                IN THE SUPREME COURT OF IOWA
                             No. 09–0844

                        Filed September 9, 2011


DAVID R. DESIMONE,

      Appellant,

vs.

STATE OF IOWA,

      Appellee.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Clinton County, David H.

Sivright, Jr., Judge.



      Applicant seeks further review of a court of appeals decision

affirming his conviction for sexual abuse in the third degree. DECISION

OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT

REVERSED AND CASE REMANDED WITH DIRECTIONS.


      Mark R. Lawson, Maquoketa, for appellant.



      Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant

Attorney General, Matthew Remissong, Student Legal Intern, Michael L.

Wolf, County Attorney, and Ross J. Barlow, Assistant County Attorney,

for appellee.
                                          2

WIGGINS, Justice.

       In this appeal, we must decide if the State’s failure to turn over a

witness’s timecard showing that the witness could not possibly have seen

the events to which she testified constitutes a Brady violation. 1 In the

postconviction relief action, the district court found no violation

occurred. On appeal, the court of appeals affirmed the judgment of the

district court.   On further review, we find a Brady violation occurred.

Therefore, we reverse the judgment of the district court and remand the

case for the district court to enter an order vacating the defendant’s

conviction for sexual abuse and ordering a new trial on the sexual abuse

charge.

       I. Background Facts and Proceedings.

       A jury convicted David R. DeSimone of sexual abuse in the third

degree in violation of Iowa Code sections 709.1 and 709.4(1) (2003).

DeSimone stipulated he committed prior felonies, and the district court

determined the habitual offender sentencing provisions under Iowa Code

sections 902.8 and 902.9(3) applied.              The district court sentenced

DeSimone to a term of imprisonment not to exceed fifteen years. 2

       DeSimone’s sexual abuse conviction stems from events that took
place in his home on October 16–17, 2004, when DeSimone hosted a

birthday party for his eighteen-year-old cousin.            One of the attendees

was Samantha, a seventeen-year-old. Samantha consumed between six

and twelve glasses of beer during the party and was heavily intoxicated.


       1See  Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196–97, 10 L. Ed. 2d
215, 218 (1963) (holding due process requires the prosecution to disclose exculpatory
evidence to the accused).
        2DeSimone pled guilty to several misdemeanor offenses and was also sentenced

for these offenses at the same sentencing hearing.
                                   3

Her memory of the party was spotty. She remembered events early in the

night, including using DeSimone’s cell phone to call a friend. She did

not remember an incident with DeSimone in a downstairs bathroom that

resulted in a fight between DeSimone and other males at the party.

      At trial, Samantha testified to the following. She recalled placing

her head down on the kitchen table while the party was still well

attended. Her next memory was sitting naked in DeSimone’s bed. She

was confused and did not know why her clothes were off. It was then

she discovered her tampon had been removed. She observed DeSimone

standing near the bedroom light switch with a blanket around him.

DeSimone then turned off the light and “came over and got on top of me.”

She attempted to push him off and screamed loudly for a period of five

minutes.   DeSimone grabbed her by the throat and threatened her.

Then, DeSimone forced her to engage in vaginal intercourse. She became

sick to her stomach and vomited on DeSimone’s bed, sheets, and in her

hair. After vomiting, she claims DeSimone forced her to have oral sex

and then, for a second time, vaginal intercourse. She also claims that

DeSimone told her during intercourse that he was not going to ejaculate

on her so he would not leave any evidence.

      After intercourse, Samantha put on her clothes and quickly ran

out of the house. She said she was unable to find her glasses, purse, or

underwear so she left without them.    She stated a car almost hit her

when she ran across Camanche Avenue, the street outside of DeSimone’s

home. She eventually ran to a nearby Hy-Vee grocery store.

      Joseph Baker, a party attendee, went into DeSimone’s bedroom to

find his coat after the party had ended. He saw Samantha sleeping in

DeSimone’s bed. Fearing he was too intoxicated to drive, Baker sat down

on the couch in the living room adjacent to DeSimone’s bedroom. He fell
                                    4

asleep with the television on and slept until around 6 a.m. Baker did not

hear any screaming that evening.

      Jeffery Hereid, the grocery store attendant, confirmed that

Samantha entered the store early on the morning of October 17 with her

clothes disheveled, hair messed up, and crying. Samantha asked to use

the phone and called a friend. She then called 911 at the urging of the

grocery store attendant. Samantha made the dispatch call from the Hy-

Vee at 3:06 a.m. on October 17.

      Brad Nolan, a special agent with the Iowa Division of Criminal

Investigation, responded to the call.   Upon arrival, Nolan discovered

Samantha and described her as distraught and visibly upset. Nolan had

difficulty eliciting information from Samantha, but eventually she

informed him DeSimone had sexually assaulted her.        Samantha was

taken to a local hospital where a rape protocol was followed and a rape

kit was used to collect evidence.

      At the hospital, Samantha was tearful and nauseous.       A nurse

took Samantha’s medical history and her description of the assault. The

assault history Samantha provided differed in some respects from her

trial testimony.   She told the nurse she had consumed six or seven

glasses of beer. She did not report that she had passed out before the

assault.   Samantha stated DeSimone first forced her to perform oral

intercourse before he forced her to perform vaginal intercourse. She also

told the nurse she did not discover that her tampon was out until she

was at the hospital. The hospital discharged Samantha at 6:45 a.m. on

October 17.

      Nolan obtained a search warrant for DeSimone’s home.       He and

several other officers executed the warrant in the late morning of

October 17. The officers collected DeSimone’s bedding and sheets. They
                                   5

also seized a blanket found in DeSimone’s basement where the washer

and dryer were located. One officer involved in the search opined he saw

no signs that DeSimone had destroyed evidence in the house.

      The department sent the seized evidence to the Iowa Division of

Criminal Investigation for deoxyribonucleic acid (DNA) testing. The DNA

testing revealed small amounts of DeSimone’s blood on his pillowcase.

Additionally, there were two semen stains containing DeSimone’s DNA on

the blanket found in the basement by the washer and dryer. No semen,

blood, or vomit was detected on the seized sheets and bedding.

DeSimone’s DNA was not found on Samantha.

      Officers and medical personnel found no evidence of physical

abrasion or redness on Samantha, nor did they observe any vomit on

Samantha. The treating physician found no physical evidence of injury

or trauma, but also stated that this was not unusual in sexual assaults.

The physician noted Samantha was at the end of her menstrual period,

and it was not unusual for women to go several hours without any

discharge of blood.

      Before trial, the court granted DeSimone’s motion in limine to

exclude evidence of his prior bad acts, specifically his two jury-trial

acquittals involving allegations that he sexually abused his stepdaughter

and his wife’s niece. DeSimone’s trial counsel, William Vilmont, however,

affirmatively informed the jury about these two prior sexual abuse

allegations during his cross-examination of Samantha.

      While not returning to DeSimone’s previous sexual abuse charges,

Vilmont, on numerous occasions, engaged in a line of questioning that

showed Samantha had contacts with people familiar with DeSimone and

who had reasons to dislike him.        Vilmont elicited a response from

Samantha that she previously lived with S.R.—the niece of DeSimone’s
                                     6

estranged wife.    S.R. had previously made sexual abuse allegations

against DeSimone.     Vilmont also elicited a statement from Samantha

that the friend she called from the Hy-Vee store, before calling the police,

was at S.R.’s house at the time of the call.      Vilmont also questioned

Samantha about whether she knew her son’s grandmother did not like

DeSimone and that the grandmother had been romantically involved with

DeSimone’s roommate.      Vilmont elicited testimony from Nolan that he

used S.R.’s testimony to corroborate Samantha’s testimony in order to

obtain a search warrant for DeSimone’s home.          In addition, Vilmont

asked Nolan whether he knew of S.R.’s connection to DeSimone. This

testimony indicates Vilmont was trying to establish that Samantha was

collaborating with the persons who disliked DeSimone in order to convict

him.

       The State called several witnesses to corroborate Samantha’s

testimony.   It called Baker to testify he saw Samantha sleeping in

DeSimone’s bed, fully clothed, as the party wound down. The State also

called Hereid, the grocery store attendant, to testify about Samantha’s

appearance and actions at the Hy-Vee store she ran to for help.         The

State also called Nicole as a witness.

       Nicole was an eighteen-year-old high school student who met

Samantha about two months prior to trial through a mutual friend.

Nicole testified that one evening she and Samantha were driving on

Camanche Avenue, the road DeSimone’s home is on, and Samantha told

her about the sexual assault.      According to Nicole, Samantha’s story

triggered her memory of an incident that occurred after leaving work

early one morning in October 2004. Nicole testified she got off work from

Burger King at 2:30 a.m. and, while driving on Camanche Avenue, a girl

“ran right in front of my vehicle to try to get me to stop, but I almost hit
                                   7

her, so I swerved.” She stated she did not stop because she was scared

and did not call the police because she was not sure what was going on.

      Twice during her testimony, Nicole stated this incident occurred on

October 13, not October 17.     The prosecutor questioned Nicole as to

whether the incident occurred on October 13 or 17. She responded, “It

was somewhere around there. I can’t—I thought it was the 13th, but it

might not have been.    It was a long time ago.”    The prosecutor used

Nicole’s testimony to corroborate Samantha’s testimony that a car almost

hit Samantha as she ran out of DeSimone’s house and across Camanche

Avenue.

      DeSimone’s    counsel   minimally   engaged    Nicole   on   cross-

examination. His sole line of questioning was to elicit from Nicole that

she was driving to a bar/pool hall on the night she saw a girl run across

Camanche Avenue.

      After his conviction, DeSimone filed a direct appeal of his

conviction and sentence, which the court of appeals affirmed. While the

direct appeal was pending, DeSimone investigated Nicole’s testimony.

DeSimone claimed, after reading the trial transcript, that Nicole’s

testimony struck him as very coincidental and that he heard somebody

mention Nicole’s name in conjunction with Burger King during the trial.

      DeSimone wrote a letter to Burger King asking about the hours

Nicole worked on October 16–17. Burger King responded with a letter

and timecard copy showing Nicole punched out of work at 3:30 a.m. on

October 17.    Burger King’s letter also stated that Burger King had

provided copies of Nicole’s timecard to the Clinton Police Department in

August 2005, several weeks before DeSimone’s trial.     Samantha called

911 at 3:06 a.m. on October 17 from the Hy-Vee store. Thus, Nicole’s

timecard establishes that Nicole could not have seen Samantha running
                                     8

across Camanche Avenue on the morning of October 17 as the

prosecutor contended. We will set out additional facts as they relate to

this appeal.

      After DeSimone lost his direct appeal, he filed an application for

postconviction      relief.   The   district   court   denied   DeSimone’s

postconviction relief application and DeSimone appealed. We transferred

the case to the court of appeals.        The court of appeals affirmed the

district court’s denial of DeSimone’s postconviction relief application.

DeSimone asked for further review, which we granted.

      II. Issues.

      Two grounds are at issue in this appeal. First, DeSimone asserts

he received ineffective assistance of counsel because his trial counsel

affirmatively disclosed DeSimone’s prior sexual abuse acquittals to the

jury, even after trial counsel secured a motion in limine to exclude the

State from eliciting this evidence. Second, DeSimone alleges the State

committed a Brady violation when it failed to reveal to DeSimone that

Nicole’s timecard showed she did not leave work until 3:30 a.m.,

approximately twenty-four minutes after Samantha called the police from

the Hy-Vee store. The issue involving the Brady violation is dispositive of

this appeal. Therefore, we will not address the ineffective-assistance-of-

counsel claim.

      III. Standard of Review.

      When the applicant’s claims are of a constitutional nature, we will

conduct a de novo review. Everett v. State, 789 N.W.2d 151, 155 (Iowa

2010).   Accordingly, DeSimone’s Brady-due-process-violation claim will

be reviewed de novo.
                                          9

       IV. Brady-Due-Process-Violation Claim.

       A. Error Preservation.           The State argues DeSimone did not

preserve error on his Brady claim because he could have found the

material through reasonable diligence. The State cites to a line of cases

holding a court will only grant a motion for new trial based upon newly

discovered evidence if the evidence could not have been obtained through

reasonable diligence. See State v. Jefferson, 545 N.W.2d 248, 249 (Iowa

1996) (citing State v. Miles, 490 N.W.2d 798, 799 (Iowa 1992)). The cited

case and its progeny are appellate court decisions reviewing district court

decisions in granting or denying new trials.               Id.   The State’s cited

doctrine is not an error preservation issue, but a standard we have

adopted in deciding whether to grant a new trial. The State’s authority

has no applicability to error preservation when a Brady violation is

claimed.     Its argument is relevant, however, as to whether the State

suppressed the alleged exculpatory evidence in our analysis of a Brady

violation.

       B. Brady Standard. DeSimone asserts the State violated his due

process rights 3 by failing to disclose favorable evidence to him and this

failure constitutes a Brady violation. Specifically, DeSimone argues the
State’s failure to disclose the Burger King accountant’s email detailing

Nicole’s timecard on October 16–17 runs afoul of Brady. The email was

sent to the Clinton Police Department and forwarded to prosecuting




        3In his postconviction relief application, DeSimone asserted the State violated

his due process rights under both the Federal and Iowa Constitutions. At no point on
appeal, however, has DeSimone argued that the Iowa Constitution provides a different
level of protection than the United States Constitution or that a different analysis
should apply under the United States Constitution. Therefore, for the purposes of this
appeal, we will consider the constitutional provisions as congruent.
                                    10

attorney Ross Barlow on September 6, 2006, approximately one week

before trial and is favorable to DeSimone.

      To establish a Brady violation has occurred, DeSimone must prove

by a preponderance of the evidence “(1) the prosecution suppressed

evidence; (2) the evidence was favorable to the defendant; and (3) the

evidence was material to the issue of guilt.”     Harrington v. State, 659

N.W.2d 509, 516 (Iowa 2003) (quoting State v. Veal, 564 N.W.2d 797, 810

(Iowa 1997)) (internal quotation marks omitted); accord Strickler v.

Greene, 527 U.S. 263, 281–82, 119 S. Ct. 1936, 1948, 144 L. Ed. 2d 286,

302 (1999).

      1. Suppression of evidence. The prosecution “has a duty to learn

of any favorable evidence known to . . . others acting on the government’s

behalf in the case, including the police.” Kyles v. Whitley, 514 U.S. 419,

437, 115 S. Ct. 1555, 1567, 131 L. Ed. 2d 490, 508 (1995).

Nondisclosure of evidence is the touchstone for suppression; the good or

bad faith of the prosecutor is not relevant. State v. Romeo, 542 N.W.2d

543, 551 (Iowa 1996). The prosecution has a duty to disclose regardless

of whether the accused requests Brady material. Harrington, 659 N.W.2d

at 522.   “Nonetheless, ‘if the defendant either knew or should have

known of the essential facts permitting him to take advantage of the

evidence,’ the evidence is not considered ‘suppressed.’ ”     Id. (quoting

Cornell v. State, 430 N.W.2d 384, 385 (Iowa 1988)); accord United States

v. Ladoucer, 573 F.3d 628, 636 (8th Cir. 2009); United States v. O’Hara,

301 F.3d 563, 569 (7th Cir. 2002).       However, before holding a lack of

diligence on the part of defense counsel, defense counsel must be aware

of the potentially exculpatory nature of the evidence and its existence.

See United States v. Griggs, 713 F.2d 672, 674 (11th Cir. 1983) (stating a

Brady violation does not exist where the defendant or his attorney knew
                                            11

of the alleged exculpatory information); Harrington, 659 N.W.2d at 522

(holding although the defendant had knowledge of the existence of the

police reports, the defendant “did not have the ‘essential facts’ of the

police reports so as to allow the defense to wholly take advantage of this

evidence [and] ‘only access to the documents themselves would have

provided the range and detail of information necessary to fully

understand the implications of the police investigation’ ” (quoting Mazzan

v. Warden, 993 P.2d 25, 37 (Nev. 2000))).

       We must address two 4 “suppression” issues.                   First, the factual

issue of whether Barlow did in fact fail to send Vilmont the email from

Burger King, indicating that Nicole was working when she claimed she

saw Samantha crossing the street. Second, there is an issue whether

defense counsel used “reasonable diligence” to secure the same

information from Burger King.

       Concerning the first suppression issue, the record is clear that

Barlow did not include the email in his trial notebook or fax a copy of it

to Vilmont. Barlow suggested he hand-delivered a copy of the email to

Vilmont, as that would be his normal practice. Vilmont testified at the

postconviction relief hearing that he did not receive the information, but

also admitted he did not review the file before the postconviction relief


       4There   is also some precedent that suggests that an “open-file policy” satisfies a
prosecutor’s Brady requirements. See, e.g., Mathis v. Dretke, 124 Fed. App’x 865, 877
(5th Cir. 2005). The issue need not be confronted here because the record shows the
email detailing Nicole’s timecard was not in Barlow’s trial notebook; therefore, the
“open-file policy” would not disclose the information. Strickler, 527 U.S. at 284, 119
S. Ct. at 1949, 144 L. Ed. 2d at 303 (1999) (“If it was reasonable for trial counsel to rely
on, not just the presumption that the prosecutor would fully perform his duty to
disclose all exculpatory materials, but also the implicit representation that such
materials would be included in the open files tendered to defense counsel for their
examination, we think such reliance by counsel appointed to represent petitioner in
state habeas proceedings was equally reasonable.”).
                                       12

hearing. There are several reasons, however, that cause us to find on

our de novo review that Barlow did not hand-deliver the email to

Vilmont.

         First, it is inconceivable that Barlow would have used Nicole as a

witness if he knew her testimony was false and he provided the

information proving her testimony was false to Vilmont. As a prosecutor,

Barlow had an ethical duty not to present testimony that he knew to be

false.    Iowa R. of Prof’l Responsibility 32:3.3(b).   This ethical duty is

consistent with the American Bar Association’s standards applicable to

prosecutors. ABA Standards for Criminal Justice: Prosecution Function

and Defense Function 3-5.6(a) (3d ed. 1993) (“A prosecutor should not

knowingly offer false evidence . . . .”).

         Second, Vilmont testified that he shared all documentation with

DeSimone, who scrupulously reviewed the material. Had DeSimone seen

this email, he most certainly would have brought it to the attention of

Vilmont, as the email destroys the credibility of one of the State’s few

corroborating witnesses.

         Third, given the impeachment value the email would have had on

Nicole’s testimony, it is difficult to believe that an experienced criminal

defense lawyer like Vilmont would not have used the evidence at either

Nicole’s deposition or on cross-examination at trial. Vilmont testified to

as much, stating he “would have used it, certainly.”

         The second suppression issue concerns whether evidence of

Nicole’s timecard was reasonably available to Vilmont and whether

Vilmont exercised reasonable diligence to obtain it. Vilmont confirmed

he received a copy of Nicole’s police interview conducted on August 29,

2005.      Vilmont also received Nicole’s employment verification report,

dictated on August 25, 2005, indicating Burger King was going to send
                                    13

Nicole’s timecard for October 16–17 to the Clinton Police Department.

Therefore, Vilmont should have been aware of Nicole’s expected

corroborative testimony and that her timecard for the evening in question

was forthcoming.

      The State argues that Vilmont had equal access to the information

and should have subpoenaed the records himself.           We disagree.    A

defense attorney should not have a duty to investigate every witness to

determine whether a prosecutor knowingly offers false testimony, when

there is no reason to believe that the prosecutor would offer such

testimony. The State received this information late in the game. Both

parties were preparing for trial. At no time prior to trial did the State

indicate to Vilmont that they would not be calling Nicole as a witness. A

reasonable attorney in Vilmont’s situation would have believed the State

would not knowingly call a witness that would give false testimony.

Thus, Vilmont acted reasonably in believing the information received

from Burger King was not exculpatory.

      We believe Vilmont never received the records the State possessed

establishing that Nicole was working at the time she allegedly saw

Samantha    cross     Camanche   Avenue    and   that   Vilmont   exercised

reasonable diligence in the matter since there is no way he knew or

should have known of the exculpatory nature of the email. Accordingly,

we find the State suppressed the evidence provided by Burger King in

violation of Brady.

      2. Favorability. “Impeachment evidence . . . as well as exculpatory

evidence, falls within the Brady rule.       Such evidence is ‘evidence

favorable to an accused,’ so that, if disclosed and used effectively, it may

make the difference between conviction and acquittal.” United States v.

Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 3380, 87 L. Ed. 2d 481, 490
                                     14

(1985) (quoting Brady, 373 U.S. at 87, 83 S. Ct. at 1196, 10 L. Ed. 2d at

218) (citation omitted); accord Romeo, 542 N.W.2d at 551.

      With minimal physical evidence, Samantha’s credibility was

essential to the State’s case. The State called three lay witnesses for the

primary purposes of corroborating Samantha’s testimony and bolstering

her credibility. Baker testified he saw Samantha sleeping, fully clothed,

in DeSimone’s bed. Hereid testified Samantha came to the Hy-Vee store

looking disheveled and crying.       Nicole’s testimony corroborated how

Samantha left DeSimone’s apartment and ended up at the Hy-Vee store.

It also helped corroborate that Samantha was emotionally unstable and

reckless after the sexual assault.        Nicole’s timecard impeaches her

testimony, showing it was impossible for Nicole to have seen Samantha

run across Camanche Avenue on October 16–17. In a case that hinges

on a victim’s credibility, evidence that impeaches one of the victim’s few

corroborating witnesses is, without question, favorable to the accused.

DeSimone has met his burden of proof that the evidence is favorable to

his guilt or innocence.

      3. Materiality.     Due process is only denied when the favorable,

suppressed evidence is material to the issue of guilt. The Supreme Court

stated evidence is material when “there is a reasonable probability that,

had the evidence been disclosed to the defense, the result of the

proceeding would have been different.       A ‘reasonable probability’ is a

probability sufficient to undermine confidence in the outcome.” Bagley,

473 U.S. at 682, 105 S. Ct. at 3383, 87 L. Ed. 2d at 494; accord

Harrington, 659 N.W.2d at 523.

      “[T]he materiality inquiry is not just a matter of determining
      whether, after discounting the inculpatory evidence in light
      of the undisclosed evidence, the remaining evidence is
      sufficient to support the jury’s conclusions. Rather, the
                                    15
      question is whether ‘the favorable evidence could reasonably
      be taken to put the whole case in such a different light as to
      undermine confidence in the verdict.’ ”

Harrington, 659 N.W.2d at 523 (quoting Strickler, 527 U.S. at 290, 119

S. Ct. at 1952, 144 L. Ed. 2d at 307 (alteration in original) (citation

omitted)). Thus, the materiality requirement requires the court to assess

the possible effects nondisclosure had on trial preparation and strategy,

not merely the weight of the evidence. Materiality requires a “reasonable

probability” of a different trial outcome, not merely a “reasonable

possibility.” Strickler, 527 U.S. at 291, 119 S. Ct. at 1953, 144 L. Ed. 2d

at 308.

      The State was unable to present any DNA or medical evidence to

substantiate Samantha’s claim of sexual abuse. Indeed, there was none.

The State’s case turned on the credibility of Samantha and the

corroborating witnesses.      These witnesses’ testimony corroborated

Samantha’s testimony that she was sexually abused.          However, had

DeSimone been provided the evidence to which he was entitled, Nicole’s

testimony would have been shown to be false and the trial would have

taken on a different dynamic.      The defense’s conspiracy theory had

credibility where the evidence showed Samantha had contacts with
persons who disliked DeSimone. Bringing Nicole’s false testimony into

the conspiracy theory completes the picture.

      Additionally, Samantha’s testimony is not without some question

of credibility.   Much of Samantha’s testimony was inconsistent with

other statements she made and the physical evidence. She said she left

DeSimone’s house without her purse and underwear. The police found

her purse, but not her underwear, while searching DeSimone’s home.

Samantha testified she vomited in her hair and on the bed sheets. The

police did not find vomit in her hair or on the bed sheets.        Finally,
                                   16

Samantha gave inconsistent versions of how the sexual assault occurred.

At trial, she stated that she knew her tampon was out at DeSimone’s

house and that he first assaulted her vaginally, then orally.        In the

hospital records, she stated that she did not know her tampon was out

until she was at the hospital and that DeSimone first assaulted her

orally, then vaginally.

      Accordingly, we hold the State’s failure to disclose the Burger King

timecard was a Brady violation.

      V. Disposition.

      Due to the Brady violation, we vacate the decision of the court of

appeals, reverse the judgment of the district court, and remand the case

to the district court to enter an order vacating DeSimone’s conviction for

sexual abuse and ordering a new trial on the sexual abuse charge.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT     JUDGMENT        REVERSED      AND   CASE   REMANDED        WITH

DIRECTIONS.

      All justices concur except Mansfield, J., who takes no part.
