Opinion
No. 05-10-01223-CR
02-24-2012
STANLEY VERNELL LEDBETTER, JR., Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM as REFORMED and Opinion Filed February 24, 2012
On Appeal from the 199th Judicial District Court
Collin County, Texas
Trial Court Cause No. 199-81511-10
OPINION
Before Justice FitzGerald, Richter, and Lang-Miers
Opinion By Justice Richter
A jury found appellant guilty of aggravated sexual assault and sentenced him to life imprisonment and a $10,000 fine. The trial judge found that appellant used a deadly weapon during the commission of the crime, and ordered that the sentence be served cumulatively with two sentences for prior offenses imposed in Dallas County. In four issues on appeal, appellant asserts the evidence is insufficient to support his conviction, the trial court erred in admitting evidence of an extraneous offense, the trial court erred in denying his motion to suppress, and the entry of the cumulative sentence order deprived him of due process of law. In a cross-point, the state requests that we reform the court's judgment to correctly identify the judge who presided over the trial of the matter. For the reasons that follow, we reform the trial court's judgment and as reformed, affirm.
The fine was ordered to run concurrently with the Dallas County sentences.
Sufficiency of the Evidence
In his first issue, appellant challenges the sufficiency of the evidence to support his conviction for aggravated sexual assault. We review the sufficiency of the evidence under the standard set out in Jackson v. Virginia, 443 U.S. 307 (1979). Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011). We examine all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Adames, 353 S.W.3d at 860. This standard recognizes "the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319; see also Adames, 353 S.W.3d at 860. The jury, as the fact finder, is entitled to judge the credibility of the witnesses, and can choose to believe all, some, or none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). We defer to the jury's determinations of credibility, and may not substitute our judgment for that of the fact finder. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (in conducting legal sufficiency analysis, appellate court "may not re-weigh the evidence and substitute [its] judgment for that of the jury"). All evidence, whether properly or improperly admitted, will be considered when reviewing the sufficiency of the evidence. See McDaniel v. Brown, 130 S.Ct. 665, 672 (2010); Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); Jackson, 443 U.S. at 319. To establish that appellant was guilty of aggravated sexual assault as charged in the indictment, the State was required to prove he: (1) intentionally or knowingly caused the penetration of another person's mouth by his sexual organ without that person's consent; and (2) used or exhibited a deadly weapon in the course of the same criminal episode. See Tex. Penal Code Ann. § 22.021(a)(1)(A)(ii), (a)(2)(A)(iv) (West 2011). The uncorroborated testimony of the victim alone is sufficient to support a conviction for aggravated sexual assault, as long as the victim tells someone other than the defendant within a year of the attack. See Tex. Code Crim. Proc. Ann. art. 38.07 (a) (West 2005); Quincy v. State, 304 S.W.3d 489, 497 (Tex. App.-Amarillo 2009, no pet.).
Here, Jane Smith, the victim, testified that she was home late one evening watching television in her pajamas when the door leading from the back porch to the living room exploded and a dark figure carrying a sawed-off shotgun broke through the glass and headed toward her on the couch. The figure had a black jacket on, and although he had a bandanna covering part of his face, Smith could tell that he was a black male. The man grabbed her by the hair, forced her to the dressing area of the master bathroom, and demanded that she dump out the contents of her purse. Smith relinquished her ATM card and pin number, as well as cash. The man then took Smith into her daughter's bathroom and forced her to lie in the bathtub while he rummaged through the house. When he returned, he dragged Smith by her hair to the master bedroom and forced her to sit on the bed in front of him. Smith testified that she could smell the man's strong cologne. Holding the shotgun, the man demanded that Smith perform oral sex on him, and told her "if you bite my . . . I'm going to blow your head off." Smith feared she would be shot if she refused, so she complied. Smith hoped to preserve some DNA evidence if she survived the attack, so when the man ejaculated, she let a little bit of his semen drip onto her pajama pants. After Smith spit the remaining semen into the bathroom sink, the man forced her to rinse with mouthwash.
In the indictment and through the trial the victim elected to conceal her identity by using the pseudonym "Jane Smith."
Smith further testified that the man then bound her hands painfully behind her back with zip ties he brought with him, stuffed a sock in her mouth and duct-taped it in place, and laid her on the bed with a pillow over her face. Smith could hear the man rummaging through the kitchen, and then without warning, he returned to the bedroom and stabbed her in the stomach three times. Smith pretended to be dead when the man checked her for signs of life. The man removed the duct tape and sock from her mouth and she heard the front door open and close.
After waiting a few minutes, Smith went into the kitchen to try to cut the zip ties off her wrists. When she failed, she started out her front door to get help from a neighbor, but was suddenly face-to-face with the man, who pushed her down in the foyer, and stabbed her twice more. The man then locked the front door behind him and left. After waiting about forty-five minutes to make sure the man was gone, Smith struggled to her neighbors' apartment and slammed her body against the door to summon help. When they opened the door, Smith told the neighbors that a man broke into her apartment, sexually assaulted her, and stabbed her.
Smith was taken to the hospital, and when she arrived, she told the hospital staff that there was DNA evidence on her pajama pants. A doctor also collected specimens from Smith's vaginal area, mouth, hair, and fingernails and placed them in a sexual assault kit.
After undergoing surgery, Smith was interviewed by Detective Olga Chavez and recounted the details of the crime. Although Smith was certain about what had occurred, she was still groggy from the surgery, seemed a little confused about the chronological order of events, and could not remember the attacker's face.
Smith subsequently met with Detective Chavez and a sketch artist to undergo forensic hypnosis. Following the session, Smith assisted in the creation of a composite sketch of the attacker, whom she described as around six feet tall, strong, athletically built, in his late twenties or thirties, with a narrow face, "shaved," buzz-cut hair, and very memorable eyes. Detective Chavez testified that when the sketch was completed, Smith stated "He resembles that person." Smith identified appellant as her assailant at trial, and stated she was certain the man who stabbed her was the same man who forced her to perform oral sex. Smith further testified that there was only one man in the apartment that evening.
On cross-examination, Smith admitted she was unable to pick appellant's picture out of a photo line-up one year after the attack. She explained that she felt appellant's picture was among the array she was provided, but she could not identify him with one hundred per cent certainty. Smith also testified that she did not recall telling the doctor who hypnotized her that all she could recall were the attacker's large dark arms in front of her face. She also did not recall telling anyone that he wore a blue bandana or that she thought he had on a white t-shirt. She did recall telling the police that her attacker had straight white teeth with no gap. She also testified that she told the police the man smelled like cologne and cigarette smoke.
The state points out, and we agree, that Smith's testimony alone is sufficient to support a conviction. See Tex. Code Crim. Proc. Ann. art. 38.07(a). But there was significant other evidence in addition to the victim's testimony. For example, appellant's DNA was found on Smith's pajama pants and in the oral swab taken at the hospital. A DPS expert testified that the probability of the DNA on Smith's pajama pants coming from a black male other than appellant was 1 in 16.96 "billion billions," and 1 in 70.42 million for the sample taken from appellant's mouth. The jury was shown photographic evidence of a hooded man using Smith's ATM card the morning after the attack. Appellant's cell phone records placed him near Smith's apartment before the attack, and near the ATM the next morning. A second victim identified appellant as her attacker in a similar sexual assault that took place two years before this offense. Testimony from investigators and photographs of the scene corroborated Smith's testimony about the details of the crime, including the broken glass in the back patio door, the contents of Smith's purse scattered in the bathroom, zip ties, duct tape, mouthwash, blood evidence on the mattress where she was first stabbed, and blood evidence in the foyer where she was stabbed again. Smith's neighbors testified about Smith's injuries and what she told them about the attack when she appeared at their door for help. The medical examiner testified that Smith injuries were caused by a deadly weapon.
The crux of appellant's sufficiency challenge appears to center around the proof of his identity as the attacker. In support of his argument, appellant points to alleged inconsistencies in Smith's description of her attacker, the fact that the male figure in the ATM photos could not be identified, lack of any physical evidence found in appellant's possession, testimony from appellant's cousin that appellant did not fit the description of Smith's assailant, and the fact that appellant was the only black male seated at the defense table when Smith and the other victim identified him in court. We are not persuaded by this argument.
Although appellant offered evidence to counter Smith's description of her attacker, this evidence did not eliminate appellant as the perpetrator. Moreover, the jury was free to believe or disbelieve any witness. See Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998). The jury may reasonably infer facts from the evidence presented, credit the witnesses it chooses to, disbelieve any or all of the evidence or testimony proffered, and weigh the evidence as it sees fit. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). Indeed, reconciliation of conflicts in the evidence is within the jury's discretion and such conflicts alone will not call for reversal if there is enough credible evidence to support a conviction. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986). On this record, we conclude the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that appellant was guilty of an aggravated sexual assault on Smith. Appellant's first issue is overruled.
Motion to Suppress
In his third issue, appellant argues the trial court erred in denying his motion to suppress DNA evidence because certain facts were omitted from the probable cause affidavit supporting the warrant and these omissions "amount to a reckless disregard for the truth." Appellant further asserts, without analysis or explanation, that "the remaining allegations in the affidavit fail to provide sufficient probable cause for the issuance of the search warrant in order to comply with the discussed procedural and evidentiary tests enunciated in Harris and Cates." Regardless of whether we construe appellant's argument as a general challenge to probable cause or a complaint that the addition of the omitted facts would have rendered the affidavit insufficient to support the magistrate's probable cause finding under Franks, appellant's argument fails.
On appeal, appellant appears to complain about all of the DNA evidence - that which was obtained from both the pajama pants and the buccal swab. The only DNA evidence seized pursuant to the warrant, however, was that obtained from the buccal swab. Moreover, appellant did not seek to suppress the DNA evidence from the pajama pants in the court below. Our review is limited accordingly. See Tex. R. App. P. 33.1.
See Franks v. Delaware, 438 U.S. 154, 156 (1978). At a Franks hearing, it is the defendant's burden to prove the alleged perjury or reckless disregard for truth by a preponderance of the evidence. Id. If the defendant satisfies this burden, and if, with the false material set aside, the remainder of the affidavit is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit. Id. See also Cates v. State, 120 S.W.3d 352, 356 (Tex. Crim. App. 2003).
The cornerstone of the Fourth Amendment and its Texas equivalent is that a magistrate should not issue a search warrant without probable cause. See U. S. Const. Amend IV; Tex. Const. art. I, § 9. Because of our constitutional preference for searches to be conducted pursuant to a warrant, review of a magistrate's decision to issue a warrant is afforded great deference. See Rodriguez v. State, 232 S.W.3d 55, 61 (Tex. Crim. App. 2007) (citing Illinois v. Gates, 462 U.S. 213, 236 (1983)). Probable cause for a search warrant exists if, under the totality of the circumstances presented to a magistrate in an affidavit, there is at least a "fair probability" or "substantial chance" that contraband or evidence of a crime will be found at the specified location. Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010) (quoting Gates, 462 U.S. at 238). No magical formula exists for determining whether an affidavit provides a substantial basis for a magistrate's probable cause determination. Tolentino v. State, 638 S.W.2d 499, 501 (Tex. Crim. App. [Panel op.] 1982). Indeed, "fair probability" is a flexible and nondemanding standard. See Rodriguez v. State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007). Thus, when a court reviews an issuing magistrate's determination, the court should interpret the affidavit in a commonsense and realistic manner, recognizing that the magistrate may draw reasonable inferences. Davis v. State, 202 S.W.3d 149, 154 (Tex. Crim. App. 2006). When in doubt, we defer to all reasonable inferences that the magistrate could have made. State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011).
Appellant does not specifically identify the factual omissions he claims rendered the affidavit "misleading," but instead refers us to "the same factual omissions argued in the trial court." Having reviewed the record, we construe appellant's complaint as premised on the the fact that the following facts were not included in the search warrant affidavit:
*In February 2008, appellant was questioned by police and told them he owned a shotgun but pawned it in July 2006, and the police verified this fact;
*When the police searched appellant's car, they did not find a shotgun, zip ties, duct tape, or clothing matching the victim's attacker, but did find appellant's legally registered Glock;
*The victim was unable to pick appellant from a photo lineup in March 2008;
*Investigators obtained DNA from appellant's cousin and a partial profile from a soft drink can in the apartment where appellant lived with his girlfriend and her son; and
*Police requested a buccal swab from appellant in February 2008.
We consider the complained-of omissions in the context of the affidavit itself. The affidavit provides a detailed description of the aggravated sexual assault on Smith and the collection of her pajama pants and other evidence at the hospital. The affidavit states that DNA lab testing on the semen found on the pajama pants and oral smear slides produced an unknown DNA profile. When this profile was entered into the Combined DNA Index System ("CODIS"), it matched the DNA profile from cases in Irving and Dallas. On April 3, 2008, appellant was arrested on an unrelated charge and buccal swabs were taken from him for comparison to the DNA profile from Dallas and Irving. Two days later, Irving police notified the affiant that Southwestern Institute for Forensic Sciences "("SWIFS") testing found that appellant's DNA profile taken from the pajama pants matched the Dallas and Irving profile. Thus, the affiant requested appellant's buccal swab for comparison to the unknown DNA profile in this case.
Turning now to whether the complained-of omissions rendered the affidavit insufficient under Franks, we note that neither the United States Supreme Court nor the Texas Court of Criminal Appeals have expressly concluded that Franks applies to omissions as well as false statements. However, in Renteria v. State, 206 S.W.3d 689, 704 (Tex. Crim. App. 2006) , the court of criminal appeals assumed Franks applies to omissions, but concluded that even if information omitted from the affidavit had been included, the magistrate still would have had probable cause to issue the warrant. Id.; but see Massey v. State, 933 S.W.2d 141, 146 n. 3 (Tex. Crim. App. 1996) ("This court has indicated that we might not recognize application of Franks to omissions of fact.").
Here, we need not determine the applicability of Franks to our review. Even if a Franks analysis is appropriate, appellant failed to make a preliminary showing in the court below that any of the omitted facts were recklessly omitted or material. On its face, the warrant is sufficient to establish probable cause. And our conclusion does not change if we apply the Renteria court's assumption that Franks applies to omissions. Even if the omitted facts had been included in the affidavit, it would not have given the magistrate reason to believe other statements in the affidavit were false, or to doubt the affiant's good faith. See Renteria, 206 S.W.3d at 704. Therefore, we conclude the trial court did not err in refusing to suppress the fruits of the search. Appellant's third issue is overruled.
Evidence of Extraneous Offense
In his second issue, appellant maintains the trial court erred in overruling his objection to evidence of an extraneous offense offered at the guilt-innocence phase of trial. Specifically, appellant complains about the trial court allowing the testimony of Kathy Smith, another sexual assault victim who identified appellant as her attacker. The state responds that the trial court did not err in allowing the state to present evidence of a similar sexual assault committed by appellant because appellant raised the issue of his identity. In the alternative, the state asserts that any error was harmless.
At the conclusion of his argument, appellant also generally asserts, without argument, authority, analysis, or citations to the record that the admission of this evidence violated his constitutional right to due process and a fair trial. This argument is waived because it was not raised in the court below and is inadequately briefed on appeal. See Tex. R. App. P. 33.1,38.
We review a trial court's admission of extraneous offense evidence under an abuse of discretion standard. Page v. State, 137 S.W.3d 75, 78 (Tex. Crim. App. 2004); Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996); Blackwell v. State, 193 S.W.3d 1, 8 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd). As long as the trial court's ruling was within the "zone of reasonable disagreement," there is no abuse of discretion, and the ruling must be upheld. Thomas v. State, 126 S.W.3d 138, 143 (Tex. App-Houston [1st Dist.] 2003, pet. ref'd).
Rule 404(b) prohibits the introduction of extraneous offenses to show character conformity. Tex. R. Evid. 404(b); Page, 137 S.W.3d at 78; Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003). Extraneous offense evidence may be admissible, however, when relevant beyond character conformity, to show, for example, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Moses, 105 S.W.3d at 626. An extraneous offense may be admissible to prove identity only when the identity of the perpetrator is at issue in the case. Page v. State, 213 S.W.3d 332, 336 (Tex. Crim. App. 2006); Lane, 933 S.W.2d at 519.
Evidence of a defendant's particular modus operandi is a recognized exception to the general rule precluding extraneous offense evidence, if the modus operandi evidence tends to prove a material fact at issue, other than propensity. Owens v. State, 827 S.W.2d 911, 915 (Tex. Crim. App. 1992). When extraneous offense evidence is introduced to prove identity by comparing common characteristics, the evidence must be so similar to the charged offense that the offenses illustrate the defendant's "distinctive and idiosyncratic manner of committing criminal acts." Page, 213 S.W.3d at 336 (quoting Martin v. State, 173 S.W.3d 463, 468 (Tex. Crim. App. 2005); Owens, 827 S.W.2d at 915.
Appellant insists that Smith was not impeached on a material detail of the identification, and the extraneous offense lacked sufficient characteristics in common with the charged offense. We disagree with both contentions.
The record reflects that appellant attempted to impeach Smith by eliciting a number of admissions challenging the certitude of her identification of appellant as her attacker. For example, Smith admitted that she did not remember some details of the attack when she was at the hospital, and failed to identify anyone in the photographic line-up. Smith also admitted that she was not looking at her attacker during the sexual assault, when he was rummaging through her apartment, and when he stabbed her on the bed. Counsel attempted to undermine Smith's perception that appellant was alone by eliciting testimony that she initially believed there were two people in the apartment. Smith was further questioned about the lighting in each room and her inability to identify appellant prior to being hypnotized. Defense counsel also challenged Smith about her statement that the man was dressed all in black with another statement she made that the intruder had on a white t-shirt at some point. Counsel also suggested Smith never told the police about a blue bandana.
Defense counsel also called Anthony Hardridge, appellant's cousin, to contradict Smith's description of appellant's appearance. Hardridge disputed that appellant's haircut appeared "almost bald" at the time of the attack, and further testified that appellant did not have "straight, white teeth with no gaps." Hardridge claimed he had never known appellant to smoke, or smell like cigarette smoke, and said the composite sketch looked nothing like appellant. Finally, Hardridge testified that he had never seen appellant or any of his friends with the clothing worn by the man in the bank ATM photos. During the cross-examination of Detective Chavez, defense counsel attempted to cast doubt on the reliability of the DNA evidence. In particular, counsel suggested that the police could have planted the pajama pants at the hospital.
There is no question that these attempts to cast doubt on Smith's ability to observe and recall her attacker, as well as the challenge to the validity if the DNA evidence raised the issue of identity. Appellant's characterization of the evidence as "not material" is misplaced. Because these details were relevant to the reliability of the identification, they were material. See Page v. State, 137 S.W.3d 75, 79 (Tex. Crim. App. 2004).
Having reviewed the testimony, we further conclude that the characteristics of the attack on Kathy Smith ("Kathy") were sufficiently similar to the attack on Smith. Kathy testified that like Smith, she is a single woman who lives alone in an apartment. Her attacker was a black male about six feet tall in his late twenties or early thirties who broke in through the back patio door in the early morning hours. Kathy's attacker threatened her with a sawed- off shotgun and placed her face-down on the bed with her face in a pillow and her hands behind her back. Her attacker made her sit in the floor while he rummaged through her purse, and made her stay in the bathtub while he searched the apartment. Kathy was forced to perform oral sex, and her attacker threatened to blow her head off if she bit down. Like Smith's attacker, Kathy's attacker demanded her ATM card. Also like Smith, Kathy identified appellant as her attacker.
As we previously noted, defense counsel challenged the state's evidence concerning identity on a number of fronts. Because the extraneous offense testimony was probative of appellant's identity, and the combined force of the common characteristics of the two offenses demonstrated a distinctive pattern, we cannot conclude the trial court's decision to admit the extraneous offense evidence was outside the zone of reasonable disagreement. See Page, 213 S.W.3d at 337-38. Appellant's second issue is overruled.
Cumulative Sentencing
In his fourth issue, appellant contends the imposition of a cumulative sentence denied him of due process of law under the United States and Texas constitutions. He further complains that the statutes pertaining to cumulative sentencing are unconstitutional because they fail to require notice of the court's intent to cumulate the sentences or an opportunity to contest the court's determination. See Tex. Code Crim. Proc. Ann. art. 42.08 (West Supp. 2011); Tex. Penal Code Ann. § 3.03 (West Supp. 2011). But neither the claim that appellant was denied his right to due process nor the facial challenge to the constitutionality of the statue have been preserved for our review.
In a single sentence at the conclusion of his argument, appellant also states "the evidence of any prior conviction is legally insufficient to support the entry of the . . . order." This argument is waived because it is inadequately briefed. See Tex. R. App. P. 38.
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It is well established that almost every right, constitutional and statutory, may be waived by failure to object. See Solis v. State, 945 S.W.2d 300, 301 (Tex. App.-Houston [1st Dist.] 1997, pet. ref'd); see also Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009) (defendant cannot raise facial challenge to constitutionality of statute for first time on appeal). To preserve a complaint for appellate review, a party must present to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling. Tex. R. App. P. 33.1(a); Saldano v. State, 70 S.W.3d 873, 886-87 (Tex. Crim. App. 2002). Here, appellant did not object to his sentence on due process or any other grounds at the time it was imposed, and he did not raise his arguments in a post-trial motion. Despite appellant's characterization of the sentencing as "ex parte," the record reflects that appellant and his counsel were both present when the court imposed the sentence and ordered that it be served cumulatively with appellant's prior convictions in Dallas County. Having failed to object, appellant cannot now complain that the punishment violates his constitutional rights. See Marrow v. State, 169 S.W.3d 328, 329-30 (Tex. App.-Waco 2005, pet. ref'd) (concluding appellant failed to preserve argument that cumulation of sentences violated due process).
Appellant's fourth issue is overruled.
Reformation of the Judgment
In a cross-point, the State requests that we reform the judgment to correctly identify the judge presiding over the trial of this matter. This court has the power and even a duty to correct a clerical error on a judgment form to properly reflect what occurred in the trial court as shown by the record. Tex. R. App. P. 43.2 (b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992). The judgment states that the Honorable Robert T. Dry, Jr. presided over the trial, but the record reflects that the Honorable Webb Biard was the judge who actually presided. Therefore, we sustain the state's cross-point and reform the judgment to reflect that the Honorable Webb Biard presided over the trial of this case. As reformed, the trial court's judgment is affirmed.
MARTIN RICHTER
JUSTICE
Do Not Publish
Tex. R. App. P. 47
101223F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
STANLEY VERNELL LEDBETTER,JR., Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-00122-CR
Appeal from the 199th Judicial District Court of Collin County, Texas. (Tr.Ct.No. 199- 81661-10).
Opinion delivered by Justice Richter, Justices FitzGerald and Lang-Miers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered February 24, 2012.
MARTIN RICHTER
JUSTICE