Opinion
D073860
07-11-2018
THE PEOPLE, Plaintiff and Respondent, v. MARIO HERNANDEZ, Defendant and Appellant.
Kristin A. Erickson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor and Laura Baggett, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. FWV1401459) APPEAL from a judgment of the Superior Court of San Bernardino County, Stanford E. Reichert, Judge. Affirmed. Kristin A. Erickson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor and Laura Baggett, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Mario Hernandez of various offenses related to the continuous sexual abuse of a child in his care between September 2011 and February 2014. Because there was no corroborating physical evidence, the prosecution relied heavily on the testimony of the victim and the victim's older brother, who testified he witnessed the abuse on at least one occasion. Hernandez, whose primary defense was to discredit both boys, sought to introduce evidence of several incidents dating back to 2008 or earlier that purportedly showed the brothers had been exposed to sexual conduct at a young age unrelated to Hernandez. Two of the incidents involved the victim and the older brother, and another two involved the older brother and some cousins, but not the victim. The court allowed the defense to question the victim about one incident in which the brother allegedly pulled the victim's pants down when the boys were in the backyard and to ask both boys when and how they learned about sex. The court excluded evidence of the other incidents after concluding the evidence was vague and more prejudicial than probative. Hernandez's sole contention on appeal is that the superior court violated his constitutional right to confront the witnesses against him by excluding additional evidence related to the remaining incidents. We conclude the superior court did not err and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The victim and his brother were removed from the care of their parents at a young age. After several months in foster care, they were placed with extended family members, Hernandez and his wife. The boys moved into the Hernandez home when they were three and four years old, respectively, and Hernandez was in his mid-50's. They lived there for the following seven years. Several other family members lived in the home at various times as well.
Almost immediately after the boys moved in, Hernandez began sexually abusing the victim. The abuse continued throughout the seven years the victim lived with Hernandez and escalated over time. By the time the victim was eight years old, Hernandez was sodomizing him two to three times per week. Hernandez's wife worked the night shift and the abuse would typically occur at night in Hernandez's bedroom while she was at work.
The victim did not tell anyone because he was scared Hernandez would hurt him or his brother and because Hernandez offered him rewards in return for his compliance. Whenever Hernandez gave the victim something he asked for, such as video game privileges, extra food, candy, or signing his homework, he would tell the victim "you owe me," which meant the victim would have to submit to the abuse later that evening.
Over time, the victim's brother noticed Hernandez would give the victim special privileges and that the victim would not get into as much trouble as his brother would for similar conduct. Initially, the brother was jealous because of this, but later he learned that the victim received special treatment because Hernandez was abusing him.
The boys slept in a bonus room separated from Hernandez's bedroom by a glass door with blinds. The brother noticed Hernandez often called the victim into his bedroom at night, after the boys had gone to bed. The brother asked the victim why he went into the room and the victim told him he was "getting humped and stuff." One night, after hearing Hernandez tell the victim to go into his room, the brother got out of bed and laid on the floor to look through the blinds. He saw the victim on the bed and saw Hernandez next to the victim with his pants off and his penis inside the victim. When the victim returned to the room, the brother told him he saw what Hernandez had done. The victim said not to tell anybody because Hernandez would hurt someone if they told.
Victim's Disclosure of the Abuse
The victim disclosed the abuse in April 2014, when he was 10 years old. Some friends at school were teasing him and he got mad and said, "Well, at least you guys don't get molested when you guys go home." His friends told him he should tell, but he said he was scared. One of the friends he told did not understand what the word "molested" meant and asked her mother about it later that day. A discussion ensued and when the mother learned one of her daughter's friends had said he was being molested, she called the school and relayed what her daughter had said.
After receiving the report, the school principal called the victim to her office and asked him if anything was happening at home. At first the victim feared what Hernandez would do if he found out he told, so he asked if he could spell it out and then wrote the word molest on a piece of paper. The victim told the principal that Hernandez had been abusing him since he was three years old. The principal called the police.
Police Officer Lon Teague arrived at the school shortly thereafter and interviewed the victim and his brother. The victim told Officer Teague that Hernandez had been doing bad things to him since he was little; that Hernandez would say, "you owe me" and then would take the victim into his room at night, take his pants off and "stick [his penis] in me." The victim said he did not want it to happen anymore. He also said that Hernandez made him put his mouth on Hernandez's penis on one occasion, and that he had told his brother what was happening. Officer Teague then spoke with the victim's brother and the brother reported that the victim had told him Hernandez "humped him" and that he looked into the room one night and saw Hernandez put his penis into the victim's bottom.
After Hernandez was arrested, he was charged with three counts of sodomy with a child under the age of 10 in violation of Penal Code section 288.7, subdivision (a); one count of oral copulation of a child under the age of 10 in violation of Penal Code section 288.7, subdivision (b); and one count of continuous sexual abuse in violation of Penal Code section 288.5, subdivision (a). Although the victim stated the abuse took place over a seven-year period, the charges related specifically to conduct that occurred between September 2011 and February 2014.
Proceedings Regarding Evidence from 2008 Social Services Report
Beginning with the pretrial proceedings and continuing throughout the trial, Hernandez sought to introduce evidence derived from a sealed report, dated June 26, 2008, from the State of California Health and Welfare Agency, Department of Social Services (2008 report), concerning the welfare of the victim and his brother. Hernandez asserted the evidence was essential to his theory that the victim's brother encouraged the victim to fabricate the allegations because the 2008 report established the brother was highly sexualized and dominant over the victim.
Specifically, Hernandez wanted to cross-examine the victim and his brother about the following four incidents discussed in the 2008 report: (1) the victim's brother pulled the victim's pants down in the backyard; (2) the victim's brother was found lying naked in bed next to the victim, who was asleep; (3) while playing "husband and wife" with his then six-year-old female cousin, the victim's brother kissed the female cousin's chest over her clothes and stated he was going to have sex with her; and (4) the victim's brother saw his seven- and nine-year-old cousins rolling around in the bed naked under the covers. When the social worker asked the brother what "sex" meant, the brother stated it was something grown-ups or sexy people do, but not kids, and that he learned the word from one of his cousins. The brother also indicated Hernandez told him to tell the social worker everything that happened and either to never touch anybody in their private area or to not let anyone touch him in his private area.
The 2008 report itself is not included in the record on appeal and the parties' characterization of its content before the trial court varied. We derive these facts from the record, giving weight to clarifications made by the trial court after its review of the 2008 report. For example, although defense counsel suggested Hernandez told the victim to tell the social worker everything, the trial court clarified on the record that the 2008 report indicated Hernandez made the statement to the brother, and not the victim.
Hernandez initially attempted to introduce this evidence via a pretrial motion pursuant to Evidence Code section 782, which sets forth the procedure the court is to use when determining whether to admit evidence of sexual conduct of the complaining witness offered to attack the credibility of the complaining witness. (See § 782.) The court reviewed the records submitted with the section 782 motion to determine whether the offer of proof Hernandez made was sufficient to require a hearing under section 782, subdivision (a)(2). Because the records related primarily to incidents involving the brother and not the victim, the court made an initial determination that a hearing was not necessary and resealed the records.
All further statutory references are to the Evidence Code unless otherwise specified.
In response, defense counsel pointed out that although the reported incidents primarily related to the brother, two incidents also involved the victim: the brother pulling the victim's pants down and the brother being found naked in bed next to the victim. The court determined there were no facts indicating any sort of sexual activity in either of those incidents and, therefore, section 782 was not applicable. Based on that finding, defense counsel then asserted that since section 782 did not apply, he should be free to question the victim and his brother about the incidents. The prosecutor raised a relevancy objection pursuant to section 352 and the court set the issue aside, with all parties agreeing to discuss it at a later time.
At a subsequent hearing, defense counsel argued the evidence from the 2008 report was relevant insofar as the incidents demonstrated the victim and his brother had knowledge of sexual acts at an early age independent from anything that occurred with Hernandez, and that the statement indicating Hernandez told the brother to tell the social worker everything was exculpatory. The prosecutor countered that the 2008 report contained multiple layers of hearsay; most of the 2008 report pertained to the brother and not the victim; and evidence the brother talked about "sex" at six years old without knowing what it meant was not probative of whether he influenced the victim to lie about the alleged abuse. In addition, the prosecutor represented that she had asked the brother about these events and he did not remember them; she asserted they would, therefore, need to spend a significant amount of time exploring the incidents with additional witnesses.
After hearing argument, the court concluded the evidence at issue was of minimal probative value as it related primarily to the brother and not the victim, was remote in time, and involved incidents that occurred when the children were extremely young. It further concluded that the descriptions of the incidents were vague as to any related sexual conduct and that the prejudicial nature of the evidence therefore outweighed any probative value. Finally, because the incidents occurred eight years prior and the 2008 report contained only vague descriptions, the court determined that permitting introduction of the evidence would likely require a mini-trial regarding the investigation and 2008 report that would result in an undue consumption of time. However, the court stated it was willing to reconsider the ruling based on additional evidence presented as the trial proceeded or if the defendant testified on his own behalf.
Prosecution's Case at Trial
At trial, both the victim and his brother testified. The victim described the abuse, including the details of several specific instances, and explained why he did not disclose the abuse sooner. He described the way the abuse started and recalled that the first encounter began with Hernandez pulling down the victim's pants when he was three years old. Based on that testimony, defense counsel asked the court to reconsider its prior ruling with respect to the incidents in which the victim's brother allegedly pulled down the victim's pants and was caught naked in bed with the victim. Counsel asserted he should be able to test whether the victim remembered the other incidents that occurred when he was four or five years old, and that precluding such questioning would violate the defendant's constitutional right to confront the witnesses against him. The court allowed defense counsel to ask the victim about his brother pulling his pants down, because it was similar to the victim's testimony about the first instance of abuse with Hernandez, but did not allow testimony regarding the brother being found in bed with the victim, again finding the latter to be too vague and tangential.
Defense counsel then asked the victim about the pants incident and showed him the relevant portion of the 2008 report, but the victim testified that he did not remember his brother pulling his pants down. Defense counsel also asked the victim a number of questions about when and how the victim first learned about sex. The victim said he learned about it from a friend at school when he was eight or nine years old, that he did not talk to his brother about sex until after he learned about it in school and, even then, they only talked about it one time. He also explained that he figured out what Hernandez was doing to him around the same age and was concerned he was going to become pregnant because Hernandez would ejaculate into him and he did not yet know that boys could not get pregnant.
The victim's brother was next to testify, but before he took the stand, defense counsel once again asked the court to revisit its ruling regarding the incidents discussed in the 2008 report. The court modified its previous ruling to permit questions about the brother's prior statement that he learned about sex from his cousin and what he thought it meant (both at the time he made the statement and at the time of trial) but reiterated its previous ruling as to questions concerning the remaining incidents. Thereafter, the brother testified that the victim told him Hernandez was humping him, that he witnessed Hernandez sodomize the victim, and that the victim told him not to tell. On cross-examination, he said he learned about sex from his friends when he was eight or nine years old. Upon further questioning, he testified he did not recall telling a social worker he learned about sex from his cousin when he was five and that he did not talk to his cousin about sex.
Officer Teague testified as to the procedures he followed on the day of his initial contact with the boys and stated both boys were soft-spoken, sad, and upset during their interviews. The recordings of Officer Teague's initial interviews with each of the boys were played for the jury, and the testimony of the boys at trial was largely consistent with their initial statements, although defense counsel later pointed out several purported inconsistencies.
Finally, the medical director at the center where the victim was examined after he disclosed the abuse testified the exam did not reveal any physical evidence of abuse. She also testified it was not unusual for that to be the case in these situations as tissue in the potentially affected area typically heals quickly.
Defense Case at Trial
The defense presented a pediatrician who treated the boys between the time the victim was two and a half years old until he was four, not long after the abuse began. She testified that she did not identify any abnormalities when she examined the victim, although she did not specifically look for abuse. A family member who lived in the home testified that the victim's brother often got into trouble for such things as being mean, hitting, or talking back and that she never saw or heard anything that led her to believe Hernandez was abusing the victim. She also stated Hernandez was not close with anyone in the family except the victim. The boys' stepmother testified that she and the father saw the boys occasionally, the boys stayed with them sometimes on weekends and school vacations, and the victim never reported any abuse to them.
Hernandez's wife, Alice, also testified for the defense. Prior to her testimony, over defense counsel's objection and after some discussion with counsel, the court admonished her that she was not to mention the victim and brother being found in bed together or the incident involving the brother playing husband and wife games with his cousin. She testified that she and Hernandez told the boys never to let anyone other than their doctor touch their privates, and that she never saw or heard anything that would make her believe Hernandez was abusing the victim. According to Alice, the victim's brother got into trouble at home and at school and had a tendency to lie, but the victim did not get into much trouble and told her the truth even when it got his brother into trouble. For example, the brother stole a book from the school book fair and then lied to her about how he got it, but she found out because the victim told her the truth. She also said the brother often picked on the victim by hitting him, damaging things like DVD's that the victim liked, tying the victim's shoelaces in knots and, in one instance when the brother was approximately five years old, urinating on the victim.
Finally, Alice testified that Hernandez had suffered a heart attack and bypass surgery in 2012, that he was prescribed several medications as a result, and that the surgery and medication had negatively impacted his sex drive. Hernandez's physician also testified and confirmed the details of his heart condition and medication.
Hernandez did not testify.
Verdict and Sentencing
The jury found Hernandez guilty on all asserted charges, and the court sentenced him to a term of 106 years to life in prison.
Hernandez appeals.
DISCUSSION
Hernandez asserts the superior court's exclusion of evidence related to the prior incidents of alleged sexual conduct violated his Sixth Amendment right to confrontation of the witnesses against him and his Fourteenth Amendment right to due process of law. He concedes the incidents primarily involved the brother and not the victim, but asserts the extremely close relationship between the two suggests the brother's prior conduct and knowledge were imputable to the victim and that the excluded evidence was essential to his defense and to his ability to discredit the victim. He maintains the evidence would have established that both boys were familiar with sexually related matters at a young age, independent from anything that occurred with Hernandez, and that the brother exerted a level of control and influence over the victim. He further contends the lack of corroborating evidence at trial made the credibility of the victim and his brother particularly critical in this case.
Hernandez does not assert the superior court erred in its determination that section 782 was not applicable and, therefore, we do not address that ruling. --------
The Sixth Amendment to the United States Constitution—made applicable to the individual states through the Fourteenth Amendment—guarantees a criminal defendant the right "to be confronted with the witnesses against him." (Maryland v. Craig (1990) 497 U.S. 836, 844.) The United States Supreme Court has interpreted that right to include the right to cross-examine any such witness to ensure the reliability of the evidence presented by subjecting it to rigorous testing before the trier of fact. (Id. at pp. 844-845.) A trial court violates a defendant's right to confront the witnesses against him or her when it precludes the defendant from engaging in otherwise appropriate cross-examination designed to show bias or to otherwise allow the jury to determine the credibility of the witness. (People v. Chatman (2006) 38 Cal.4th 344, 372 (Chatman).)
"However, not every restriction on a defendant's desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance." (Chatman, supra, 28 Cal.4th at p. 372.) A trial court does not violate the confrontation clause, and we will not overrule its discretion in making such evidentiary rulings, absent a showing that "a reasonable jury might have received a significantly different impression of the witness's credibility had the defendant been permitted to pursue his proposed line of cross-examination." (People v. Greenberger (1997) 58 Cal.App.4th 298, 350 (Greenberger); Chatman, at p. 372.)
Evidence regarding a victim's prior sexual conduct or experience typically is not admissible and, therefore, its exclusion does not violate the confrontation clause. (§ 1103; People v. Woodward (2004) 116 Cal.App.4th 821, 831 (Woodward).) There are limited exceptions to this general rule, though, including in cases involving allegations of molestation or sexual abuse of a child. (Woodward, at p. 831.) In such cases, the child victim's testimony regarding the alleged sexual abuse may take on an "aura of veracity" simply because young children often are not familiar with the details of such sexual conduct. (Ibid.) Therefore, evidence of prior molestation involving the victim and acts similar to the alleged acts of abuse may be admissible to show the alleged victim had knowledge of the acts from a source other than the defendant. (Ibid.)
Here, the trial court concluded the excluded evidence was not admissible as it was vague as to any sexual conduct, remote in time, did not relate directly to the victim for the most part, and, overall, was more prejudicial than probative. The trial court did not err in reaching these conclusions.
As an initial matter, there was no allegation that the victim was present for or part of the two incidents involving his brother and their cousins. Hernandez asserts it is enough that the victim's brother was involved and argues any knowledge of sexual conduct the victim's brother had can be imputed to the victim because the brothers had a close relationship. However, Hernandez did not present any actual evidence or offer of proof suggesting the victim was aware of the incidents involving the cousins and, even if we assume the brothers discussed the incidents, there is no evidence suggesting the victim's brother provided graphic descriptions or used language of a sexual nature beyond that of a typical child. To the contrary, the brother's description of "sex" to the social worker at the time of the incidents did not include any actual sexual terms or descriptions and, instead, indicated that he did not actually understand what sex was.
Further, none of the incidents, including those the victim was present for, involved conduct similar to the charged acts. The asserted charges involved sodomy and one instance of oral copulation. By contrast, the excluded incidents involved the victim's brother being found naked in bed next to the victim while the victim was asleep; the victim's brother kissing a cousin on the chest over her clothes and saying they were going to "have sex"; and the victim's brother witnessing two slightly older cousins rolling around naked under the sheets. None of these incidents involved acts of sodomy or oral copulation, and the evidence therefore did not raise any legitimate inference that the victim had detailed knowledge of such physical acts independent from his encounters with Hernandez. (See Woodward, supra, 16 Cal.App.4th at p. 831.)
Further still, it is not clear that the excluded incidents involved any sexual conduct, or that the victim obtained any knowledge of sexual acts as a result. After reviewing the 2008 report discussing the incidents, the superior court concluded there was no indication of anything sexual surrounding the incident with the victim and his brother in bed, and the descriptions of the remaining incidents were vague as to any sexual conduct. There was only one incident in the 2008 report that directly involved the victim and was even remotely similar to the charged acts—the brother allegedly pulling down the victim's pants—and the court permitted defense counsel to cross-examine the victim with respect to that specific instance.
Thus, unlike the cases Hernandez relies upon, the alleged prior conduct here did not include sexual acts similar to the alleged abuse, and, for the most part, did not directly involve the victim. (See In re Edward S. (2009) 173 Cal.App.4th 387, 408 [prior molestation of victim]; People v. Daggett (1990) 225 Cal.App.3d 751, 757 [prior molestation of victim]; Fowler v. Sacramento County Sheriff's Dep't (9th Cir. 2005) 421 F.3d 1027, 1038-1041 (Fowler) [prior molestation of victim]; Lajoie v. Thompson (9th Cir. 2000) 217 F.3d 663, 666-674 [prior sexual abuse and rape of victim].) In cases more akin to the present case, where the trial court has excluded evidence regarding more general sexual conduct dissimilar to the alleged sexual misconduct, the trial court's rulings have typically been upheld. (See People v. Mestas (2013) 217 Cal.App.4th 1509, 1517-1518 [evidence of dissimilar prior sexual conduct properly excluded]; People v. King (2010) 183 Cal.App.4th 1281, 1313-1315 [images from victim's website not admissible to dispute claim victim was naïve].)
Hernandez asserts a Ninth Circuit case, Holley v. Yarborough (9th Cir. 2009) 568 F.3d 1091, in which the exclusion of evidence regarding prior sexual conduct was not upheld, is instructive here. In Holley, the defendant was convicted of inappropriately touching and exposing himself to an 11-year-old child. (Id. at p. 1095.) At trial, the court excluded evidence that the victim had said she had done "weird stuff"—the same term she used to describe what the defendant had done to her—with her boyfriend, that another boy had said he wanted to "hump" her, and that her brother had tried to have sex with her. (Id. at pp. 1096-1097.) On a writ of habeas corpus, the Ninth Circuit determined the evidence was improperly excluded because it tended to show the victim had a familiarity with the type of sexual activity she asserted the defendant had engaged in, and was relevant to rebut the prosecution's characterization of her as a "good little girl" and "truthful little girl." (Id. at pp. 1101, 1099-1101.) Although the evidence at issue in Holley did not involve prior criminal acts of molestation or sexual abuse, it did involve similar sexual conduct directly involving the victim that the victim described using language similar to the language she used to describe the alleged abuse. To the contrary here, the evidence did not relate to sexual conduct involving the victim, there was no suggestion the victim used similar language to describe the abuse, and, as discussed, the nature of the alleged prior conduct was entirely dissimilar to the allegations in the case. Accordingly, Holley is not instructive.
Hernandez also compares this case to Fowler, but, as noted ante, the excluded evidence there involved a prior allegation of molestation of the victim by another individual. (See Fowler, supra, 421 F.3d at pp. 1038-1041.) Hernandez does not offer, nor are we aware of, any authority suggesting evidence concerning the victim's mere exposure to general childhood experimentation of a vaguely sexual nature by others is admissible. Instead, that type of evidence is more comparable to the type of evidence typically excluded in cases involving sexual offenses. (§ 1103; Woodward, supra, 116 Cal.App.4th at p. 831.)
In addition, Hernandez asserts cases of this nature—where a child alleges sexual offenses and there is little evidence beyond his or her own statement—are particularly susceptible to fabrication or influence, and the exclusion of this evidence hindered his ability to prove the victim here was improperly influenced. (See Kennedy v. Louisiana (2008) 554 U.S. 407, 443-444.) However, the superior court allowed Hernandez leeway to explore these issues broadly in nearly all other aspects. The defense extensively questioned the police officer and counselors who interviewed both boys in the days after the allegations were made, the recordings of the interviews were made available to the jury, and defense counsel pointed out every purported inconsistency between the various statements that he could identify. Moreover, the court gave no indication it would preclude additional evidence, such as expert witness testimony, aimed at developing the theory the victim was somehow influenced by his brother. The excluded evidence did not involve similar sexual conduct or false accusation and, accordingly, we cannot conclude that a reasonable jury would have had a significantly different impression of the credibility of the victim if the evidence were not excluded. (See Greenberger, supra, 58 Cal.App.4th at p. 350.)
Hernandez also argues the exclusion of this evidence precluded him from exploring the dominant nature of the relationship between the victim and his brother, that the brother sexually victimized the victim, and that the brother was "highly sexualized." However, the record does not support any of these contentions and, in any event, the court permitted Hernandez to fully explore these theories in other ways, questioning several witnesses about the brother's behavioral patterns and the relationship between the boys. In addition, the court allowed defense counsel to question both children about their knowledge of sex, including when and how they first learned about it, and permitted counsel to ask the victim's brother if he recalled telling a social worker he learned about it from his cousin. The excluded evidence was of little probative value with respect to these issues for the reasons discussed herein, including that the incidents did not involve the victim or sexual acts similar to the alleged abuse.
Finally, Hernandez also suggests the court erred by excluding evidence he told the victim's brother to be truthful with the social worker during the investigation leading to the 2008 report. However, that evidence was hearsay, and, moreover, was of little probative value as the statement was allegedly made to the victim's brother, and not the victim, before the brother had any knowledge of the abuse the victim was enduring. (See § 1200; People v. Johnson (2010) 183 Cal.App.4th 253, 286-288 [no error in excluding allegedly exculpatory hearsay].) The court did allow Hernandez's wife to testify as to her own statements to the children regarding abuse and further indicated it would reconsider its ruling if Hernandez testified himself, but he did not. Accordingly, Hernandez's purported statement was inadmissible hearsay and the court did not err in excluding it.
Based on the foregoing, we conclude the superior court did not err in excluding the evidence related to the 2008 report. Because we find no error, we need not address whether the alleged error was prejudicial.
DISPOSITION
The judgment is affirmed.
HALLER, J. WE CONCUR: HUFFMAN, Acting P. J. O'ROURKE, J.