Opinion
No. 38282-6-III
10-04-2022
STATE of Washington, Respondent, v. Michael E. CHAMBERS, Appellant.
William David Mccool, Attorney at Law, P.O. Box 514, Walla Walla, WA, 99362-0014, Neil Martin Fox, Law Office of Neil Fox, PLLC, 2125 Western Ave., Ste. 330, Seattle, WA, 98121-3573, for Appellant. Asotin County Prosecutor's Office, 135 2nd Street, Asotin, WA, 99402, Brett Ballock Pearce, Spokane County Prosecutor's Office, 1100 W. Mallon Ave., Spokane, WA, 99260-2043, for Respondent.
William David Mccool, Attorney at Law, P.O. Box 514, Walla Walla, WA, 99362-0014, Neil Martin Fox, Law Office of Neil Fox, PLLC, 2125 Western Ave., Ste. 330, Seattle, WA, 98121-3573, for Appellant.
Asotin County Prosecutor's Office, 135 2nd Street, Asotin, WA, 99402, Brett Ballock Pearce, Spokane County Prosecutor's Office, 1100 W. Mallon Ave., Spokane, WA, 99260-2043, for Respondent.
OPINION PUBLISHED IN PART
Staab, J.
¶ 1 An internet crime unit investigation in Idaho determined that an internet protocol (IP) address registered to Michael Chambers in nearby Asotin County was downloading and sharing depictions of minors engaged in sexually explicit conduct. Following a stipulated bench trial, Chambers was convicted of 24 counts of first degree possession, two counts of first degree dealing, and one count of second degree dealing in depictions of a minor engaged in sexually explicit conduct. He raises six issues on appeal. In the published portion of this decision, we reject Chambers’ postverdict challenge to the adequacy of the information. We also hold that the presence and participation of Idaho police, at the request of a Washington deputy, to aid in the execution of the search warrant was not prohibited by statute and was otherwise authorized by common law.
¶ 2 In the unpublished portion of the decision, we hold that the search warrant was supported by probable cause and not overbroad. We find that the evidence was sufficient to support a finding of intent to distribute for purposes of counts 1, 2, and 3. We affirm imposition of the polygraph condition as part of Chambers’ community custody condition, but strike the overbroad internet condition and remand for reconsideration of this sentencing condition.
BACKGROUND
¶ 3 We provide a brief overview of the facts and procedure here. Additional details are set forth in the discussion of each issue.
¶ 4 On September 30, 2017, and October 1, 2017, Detective Eric Kjorness of the Moscow Police Department Internet Crimes Against Children (ICAC) unit was using computer peer-to-peer (P2P) file sharing software (often referred to as "BitTorrent") to conduct a broad sweep investigation of internet child pornography trafficking by accessing other BitTorrent users’ open and available computer files. Clerk's Papers (CP) at 259. P2P file sharing is a method of communication available to internet users through the use of special software that links their computers through a network and allows for the sharing of digital files directly between users on the network. After obtaining the software by download, a user can set up file(s) on his/her computer to be shared with others running compatible P2P software.
BitTorrent, one type of P2P software, sets up its searches by keywords typically on torrent websites. The results of a keyword search are displayed to the user. The website does not contain the files being shared, only file[s] referred to as a "torrent." The user then selects a torrent file(s) from the results for download. ... The download of a file is achieved through a direct connection between the computer requesting the file and the computer(s) sharing the actual files (not the torrent file but the actual files referenced in the torrent file using any BitTorrent client.).
CP at 112. More than one file can be downloaded at once, and a user may download parts of files from more than one source computer at a time for integration.
¶ 5 This transfer is assisted by reference to a unique IP address expressed as four numbers separated by decimal points assigned to a particular computer during an online session. Every computer attached to the internet is assigned an IP address to assure proper direction of data. Most internet service providers control the range of assigned IP addresses. Some IP addresses are "static" long-term assignments and others have "dynamic" addresses that are frequently changed. CP at 117. "BitTorrent users are able to see the IP address of any computer system sharing files to them or receiving files from them. Investigators log the IP address which were sent files or information regarding files being shared." CP at 113. Using the "American Register of Internet Numbers," investigators can determine the internet service provider assigned that IP address. CP at 113. The specific computer assigned to the IP address can then be obtained from the internet service provider.
¶ 6 During his investigation, Detective Kjorness was able to identify a specific IP address that was downloading and sharing known images of depictions of minors engaged in sexually explicit conduct. The IP address was assigned to an internet provider, CableOne, out of Lewiston, Idaho. Responding to a subpoena, CableOne indicated the IP address was assigned to an account in Chambers’ name with an Asotin County address. Based on his findings, Detective Kjorness contacted Detective Brian Birdsell of the Lewiston Police Department, who in turn contacted Detective Jackie Nichols of the Asotin County Sheriff's Office on October 30, 2017. Detective Nichols obtained a search warrant from the Asotin County Superior Court for Chambers’ home in Clarkston, Washington.
¶ 7 On December 21, 2017, Detective Nichols executed the warrant with the assistance of law enforcement officers from several agencies including Detective Kjorness of the Moscow, Idaho, police department. Detective Nichols testified at the suppression motion that as a rural officer, she has generalized training, but to fill the void in her experience, she utilizes assistance from outside agencies. She invited Detective Kjorness to assist with the execution of the Chambers’ warrant because the detective is an expert in this field.
¶ 8 During execution of the search warrant, Detective Kjorness questioned Chambers about his technical expertise and the presence of child pornography on his system and performed preliminary searches of two tower computers. Detective Nichols was present when Detective Kjorness spoke to Chambers. Chambers made significant incriminating statements during the execution of the search warrant particularly that he installed and used a BitTorrent program called "Azureus," downloaded sexually explicit images of children, saw them, and did not delete them because he was trying to help the police investigate. CP at 31-33. He knew that he should not be doing it. He did not turn anything over to police because he did not think that he had anything helpful.
¶ 9 Chambers claimed to not be sharing images but when confronted with a claim that he had made them available over his BitTorrent program, he responded that he "thought he ‘had the outgoing totally shut down.’ " CP at 38. He commented, " ‘Wow. My bad there.’ " CP at 38. He admitted to going to online sources that he knew contained sexual images of children. He repeatedly denied distributing any images.
¶ 10 Detective Nichols delivered all of the digital devices seized from the home to Detective Birdsell for forensic analysis on December 26, 2017. The evidence was returned to Asotin County on May 9, 2018. Detective Birdsell identified a large quantity of sexually explicit images depicting children (6,314), and confirmed that Chambers’ computer hard drives used by default the same MAC (media access control) address listed on the CableOne record.
¶ 11 Asotin County charged Chambers with two counts of "Dealing in Depictions of Minor Engaged in Sexually Explicit Conduct in the First Degree" and one count of "Dealing in Depictions of Minor Engaged in Sexually Explicit Conduct in the Second Degree" in violation of RCW 9.68A.050(1) and (2). CP at 1-3. He was also charged with 24 counts of "Possession of Depictions of Minor Engaged in Sexually Explicit Conduct in the First Degree" in violation of RCW 9.68A.070(1). CP at 4-27.
¶ 12 Chambers filed several motions to suppress evidence. Ultimately, the trial judge denied his motions to suppress evidence seized from the house, but granted the motions to suppress evidence seized from an adjacent shop that was not described in the affidavit or included in the search warrant. Following the court's decision, Chambers elected to proceed to a bench trial on stipulated facts.
¶ 13 The stipulated evidence included 28 digital files retrieved from computers located in Chambers’ home. Explicit descriptions of these videos and images were provided by Detective Birdsell and included in the stipulated evidence. Chambers stipulated that Detective Birdsell's descriptions were accurate and sufficient.
¶ 14 Chambers was found guilty on all counts and sentenced. His judgment and sentence contained conditions prohibiting internet access and submission to polygraph tests. The precise wording is included below.
¶ 15 During his sentencing statement, Chambers admitted to intentionally setting his BitTorrent upload speed to slow, indicating his knowledge that he was disseminating, and described himself as a "hacker" capable of hex editing. CP at 330-31.
¶ 16 Chambers timely appealed.
ANALYSIS
A. POSTVERDICT CHALLENGE TO THE INFORMATION
¶ 17 In his first issue on appeal, Chambers challenges the sufficiency of the information charging him with 3 counts of disseminating, and 24 counts of possession of images depicting a minor engaged in sexually explicit conduct. Chambers argues these offenses require not only that the State prove knowledge of the act (possession or disseminating) but also knowledge of the nature of the depictions. He contends that the charging information failed to allege the second scienter element. We review this legal challenge de novo. State v. Goss , 186 Wash.2d 372, 376, 378 P.3d 154 (2016).
¶ 18 An information must allege each essential element, statutory and otherwise, to apprise the accused of the charges against him or her and to allow for preparation of a defense. State v. Vangerpen , 125 Wash.2d 782, 787, 888 P.2d 1177 (1995). The information must do more than merely list the offense, but it need not restate the precise language of the criminal statute. State v. Nonog , 169 Wash.2d 220, 226, 237 P.3d 250 (2010). "[I]t is sufficient if words conveying the same meaning and import are used." State v. Kjorsvik , 117 Wash.2d 93, 108, 812 P.2d 86 (1991).
¶ 19 Chambers did not challenge the information before a verdict was reached. While a constitutional challenge to the charging document can be raised for the first time on appeal, the late objection changes the level of deference we apply. Id. at 102, 812 P.2d 86. "When, as in this case, a charging document is challenged for the first time on appeal, we construe it liberally." State v. Pry , 194 Wash.2d 745, 752, 452 P.3d 536 (2019). Under this standard, we consider the charging document as a whole and in a commonsense manner to determine if the implied element can be fairly inferred through a liberal construction in favor of its validity. Kjorsvik , 117 Wash.2d at 110-11, 812 P.2d 86. Under the two-pronged test developed by Kjorsvik , our first question is whether the essential elements appear in any form or by fair construction can be found. Id . at 105, 812 P.2d 86. If so, we consider whether the defendant can show actual prejudice by language used that caused a lack of notice. Id . at 106, 812 P.2d 86. However, if the information fails to meet the first prong, prejudice is presumed and requires reversal. State v. Zillyette , 178 Wash.2d 153, 162, 307 P.3d 712 (2013).
¶ 20 The State's charging information used the verbatim language of the statutes, RCW 9.68A.050 and RCW 9.68A.070. As to the disseminating charges, counts 1 through 3, the information charged that Chambers "knowingly developed, duplicated, published, disseminated, or exchanged or possessed with intent to develop, duplicate, publish, disseminate, or exchange visual or printed matter depicting a minor engaged in sexually explicit conduct ...." CP at 1-3; see RCW 9.68A.050(1)(a)(i). Similarly, with respect to the possession charges, the information alleged that Chambers "knowingly possessed visual or printed matter depicting a minor engaged in sexually explicit conduct ...." CP at 4-27; see RCW 9.68A.070(1)(a).
¶ 21 Chambers contends the statutory language used in the information has already been found to be constitutionally insufficient. In State v. Rosul , the Supreme Court addressed the defendant's overbreadth challenge to the child pornography statutes. State v. Rosul , 95 Wash. App. 175, 182, 974 P.2d 916 (1999). Against this First Amendment to the United States Constitution backdrop, the court found that "[a] natural grammatical reading of RCW 9.68A.070 would apply the scienter requirement to possession, but not to the age of the children depicted." Id . After finding that such a scienter requirement was necessary to preserve the constitutionality of the statute, the court construed the statute to require a showing that the defendant was aware of the general nature of the material he possessed. Id . at 185, 974 P.2d 916. Following Rosul , the statutes are now construed to require "a showing that the defendant was aware not only of possession, but also of the general nature of the material he or she possessed." Id .
¶ 22 Chambers argues that Rosul ’s "natural reading" of the statute is binding for purposes of challenging the language of the information postverdict. His argument, however, fails to acknowledge the more lenient standard of construction that is applied when there is a late challenge to the information. Notably, Rosul held that the statutory language implied knowledge of the nature of the materials under the stricter statutory interpretation standard. Chambers does not cite any authority that prevents us from applying a more liberal reading to the information in this case.
Criminal statutes are strictly construed. State v. Larson , 119 Wash. 123, 125, 204 P. 1041 (1922).
¶ 23 In this case, the information alleged that Chambers "knowingly possessed visual or printed matter depicting a minor engaged in sexually explicit conduct ...." CP at 4-27. Under the liberal construction rule, the knowledge element can be fairly imputed to not only the verb but the entire direct object following the verb. "In ordinary English, where a transitive verb has an object, listeners in most contexts assume that an adverb (such as knowingly) that modifies the transitive verb tells the listener how the subject performed the entire action, including the object as set forth in the sentence." Flores-Figueroa v. United States , 556 U.S. 646, 650, 129 S. Ct. 1886, 173 L. Ed. 2d 853 (2009).
¶ 24 Under a more liberal construction, our Supreme Court has found a charging document sufficient even when it omits a common law element of knowledge. In State v. Tunney , the information failed to allege knowledge that the victim was a police officer. State v. Tunney , 129 Wash.2d 336, 339, 917 P.2d 95 (1996). Specifically, the information alleged the defendant did " ‘assault Officer David Shelton of the Seattle Police Department, a law enforcement officer who was performing official duties at the time of the assault.’ " Id . at 338, 917 P.2d 95. The court held that under a liberal construction, the missing element could be fairly imputed from the information. Id . at 341, 917 P.2d 95. "When the crime is defined by an act and result, as in this case, the mental element relates to the result as well as the act." Id. ; see also State v. Hopper , 118 Wash.2d 151, 154, 822 P.2d 775 (1992) (element of "knowingly" can be imputed from word "assault" in the information because the term "assault" implies knowing conduct); Kjorsvik , 117 Wash.2d at 110, 812 P.2d 86 (nonstatutory intent to steal element can be fairly implied from allegation that defendant "unlawfully, with force, and against the baker's will, took the money while armed with a deadly weapon").
¶ 25 Chambers argues that in order to be sufficient, the charging document must track the language of the to-convict jury instruction. In support of this argument, Chambers contends that the Supreme Court recently rejected the "artificial distinction between the essential elements that must be included in jury instructions and those that must be included in charging documents," citing State v. Canela , 199 Wash.2d 321, 332, 505 P.3d 1166 (2022). Reply Br. of Appellant at 5. We disagree that Canela implicitly overruled significant precedent to hold that a charging document must always contain the same language as the to-convict jury instruction. Instead, Canela recognized that "to-convict instructions can provide guidelines for the essential elements required in charging documents." Id .
¶ 26 The State's information mirrors the statute. Where knowledge of the nature of the materials was implied in the statute under the strict statutory interpretation standard, the language sufficiently provides notice of all essential elements under a more liberal construction. The word "knowingly" in the information modifies the acts of possession and dissemination, and the word "minor" describes the nature of the images. Chambers does not allege any prejudice from unartful language and was informed of the nature of charges and able to mount his defense.
B. INVOLVEMENT OF OUT - OF - STATE LAW ENFORCEMENT IN THE EXECUTION OF THE SEARCH WARRANT
¶ 27 The second issue we address in the published portion of this opinion is whether Detective Nichols was authorized to request the assistance of out-of-state law enforcement during execution of the search warrant. The State responds that common law allows neighboring agencies to assist in the execution of a search warrant as subject matter experts and these outside agencies did not take over the investigation but instead took direction from Detective Nichols.
Chambers also suggests that by sitting outside his house to check access to his WiFi, Idaho Detective Birdsell was acting illegally. Opening Br. of Appellant at 61. Chambers challenged this conduct below but the court found that checking to see if nearby WiFi was secured by a password is not a search. Chambers does not assign error to this decision, nor does he posit how checking for available WiFi is illegal.
¶ 28 The trial court denied Chambers’ motion to suppress evidence based on this theory. The trial court's unchallenged findings provide:
Suppression hearing evidence established that Moscow Police Department Detective Eric Kjorness and two members of the Lewiston Police Department assisted in executing the search warrant at Defendant's Clarkston residence. Detective Kjorness was also involved in interviewing the Defendant at the scene and in providing technical expertise as to computer and internet issues. Defendant argues that these out-of-state officers lacked authority to be involved in the Washington search and investigation. There is no evidence of any written agreement between Washington and Idaho law enforcement agencies that would be relevant to this case.
It was Idaho police officers that initially discovered and investigated the crimes
now being alleged. When they discovered that the depictions of minors engaged in sexually explicit conduct were being downloaded and shared on an IP address assigned to a Clarkston address, the case was referred to the Asotin County Sheriff's Office. From that point on, Asotin County Sheriff Detective Jackie Nichols took the lead in the Washington investigation. She obtained the search warrant and directed it [sic] execution. While she sought and obtained the presence and assistance of the Idaho officers in the search and in her investigation, Defendant cites no authority for the proposition that out-of-state officers are prohibited from providing such assistance.
CP at 251-52.
¶ 29 The legal issue presented is whether a Washington deputy sheriff can authorize the presence and participation of out-of-state law enforcement officers during the execution of a search warrant. As a conclusion of law set forth in an evidence suppression order, we review this legal question de novo. State v. Rawley , 13 Wash. App. 2d 474, 478, 466 P.3d 784 (2020).
¶ 30 Chambers grounds his argument in the lack of statutory authority for the Idaho officers to provide law enforcement assistance in a Washington investigation. The State contends that under common law, officers are authorized to use subject matter experts to assist in a search, even if those experts are law enforcement officers from another jurisdiction.
¶ 31 As the parties seem to agree, the statutes do not authorize nor do they prohibit the presence of law enforcement from other jurisdictions during a search. In certain circumstances, that do not apply here, out-of-state officers have authority to seize a person in Washington. See Washington Mutual Aid Peace Officer Powers Act of 1985 (chapter 10.93 RCW) and the Uniform Act on Fresh Pursuit (chapter 10.89 RCW). RCW 10.93.070 provides exceptions to the general rule that an officer's authority is restricted to his or her territorial jurisdiction. While this statute does not grant out-of-state officers the authority to act inside Washington, subsection (3) of the statute authorizes Washington peace officers to enforce the criminal laws of the state outside their territorial bounds "in response to the request of a peace officer with enforcement authority." RCW 10.93.070(3). If the assistance is not requested, however, the presence of an officer from another jurisdiction who is tagging along for his own purposes can undermine the seizure. State v. Bartholomew , 56 Wash. App. 617, 622, 784 P.2d 1276 (1990).
¶ 32 In Bartholomew , Division One of this court held that a Seattle officer's presence outside his territorial jurisdiction during a warrantless felony arrest by Tacoma police could not be justified under RCW 10.93.070 where the Seattle officer was looking for evidence of a separate crime without a warrant. 56 Wash. App. at 620-25, 784 P.2d 1276. Critically, nothing in the record indicated that the Tacoma police needed assistance to execute a search warrant for items in the home. Id . at 621, 784 P.2d 1276.
¶ 33 In dicta, Division One discussed situations where the presence of the Seattle officer would have been justified such as when executing a warrant where the expertise and assistance of experienced officers was requested. Id . at 621-22, 784 P.2d 1276. For example, the court described participation of drug enforcement officers in executing the search of a drug manufacturing operation where safe confiscation and identification required expertise that a small rural community officer might be inadequate. Id . In support of that hypothetical, the court compared several federal cases analyzing 18 U.S.C. § 3105 to support the premise that federal officers were authorized when genuinely requested for assistance. Id . at 622-23, 784 P.2d 1276 ; United States v. Wright , 667 F.2d 793 (9th Cir. 1982) (Federal Bureau of Alcohol, Tobacco, and Firearms officer executing federal search warrant properly requested state officer assistance.). The case before us presents this hypothetical. ¶ 34 In State v. Kern , Division One approved the use of civilian experts to aid in the execution of a search warrant. State v. Kern , 81 Wash. App. 308, 315, 914 P.2d 114 (1996). In Kern , an officer served a search warrant on a bank and instructed the bank employees to provide him with the designated records. Id . The bank employees participated in the record search without unnecessary supervision especially where the officer was not trained to retrieve and preserve the records in question. Id . The court found the delegation proper where the civilians were disinterested third parties with little possibility of exceeding the scope of the warrant. Id . at 316, 914 P.2d 114. Additionally, the court held that "[a]bsent constitutional considerations, the rules for execution and return of a warrant are essentially ministerial in nature." Id . at 311, 914 P.2d 114.
18 U.S.C. § 3105 : "A search warrant may in all cases be served by any of the officers mentioned in its direction or by an officer authorized by law to serve such warrant, but by no other person, except in aid of the officer on his requiring it, he being present and acting in its execution."
¶ 35 Although Chambers does not raise a constitutional argument, the United States Supreme Court has held that "it is a violation of the Fourth Amendment for police to bring ... third parties into a home during the execution of a warrant when the presence of the third parties in the home was not in aid of the execution of the warrant." Wilson v. Layne , 526 U.S. 603, 614, 119 S. Ct. 1692, 143 L. Ed. 2d 818 (1999). In Wilson , police invited the press on a media ride-along during the execution of a warrant. The Court held that the presence of the reporters violated the defendant's Fourth Amendment rights because their "presence ... inside the home was not related to the objectives of the authorized intrusion." Id . at 611, 119 S. Ct. 1692. Similar to the holding in Bartholomew , the Court distinguished situations where a third party "directly aided in the execution of the warrant," recognizing that such conduct "has long been approved by this Court and our common-law tradition." Id . at 611-12, 119 S. Ct. 1692.
¶ 36 Here, Chambers does not dispute that Detective Kjorness was aiding Detective Nichols in the execution of the search warrant. Instead, he argues that Idaho police were "deeply involved" in the case, suggesting that they took over the search and investigation. Opening Br. of Appellant at 61. This argument is contrary to the trial court's finding that Detective Nichols was the lead investigator in this case and that she obtained the warrant and directed its execution. Chambers does not dispute this finding and there is no evidence that the Idaho officers exerted independent authority during the search. When the warrant needed to be expanded, Detective Kjorness stopped his search and Detective Nichols contacted a judicial officer to amend the warrant.
¶ 37 Otherwise, Chambers’ argument focuses on extrajudicial issuance of warrants outside a court's jurisdiction and unauthorized arrests outside an officer's jurisdiction. Neither of these factual situations occurred here. There is no indication that the Idaho officers arrested Chambers or enforced the laws. Instead, they participated in the execution of a search warrant at the direction of the lead investigator, Detective Nichols, and provided her with technical expertise.
¶ 38 For the first time on appeal, Chambers challenges the use of Idaho law enforcement experts to forensically examine the materials seized during execution of the search warrant. Chambers did not raise this challenge in his motions to suppress and did not object at the stipulated facts trial to the introduction of evidence obtained from the forensic examination by Idaho police. Citing RAP 2.5(a), the State objects to consideration of this issue because the record is undeveloped. Br. of Resp't at 66. Chambers replies that since the use of an outside agency violates his Fourth Amendment rights, the issue can be addressed as a manifest error affecting a constitutional right. RAP 2.5(a)(3).
¶ 39 We decline to address this issue. The exception provided in RAP 2.5(a)(3) is narrow and does not permit all asserted constitutional claims to be raised for the first time on appeal. State v. Kirkman , 159 Wash.2d 918, 934, 155 P.3d 125 (2007). Instead, a manifest error requires a showing of actual prejudice. Id . at 935, 155 P.3d 125. "If the trial record is insufficient to determine the merits of the constitutional claim, the error is not manifest and review is not warranted." Id .
¶ 40 Here, Chambers’ attempts at showing prejudice are speculative. He contends that "[g]iven the importance that Washington courts place on strict guidelines for searches of items protected by the First Amendment and article I, section 5, one cannot assume that an officer not trained in Washington procedures would conduct the search with ‘the most scrupulous exactitude.’ " Opening Br. of Appellant at 67-68 (quoting State v. Besola , 184 Wash.2d 605, 611, 359 P.3d 799 (2015) ). And yet, had Chambers raised this issue below, the facts surrounding the procedures used to forensically examine the equipment would be fully developed and part of the record. Because this issue was not preserved below and the record on appeal is insufficient, we decline to address it for the first time on appeal.
¶ 41 Under circumstances where the out-of-state officers were not arresting a suspect or otherwise enforcing the law, but rather acting at the direction of the lead Washington deputy to aid her in the execution of a search warrant, the presence and involvement of Detective Kjorness was not prohibited by statute and otherwise authorized by common law. The trial court properly concluded that the involvement of the Idaho officers did not require suppression of evidence.
¶ 42 We affirm the convictions but remand for consideration of the community custody conditions.
¶ 43 In the unpublished portion of the opinion, we consider challenges to the search warrant, the sufficiency of the evidence, and the community custody conditions imposed at sentencing.
¶ 44 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder, having no precedential value, shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR:
Lawrence-Berrey, A.C.J.
Fearing, J.