AFFIRM; and Opinion Filed July 16, 2018.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-17-00459-CR

                                ELVIN JOHNSON, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                       On Appeal from the 291st Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. F15-75049-U

                             MEMORANDUM OPINION
                        Before Justices Lang-Miers, Evans, and Schenck
                                  Opinion by Justice Schenck
       Elvin Johnson appeals his conviction for indecency with a child by sexual contact. In two

issues, appellant asserts that the trial court erred in not granting him a hearing on his motion for

new trial, and that he is entitled to a new trial because his trial counsel rendered ineffective

assistance. We affirm the trial court’s judgment. Because all issues are settled in the law, we

issue this memorandum opinion. TEX. R. APP. P. 47.4.

                                          BACKGROUND

       The State charged appellant with indecency with a child for unlawful contact with his four-

year-old cousin C.J. Appellant was seventeen years’ old at the time of the alleged offense. On

April 28, 2015, the trial court appointed counsel to represent appellant. On February 24, 2017, the

trial court approved the hiring of Dr. Aaron Pierce, a licensed forensic psychologist, as an expert
witness in the case. Prior to trial, trial counsel filed a verified motion for continuance because Dr.

Pierce was scheduled to testify in another case on the scheduled trial date. The trial court denied

the motion and trial began on April 17, 2017.

          The evidence showed that on Thanksgiving Day of 2014, C.J. and his parents went to his

paternal grandmother’s house to have a family meal with relatives.1 After dinner appellant

obtained C.J.’s parents’ consent for C.J. to play a video game with him in the back bedroom of the

house while the others watched the football game on television or napped. C.J., who was seven at

the time of trial, testified that as he and appellant were playing the video game, appellant asked

him if he could touch him in a manner prohibited by penal code section 21.11(a)(1). C.J. indicated

he initially said no, but he was so focused on the game that he then said yes on accident. C.J.

testified appellant then touched him unlawfully.

          C.J.’s mother was the outcry witness. She testified that one night in January 2015, C.J.

told her that someone unlawfully touched him. When she asked him who had done so, C.J.

responded, “Elvin.” She further testified that C.J. told her the details of the unlawful touching.

C.J. repeated the same details to his father. C.J.’s mother indicated C.J. told her he did not

immediately tell her what had occurred because he wanted to continue playing the video game.

          C.J.’s parents testified about changes they noted in C.J.’s behavior after Thanksgiving.

They testified that in the weeks following Thanksgiving and before C.J. reported the abuse to his

mother, he started having bad dreams and reverted to wetting his bed at night. One night, C.J. was

fearful that the doors of their apartment were unlocked and insisted on helping his mother ensure

all of them were locked before he went to bed.

          Detective Emilio Henry, a child abuse investigator with the Dallas Police Department who

investigated the case, testified that he observed C.J.’s forensic interview from another room. He


   1
       The relatives were C.J.’s grandmother, aunt, uncle, and two cousins.

                                                                     –2–
noted that C.J. was very sharp for a four-year-old. On cross-examination, Detective Henry

admitted that there is no way for him to tell if abuse actually happened, he can only repeat what

he is told and that the only way he could know for sure is if appellant confessed to him. On

redirect, Detective Henry indicated that a four-year-old cannot get a lie past a forensic interviewer.

       Reynald Lara, a forensic interviewer from the Dallas Children’s Advocacy Center

(“DCAC”) who conducted the forensic interview of C.J, testified that DCAC uses a nationally

recognized protocol to interview children and that they do not use leading questions, as they strive

to avoid suggesting the abuse occurred. Lara indicated he gives the child the chance to tell him

what did or did not happen. If the child says something happened, he tries to get more detail,

including sensory and peripheral details. Lara noted that he was surprised at how articulate and

focused C.J. was during the interview. He indicated C.J. was able to express himself, appeared to

understand his questions, and maintained eye contact. He further indicated that C.J. was a little

hesitant in discussing the incident, so he used an anatomical drawing as an aid. C.J. was able to

identify numerous body parts on the drawing, including the penis. Lara stated C.J. answered his

questions and sometimes went on to voluntarily give additional information. C.J. corrected him

on one or two occasions, so it appeared C.J. was paying attention. Lara testified about the concepts

of coaching and suggestive memory and stated he is trained to explore that. He indicated he did

not have any concern about coaching or suggested memory in this case. On cross-examination,

Lara acknowledged that he knew what the allegations were in this case before he began his

interview of C.J. and that his job was to verify the allegations. He agreed that there is no study as

to whether you can tell if a person is telling the truth or not. When questioned whether parents

continually talking to a child could influence the interview Lara admitted that could influence the

interview, and he did not know if anyone influenced C.J. Lara further indicated that he does not




                                                 –3–
determine whether the child is telling the truth or not. On redirect, Lara stated he did not have any

concerns about whether C.J. was telling him about something that had not occurred.

       Nicole Taquino, C.J.’s therapist, testified she saw C.J. for approximately six months and

then on occasion, and during their sessions she worked with him on education-based things and

coping as far as different kinds of touches, boundaries, and safety. She indicated she did not see

any signs that C.J. had been influenced by what someone else said. On cross-examination, Taquino

admitted that there is no way you can tell if someone is being truthful, that there are no studies that

show how you can tell if someone is being truthful, that the signs and symptoms of bedwetting

and bad dreams can be a normal four-year-old behavior, and that not every child who has been

abused wets the bed and has bad dreams. She further admitted that she could not say whether what

C.J. told her was influenced by someone else.

       Appellant testified at trial. He denied the material allegations, and claimed he did not know

why C.J. would say he did the things for which he was charged. His defensive theories were that

C.J. fabricated the allegation or was coached into making the allegation, and that he did not have

an opportunity to touch C.J. because family members kept coming in and out of the back bedroom

to check on them. On cross-examination, appellant admitted that he was alone with C.J. for about

an hour, while others were watching the football game, and that he was alone with C.J. for varying

lengths of time, including several twenty-minute time spans.

       Appellant’s father testified that he appeared at trial because he knows appellant did not do

what he was accused of. Appellant’s father testified about a falling out he had with C.J.’s father

years ago due to his failure to attend C.J.’s father’s graduation from college and suggested that

situation may have spurred the allegations against his son.

       Trial counsel did not subpoena the expert he hired, Dr. Pierce, to be present at trial, and no

testimony of Dr. Pierce was offered into evidence.

                                                 –4–
       The jury found appellant guilty of the indecency with a child and sentenced him to five

years’ confinement and assessed costs of $2,500. Appellate counsel was then substituted for trial

counsel and filed a motion for new trial. In his motion for new trial, appellant complained that

trial counsel provided ineffective assistance of counsel by (1) failing to issue a subpoena or for not

calling Dr. Pierce to testify, and (2) waiting 672 days to request the appointment of an expert,

leaving the expert only 48 days to review all of the necessary documents and to prepare a report

before trial began. Appellant attached the affidavits of trial counsel and Dr. Pierce, and a copy of

the verified motion for continuance to his motion for new trial. The trial judge, who presided over

the trial, denied appellant’s motion for new trial without holding a hearing. This appeal followed.

                                            DISCUSSION

       In his first issue, appellant argues the trial court erred in not granting him a hearing on his

motion for new trial.

       The purpose of a hearing on a motion for new trial is to: (1) “decid[e] whether the cause

shall be retried” and (2) “prepare a record for presenting issues on appeal in the event the motion

is denied.” State v. Gonzalez, 855 S.W.2d 692, 695 (Tex. Crim. App. 1993) (plurality opinion)

(citing Trevino v. State, 565 S.W.2d 938, 941 (Tex. Crim. App. 1978)). While the court of

criminal appeals has held that the opportunity to prepare a record for appellate review makes a

hearing on a motion for new trial a critical stage, it has also held that such a hearing is not an

absolute right. Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993). “[A] hearing

is not required when the matters raised in the motion for new trial are subject to being determined

from the record.” Id. at 816 (citing McIntire v. State, 698 S.W.2d 652, 658 (Tex. Crim. App.

1985)); see also Darrington v. State, 623 S.W.2d 414, 416 (Tex. Crim. App. 1981) (no abuse of

discretion to overrule motion for new trial without a hearing when “there were no issues presented

in appellant’s motion for new trial which required proof to be developed outside the record”).

                                                 –5–
Conversely, a “trial judge abuses his discretion in failing to hold a hearing on a motion for new

trial [when] that [motion] raises matters which are not determinable from the record. [citations

omitted]. To hold otherwise would deny the accused meaningful appellate review.” Reyes, 849

S.W.2d at 816.

       “[R]ecogniz[ing] that an unrestricted requirement of a hearing on matters not determinable

from the record could lead to ‘fishing expeditions,’” the court of criminal appeals has also held

that even a defendant who has raised such matters is not entitled to a hearing on his motion for

new trial unless he “establishes the existence of ‘reasonable grounds’ showing that the defendant

‘could be entitled to relief.’” Id. Thus we require, as a prerequisite to a hearing when the grounds

in the motion are based on matters not already in the record, that the motion be supported by an

affidavit, either of the defendant or someone else, specifically setting out the factual basis for the

claim. Bahm v. State, 219 S.W.3d 391. 395 (Tex. Crim. App. 2007).

       When examining a trial court’s denial of a hearing on a motion for new trial, we review for

an abuse of discretion. Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim. App. 2009). In so doing,

“we reverse ‘only when the trial judge’s decision was so clearly wrong as to lie outside that zone

within which reasonable persons might disagree.’” Id. And “in the absence of [such] an abuse of

discretion this Court would not be justified in reversing the judgment.” Id. Our review, however,

is limited to the trial judge’s determination of whether the defendant has raised grounds that are

both undeterminable from the record and reasonable, meaning they could entitle the defendant to

relief. Id. at 340. This is because the trial judge’s discretion extends only to deciding whether

these two requirements are satisfied. Id. If the trial judge finds that the defendant has met the

criteria, he has no discretion to withhold a hearing. In fact, under such circumstances the trial

judge abuses his discretion in failing to hold a hearing. Id.




                                                 –6–
        Initially we note that “ineffective assistance of counsel may be raised in a motion for new

trial.” Reyes, 849 S.W.2d at 815. Under Strickland v. Washington, a defendant seeking to

challenge counsel’s representation must establish that his counsel’s performance (1) was deficient,

and (2) prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To show

deficiency the appellant must prove by a preponderance of the evidence that his counsel’s

representation objectively fell below the standard of professional norms and that no reasonable

trial strategy could justify trial counsel’s acts or omissions, regardless of his or her subjective

reasoning. Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011); Mitchell v. State, 68

S.W.3d 640, 642 (Tex. Crim. App. 1996). And to show prejudice, the appellant “must show there

is a reasonable probability that, but for his counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694. “Reasonable probability” is

a “probability sufficient to undermine confidence in the outcome,” meaning “counsel’s errors were

so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687.

        Before he will be entitled to a hearing on his motion for new trial alleging ineffective

assistance of counsel, a defendant must allege sufficient facts from which a trial court could

reasonably conclude both that counsel failed to act as a reasonably competent attorney and that,

but for counsel’s failure, there is a reasonable likelihood that the outcome of his trial would have

been different. Smith, 286 S.W.3d at 341. But a trial court may rule based on sworn pleadings

and affidavits without oral testimony; live testimony is not required. TEX. R. APP. P. 21.7; Rivera

v. State, 89 S.W.3d 55, 58 n.9 (Tex. Crim. App. 2002). “It has long been held that a trial court

may decide a motion for new trial based on sworn pleadings and affidavits admitted in evidence

without hearing oral testimony.” Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006)

(citing Scaggs v. State, 18 S.W.3d 277, 281 (Tex. App.—Austin 2000, pet. ref’d)).




                                                  –7–
       In his motion, appellant alleged that his trial counsel was ineffective because he failed to

subpoena Dr. Pierce to testify, and waited until a month and a half before trial to request funds to

retain an expert. Because “[t]he reasonableness of counsel’s choices often involves facts that do

not appear in the appellate record,” the record will generally “not be sufficient to show that

counsel’s representation was so deficient as to meet the first part of the Strickland standard.”

Mitchell, 68 S.W.3d at 642. The same is true in the instant case; whether counsel’s failures in fact

show a deficiency that prejudiced appellant’s defense is not determinable from the record. Because

appellant’s claim is not determinable from the record, we must decide whether his motion and

affidavits show reasonable grounds that could entitle him to relief. To do so, the appellant must

allege facts that would reasonably show that his counsel’s representation fell below the standard

of professional norms and that there is a reasonable probability that, but for his counsel’s conduct,

the result of the proceeding would have been different. Strickland, 466 U.S. at 687.

       The affidavits appellant submitted with the motion do not show that any basis for relief

exists. Trial counsel’s affidavit does not confess the Strickland factors. His affidavit merely

provides the date that the trial court approved the hiring of an expert and the date he contacted Dr.

Pierce and sent him discovery, refers to his attempts to communicate with the expert and the

expert’s busy schedule, and indicates he did not subpoena Dr. Pierce prior to April 13, 2017,

because Dr. Pierce could not provide a complete report until he had viewed the forensic interview.

The motion for continuance indicated that Dr. Pierce would not be able to view the forensic

interview until April 13, 2017, trial was set for April 17, and that Dr. Pierce had been subpoenaed

to appear in Ellis County for a trial on April 17. The motion stated Dr. Pierce would testify as to

the scientific bases for (1) symptoms of sexual abuse, (2) false allegations, especially by minor

children, and (3) determining truth or falsity of an allegation during a forensic interview. Deciding

not to call a witness when the substance of his opinions are unknown, is a reasonable trial strategy.

                                                –8–
See Prine v. State, 537 S.W.3d 113, 118 (Tex. Crim. App. 2017) (decision to call witnesses is a

strategic choice that involves weighing risks and benefits of testimony, which is exactly the type

of strategic decision that ordinarily requires court to evaluate an attorney’s explanations before

concluding counsel was ineffective).

           Neither the motion for continuance nor the affidavit contain trial counsel’s stated subjective

reason for not obtaining the trial court’s approval to hire an expert at an earlier time. This Court

presumes that trial counsel’s explanation, had there been one, would have indicated reasonable

trial strategy. See Lopez, 343 S.W.3d at 143. Also, appellant cites to no case law or other authority

that mandates a particular time period for trial counsel to obtain an expert prior to trial. Hence,

the record does not affirmatively demonstrate that trial counsel was deficient. See Thompson, 9

S.W.3d 808, 813 (Tex. Crim. App. 1999).

           Moreover, Dr. Pierce’s affidavit does not establish that his testimony reasonably could

have changed the outcome of this case. See Smith, 286 S.W.3d at 341. Dr. Pierce indicates that

had he been present at trial, he would have been able to testify in essence as a reverse “oath helper”2

as follows:

          That in most cases like this one a medical exam will usually not provide evidence
           that a sexual assault occurred or did not occur;

          That preschool aged children are apt to say things that are not true. This is because
           they are more susceptible to suggestion due to cognitive development, because they
           generally want to please, and fantasy/reality confusion;

          Importantly, I would have also testified that there are no reliable tools or methods
           for detecting whether a child is being “truthful” about an allegation of sexual abuse;




      2
        While we have no doubt as to the admissibility of such opinion testimony as a general matter, testimony particularized to the particular child
witness is generally inadmissible. See Schultz v. State, 957 S.W.2d 52, 58 (Tex. 1997) (expert opinion testimony must aid, not supplant, the jury’s
decision. Expert testimony does not assist the jury if it constitutes a direct opinion on the truthfulness of a child complainant’s allegations); Yount
v. State, 872 S.W.2d 706, 708 (Tex. 1993) (expert testimony which assists the jury in determining an ultimate fact is admissible, but expert testimony
that decides an ultimate fact for the jury, such as a direct opinion on the truthfulness of the child, crosses the line and is not admissible under rule
702).

                                                                         –9–
      Further, I would have testified that the consensus in the scientific literature is that
       we cannot tie specific behaviors to sexual abuse and that, contrary to most people’s
       beliefs, most people do not do a good job determining a witness’s credibility;

      Additionally, I understand that the attorney for the State asked his expert about
       whether there was any evidence in this case that suggested that the complaining
       witness had been coached and that the State’s expert said that there was no such
       evidence. I would have testified that the consensus of the scientific literature is that
       there is no agreed upon evidence that shows or indicates coaching. Accordingly,
       the absence of such evidence cannot be evidence that there was no coaching; and,

      Finally, I would have testified to the scientific consensus and the data concerning
       the rates of false allegation of sexual abuse. This consensus tells us that the rate of
       false allegations is between 6% and 35%.

Dr. Pierce further indicated that he has not met or examined C.J. and that his testimony would have

been devoted to false allegations of child sex abuse. Dr. Pierce went on to state that he and trial

counsel had decided that his role would be to help trial counsel prepare for cross-examination of

the State’s expert witnesses and to be available in case his testimony was required. Dr. Pierce

further stated that he consulted with trial counsel and provided him with guidance on how to cross-

examine the State’s expert witnesses.

       The record reflects that Dr. Pierce had in fact provided trial counsel with such guidance

and that virtually all of Dr. Pierce’s potential testimony, to the extent it might have aided appellant

and assisted the jurors, had already been developed, from the State’s own witnesses.

       For instance, as to Dr. Pierce’s anticipated testimony that, in cases like this one, a medical

exam will not provide evidence as to the occurrence of the abuse, Detective Henry testified that he

would not expect any medical findings to be present in this case and there was no evidence that a

medical exam resulted in findings of abuse.

       As to Dr. Pierce’s anticipated testimony that there are no reliable tools or methods for

detecting whether a child is being truthful about an allegation of sexual abuse, trial counsel cross

examined Detective Henry extensively on this topic, and Detective Henry admitted that he had no

way of determining whether an allegation of sexual abuse was true or false and the only way he
                                                –10–
would know for sure would be if the defendant confessed to him. Also, on cross-examination, the

forensic interviewer agreed that he was not aware of any study showing whether a person is telling

the truth or a lie. In addition, C.J.’s therapist agreed that no studies show how to gauge a person’s

truthfulness.

       As to Dr. Pierce’s anticipated testimony that the consensus in scientific literature is that

specific behaviors cannot be tied to sexual abuse and that, contrary to most people’s beliefs, most

people do not do a good job determining a witness’s credibility, C.J.’s parents testified to changes

in C.J.’s behavior after Thanksgiving Day. Trial counsel questioned C.J.’s therapist extensively

about this topic and she agreed that the described behavior could be normal for a four-year-old

child and that not every child who has been abused wets his bed and has bad dreams.

       As to Dr. Pierce’s anticipated testimony that the consensus of the scientific literature is

there is no agreed upon evidence that shows or indicates coaching, and the absence of such

evidence cannot be evidence that there was no coaching, trial counsel questioned the forensic

interviewer extensively about coaching and he agreed that had C.J.’s parents been continuously

talking to him about the abuse, that could affect C.J.’s performance during the forensic interview.

The forensic interviewer also agreed that he did not know if anyone influenced C.J. to say appellant

touched him, and he did not know how to ascertain whether a child had been coached.

       As to Dr. Pierce’s anticipated testimony concerning the rate of false sexual abuse

allegations and that pre-school aged children are more susceptible to suggestion due to cognitive

development, that testimony is general in nature and not specifically applied to C.J. In Ryder v.

State, 514 S.W.3d 391, (Tex. App.—Amarillo 2017, pet. ref’d), the court of appeals concluded

that the substance of the expected testimony of an expert witness who was not called to testify at

trial, that was similar to this anticipated testimony, was not enough to show that the appellant was




                                               –11–
entitled to relief.3

           As to appellant’s complaint that trial counsel was ineffective by failing to hire Dr. Pierce

at an earlier date, appellant has not established had trial counsel hired Dr. Pierce at an earlier date,

the outcome of the trial could have been different. Dr. Pierce’s affidavit does not reveal that he

would have prepared in any other way or would have presented testimony other than that outlined

in his affidavit had he had more time. In the end, appellant’s counsel was able to establish the

substantive grounds on which the jury might have called C.J.’s testimony into question. That he

was potentially deprived of that opinion coming from a witness with the court approved

imprimatur of “expert” and particularized to C.J. himself, is not an injury that would support a

finding of ineffective assistance or prejudice. Yount, 872 S.W.2d at 708.

           Accordingly, because the affidavits and the verified motion for continuance did not

establish the existence of reasonable grounds showing appellant could be entitled to relief, no

hearing was necessary. Therefore, we conclude the trial court did not abuse its discretion in

denying the motion without holding a hearing. We overrule appellant’s first issue.

           In his second issue, appellant urges the trial court abused its discretion by denying his

motion for new trial based on his claims of ineffective assistance of counsel. When, as here, an

appellant asserts ineffective assistance of counsel in a motion for new trial, we review the trial

court’s denial of the motion for an abuse of discretion, reversing only if the trial judge’s decision

was clearly erroneous and arbitrary. Burch v. State, 541 S.W.3d 816, 820 (Tex. Crim. App. 2017).

This is a deferential standard of review that requires appellate courts to view the evidence in the

light most favorable to the trial court’s ruling. Id. In determining whether the trial court abused

its discretion, an appellate court must not substitute its own judgment for that of the trial court, and



3
  In Ryder, the appellant argued trial counsel was ineffective because he obtained an expert to testify regarding the defense’s theory that the victims’
allegations of sexual abuse were mistakes, creations, or fabrications, but then failed to subpoena the expert to testify at trial. Ryder, 514 S.W.3d at
404.
                                                                        –12–
it must uphold the trial court’s ruling if it is within the zone of reasonable disagreement. Id. The

trial court’s ruling is within the “zone of reasonable disagreement” when there are two reasonable

views of the evidence. Id.

       To obtain relief for ineffective assistance of counsel, a defendant must establish that: (1)

counsel’s performance was deficient and that his assistance fell below an objective standard of

reasonableness; and (2) but for counsel’s unprofessional errors, the result of the proceeding would

have been different. Strickland, 466 U.S. at 687; Hernandez v. State, 726 S.W.2d 53, 57 (Tex.

Crim. App. 1986) (adopting Strickland two-prong test). Unless appellant can prove both prongs,

an appellate court must not find counsel’s representation ineffective. Lopez, 343 S.W.3d at 142.

       To satisfy the first prong, appellant bears the burden of proving by a preponderance of the

evidence that counsel was ineffective. Thompson, 9 S.W.3d at 813. There is a strong presumption

that counsel’s conduct fell within the wide range of reasonable professional assistance. Strickland,

466 U.S. at 689. To prove the second prong, appellant must show that there is a reasonable

probability, or a probability sufficient to undermine confidence in the outcome, that the result of

the proceeding would have been different. Lopez, 343 S.W.3d at 142.

       The general rule is that the failure to call a witness does not constitute ineffective assistance

of counsel without a showing that the witness was available to testify and that his testimony would

have benefitted the defendant. Butler v. State, 716 S.W.2d 48, 55 (Tex. Crim. App. 1986);

Johnston v. State, 959 S.W.2d 230, 236 (Tex. App.—Dallas 1997, no pet.). As stated above, we

have concluded appellant failed to establish Dr. Pierce’s testimony would have benefited him. As

to the timeliness of trial counsel’s engagement of Dr. Pierce, we have concluded appellant has

failed to establish an earlier engagement of Dr. Pierce would have changed the outcome of the

trial. Accordingly, appellant has failed to satisfy the Strickland test and the trial court did not

abuse its discretion in denying his motion for new trial. We overrule appellant’s second issue.

                                                –13–
                                         CONCLUSION

       We affirm the trial court’s judgment.




                                                 /David J. Schenck/
                                                 DAVID J. SCHENCK
                                                 JUSTICE



DO NOT PUBLISH
TEX. R. APP. P. 47

170459F.U05




                                               –14–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 ELVIN JOHNSON, Appellant                              On Appeal from the 291st Judicial District
                                                       Court, Dallas County, Texas
 No. 05-17-00459-CR         V.                         Trial Court Cause No. F15-75049-U.
                                                       Opinion delivered by Justice Schenck.
 THE STATE OF TEXAS, Appellee                          Justices Lang-Miers and Evans
                                                       participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 16th day of July, 2018.




                                                –15–
