Opinion
A-13153
06-30-2021
JOSEPH C. CLARK, Appellant, v. STATE OF ALASKA, Appellee.
Laurence Blakely (opening brief) and Emily Jura (reply brief), Assistant Public Defenders, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, First Judicial District, Prince of Wales, Trial Court No. 1PW-17-00081 CR David V. George, Judge.
Laurence Blakely (opening brief) and Emily Jura (reply brief), Assistant Public Defenders, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
MEMORANDUM OPINION
ALLARD, JUDGE
Joseph C. Clark was convicted, following a jury trial, of two counts of possessing child pornography after he solicited and received two sexually explicit photographs from a seventeen-year-old neighbor, T. S. Clark raises three claims of error on appeal.
AS 11.61.127(a).
First, Clark argues that the trial court erred when it refused to admit an out-of-court hearsay statement by Clark's former girlfriend. Clark asserts that his former girlfriend was unavailable as a witness and that the statement was admissible under Alaska Evidence Rule 804(b)(3) as a statement against penal interest. Because we conclude that Clark failed to lay a proper foundation for this hearsay exception, we find no error in the exclusion of this evidence.
Second, Clark argues that the trial court erred when it allowed the prosecutor to reopen the State's case after Clark moved for a judgment of acquittal. For the reasons explained here, we find no abuse of discretion.
See Miller v. State, 462 P.2d421, 428 (Alaska 1969); S.R.D. v. State, 820 P.2d 1088, 1091 (Alaska App. 1991).
Lastly, Clark argues that there was insufficient evidence that he was aware that T.S. was under eighteen years of age at the time he solicited the sexually explicit images. Viewing the evidence in the light most favorable to upholding the jury's verdict, we conclude that the evidence was sufficient to support Clark's convictions.
Dailey v. State, 65 P.3d 891, 898 (Alaska App. 2003).
Background facts
In early August of 2016, Clark's live-in girlfriend, Barbara Dexter, exchanged sexually explicit messages via Facebook Messenger with a seventeen-year -old next door neighbor, T.S. In these messages, T.S. expressed sexual interest in Clark, who was fifty-six years old. Dexter encouraged T.S. to "friend" Clark on Facebook and message him.
It is unclear exactly when these messages were sent because they were not date stamped. In a later discussion the parties agreed the messages were sent in early August.
T. S. added Clark as a friend on Facebook and they began messaging. Their conversations quickly turned sexual. During one explicit discussion regarding performing oral sex on each other, Clark asked T.S., "When is your birthday[?]" and T.S. responded, "[T]he 18[th] of [O]ctober." Clark did not ask T.S. how old she would be.
In a later conversation, Clark asked T.S., "What is your family going to think of you crushing on me?" T.S. responded that her family did not know, and Clark replied, "That is best for now." On a few occasions, Clark and T.S. unsuccessfully attempted Facebook audio and video calls.
On September 11, during one of their messaging conversations, T.S. requested photos of Clark's penis. In response, Clark requested photographs of T.S.'s breasts and genitals. T.S. and Clark exchanged photos of their genitalia.
A few days later, T. S.' s aunt discovered the messages and confronted Clark. Clark minimized his conduct, claiming that T.S. "kept sending [messages]" and that he "didn't like her doing it" and that he only sent messages back in the hopes that "she would stop." The aunt reported the messages to T. S.' s school and the police. The police later interviewed Clark, and audio of that interview was played for the jury. In the interview, Clark admitted to messaging T.S., but claimed that she told him that she was eighteen and not in school. Clark also admitted to inviting T.S. over to discuss having sex with him. Clark told the police that he deleted the photographs as soon as he received them and that he later deleted the conversation with T.S. (The prosecutor obtained a copy of the messages and photographs through T.S.'s account.)
Clark was subsequently indicted on two counts of possessing child pornography. To prove each charge, the State had to establish that (1) Clark possessed a sexually explicit image of T.S.'s genitalia; (2) T.S. was under eighteen at the time the image was taken; and (3) Clark possessed the image knowing that T.S. was under eighteen at the time the image was taken.
.See AS 11.61.127(a) and AS 11.41.455(a)(6).
At trial, the State introduced evidence establishing that T.S. and Clark had been neighbors for six or seven years, and Clark had seen T.S. grow up. At the time of the Facebook messaging, Clark worked at T.S.'s school as a night custodian. He had previously worked for the school as a special education aide for two male students. T.S. was a special education student, although she did not work directly with Clark. There were only about 130 students in the school, and T.S. testified that she had seen Clark at school dropping off his son.
At trial, Clark's attorney argued that Clark did not know that T.S. was under eighteen years old. Clark's attorney also argued that Barbara Dexter (Clark's former girlfriend) had access to his Facebook account and that she may have been the one who messaged T.S. and solicited the sexually explicit photographs.
The jury rejected these arguments and convicted Clark of two counts of possessing child pornography. This appeal followed.
Clark's argument that the trial court erred when it excluded an out-of-court statement by Clark's former girlfriend, who Clark claimed was unavailable as a witness
On the third day of trial, Clark moved to introduce an out-of-court statement by Dexter in which Dexter reportedly told a third person that she had "set [Clark] up." There were very few details offered regarding the context in which this was said. Clark's attorney asserted that there was a witness, Sherry Preston, who was expected to testify that, after Clark's arrest, Dexter said to her that "she had set Joe up and that she [had] done her part in a plan with someone else." Clark's attorney had no other details to provide to the court about this statement.
Clark's attorney argued that this out-of-court statement was admissible under Alaska Evidence Rule 804(b)(3) as a statement against penal interest because Dexter was unavailable.
Alaska Evidence Rule 804(b)(3) provides that a statement against penal interest is admissible as evidence if the declarant is unavailable as a witness. A declarant is unavailable for purposes of Evidence Rule 804 if, inter alia, the declarant "is absent from the hearing and the proponent of the declarant's statement has been unable to procure the declarant's attendance ... by reasonable means including process." A statement is considered against a declarant's penal interest if, at the time of the making, the statement "so far tended to subject the declarant to . . . criminal liability," that "a reasonable person in the declarant's position would not have made the statement unless believing it to be true." But, "[a] statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement."
Id.
Clark's attorney argued that there were corroborating circumstances that indicated the trustworthiness of the statement because there was evidence that Dexter had access to Clark's Facebook account and that Dexter had tried (but failed) to obtain naked photos of T. S. by messaging her directly. Clark's attorney also asserted that Dexter "has avoided service of subpoena."
The trial court questioned Clark's attorney about the efforts that had been made to try to secure Dexter's appearance. Clark's attorney explained:
We sent a subpoena to the area where she lives in Sitka. We've gone through both the troopers and the police department to try to get that served on her for the last three weeks. We've tried to contact her via Facebook and tried every last known number for her during that period. We also tried to call her sister, phone calls have not been returned.
When questioned about where the sister was located, Clark's attorney stated that she did not have that information.
The prosecutor objected to the introduction of Dexter's out-of-court statement, arguing that the defense attorney's efforts were insufficient to show that Dexter was unavailable. The prosecutor also argued that there was insufficient corroborating circumstances to indicate the statement's trustworthiness.
The trial court sustained the prosecutor's objection, finding that the defense attorney had failed to show that Dexter was actually unavailable.
On appeal, Clark argues that the trial court abused its discretion in excluding Dexter's alleged out-of-court statement. Clark differentiates his case from other cases where Alaska's appellate courts have found a lack of diligence in trying to secure the witness's appearance. Clark argues that his trial attorney demonstrated due diligence by enlisting the troopers and local police in trying to serve a subpoena on Dexter, and making attempts to contact Dexter's sister to track down Dexter.
See Morton v. State, 684 P.2d 144, 146 (Alaska App. 1984) (reviewing trial court's exclusion of hearsay statement for abuse of discretion).
See Wahl v. State, 441 P.3d424, 430-31 (Alaska 2019) (upholding trial court's finding of lack of due diligence where defendant failed to enlist local police and failed to use the Uniform Act procedures); Morton, 684 P.2d at 145-47 (upholding trial court's finding of lack of due diligence where defendant failed to enlist state assistance or use the Uniform Act procedures).
In response, the State acknowledges that the resources available to defendants are not equal to those available to the State. But the State argues that the trial court did not err in finding a lack of due diligence because Clark's attorney never enlisted the prosecutor's office or the court in trying to subpoena Dexter, and the attorney did not raise the issue of Dexter's unavailability until trial was already well under way. The State also points out that there were no details provided about what efforts the troopers and local police made to subpoena Dexter, and the defense attorney provided no witnesses to testify to the thoroughness of their investigation.
Morton, 684 P.2d at 147 (noting that the resources available to a defendant "are not equal to those available to the state" and that a defendant is not "under a duty to disclose his theory of the case, or possible witnesses supporting that theory, to the state in advance of trial").
We have reviewed the record and we tend to agree with the State that Clark's attorney failed to demonstrate due diligence in trying to secure Dexter's appearance for trial. But we conclude that we need not resolve this question definitively because we agree with the State's alternative argument for affirming the trial court's decision.
The State argues that, even assuming Dexter had been shown to be unavailable, the out-of-court statement would still be inadmissible because it was too vague to qualify as a statement against penal interest and there were insufficient corroborating circumstances indicating its reliability. We agree with this argument. As the State points out, it is not clear what Dexter meant when she said that she "set [Clark] up." Nor is it clear that this statement meant anything other than Dexter's acknowledgment that she actively encouraged T.S. to message Clark, knowing that T.S. was sexually interested in Clark - facts that the jury was already well aware of and that did not necessarily expose Dexter to any criminal liability. Clark argues that the statement could have meant that Dexter had lied to Clark about T. S.' s age or that Dexter had posed as Clark and solicited the sexually explicit photographs from T.S. But, without further context or corroborating circumstances, there is no reason to believe that this is what Dexter meant.
As already explained, a statement qualifies as a statement against penal interest only if it "so far tended to subject the declarant to ... criminal liability," that "a reasonable person in the declarant's position would not have made the statement unless believing it to be true." In addition, "[a] statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement." We agree with the State that these requirements were not met here. Accordingly, we find no error in the trial court's exclusion of Dexter's hearsay statement.
Id.
Clark's argument that the trial court erred when it allowed the State to reopen evidence following Clark's motion for judgment of acquittal
After the prosecution rested, Clark moved for a judgment of acquittal. In the motion for judgment of acquittal, Clark argued that the State had failed to introduce evidence of T.S.'s age and had therefore failed to prove one of the elements of the crime - that T.S. was under eighteen years old at the time the photographs were taken. In response, the prosecutor requested to reopen evidence so that he could elicit this testimony from T.S. The trial court granted this request, concluding that it was within its discretion to do so because the defense would not be surprised by this testimony and no further preparation was needed to meet the testimony. The trial court noted that T. S.' s age was essentially uncontested and the prosecutor's failure to elicit that evidence was obviously inadvertent. The prosecutor then recalled T.S. as a witness so that she could testify to her exact birth date.
See AS 11.61.127(a) ("A person commits the crime of possession of child pornography if the person knowingly possesses . . . with intent to view any material that visually depicts conduct described in AS 11.41.455(a) knowing that the production of the material involved the use of a child under 18 years of age who engaged in the conduct.").
See Miller v. State, 462 P.2d 421, 428 (Alaska 1969).
On appeal, Clark argues that it was error for the trial court to allow the prosecutor to reopen evidence because the prosecutor's motion to reopen was made in response to a defense motion for judgment of acquittal. Clark acknowledges that Alaska law grants trial courts "broad discretion" in deciding whether to allow a party to reopen after it has rested. But Clark argues that this discretion should be curtailed when the prosecutor's motion to reopen is made in response to a deficiency in proof identified by a defendant's motion for judgment of acquittal. Specifically, Clark argues that we should follow the rule adopted by the Connecticut Supreme Court in State v. Allen.
See S.R.D. v. State, 820 P.2d 1088, 1091 (Alaska App. 1991); Miller, 462 P.2d at 428 (holding that a trial court has "large discretion" in this area (quoting Massey v. United States, 358 F.2d782, 786 (10th Cir. 1966))); Shaw v. Anchorage, 1989 WL 1595107, at *2 (Alaska App. July 26, 1989) (unpublished) (citing Miller, supra, for the proposition that a trial court has "wide discretion" in this area).
State v. Allen, 533 A.2d 559 (Conn. 1987).
In Allen, the Connecticut Supreme Court held that:
[W]hen the state has failed to make out a prima facie case because insufficient evidence has been introduced concerning an essential element of a crime and the defendant has specifically identified this evidentiary gap in a motion for judgment of acquittal, it is an abuse of the trial court's discretion to permit a reopening of the case to supply the missing evidence.
Id. at 566.
The Connecticut Supreme Court adopted this rule in response to what it perceived as the unfairness of the State being allowed to reopen its case to remedy a deficiency in proof that had been identified by the defendant in a pre-verdict motion for judgment of acquittal. The court noted that, in such circumstances, the defendant is "effectively victimized by his own diligence" in bringing a pre-verdict motion for judgment of acquittal because if the defendant had "remained silent until after the verdict had been rendered, the omission of this evidence would have required a judgment of acquittal either in the trial court or on appeal."
Id. at 562.
Many courts that have considered the Allen rule have declined to adopt it. In State v. Thomas, for example, the Minnesota Supreme Court rejected the Allen rule, describing the rule as a "rigid, per se rule" that would promote "a sort of 'gotcha' principle of law." Thomas involved a situation in which the State had inadvertently forgotten to offer certified copies of the defendant's prior driving under the influence convictions in a gross-misdemeanor driving under the influence prosecution. After the defendant moved for a judgment of acquittal on this ground, the prosecutor asked to reopen her case, noting that she had the certified copies of the convictions "here." The trial court granted the prosecutor's request, finding that the omission was inadvertent and that the defendant had "ample notice that evidence of his prior impaired driving incidents would be part of the case against him." The Minnesota Supreme Court affirmed this ruling as within the trial court's discretion, concluding that the Allen approach was inconsistent with Minnesota's rules of criminal procedure and that it would "penalize the State for an oversight when the evidence is material, known by both parties, readily at hand, and presentable in only a few minutes."
See State v. Thomas, 891N. W.2d 612, 618-19 (Minn. 2017) (rejecting the Allen rule); People v. Whitfield, 573 N.E.2d 1267, 1275 (Ill.App. 1991) (declining to adopt the Allen rule); State v. Long, 814 N.W.2d 572, 578, 580 (Iowa 2012) (declining to adopt the Allen rule, but noting "[i]f the State needed to reopen the record to make its prima facie case, then an abuse of discretion becomes more likely"); Dyson v. State, 599 A.2d 832, 834-35 (Md.App. 1991), rev'd on other grounds, 615 A.2d 1182 (Md. 1992) (noting the Allen approach and later summarizing Maryland's differing approach); State v. Jimmo, 2011 WL 4979414, at *2 (Vt. Apr. 21, 2011) (unpublished) (noting the Allen approach but permitting reopening post-motion for judgment of acquittal to cure technical defect where evidence merely needed to be clarified); but see Lyle v. State, 987 So.2d 948, 951 (Miss. 2008) (endorsing the Allen rule); Burton v. State, 596 So.2d 733, 735 (Fla. App. 1992) (relying on the Allen reasoning to bar reopening after the trial court granted a judgment of acquittal due to insufficient evidence). We also note that the Connecticut Supreme Court has stated that Allen was "implicitly . . . limited to its facts." State v. Freeman, 77 A.3d 745, 746 (Conn. 2013).
Thomas, 891 N.W.2d at 619 (quoting People v. Whipple, 760 N.E.2d 337, 340 (N.Y. 2001)).
Id. at 614-15.
Id. at 615, 619.
Id. at 619.
We agree with the reasoning of the Minnesota Supreme Court and we likewise conclude that adopting the Allen rule would be inconsistent with our existing case law. In Miller v. State, the Alaska Supreme Court recognized the trial court's "large discretion" in ruling on a prosecutor's motion to reopen evidence. The supreme court held that it is not an abuse of discretion for the trial court to allow the prosecutor to reopen evidence provided that (1) the defendant is not surprised by the new evidence, (2) the defendant is able to respond to the new evidence without further preparation, and (3) the defendant is not prejudiced by the new evidence. We applied this standard in S.R.D. v. State, and we concluded that the trial court did not abuse its discretion in granting the State's request to reopen its case, even though the request was made in response to the defendant's motion for judgment of acquittal. In reaching this conclusion, we implicitly rejected the notion that the defendant was unfairly prejudiced by the reopening of the evidence to cure the prosecutor's obvious oversight.
See S.R.D., 820 P.2d at 1091; see also Bivins v. State, 2013 WL 2295426, at * 1-4 (Alaska App. May 22, 2013) (unpublished) (finding no error where trial court alerted prosecutor to evidentiary oversight and permitted prosecutor to reopen to cure after the defense had begun to present its case); Shaw v. Anchorage, 1989 WL 1595107, at *l-3 (Alaska App. July 26, 1989) (unpublished) (finding no error where trial court permitted prosecutor to reopen and cure potential "technical" error that the defendant identified in a motion for judgment of acquittal).
Miller v. State, 462 P.2d 421, 427-28 (Alaska 1969) (citing Massey v. United States, 358 F.2d 782, 786 (10th Cir. 1966)).
S.R.D. v. State, 820 P.2d 1088, 1091 (Alaska App. 1991).
Id.
On appeal, Clark argues that S.R.D. was wrongly decided and should be overturned. According to Clark, a defendant is unfairly prejudiced in these circumstances because the defendant is deprived of what might otherwise be a meritorious motion for judgment of acquittal. But Clark's argument rests on the unfounded assumption that neither the prosecutor nor the trial court would have noticed the prosecutor's oversight but for the defendant specifically identifying the oversight through the motion for judgment of acquittal. Indeed, the only way to fairly test such an assumption would be to wait until after the verdict to file the motion for a judgment of acquittal. Moreover, a defendant in Clark's position is not prejudiced by their attorney waiting until after the verdict to move for a judgment of acquittal. The Alaska criminal rules explicitly permit an attorney to raise a post-verdict motion for judgment of acquittal, and they also permit a trial court to defer ruling on a pre-verdict motion for a judgment of acquittal until after the jury has returned its verdict. In other words, when there is an evidentiary oversight based on a prosecutor's inadvertent failure to introduce known and undisputed evidence, a defendant risks very little by waiting until after the jury's verdict to bring a motion for a judgment of acquittal. In contrast, the Allen rule penalizes the State for an inadvertent evidentiary oversight that the prosecutor might very well have recognized and corrected on their own initiative before the close of evidence. Given this, we see no reason to revisit our decision in S.R.D., nor are we persuaded that adopting the Allen rule would do more good than harm. Accordingly, we reaffirm that the decision to allow the State to reopen evidence after the defense moves for a judgment of acquittal is entrusted to the sound discretion of the trial court and will be reviewed only for an abuse of that discretion.
State v. Carlin, 249 P.3d 752, 756 (Alaska 2011) ("We will overturn one of our prior decisions only when we are clearly convinced that the rule was originally erroneous or is no longer sound because of changed conditions, and that more good than harm would result from a departure from precedent." (internal quotation omitted) (citations omitted)).
S.R.D., 820 P.2d at 1091.
We find no abuse of discretion here. As the trial court noted, there was no dispute that T.S. was under eighteen years old at the time the images were taken; instead, the primary dispute was whether Clark was aware of that fact. As the State also points out, there was some evidence of T.S.'s age even before the request to reopen was made. At trial, the jury heard the tape recording of Clark's police interview. In the interview, Clark tells the officer that T.S. told him that she was eighteen years old but that he later learned from the principal at T.S.'s school that she was under eighteen. As the State points out, Clark did not object to this hearsay statement and the jury was therefore entitled to consider it for the truth of the matter - that T.S. was under eighteen years old. Given these circumstances, we find no abuse of discretion in the trial court's decision to allow the prosecutor to briefly reopen the State's case to elicit what was otherwise known and uncontroverted evidence of T.S.'s birth date.
See State v. Parks, 437 P.2d 642, 644 (Alaska 1968).
Clark's argument that there was insufficient evidence to prove that he was aware T.S. was under eighteen years old at the time the photographs were taken
To prove Clark guilty of possessing child pornography under AS 11.61.127(a), the State was required to prove, beyond a reasonable doubt, that (1) Clark possessed a sexually explicit image of T. S.' s genitalia; (2) T. S. was under eighteen at the time the image was taken; and (3) Clark possessed the image knowing that T.S. was under eighteen at the time the image was taken. On appeal, Clark argues that there was insufficient evidence presented at trial to prove that he knew that T.S. was under eighteen years old.
Alaska Statute 11.81.900(a)(2) provides that a person acts "knowingly" with respect to a circumstance such as the age of the victim "when the person is aware . . . that the circumstance exists." In addition, "when knowledge of the existence of particular fact is an element of an offense, that knowledge is established if a person is aware of a substantial probability of its existence, unless the person actually believes it does not exist." The requirement that the defendant be aware of "a substantial probability" that the circumstance exists "covers the situation where a person deliberately avoids acquiring knowledge by closing his eyes (sometimes referred to as wil[l]ful blindness)."
AS 11.81.900(a)(2).
See Commentary to Alaska's Revised Criminal Code, 1978 Senate Journal Supp. No. 47 (June 12), at 141 ("Under the Code, knowledge requires an awareness on the part of the defendant that his conduct is of the nature described by the statute defining the offense or that the circumstances described by the statute exist. The definition also covers the situation where a person deliberately avoids acquiring knowledge by closing his eyes (sometimes referred to as 'wil[l]ful blindness') by providing that 'when knowledge of the existence of a particular fact is an element of an offense, that knowledge is established if a person is aware of a substantial probability of its existence, unless he actually believes it does not exist."').
When we review a claim of insufficiency, we are required to view the evidence presented at trial - and all reasonable inferences that can be drawn from that evidence - in the light most favorable to upholding the verdict. Here, the State relied primarily on circumstantial evidence to establish Clark's knowledge of T.S.'s age. The State introduced evidence establishing that T.S. and Clark had been neighbors for six or seven years, and that Clark had seen T.S. grow up. The State also introduced evidence from the Facebook messages indicating that T.S. was underage. For example, in her messages, T.S. talked about needing to clean her room before coming over and having to ask her aunt's permission before coming over. There was also significant evidence that, despite his assertion to the contrary, Clark knew that T.S. was still in high school. Clark's ex-wife testified to a relatively recent interaction with Clark and T.S. in which T.S. informed them that she was either a junior or a senior in high school. Clark was also working at the school-which had approximately 130 students - as a night custodian, and he had previously worked as an aide to special needs students. (T.S. was a special needs student, although Clark was never her aide.) T.S. also testified to seeing Clark drop his son off at school.
Dailey v. State, 65 P.3d 891, 898 (Alaska App. 2003).
Viewing all of this evidence in the light most favorable to upholding the jury's verdict, we conclude that a fair-minded juror could reasonably find that the State had proved beyond a reasonable doubt that Clark knew T.S. was under eighteen years old, or, at the very least, he was aware of a "substantial probability" of this fact to which he was willfully blind.
See id.
In his reply brief, Clark argues that this Court should require the State to prove that the defendant not only subjectively believed that there was a substantial probability that the circumstance existed, but also that the defendant took deliberate actions to avoid learning that fact. See, e.g., Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 769 (2011) (noting that federal courts of appeal articulate the doctrine of willful blindness in "slightly different ways" but all appear to agree that "(1) the defendant must subjectively believe that there is a high probability that a fact exists and (2) the defendant must take deliberate actions to avoid learning of that fact"); but see United States v. Ramos-Atondo, 732 F.3d 1113, 1119 (9th Cir. 2013) ("A failure to investigate can be a deliberate action."). Because this claim is raised for the first time in the reply brief, we will not address it. See Charliaga v. State, 157 P.3d 1053, 1055-56 (Alaska App. 2007) (arguments raised for the first time in a reply brief are deemed waived) (citations omitted).
Conclusion
The judgment of the superior court is AFFIRMED.