Opinion
No. 62537-3-I.
January 4, 2010.
Appeal from a judgment of the Superior Court for Skagit County, No. 07-1-00957-3, John M. Meyer, J., entered October 9, 2008.
Affirmed in part and remanded by unpublished opinion per Lau, J., concurred in by Dwyer, A.C.J., and Grosse, J.
A jury convicted Joseph Kortus of two counts of first degree child molestation and two counts of second degree incest. Kortus appeals, arguing that comments by the prosecutor during closing argument constituted prosecutorial misconduct. Because the comments were isolated, based on the evidence, and provoked by defense counsel's closing argument, no misconduct occurred. Kortus also contends that because proof he "was the child of the victim" is an implied element of second degree incest, insufficient evidence supports this conviction. But when read as a whole, the jury instructions properly required the State to prove the victim was Kortus's child. Finally, the State concedes that the trial court erroneously imposed two community custody conditions and the judgment and sentence contained two clerical errors. We accept the concessions of error and remand with instructions to strike the erroneous community custody conditions and to correct the clerical errors. We affirm in all other respects.
FACTS
A jury convicted Joseph Kortus of two counts of first degree child molestation (counts one and two) and two counts of second degree incest (counts three and four). Counts one and three were based on a single incident on September 17, 2006, and counts two and four were based on a single incident on October 29, 2006. Both offenses involved Kortus's nine-year-old daughter, K.H., and occurred at Christ the King Church in Mount Vernon, Washington.
At trial, witnesses testified to the following events: On September 17, 2006, while attending services at Christ the King Church, Kortus slipped his hand underneath K.H.'s buttocks as they sat together on chairs arranged in rows. K.H. then squirmed around for some time, stood up, readjusted Kortus's hand and sat back down on it. While in this position, K.H. bounced up and down on Kortus's hand in a motion caused by both of them. Eventually, Kortus touched K.H.'s genitals with his hand as she continued to bounce around and then appeared to climax. During church service on October 29, 2006, K.H. again took Kortus's hand, sat on it, and rocked back and forth on it for a time until she climaxed.
The State initially charged Kortus by information with one count of first degree rape of a child, three counts of first degree child molestation, and one count of first degree incest. On August 12, 2008, the State filed its first amended information charging Kortus with first degree rape of a child, three counts of first degree child molestation, and two counts of second degree incest. Three days later, the State again amended the information, charging Kortus with two counts of first degree child molestation and two counts of second degree incest and amending the child molestation offense dates. Before trial, Kortus moved in limine to preclude the State from presenting additional allegations of sexual misconduct involving K.H. Because the State agreed not to present this evidence, the trial court made no admissibility ruling. But it allowed the State to present 14 photographs depicting K.H. partially undressed to show Kortus's "lustful predisposition" towards K.H. Police officers discovered the photographs in Kortus's home incident to a lawful search.
At trial, whether Kortus had sexual contact with K.H. for the purpose of sexual gratification was substantially disputed. During closing argument, defense counsel argued that the evidence showed Kortus sought no sexual gratification because his contact with K.H. occurred in public during church services attended by approximately 100 churchgoers. He also described other occasions when Kortus and K.H. were alone and no sexual misconduct occurred between them. Responding to this argument, the State objected stating, "Your honor, I object. This is inappropriate argument for uncharged offenses." 3 Report of Proceedings (RP) (Aug. 21, 2008) at 94. The court overruled the objection. In rebuttal argument, the State argued that Kortus's sexual contact with K.H. during church service while seated among other churchgoers, some who noticed the contact, constituted sexual thrill-seeking behavior.
Jury instruction 7 stated, "Sexual contact means any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party." Kortus does not assign error to this instruction.
So the questions [have] been raised: Why would he do it in church? . . . Are his actions with his daughter a way of not only getting away with a sexual thrill, but also a way of spitting in the face of the other churchgoers, of God, of doing it in church?
3 RP (Aug. 21, 2008) at 107.
Kortus did not object at trial to this argument. Shortly after jury deliberations began, Kortus moved for a mistrial, arguing that the prosecutor's reference to "uncharged offenses" during closing argument prejudiced him. While the court did not expressly deny the motion, it did not grant Kortus's motion. After the jury returned guilty verdicts, Kortus moved for a new trial, again arguing that the reference to "uncharged offenses" was improper and prejudicial. In a written ruling, the trial court denied the motion, finding no prosecutorial misconduct occurred.
In addition to a prison sentence, the court imposed community custody conditions, including requirements that Kortus obtain a substance abuse evaluation and comply with the evaluator's recommendations and that he refrain from possessing or perusing pornographic materials. Kortus appeals his convictions and sentence.
ANALYSIS
Prosecutorial Misconduct
Kortus contends that two comments during the State's closing argument constituted prosecutorial misconduct. First, he claims that prosecutorial misconduct occurred when the prosecutor referenced "uncharged offenses" and described Kortus's actions as "spitting in the face of churchgoers, of God." The State counters that the comments did not rise to the level of misconduct and that Kortus cannot show prejudice.
Prosecutorial misconduct requires a showing that the prosecutor's conduct was both improper and prejudicial in the context of the entire record and circumstances at trial. State v. Hughes, 118 Wn. App. 713, 727, 77 P.3d 681 (2003) (citing State v. Stenson, 132 Wn.2d 668, 718, 940 P.2d 1239 (1997)). A defendant who alleges prosecutorial misconduct must "first establish the prosecutor's improper conduct and, second, its prejudicial effect." State v. Dhaliwal, 150 Wn.2d 559, 578, 432 P.3d (2003). A prosecutor has a duty to ensure a verdict is free from prejudice and based on reason, not passion. State v. Echevarria, 71 Wn. App. 595, 598, 860 P.2d 420 (1993) (citing State v. Huson, 73 Wn.2d 660, 663, 440 P.2d 192 (1968)). It is improper for a prosecutor to invite the jury to decide any case based on emotional appeals or their passions and prejudices. In re Det. of Gaff, 90 Wn. App. 834, 841, 954 P.2d 943 (1998); State v. Claflin, 38 Wn. App. 847, 850, 690 P.2d 1186 (1984). A defendant establishes prejudice only if she shows a substantial likelihood that the instances of misconduct affected the jury's verdict. State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995). The defendant bears the burden of showing both prongs of prosecutorial misconduct. Hughes, 118 Wn. App. at 727.
To preserve a claim of prosecutorial misconduct, a defendant must timely object or move for a mistrial. See In re Det. of Law, 146 Wn. App. 28, 50-51, 204 P.3d 230 (2008); State v. Klok, 99 Wn. App. 81, 85, 992 P.2d 1039 (2000); State v. Belgarde, 110 Wn.2d 504, 517-18, 755 P.2d 174 (1988). Either course allows the trial court to cure the error through a curative instruction. State v. Stamm, 16 Wn. App. 603, 614, 559 P.2d 1 (1976). Where the defense fails to timely object to an allegedly improper remark, the error is deemed waived unless the remark is "so flagrant and ill intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury." State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994). Where a claim of prosecutorial misconduct is raised in a motion for a new trial below, the reviewing court examines the trial court's decision for an abuse of discretion. State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006). "An abuse of discretion will be found `only when no reasonable judge would have reached the same conclusion.'" McKenzie, 157 Wn.2d at 52 (internal quotations omitted) (quoting State v. Bourgeois, 133 Wn.2d 389, 406, 945 P.2d 1120 (1997)).
Kortus first argues that the prosecutor's reference to "uncharged offenses" during rebuttal closing argument constituted misconduct. Kortus properly preserved this issue for review by timely moving for a mistrial. The trial court did not grant this motion and Kortus later moved for a new trial on the same grounds. Our review is therefore limited to review of the order denying Kortus's motion for a new trial based on an abuse of discretion standard. See McKenzie, 157 Wn.2d at 52.
Specifically, Kortus asserts that the State's reference to uncharged offenses was improper because it suggested to the jury without having to prove it that Kortus engaged in other uncharged prior bad acts — alleged abuse involving K.H. at Kortus's home. In support of this argument, Kortus relies on cases that are inapposite. Those cases all involve prosecutors who, in the course of questioning or impeaching witnesses, elicited or presented evidence that had not been properly admitted. See State v. Ra, 144 Wn. App. 688, 702, 175 P.3d 609 (prosecutor elicited gang evidence in violation of court order and then argued it in closing), review denied, 164 Wn.2d 1016 (2008); State v. Miles, 139 Wn. App. 879, 887, 162 P.3d 1169 (2007) (prosecutor's repeated questions referencing specific boxing matches and specific boxer profile were improper references to extrinsic evidence); State v. Babich, 68 Wn. App. 438, 444-46, 842 P.2d 1053 (1993) (prosecutor repeatedly referred to transcript not admitted in evidence of a conversation to impeach defense witness); State v. Beard, 74 Wn.2d 335, 338-39, 444 P.2d 651 (1968); (prosecutor questioned defendant about prior convictions without offering proof thereof); State v. Yoakum, 37 Wn. 2d 137, 143-44, 222 P.2d 181 (1950) (prosecutor quoted from transcript of interview, but offered no extrinsic evidence of interview).
ER 404(b) provides, "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."
We agree with the State. The reference to uncharged offenses in this context is not a "speaking objection." "The term `speaking objection' is not a precisely defined term of art, but is generally taken to mean an objection that is phrased in a manner intended to intimidate the witness, or to otherwise influence the witness's answer. An example might be, `Objection, the witness cannot possibly answer that question without speculating.' Or, `Objection, the witness has already been through this before. Do we really need to hear this again?'" 5B Karl B. Tegland, Washington Practice: Evidence § 103.8, at 54 (5th ed. 2007).
But unlike these cases, the alleged misconduct here consisted of a two-word objection in response to defense counsel's closing argument.
[Defense counsel]: The other thing, more circumstantial evidence, is child molestation is kind of like investing in real estate. Seems kind of strange, doesn't it? It's about location, location, location. Where does it happen? It happens in private. It doesn't happen in public. You heard testimony about what Joe did with [K.H]. They went camping. Did you heard [sic] from [K.H.]: Oh yeah, we would go camping and we slept in the same sleeping bag and did whatever we wanted to? No. You didn't hear anything about that. What about: Yeah, I used to get in his car and he'd drive away and we'd be driving for hours and we'd end up down some logging road and he'd have his way with me.
[The State]: Your Honor, I object. This is inappropriate argument for uncharged offenses.
[Defense counsel]: Your Honor —
The Court: I think it's a fair comment on the evidence. Overruled.
[Defense counsel]: Did you hear one shred of evidence from anyone that he ever did anything in private that was inappropriate of a molesting nature? No. It's about location, location, location, and this thing happened in a house of God, during the Sabbath, three rows back among a throng of a hundred, maybe two [hundred] people. It's just patently absurd. Maybe he's got a church fetish, but would that be asking you to speculate? I submit that if he had a sexual interest in [K.H.], you would have heard from [K.H.], from maybe others, about all kinds of weird things that were being done behind closed doors and in private.
3 RP (Aug. 21, 2008) at 94-95 (emphasis added).
In addition, the record shows that the prosecutor did not deliberately pursue a course of questions that elicited inadmissible evidence and Kortus identifies no authority holding that a brief, isolated objection during closing argument constitutes misconduct. Furthermore, the trial court found that the State "did the absolute minimum to apprise the Court of both the nature and basis for her objection." And the jury displayed "no unusual reaction suggestive of any particular impact from the argument or the objection." The trial court also found that defense counsel failed to object at the time and request a curative instruction. Finally, the court instructed the jury that counsel's arguments are not evidence and the jury is presumed to follow the court's instructions. State v. Johnson, 124 Wn.2d 57, 77, 873 P.2d 514 (1994). The State's objection was not improper. Under these circumstances, we conclude that the trial court was well within its discretion to deny Kortus's motion for a new trial.
Kortus next asserts that the State's remark that he was "spitting in the face of the other churchgoers, of God" constituted an improper appeal to the jury to decide the case based on passion and prejudice. The State counters that these remarks were a proper comment on the testimony and invited by defense counsel's argument. Because Kortus failed to object to the comment at trial, we will not review the alleged misconduct unless the comment is "so flagrant and ill intentioned that it cause[d] an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury." Russell, 125 Wn.2d at 86. Prosecutorial misconduct is grounds for reversal only when the conduct was both improper and prejudicial in the context of the entire record and circumstances at trial. See Hughes, 118 Wn. App. at 727 (citing Stenson, 132 Wn.2d at 718).
The jury instruction here defined sexual contact as "any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desires of either party." (Emphasis added.) In response to the State's argument that Kortus had sexual contact with K.H. for the purpose of sexual gratification, defense counsel argued,
[The witness] interprets a smirk as pride that the defendant had molested a girl in church, was getting away with it, and there's nothing you can do about it. A smirk. That seems to be an awful lot to conclude from observing a smirk. She testified she only saw one smirk, when actually in her written statement she acknowledged that at the time, very close in time to this actual incident, what she saw was several smirks and made eye contact with him throughout the whole process. That's what she said.
3 RP (Aug. 21, 2008) 88-89.
But maybe she just saw a girl that was bouncing up and down and maybe was learning to masturbate. I hate to use words like that, but given the nature of the subject matter, we're adults here and I've got to use them. If you were to see in church, in the house of God on the Sabbath, somebody masturbating, that would be an upsetting experience for most reasonable people. That explains the upsetting of these witnesses and it also explains their animus if they misinterpreted what may have been happening as molestation.
3 RP (Aug. 21, 2008) 90-91.
The last instruction I'd like to talk to you about, and it is kind of really the gist of this, because the situation — the key is the sexual conduct. It means any touching of the sexual or other intimate parts — this is Instruction 7 — of a person done for the purposes of gratifying sexual desires of either party. That is the entire — I'm not going to argue to you that this did not occur in the State of Washington. I'm not going to argue to you that sexual contact in the sense of some kind of touching took place. What I am telling you is that Joe did not have any intention either to titillate himself or to titillate his daughter whenever what happened up there at the [Im]maculate Conception Church and at the — excuse me, for the purposes of this information, whatever happened up at Christ the King Church happened. That's what it comes down to: What was in his mind. I think I presented to you powerful circumstantial evidence that he was oblivious. Did he think something was wrong eventually? Yes. Did he think at some point he didn't think nothing of it? Yes. He didn't think those or say those at the same time like the prosecutor would have you try to believe. But no, what happened was this started happening at the [Im]maculate Conception Church, the pews are hard, they are wooden, they are cold, and he thought she was just doing this to sit on a warm hand. It wasn't a big deal at that time. It never really was a big deal to him until he's on the hot seat with Detective Thompson. When someone is being interrogated about heinous crimes, you bet he got nervous. You bet he may have said things to minimize. The one rule of being on the hot seat is you want to get off it as soon as possible. And sure he might have minimized the time there, but he ultimately got up on the stand and he said: You know, yeah, it was around a minute. It may have been a minute. But that's what you're left with, is trying to think — and you have to in order to find him guilty of any of these charges. You have to think beyond a reasonable doubt that the purpose for this contact was to gratify the sexual pleasures of one or the other. I submit to you that the only evidence that you might consider that might be — maybe we're talking about hunches down here. (Indicating.) These are hunches down here below reasonable articulable suspicion. Maybe she was masturbating.
Although defense counsel refers to "sexual conduct," the jury instruction he cites defines "sexual contact."
At a strange time in people's lives, childhoods are awkward. I can remember a kid in the second grade, he used to sit at the end of his desk and kind of rub up and down. Of course now, in retrospect: Hey, knock it off, kid. That's gross. But as a second grader, it was like: Yeah, it's a little weird, but we don't know what he's doing. We didn't know what he was doing. Kids will do those sorts of things in public until they're told not to. They learn to conform their behavior and learn that maybe if those things are going to happen, maybe they should happen in private. Of course there's a big, broad view that people have about the issue of masturbation. Some people think it's an abomination before God and other[s] think it's a natural thing. You have to be convinced beyond a reasonable doubt that the purpose for what this contact was, was that he wanted to titillate her or she wanted — or he wanted to titillate himself. There's no evidence whatsoever that he was titillated by this.
3 RP (Aug. 21, 2008) at 103-05. In rebuttal, the State argued,
So the questions [have] been raised: Why would he do it in church? Why would he do it in front of everybody? You've been asked: Wouldn't a molester do this? Wouldn't a molester do that? And first of all, let me say that I hope you don't know what a molester would or would not do, and I'm assuming that you don't. But I would also suggest that sometimes the sexual thrill comes from the possibility of getting caught. Here's a man who clearly is not all that interested in the pastor's sermons. Why is he going to church? Are his actions with his daughter a way of not only getting away with a sexual thrill, but also a way of spitting in the face of the other churchgoers, of God, of doing it in church? Would that be some kind of thrill for him? I don't know. Why would he do it? He did get away with it. He got away with it several times before he got caught. Why didn't anybody else notice? Because people aren't looking for that. Clearly it did happen before and other people didn't notice and clearly it happened on December 10th. Even though Patti Snodgrass was looking at him for a few minutes before she went back to her duties that last time in December, he did it then. He said he did. [K.H.] and he both said that happened in December. Nobody saw them. So clearly he learned that he could do it and get away with it.
3 RP (Aug. 21, 2008) at 107-08 (emphasis added).
When viewed in the context of the entire argument, the issues in the ase, and the evidence, the prosecutor's reference to "spitting in the face of the other churchgoers, of God" was not improper. See Russell 125 Wn. 2d at 86 (improper remarks by a prosecutor are not grounds for reversal if they are provoked by the defense). Rather, this comment responded directly to defense counsel's argument that Kortus could not have sought sexual gratification because child molestation happens in private, not public places like a church. Furthermore, the prosecutor argued based on reasonable inferences from witness testimony that Kortus molested K.H. in a church and smirked at other churchgoers. See State v. Gentry, 125 Wn.2d 570, 641, 888 P.2d 1105 (1995) (during closing argument, prosecutor "has wide latitude in drawing and expressing reasonable inferences from the evidence"). Finally, the comment was not an appeal to the jury's passion or prejudices but an argument tied to the evidence at trial and in direct rebuttal to defense counsel's sexual contact argument. And even if the comment were improper, it was not flagrant and ill intentioned.
Jury Instructions
Kortus next contends that there is insufficient evidence to establish an implied element of second degree incest. Specifically, he argues that the second degree incest to-convict instruction required the State to prove that he was K.H.'s child. The State counters that the instructions required the State to prove only that K.H. was a descendant of Kortus. We review alleged instructional errors de novo. State v. Brett, 126 Wn.2d 136, 171, 892 P.2d 29 (1995).
To-convict jury instructions must contain all the elements of the crime or else the State is relieved of its burden to prove every essential element beyond a reasonable doubt. State v. Smith, 131 Wn.2d 258, 265, 930 P.2d 917 (1997). If the parties do not object to jury instructions, they become the law of the case. State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998). If, in a criminal case, the State adds an unnecessary element in the to-convict instruction without objection, the added element also becomes the law of the case and the State assumes the burden of proving it. Hickman, 135 Wn.2d at 102. A criminal defendant may challenge the sufficiency of the evidence to support such added elements. Hickman, 135 Wn.2d at 102. In a criminal case, evidence is sufficient to support a guilty verdict if, viewed in the light most favorable to the State, any rational trier of fact could find each element of the crime proved beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980).
In State v. Teal, 152 Wn.2d 333, 96 P.3d 974 (2004), the to-convict instruction set out the elements of first degree robbery, referring "to the acts of the `defendant' and not to the acts of the `defendant or an accomplice.'" Teal, 152 Wn.2d at 336. Separate instructions set out the requirements for accomplice liability. Teal argued that the State failed to prove the elements of the "to-convict" instruction because there was no evidence that he was the principal in the robbery. Teal, 152 Wn.2d at 336-37. Nonetheless, the court concluded that the jury instructions were sufficient because "when, read as a whole, they accurately state[d] the law, d[id] not mislead the jury, and permit[ed] each party to argue its theory of the case." Teal, 152 Wn.2d at 339.
Here, the to-convict instruction provided,
To convict the defendant of the crime of incest in the second degree, as charged in Count 3 [and 4], each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That . . . the defendant engaged in sexual contact with [K];
(2) That the defendant was related to [K] as a descendant;
(3) That at the time, the defendant knew the person with whom he was having sexual contact was so related to him; and
(4) That any of these acts occurred in the State of Washington.
. . . .
(Emphasis added.) And instruction 10 provided, "Descendant means any child of the defendant." Relying on the second element, Kortus argues that the to-convict instruction required the State to "prove Kortus was related to K.H. `as a descendant,' i.e., to prove Kortus was K.H.'s child." Br. of Appellant at 33.
But when read as a whole, the to-convict instruction and instruction 10 correctly informed the jury that the State must prove only that K.H. was Kortus's child. See Teal 152 Wn.2d at 339 (instructions were proper when "reading the jury instructions as a whole, including the court's erroneous accomplice liability instruction, the jury could decide Teal's guilt or innocence as an accomplice to first degree robbery"). Furthermore, the jury was specifically instructed to consider the instructions as a whole and jurors are presumed to follow a court's instructions. Johnson, 124 Wn.2d at 77. Accordingly, sufficient evidence exists in the record to support Kortus's second degree incest conviction because as Kortus acknowledges, "[T]here was no dispute [K.H.] was Kortus's child." Br. of Appellant at 33.
Community Custody Conditions
Kortus next assigns error to two community custody conditions imposed at sentencing. First, he argues that the condition requiring him to "undergo an evaluation regarding [s]ubstance abuse at [his] expense and follow any recommendation therein" should be stricken because substance abuse bore no relation to the circumstances of his convictions. The State correctly concedes that the condition was not related to his convictions and should be stricken. Br. of Respondent at 43.
Kortus next challenges as unconstitutionally vague the community custody condition requiring that he "not possess or peruse pornographic materials unless given prior approval by [his] sexual deviancy treatment provider and/or supervising Community Custody Officer. Pornographic materials are to be defined by the therapist and/or supervising Community Custody Officer." The State also correctly concedes that this condition is unconstitutionally vague and should be stricken. Br. of Respondent at 44. We accept the State's concessions and remand to the trial court with instructions to strike the erroneous conditions.
Clerical Errors
Kortus next argues that the judgment and sentence contained two clerical errors. First, Kortus points out that the judgment and sentence lists the dates of conviction for the four counts as "11/19/2006," "12/10/2006," "11/18/2004," and "12/10/2006." Those dates are incorrect. The second amended information and the court's instructions to the jury both show the respective dates to be September 17, 2006 (counts one and three) and October 29, 2006 (counts two and four). The State concedes that the dates in the judgment and sentence are incorrect.
Kortus next notes that the trial court failed to check the box on the judgment and sentence form indicating which offenses constituted the same criminal conduct. The State concedes that it was error not to check the same criminal conduct box. Br. of Respondent at 46. We accept the State's concessions and remand to the trial court to correct these errors. See State v. Moten, 95 Wn. App. 927, 929, 935, 976 P.2d 1286 (1999) (remanding to correct scrivener's error on judgment and sentence that listed the wrong statute).
Statement of Additional Grounds
Kortus raises a number of additional issues in his statement of additional grounds for review, none of which is meritorious. Kortus asserts that his counsel was ineffective for failing to vigorously cross-examine witnesses and introduce certain evidence. "To prevail on a claim of ineffective assistance of counsel, a defendant must establish both ineffective representation and resulting prejudice." State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002). Legitimate trial strategy or tactics cannot serve as a basis for the claim. McNeal, 145 Wn.2d at 362. The record indicates that Kortus's counsel had valid legal or tactical reasons for each of these alleged failures. Kortus also makes repeated references to prosecutorial misconduct. Those allegations of misconduct that are not duplicative of those contained in his appellate brief are not supported by the record, are without merit, and were not raised at trial.
CONCLUSION
We remand to the trial court to strike community custody conditions 12 and 14 and correct the two clerical errors. We affirm Kortus's conviction in all other respects.
WE CONCUR: