Opinion
No. COA09-659.
Filed February 2, 2010.
Pitt County No. 07CRS63151, 07CRS63156, 07CRS63221.
Appeal by defendant from judgments entered 11 December 2008 by Judge W. Russell Duke, Jr., in Pitt County Superior Court. Heard in the Court of Appeals 12 October 2009.
Attorney General Roy Cooper, by Special Deputy Attorney General John J. Aldridge, III, for the State. Bryan Gates, for Defendant.
Defendant Julius Earl Davis appeals from judgments entered 11 December 2008 sentencing him to a minimum of 189 months and a maximum of 236 months imprisonment in the custody of the North Carolina Department of Correction based upon his conviction for attempted first degree murder; to a consecutive sentence of a minimum of 77 months and a maximum of 102 months imprisonment in the custody of the North Carolina Department of Correction based upon his conviction for robbery with a dangerous weapon; and to a consecutive sentence of a minimum of 100 months and a maximum of 129 months imprisonment in the custody of the North Carolina Department of Correction based upon his conviction for assault with a deadly weapon with the intent to kill inflicting serious injury. After careful consideration of Defendant's challenges to his convictions, we find no error in the judgments imposed by the trial court.
I. Factual Background A. Substantive Facts
Carson McCullen was employed at the Handy Mart in Winterville and typically worked the third shift, which ran from 10:00 p.m. to 6:00 a.m. According to Handy Mart policy, the cash register was not supposed to contain more than fifty dollars during the third shift. In the event that the cash register drawer contained more than fifty dollars, the cash register operator was required to print a receipt for a deposit and place the surplus cash in a safe. The safe in question had a slot in the top through which the employee dropped the surplus cash. Although the cash register operator did not have full access to the safe, he or she could "drop out ones, fives, or tens" at a rate of one roll "every 30 seconds to a minute" if the supply of cash in the register drawer became low.
On the night of 19 December 2007, McCullen went to work at 10:15 p.m. At approximately 2:30 a.m., a man entered the Handy Mart and walked directly to the bathroom. "[W]ithin a matter of a few seconds," the man left the bathroom and exited the store. Shortly thereafter, the same man, now accompanied by three other men, reentered the store.
According to McCullen, "[t]wo of them walked up to me and pulled out guns." One man, who held a small caliber revolver, stayed close to McCullen during the robbery while another man held a semi-automatic. The men "told [McCullen] to empty the register, so of course [he] opened it." At that point, "they started to take money out of it." A Handy Mart manager later determined that $47.83 had been removed from the cash register drawer.
One of the gun-wielding men then came around the counter and "put the gun up to the back of [his] head, behind [his] ear." After the man ordered him to open the safe, McCullen responded that he could not do so. McCullen then "felt a very heavy blow to [his] head, which [he] assumed was either his fist or the butt of the gun." The man then put "the gun back to [his] head;" inquired, "do you think I'm playing;" and again ordered McCullen to open the safe. McCullen "dropped a roll of ones out of it and [] handed it over [his] back to them to at least try . . . to show that [he] was . . . trying to comply." After McCullen reiterated that he could not open the safe, "everything went black." A surveillance video captured the entire robbery and shooting.
McCullen "woke up in a few seconds . . . on the floor in immense pain and bleeding." Upon awakening, McCullen "crawled on the floor over to the counter" to retrieve his cell phone and dialed 911. Officers Ty Grant and Tommy Lyman of the Winterville Police Department came to the Handy Mart within 35 seconds after receiving word of the robbery. McCullen described the four suspects as African American males and noted that "[t]he individual I remember very succinctly would be the individual with the revolver who came around the corner. . . . He [wore] an oversized [light] blue coat with . . . a toboggan of some faded color," possibly "greenish-orang[e]."
After McCullen was taken to a nearby hospital, doctors confirmed that he had been shot in the head. Doctors found bullet fragments in McCullen's cerebellum. Due to the fact that the fragments were lodged near significant arteries, they could not be removed. McCullen has been in constant pain since the shooting.
Gary Johnson, one of Defendant's friends, testified that he was with Defendant, Alvin Canady, and Jason Davis on 19 December 2007. According to Johnson, Defendant was wearing a blue coat and a toboggan. On that occasion, the men discussed "[m]aking a lick," which meant finding a "way to get money . . . [b]y any means necessary." The four men got into a car and went to buy alcohol and cigarettes. While they were riding in the car, Defendant showed Johnson his gun. All four men were drinking alcohol, and everyone except Defendant "[s]norted some powder, cocaine."
When the men arrived at the Handy Mart, Johnson stated that he "walked in the store and used the bathroom." As Johnson left the store, the other three men "[were] coming in," so he "just turned around and went in with them." Johnson admitted that the group "rob[bed] the store" and that he and Defendant "had a gun." Johnson told investigating officers that "I pulled [my gun] out and pointed it at the dude to scare him," but Defendant "already had it under control." Johnson testified that he took the cash register drawer and left the store with Jason Davis, but that Defendant remained with his gun pointing at McCullen.
After Johnson left the store with the cash register drawer, he pulled the car to the store's entrance to wait for Defendant and Canady. When Canady got in the car, he said that the gun "went off" in the store. Jason Davis asked Defendant how his gun had fired. Defendant responded that "it went off when he tried to hit the guy with the gun[.]" According to Johnson's statement to investigating officers, Defendant "acted like he didn't care if he shot him or not."
Johnson testified that the four men returned to his mother's trailer and divided the money they had stolen in the robbery. On the way to Johnson's mother's residence, they threw the cash register drawer out on Hanrahan Road. Sometime later, however, the group retrieved the cash register drawer in order to prevent it from being traced to them and hid it on River Road. On 8 July 2008, Johnson showed Sergeant Dianne Easton of the Winterville Police Department where the cash register drawer had been hidden.
Canady testified that, on the night of 19 December 2007, he, Jason Davis, Johnson and Defendant were drinking alcohol and that everyone but Defendant was "doing [cocaine]." Canady also stated that the group "decided [that] we needed a lick," which meant to "get money" by "taking it from someone." Canady admitted that the four men entered the Handy Mart in order to rob the store, that Defendant and Johnson had guns, and that Defendant was wearing a blue coat. According to Canady:
I went back in front of the cash register. Julius told the man to open up the safe and the man said he couldn't open up the safe[.] . . . I was headed out [of] the store. When I headed out [of] the store I heard a gun go off. By that time Gary Johnson had the car pulled in front of the store. I got in on the driver's side behind Gary Johnson. By the time I got in Julius Davis was coming out [of] the store. He came around and got on the passenger side back seat and we pulled off. . . . I said Julius I heard the gun go off. Did you shoot the man? And he was like he didn't know. His brother Jason said[,] Julius I hope you didn't shoot the man. And . . . nobody [said anything] else. You know he was like he didn't know if he shot him. He didn't say anything.
On 20 December 2007, investigating officers came into contact with Johnson, who admitted his involvement in the Handy Mart robbery. On the same day, officers of the Winterville Police Department took Canady and Jason Davis into custody. On 23 December 2007, investigating officers searched an apartment in Kinston and discovered Defendant hiding a foot and a half away from a loaded .22 caliber revolver in a closet.
Special Agent Linsey D'Amour of the State Bureau of Investigation examined the .22 caliber revolver, six cartridges, and the cash register for latent prints, but did not find any. In addition, Special Agent Jody West of the State Bureau of Investigation testified that there was no blood on the revolver.
B. Procedural Facts
On 11 February 2008, a Pitt County grand jury returned bills of indictment charging Defendant with attempted first degree murder, robbery with a dangerous weapon, and assault with a deadly weapon with intent to kill inflicting serious injury. The cases against Defendant came on for trial before the trial court and a jury at the 9 December 2008 criminal session of the Pitt County Superior Court. On 11 December 2008, the jury returned verdicts convicting Defendant of attempted first degree murder, robbery with a dangerous weapon, and assault with a deadly weapon with intent to kill inflicting serious injury.
The record on appeal contains two verdict sheets in the case in which Defendant was convicted of robbery with a dangerous weapon and no verdict sheet in the case in which Defendant was convicted of assault with a deadly weapon with intent to kill inflicting serious injury. However, since the trial transcript, the judgments imposed by the trial court, the remainder of the record on appeal, and the parties' briefs all indicate that Defendant was convicted of one count of robbery with a dangerous weapon and one count of assault with a deadly weapon with the intent to kill inflicting serious injury, we must infer that the inclusion of two verdict sheets indicating convictions for robbery with a dangerous weapon and the absence of a verdict sheet indicating a conviction for assault with a deadly weapon with intent to kill inflicting serious injury in the record on appeal was nothing more than an inadvertent error.
Following the return of the jury's verdict, the trial court convened a sentencing hearing. Based upon a determination that Defendant had one prior record point, the trial court determined that Defendant should be sentenced as a Prior Record Level II offender in each case and sentenced Defendant to a minimum of 189 months and a maximum of 236 months imprisonment in the custody of the North Carolina Department of Correction in the case in which Defendant was convicted of attempted first degree murder, to a consecutive term of a minium of 77 months and a maximum of 102 months imprisonment in the custody of the North Carolina Department of Correction in the case in which Defendant was convicted of robbery with a dangerous weapon, and to a consecutive term of a minimum of 100 months and a maximum of 129 months imprisonment in the custody of the North Carolina Department of Correction in the case in which Defendant was convicted of assault with a deadly weapon with intent to kill inflicting serious injury. Defendant noted an appeal to this Court from the trial court's judgments.
II. Legal Analysis A. Dismissal Motion
First, Defendant contends that the trial court erred by denying his motion to dismiss the charge of attempted first degree murder on the grounds that the record did not contain substantial evidence of premeditation and deliberation. In advancing this contention, Defendant argues that "the evidence showed no planning among the group other than to do a `lick' with no discussion about the roles each would play;" "that the video did not show whether the shot was fired accidentally or intentionally;" and that "[t]he only evidence of [Defendant's] state of mind at the time of the shooting was Johnson's recollection that [Defendant] said the gun went off when he tried to hit McCullen with it." Based upon a careful review of the evidence presented at trial, however, we conclude that the trial court properly denied Defendant's dismissal motion.
In reviewing the denial of a motion to dismiss predicated on the alleged insufficiency of the evidence, a reviewing court determines "whether the State presented `substantial evidence' in support of each element of the charged offense." State v. Chapman, 359 N.C. 328, 374, 611 S.E.2d 794, 827 (2005); see also State v. McNeil, 359 N.C. 800, 803-04, 617 S.E.2d 271, 273-74 (2005) (citations omitted); State v. Garcia, 358 N.C. 382, 412, 597 S.E.2d 724, 746 (2004), cert. denied, 543 U.S. 1156, 125 S. Ct. 1301, 161 L. Ed. 2d 122 (2005). "`Substantial evidence is relevant evidence that a reasonable person might accept as adequate, or would consider necessary to support a particular conclusion.'" McNeil, 359 N.C. at 804, 617 S.E.2d at 274 (quoting Garcia, 358 N.C. at 412, 597 S.E.2d at 746 (quotation omitted)). In making this determination, the available evidence is considered "`in the light most favorable to the State, and the State receives the benefit of every reasonable inference supported by that evidence.'" Id. (quoting Garcia, 358 N.C. at 412-13, 597 S.E.2d at 746 (citation omitted)). Furthermore, a "`substantial evidence inquiry examines the sufficiency of the evidence presented but not its weight,'" which remains a matter for the jury. Id., (quoting Garcia, 358 N.C. at 412, 597 S.E.2d at 746 (quotation omitted)); State v. Blake, 319 N.C. 599, 604, 356 S.E.2d 352, 355 (1987) (citation omitted). "Thus, `if there is substantial evidence — whether direct, circumstantial, or both — to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied.'" State v. Abshire, 363 N.C. 322, 328, 677 S.E.2d 444, 449 (2009) (quoting McNeil, id. (quotation omitted)).
"The elements of attempted first-degree murder are: (1) a specific intent to kill another; (2) an overt act calculated to carry out that intent, which goes beyond mere preparation; (3) malice, premeditation, and deliberation accompanying the act; and (4) failure to complete the intended killing." State v. Tirado, 358 N.C. 551, 579, 599 S.E.2d 515, 534 (2004), cert. denied, 544 U.S. 909, 161 L. Ed. 2d 285 (2005) (citing N.C. Gen. Stat. § 14-17; see also State v. Haynesworth, 146 N.C. App. 523, 527-28, 553 S.E.2d 103, 107 (2001) (stating that "a person commits the crime of attempted first-degree murder if: (1) he or she intends to kill another person unlawfully and (2) acting with malice, premeditation, and deliberation does an overt act calculated to carry out that intent, which goes beyond mere preparation, but falls short of committing murder"); State v. Peoples, 141 N.C. App. 115, 117, 539 S.E.2d 25, 28 (2000)). As we have already noted, Defendant challenges the sufficiency of the evidence to support a finding that he acted after premeditation and deliberation. For that reason, we will limit our review of the evidentiary record to that portion which is relevant to the extent to which Defendant acted with the requisite mental state.
Premeditation means that the act was thought out beforehand for some length of time, however short, but no particular amount of time is necessary for the mental process of premeditation. . . . Deliberation means an intent to kill carried out in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation. . . . Premeditation and deliberation relate to mental processes and ordinarily are not readily susceptible to proof by direct evidence. . . . Instead, they usually must be proved by circumstantial evidence. Among other circumstances to be considered in determining whether a killing was with premeditation and deliberation are: (1) want of provocation on the part of the [victim]; (2) the conduct and statements of the defendant before and after the killing; (3) threats and declarations of the defendant before and during the course of the occurrence giving rise to the death of the deceased; (4) ill-will or previous difficulty between the parties; (5) the dealing of lethal blows after the deceased has been felled and rendered helpless; and (6) evidence that the killing was done in a brutal manner.
State v. Small, 328 N.C. 175, 181-82, 400 S.E.2d 413, 416 (1991) (quoting State v. Brown, 315 N.C. 40, 58-59, 337 S.E.2d 808, 822-23 (1985) (citations omitted), cert. denied, 476 U.S. 1165, 90 L. Ed. 2d 733 (1986), overruled on other grounds, State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988)). "No particular time is required for the process of premeditation. When the fixed deliberate purpose to slay is once formed, it is immaterial how soon afterwards such resolve is executed." State v. Coffey, 174 N.C. 814, 815-16, 94 S.E. 416, 416 (1917). "Deliberation does not require reflection or brooding for an apparent length of time, but rather an intention to kill executed by defendant in furtherance of a fixed design to gratify a feeling of revenge or to accomplish some unlawful purpose and not under the influence of a violent passion, suddenly aroused by just cause or legal provocation." State v. Bush, 289 N.C. 159, 170-71, 221 S.E.2d 333, 340 (1976), death sentence vacated, 429 U.S. 809, 50 L. Ed. 2d 69 (1976) (citing State v. Fountain, 282 N.C. 58, 191 S.E.2d 674 (1972)).
In reliance upon these basic principles, the Supreme Court held that the following evidence was sufficient to support a finding that a defendant acted with premeditation and deliberation:
The State's evidence tended to show that [the victim] was shot while she was lying face down on the floor. The wound was a "hard contact" wound; the killer placed the gun directly against the victim's skull before pulling the trigger. There was no evidence of provocation by the victim. The store was orderly, and the victim was a former bank employee who had been trained to submit without resistance to an armed robber's demands. Lying face down on the floor with her hands above her head, the victim was helpless. The evidence presented, viewed in the light most favorable to the State, supports the inference that the victim did not provoke defendant and that defendant killed the victim after she `ha[d] been felled and rendered helpless.'
Small, 328 N.C. at 183, 400 S.E.2d at 417 (1991) (citing State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 382-83 (1988); Brown, 315 N.C. at 59, 337 S.E.2d at 822-23 (1985). Similarly, this Court upheld a finding that a defendant acted with premeditation and deliberation on the basis of the following facts:
[T]he evidence tended to show that on 27 January 1998, defendant armed himself with a loaded assault rifle as part of a plan to rob [the victim]. Defendant played a critical role in developing that plan. Defendant provided transportation and directions to the apartment[.] . . . Once in the apartment parking lot, defendant approached and entered the apartment without any attempt to conceal his weapon. Only a very brief time passed between the time defendant entered the apartment and the time [the victim] was shot. This was substantial evidence which a jury could accept as adequate to conclude that defendant intentionally killed [the victim] with premeditation and deliberation.
State v. Allen, 162 N.C. App. 587, 591, 592 S.E.2d 31, 36, disc. review allowed for the limited purpose of reconsideration in light of Crawford v. Washington, 358 N.C. 546, 599 S.E.2d 557 (2004). The evidence before the jury in this case is not distinguishable in any material sense from that held to be sufficient to support a finding that the defendant acted after premeditation and deliberation in Small and Allen.
In this case, the State presented evidence tending to show the existence of at least four of the circumstances that have traditionally been considered relevant to the issue of whether a killing was committed with premeditation and deliberation. See, e.g., Small., id. More particularly, McCullen stated that "they told me to, you know, open the register and of course I did[.] . . . I was trying to work with their commands." In addition, McCullen explained that "I was just trying to keep my head down and just basically . . . stay out of the way as much as possible[.]" When asked to open the safe, McCullen "dropped a roll of ones out of it," despite his inability to open the safe, in order to show Defendant that he "was, you know, at least trying to comply as best I could." Handy Mart policy required McCullen "to comply in the event of a robbery to the fullest extent of allowing myself to be kidnapped." In addition to his efforts to follow Handy Mart policy, McCullen attempted to comply with Defendant's demands "because, of course, I was afraid of being shot[,] [s]o . . . I was being as compliant as I could." As a result, the undisputed evidence tends to show a complete want of provocation on McCullen's part prior to the shooting.
In addition, the evidentiary record suggests that Defendant's gun was loaded prior to their arrival at the Handy Mart and that, in the aftermath of the shooting, Defendant "acted like he didn't care if he shot him or not." After he hit McCullen in the back of the head with his gun, Defendant said, "what[,] do you think I'm playing[?]" All of this evidence relates to Defendant's conduct and statements before and after the shooting and the threats and declarations of Defendant during the course of the robbery during which the shooting occurred.
Finally, the record contains evidence tending to show that McCullen had been essentially "felled and rendered helpless," Small, id., by the time of the shooting. According to the evidentiary record, McCullen kneeled behind the counter, at which point Defendant put a gun "to the back of [his] head, behind [his] ear." As was the case with the victim in Small, McCullen was essentially rendered helpless — kneeling on the floor with a gun pointing to the back of his head — before the shooting. Thus, the record contains evidence tending to show that Defendant shot McCullen after the latter had begun to occupy a position of helplessness.
As a result, the record contains sufficient evidence to support a finding that Defendant acted with premeditation and deliberation. Reduced to its essentials, the record contains evidence tending to show that Defendant brought a loaded gun into the Handy Mart at the time the robbery began; that McCullen made every effort to avoid provoking Defendant in any way; that, despite McCullen's compliant attitude, Defendant threatened McCullen when he was unable to carry out his command to open the safe; that McCullen was in a helpless and vulnerable position when Defendant shot him; and that, in the aftermath of the shooting, Defendant demonstrated a complete lack of concern for McCullen's condition. This evidence, if believed, is more than sufficient to show that Defendant acted with premeditation and deliberation. As a result, the trial court correctly denied Defendant's motion to dismiss the charge of attempted first degree murder.
B. Expert Testimony
Secondly, Defendant contends that the trial court erred by allowing Special Agent West to testify concerning possible explanations for the absence of blood on the gun that was seized at the time that Defendant was taken into custody. Based upon a careful review of the record in light of the relevant legal principles, we conclude that the trial court did not err by declining to sustain Defendant's objection to the challenged testimony.
At trial, Special Agent West, who was "assigned to the Forensic Biology Section of the crime laboratory," was tendered as an expert "in the field of forensic DNA analysis." According to Special Agent West, "[if] a gun comes in contact with a source of blood, whether it be an individual bleeding or blood on another surface of another object, . . ., it could leave blood on the gun."
At that point, the prosecutor engaged in the following colloquy with Special Agent West:
Q: Are there instances where a gun may be used to shoot someone or something and there is no blood that is left on it?
[Defense Counsel]: Objection. That is just conjecture. Form of the question.
[Prosecutor]: He is testifying as an expert, Judge.
[The Court]: I'm going to overrule the objection.
. . . .
A: Yes. It's not uncommon to have a weapon used in shooting an individual or an object and there is no blood on the gun. There are many different reasons for this. One is the weapon could have been wiped with an object or wiped clean in a way that would remove any kind of blood that could have been on the weapon. When you're shooting an individual or an object that contains blood, there's always what we call blow back from that object, meaning when the gun is shot and the projectile enters this individual or object. There's not always a lot of blood that comes back toward the individual shooting the weapon. It might go off and not go away from the individual shooting the object. Those are probably the two main reasons. Also the gun might not be in close contact with the individual or objects containing the blood that was shot.
According to Special Agent West, "[e]xamination of the 22 caliber revolver, Item 1, failed to reveal the presence of blood."
If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion.
N.C. Gen. Stat. § 8C-1, Rule 702(a). "Expert testimony is properly admissible when it can assist the jury in drawing certain inferences from facts and the expert is better qualified than the jury to draw such inferences." State v. Mackey, 352 N.C. 650, 657, 535 S.E.2d 555, 558-59 (2000) (quoting State v. Evangelista, 319 N.C. 152, 163, 353 S.E.2d 375, 383 (1987)). "In applying the rule, the trial court is afforded wide discretion and will be reversed only for an abuse of that discretion." Mackey, 352 N.C. at 657, 535 S.E.2d at 559. The "`essential question in determining the admissibility of opinion evidence is whether the witness, through study or experience, has acquired such skill that he was better qualified than the jury to form an opinion on the subject matter to which his testimony applies.'" State v. Tyler, 346 N.C. 187, 204, 485 S.E.2d 599, 608, cert. denied, 522 U.S. 1001, 139 L. Ed. 2d 411 (1997) (quoting State v. Mitchell, 283 N.C. 462, 467, 196 S.E.2d 736, 739 (1973)).
On appeal, Defendant argues that, by overruling his objection, the trial court allowed Special Agent West to "opine on a subject beyond his activities in the lab, in effect to speculate about why no biological evidence was located on the gun" and that "there was no evidence that [Special Agent West's] training included the use or operation of firearms, blowback or blood spatter analysis." In State v. Benjamin, 83 N.C. App. 318, 320, 349 S.E.2d 878, 879-80 (1986), however, this Court upheld the admission of remarkably similar expert testimony:
The defendant . . . argues that the same witness was improperly permitted to testify concerning his opinion that the failure of the defendant's gunshot residue tests to provide conclusive results could have been caused by the passage of three and a half hours since the time of the shooting and by activity on the part of the defendant during that period. . . . The witness testified that although there was gunshot residue on the defendant's left hand, the residue concentrations were not significant enough or consistent enough with the results of controlled tests to permit him to form an opinion of whether the defendant had recently fired his revolver. He then offered his opinion of what circumstances could affect these tests and lead to inconclusive results. We believe this testimony was properly admitted to assist the jury in understanding the inconclusive results of the defendant's gunshot residue tests.
Special Agent West's testimony describing possible explanations for the absence of blood splatter on the gun is very similar to the expert testimony at issue in Benjamin, which this Court held to have been admissible. Secondly, at least two of the three explanations that Special Agent West gave for the absence of blood on the revolver amount to little more than common sense observations that the firearm could have been wiped off during the three or four day interval between the robbery and Defendant's arrest, or that it was fired at such a distance that no blood spatter reached the weapon. Finally, given Special Agent West's credentials, we are unable to conclude that the trial court abused its discretion by determining that Special Agent West, "through study or experience[,] . . . acquired such skill that he was better qualified than the jury to form an opinion on the subject matter to which his testimony applies.'" Tyler, 346 N.C. at 204, 485 S.E.2d at 608. Thus, we conclude that the trial court did not abuse its discretion in overruling Defendant's objection to Special Agent West's testimony providing explanations for the absence of blood on the firearm seized at the time of Defendant's arrest.
III. Conclusion
As a result, for the reasons set forth above, we conclude that Defendant had a fair trial, free from prejudicial error. For that reason, we conclude that his convictions and sentences should remain undisturbed.
NO ERROR.
Chief Judge MARTIN and Judge JACKSON concur.
Report per Rule 30(e).