
time of trial.2 Second, both McGill and Lane were shown a photo lineup with
Reaves in it, and despite testifying they had known Reaves for years, they both
selected another person named "BT" as the shooter. Third, the inconsistency
between expert testimony that the fatal shot was to Applewhite's upper back and
witness testimony placing Applewhite in front of Reaves during the shooting was
never explained.

       Reaves renewed his motions to dismiss regarding his right to a fair trial and
right to a speedy trial after the State's case and again at the close of all the
evidence. Although the trial court expressed concern over the investigation of the
                                  3
shooting, it denied both motions.

      Reaves was ultimately convicted of voluntary manslaughter. He was
sentenced to twenty-five years' imprisonment. Reaves appealed his conviction and
sentence, claiming he was deprived of the right to a fair trial as a result of the lost

1
  Marion's longtime mayor, Bobby Gerald, was walking around the scene after the
shooting for unknown reasons, although it was determined he was not investigating
the shooting.
2
  Lt. Blue testified that although he had information that Vereen was the second
shooter, he had not talked to Vereen regarding the shooting in the three-and-a-half
years or so between the incident and trial.
3
  At one point, the same trial judge, who had earlier granted Reaves' motion for a
mistrial, stated: "obviously we've got a messed up trial based on that bad
investigation."
evidence as well as his right to a speedy trial. The court of appeals affirmed in an
unpublished opinion. State v. Reaves, Op. No. 2014-UP-057 (S.C. Ct. App. filed
February 12, 2014). Reaves filed a petition for certiorari, which this Court granted.

                              ISSUES PRESENTED
I.   Did the court of appeals err in affirming the trial court's denial of Reaves'
motion to dismiss the indictment because his right to a fair trial had been violated?

II.  Did the court of appeals err in affirming the trial court's denial of Reaves'
motion to dismiss the case because his right to a speedy trial had been violated?

                                 LAW/ANALYSIS

I.    FAIR TRIAL

       Reaves argues the court of appeals erred in affirming the trial judge's denial
of his motion to dismiss the indictment because the evidence lost by police in the
investigation of his case effectively deprived him of a fair trial. We disagree.

      The Due Process Clause of the Fourteenth Amendment to the United States
Constitution guarantees a defendant's fundamental right to a fair trial. U.S. Const.
amend XIV. Where a defendant's right to a fair trial due to missing or destroyed
evidence is at issue, the applicable standard is derived from the United States
Supreme Court's opinion in Arizona v. Youngblood, 488 U.S. 51 (1988).

       In Youngblood, a ten-year-old boy was abducted and brutally sodomized by
a middle-aged man. Id. at 52. The police obtained a sexual assault kit from the
hospital as well as the boy's underwear and shirt. Id. at 52–53. However, police
did not timely examine the assault kit or refrigerate the boy's clothing; as a result,
later tests on the kit and clothing were inconclusive as to the identity of the
assailant. Id. at 53–54. Nevertheless, the State proceeded to trial based primarily
on the boy's photo lineup identification of Larry Youngblood as his attacker. Id. at
53. Youngblood's primary defense was that the boy misidentified him as the
perpetrator, but he was nevertheless convicted of child molestation, sexual assault,
and kidnapping. Id. at 53–54. The Arizona Court of Appeals reversed
Youngblood's conviction reasoning that the timely performance of tests with
properly preserved semen samples may have produced results which could have
exonerated him. Id. at 54–55.
       Examining the question of whether Youngblood's right to a fair trial had
been violated, the United States Supreme Court acknowledged that "'[w]henever
potentially exculpatory evidence is permanently lost, courts face the treacherous
task of divining the import of materials whose contents are unknown and, very
often, disputed.'" Id. at 57–58 (quoting California v. Trombetta, 467 U.S. 479, 486
(1984)). Rejecting an approach which would impose on the State an absolute duty
to retain and preserve all potentially exculpatory evidence, the Court instead
crafted a standard which focused on police conduct where evidence was lost or
destroyed:

      We think that requiring a defendant to show bad faith on the part of
      the police both limits the extent of the police's obligation to preserve
      evidence to reasonable bounds and confines it to that class of cases
      where the interests of justice most clearly require it, i.e., those cases in
      which the police themselves by their conduct indicate that the
      evidence could form a basis for exonerating the defendant. We
      therefore hold that unless a criminal defendant can show bad faith on
      the part of the police, failure to preserve potentially useful evidence
      does not constitute a denial of due process of law.

Id. at 58. Finding no bad faith present in the police's failure to refrigerate the
clothing and perform tests on the semen samples, the Court reversed the Arizona
Court of Appeal's dismissal of the case. Id. at 58–59.4

4
  The Supreme Court in Youngblood was divided. Justice Stevens concurred in the
result because although he agreed the defendant's right to a fair trial was not
violated, he concluded "there may well be cases in which the defendant is unable to
prove that the State acted in bad faith but in which the loss or destruction of
evidence is nonetheless so critical to the defense as to make a criminal trial
fundamentally unfair." Id. at 61 (Stevens, J. concurring). Justice Blackmun wrote
for three dissenters, noting "the Constitution requires that criminal defendants be
provided with a fair trial, not merely a 'good faith' try at a fair trial," and further
that "[r]egardless of intent or lack thereof, police action that results in a defendant's
receiving an unfair trial constitutes a deprivation of due process." Id. at 61, 62
(Blackmun, J. dissenting). The Supreme Court recently reiterated the Youngblood
standard in Illinois v. Fisher, 540 U.S. 544 (2004).
       A number of state courts have declined to follow the bad faith standard
established in Youngblood based on state law grounds. See, e.g., State v.
Ferguson, 2 S.W.3d 912, 917 (Tenn. 1999) ("Because we deem the preservation of
the defendant's fundamental right to a fair trial to be a paramount consideration
here, we join today those jurisdictions which have rejected the Youngblood
analysis in its pure form."); State v. Osakalumi, 461 S.E.2d 504, 512 (W. Va. 1995)
("As a matter of state constitutional law, we find that fundamental fairness requires
this Court to evaluate the State's failure to preserve potentially exculpatory
evidence in the context of the entire record."); Commonwealth v. Henderson, 582
N.E.2d 496, 497 (Mass. 1991) ("The rule under the due process provisions of the
Massachusetts Constitution is stricter than that stated in the Youngblood opinion.").
However, Reaves does not ask this Court to do so here; his argument rests solely
on the Fourteenth Amendment to the United States Constitution.

      Specifically, Reaves argues the police's actions in failing to preserve
evidence were so egregious as to constitute misconduct and bad faith. While he
does not argue the police acted intentionally, he asserts the police's negligent and
reckless conduct amounted to bad faith. However, Reaves cites no authority to
support this proposition, and we found only a single federal district court case
which has adopted this approach. See United States v. Elliott, 83 F. Supp. 2d 637,
647–48 (E.D. Va. 1999) ("[W]here the law enforcement officer acted in a manner
which was either contrary to applicable policies and the common sense
assessments of evidence reasonably to be expected of law enforcement officers or
was so unmindful of both as to constitute the reckless disregard of both, there is a
showing of objective bad faith sufficient to establish the bad faith requirement of
the Trombetta/Youngblood test."). The weight of federal authority seems to reject


Ironically, Youngblood was later exonerated by DNA evidence. See Norman C.
Bay, Old Blood, Bad Blood, and Youngblood: Due Process, Lost Evidence, and the
Limits of Bad Faith, 86 Wash. U. L. Rev. 241, 276 (2008). After his parole and
rearrest for failing to register as a sex offender, Youngblood's attorney requested
that police test a rectal swab taken from the victim with new, more sophisticated
technology. Id. Once conducted, the DNA profile did not match Youngblood;
instead, it showed that Walter Calvin Cruise, who had two prior child sex abuse
convictions in Texas, committed the assault. Id. at 277. Youngblood was released
from prison and his conviction was vacated. Id. at 276.
this premise and has adopted the view that the extraordinary remedy of dismissal
should only be granted when the authorities act intentionally and in bad faith. See,
e.g., United States v. Tyerman, 701 F.3d 552, 560 (8th Cir. 2012) ("[The
defendant] argues that a reckless destruction equates to bad faith. This court
rejects that argument."); United States v. Vera, 61 Fed. Appx. 330, 331 (9th Cir.
2003) ("An officer does not act in bad faith unless he or she acts with the purpose
of depriving the defendant of the potentially exculpatory evidence. Although the
property officer may have acted negligently or even recklessly in destroying the
chemical samples, there is no evidence that the officer acted in bad faith by
deliberately destroying the evidence to deprive [the defendant] of access to
relevant evidence." (internal citations omitted)).

       Even if we were to accept the theoretical premise of Reaves' argument—that
recklessness can equate to bad faith—we disagree the police were reckless in not
preserving evidence in this case. Although the record is replete with indications
the police investigation was deeply flawed, the record also contains no indication
these flaws were the product of more than mere negligence. See State v.
Cheeseboro, 346 S.C. 526, 539, 552 S.E.2d 300, 307 (2001) (declining to dismiss
the indictment where police department negligently destroyed gun used to commit
murder before the defendant was given the opportunity to run tests on it).

       Further, to the extent Reaves was disadvantaged by the State's loss of
evidence, Reaves' attorney was allowed to forcefully cross-examine the police
officers on the deficiencies in their investigation. Additionally, the trial court
instructed the jury "[w]hen evidence is lost or destroyed by a party you may infer
that the evidence which was lost or destroyed by that party would have been
adverse to that party."5

5
  Although we note a similar jury charge was issued by the trial court in
Youngblood, the propriety of this charge under state evidence law is not before the
Court. Heretofore, an adverse inference charge based on missing evidence,
sometimes referred to as a spoliation of evidence charge, has been limited to civil
cases in South Carolina. See Stokes v. Spartanburg Reg'l Med. Ctr., 368 S.C. 515,
522, 629 S.E.2d 675, 679 (Ct. App. 2006) (holding spoliation instruction was
warranted in medical malpractice action where two pieces of evidence initially
collected by hospital were missing); Kevin R. Eberle, Spoliation in South
Carolina, 19 S.C. Law. 26 (2007) ("The courts of South Carolina have long
recognized that a party is entitled to favorable presumptions [in civil cases] about
       Accordingly, although we acknowledge there are deeply troubling aspects of
the investigation in this case, the errors made by the police do not indicate bad
faith as is required to dismiss an indictment under the federal constitutional test.
Therefore, we affirm the court of appeals' decision to affirm the trial judge's denial
of Reaves' motion to dismiss.

II.   SPEEDY TRIAL
       Reaves argues the court of appeals erred by affirming the trial judge's denial
of his motion to dismiss the indictment because his right to a speedy trial had been
violated. We disagree.

       A defendant's right to a speedy trial is derived from the Sixth Amendment to
the United States Constitution which states that "[i]n all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial." U.S. Const. amend VI.
The United States Supreme Court has deemed this right as different from any other
right enumerated in the Constitution for the protection of the accused due to the
reality that "[d]elay is not an uncommon defense tactic" and "deprivation of the
right to speedy trial does not per se prejudice the accused's ability to defend
himself." Barker v. Wingo, 407 U.S. 514, 521 (1972)).

       The United States Supreme Court has identified four factors to consider in
determining whether a criminal defendant's right to a speedy trial has been
violated: (1) length of the delay; (2) reason for the delay; (3) the defendant's
assertion of the right; and (4) prejudice to the defendant. Barker, 407 U.S. at 530.
"[T]he determination that a defendant has been deprived of this right is not based
on the passage of a specific period of time, but instead is analyzed in terms of the
circumstances of each case, balancing the conduct of the prosecution and the
defense." State v. Pittman, 373 S.C. 527, 549, 647 S.E.2d 144, 155 (2008) (citing
Barker, 407 U.S. at 530).

      The length of the delay serves as a trigger mechanism for the analysis of the
other three factors. Barker, 407 U.S. at 530. The delay begins to be measured
when a defendant is indicted, arrested, or otherwise accused. State v. Langford,


the contents of missing evidence when an opponent is responsible for the
destruction of evidence that might otherwise be expected to have been relevant.").
400 S.C. 421, 442, 735 S.E.2d 471, 482 (2012) (citing United States v.
MacDonald, 456 U.S. 1, 6 (1982)). Until there is some delay which is
presumptively prejudicial to the defendant, there is no necessity to examine the
other factors. Barker, 407 U.S. at 530. However, there is no length of delay which
is per se unconstitutional; the right to a speedy trial may be violated where the
delay is arbitrary or unreasonable. Pittman, 373 S.C. at 549, 647 S.E.2d at 155.

       Closely related to the length of the delay is the reason the State advances to
justify the delay. Barker, 407 U.S. at 531. A deliberate effort by the State to delay
the trial to injure the defense should be weighted heavily against it. Id. Neutral
reasons, such as overcrowded dockets or negligence, should be weighted less
heavily; however, the State is still ultimately responsible for bringing a criminal
defendant to trial. Langford, 400 S.C. at 443, 735 S.E.2d at 483 (citing Pittman,
373 S.C. at 549, 647 S.E.2d at 155). Delays caused by the defendant should weigh
against him. Langford, 400 S.C. at 443, 735 S.E.2d at 483.

       The third factor—assertion of the right—recognizes that while a criminal
defendant has no responsibility to bring himself to trial, the extent to which he
exercises his right to a speedy trial is significant. Barker, 407 U.S. at 527–28.
This consideration prevents a criminal defendant from strategically acquiescing in
a delay which works to his advantage, then asking the case be dismissed at the last
moment once it is called for trial. Accordingly, "the defendant's failure to assert
the right, although not conclusive, makes it more difficult to show that the right
was violated." Pittman, 373 S.C. at 550, 647 S.E.2d at 155.

       The final factor—prejudice to the defendant—requires a reviewing court to
analyze the three different types of prejudice the speedy trial right seeks to prevent:
(1) oppressive pretrial incarceration; (2) anxiety and concern of the accused; and
(3) the possibility the defense will be impaired. Barker, 407 U.S. at 532. The most
serious of these interests is the last one because the inability of the defense to
prepare its case—due to the death or disappearance of a witness, for example—
cuts to the heart of the fairness inherent in the system. Id.

       Reaves' speedy trial clock began to run when he was apprehended in May of
2007 and ran at least until his first trial in August of 2010, nearly thirty-nine
months later. This length of time is presumptively prejudicial and triggers the
remaining Barker inquiry. See Pittman, 373 S.C. at 551, 647 S.E.2d at 156
(finding delay of three years and two months was sufficient to trigger analysis of
other factors); State v. Waites, 270 S.C. 104, 108, 240 S.E.2d 651, 653 (1978)
(holding delay of two years and four months lengthy enough to warrant review of
other factors).

       The State asserts that the lengthy delay was due to a heavy backlog of cases
in Marion County and the complexities involved in the investigation of the case.
However, neither of these are compelling reasons, especially in light of how little
had been done by the police to investigate the identity of a possible second shooter.
Accordingly, this factor weighs against the State. See State v. Brazell, 325 S.C. 65,
76, 480 S.E.2d 64, 70 (1997) (finding the State could not justify three year and five
month delay where it claimed complexities in the case and upheaval in the
solicitor's office caused the delay).

       Turning to the third factor, Reaves did not assert his right to a speedy trial
until over three years after his arrest. Significantly, his case was called for trial
later that same month; the additional three-month delay was due to the trial judge's
granting of Reaves' motion for a mistrial. Therefore, while we refuse to hold
Reaves waived his right to a fair trial by acquiescing in the lengthy delay, his
failure to assert his right to a speedy trial weighs strongly against him. See id. at
76, 480 S.E.2d at 71 (finding no speedy trial violation where trial was set for two
months after defendant first moved for a speedy trial).

       Finally, although we are cautious to not diminish the injurious effect of his
lengthy incarceration prior to trial, we find Reaves has not shown the delay caused
any particularized prejudice to his defense. He argues that the evidence missing in
this case was lost by police during the delay, thus hampering the preparation of his
defense. However, the record does not support this assertion. While it is not clear
precisely when most of the evidence was lost, it is most likely that it happened
shortly after Lt. Blue took over from Captain Gray as lead investigator, which was
only two days after the shooting.

       Further, there is no indication the lost evidence would have helped Reaves'
case rather than hurt it; therefore, even assuming the evidence was lost during the
delay, the record does not show how this would have been prejudicial to Reaves'
defense. See State v. Foster, 260 S.C. 511, 515, 197 S.E.2d 280, 282 (1973)
(finding no speedy trial violation after seven-year delay in bringing defendants to
trial where the record was void of even minimal prejudice). Moreover, there is no
question that Reaves was able to use the State's bungled investigation to his
advantage by subjecting the police's actions to the crucible of cross-examination
and by securing the spoliation of evidence charge at trial.

       While this is an extremely close case, a trial court's decision as to whether to
dismiss an indictment based on speedy trial grounds is reviewed for an abuse of
discretion. Langford, 400 S.C. at 442, 735 S.E.2d at 482. Despite our
disappointment in the manner in which the criminal justice system operated in this
case, we cannot say the able trial judge abused his discretion in denying Reaves'
request to dismiss the case based on the violation of his right to a speedy trial.
Although there was a significant delay between Reaves' arrest and his convictions
and the State puts forth no compelling reason for the delay, Reaves cannot show he
timely asserted his right to a speedy trial—or that his assertion when made was
ignored—and cannot show that he suffered particularized prejudice as the result of
the delay.

       Nonetheless, we express our deep concern with a system which kept a
sixteen-year-old offender in pretrial incarceration for over three years. This is
precisely the type of prosecutorial discretion we sought to limit in our decision of
Langford, which came too late to assist Reaves in timely being brought to trial.
We fully expect that Langford will now prevent similar dilatory practices, and note
that once this case was brought to the attention of the trial court through a speedy
trial motion, it was expeditiously brought to trial.

                                  CONCLUSION

      For the foregoing reasons, we hold the court of appeals did not err in
affirming the trial judge's denial of Reaves' motions to dismiss the indictment
regarding his right to a fair trial or his right to a speedy trial. Accordingly, we
affirm.

TOAL, C.J., BEATTY and KITTREDGE, JJ., concur.                     PLEICONES, J.,
concurring in a separate opinion.
JUSTICE PLEICONES: I concur with the majority's decision to affirm the
Court of Appeals' opinion upholding petitioner's conviction and sentence. I write
separately to emphasize the standard under which petitioner's fair trial claim should
be analyzed. Further, although I find the trial judge did not abuse his discretion in
denying petitioner's motion for a speedy trial, I concur with the majority's opinion
in result only.

In South Carolina, to establish deprivation of a fair trial due to the destruction or
loss of evidence, a defendant must show: (1) the State destroyed the evidence in
bad faith; or (2) the evidence possessed an exculpatory value apparent before the
evidence was destroyed, and the defendant cannot obtain other evidence of
comparable value by other means. State v. Cheeseboro, 346 S.C. 526, 538–39, 552
S.E.2d 300, 307 (2001). While I understand the majority's exclusive reliance on
Arizona v. Youngblood, 488 U.S. 51 (1988), is likely due to petitioner's failure to
preserve for appellate review his argument under the second prong of Cheeseboro,
in my view, it is worth noting that the analysis in South Carolina is more expansive
than Youngblood, and includes a second prong as articulated in Cheeseboro.

I concur in the majority's decision to affirm the Court of Appeals.
