FSM SUPREME COURT APPELLATE DIVISION

Cite as Tulensru v. Kosrae, 15 FSM Intrm. 122 (App. 2007)

[15 FSM Intrm. 122]

ESPIL TULENSRU,

Appellant,

vs.

STATE OF KOSRAE,

Appellee.

APPEAL CASE NO. K2-2006

OPINION

Argued:  April 18, 2007

Decided:  June 21, 2007

BEFORE:

Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court

Hon. Dennis K. Yamase, Associate Justice, FSM Supreme Court

Hon. Ready E. Johnny, Associate Justice, FSM Supreme Court
 

APPEARANCES:

For the Appellant:   Harry A. Seymour, Esq.

                                Office of the Public Defender

                                P.O. Box 245

                                Tofol, Kosrae  FM  96944
 

For the Appellee:     J.D. Lee, Esq.

                                 Kosrae Attorney General

                                 Office of the Kosrae Attorney General

                                 P.O. Box 870

                                 Tofol, Kosrae  FM  96944

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HEADNOTES

Appellate Review ) Standard of Review ) Criminal Cases

      Issues of law are reviewed de novo. The standard of review applied to sufficiency of the evidence challenges in a criminal case is whether, in reviewing the evidence in the light most favorable to the trial court’s determinations of fact, there is sufficient evidence to convince a reasonable trier of fact, relying on evidence which it had the right to believe and accept as true, that the defendant is guilty beyond a reasonable doubt. Tulensru v. Kosrae, 15 FSM Intrm. 122, 125 (App. 2007).

Criminal Law and Procedure ) Controlled Substances; Criminal Law and Procedure ) Standard of Proof

       There was sufficient evidence apart from the field sobriety tests to sustain the conviction for driving under the influence because there were testimonies that the defendant appeared drunk and had

[15 FSM Intrm 123]

the smell of alcohol on him, together with the fact that the defendant exhibited these characteristics when he emerged from his vehicle carrying an open can of Budweiser after going through a stop sign and colliding with another vehicle. Tulensru v. Kosrae, 15 FSM Intrm. 122, 127 (App. 2007).

Criminal Law and Procedure ) Controlled Substances; Criminal Law and Procedure ) Standard of Proof

      A trier of fact is entitled to rely on properly admitted evidence and reasonable inferences drawn from that evidence. A reasonable inference is that the accused, who smelled of alcohol and had appeared to be intoxicated, would not have emerged from a vehicle immediately after an accident carrying an empty Budweiser can with him when he had this can in hand when he was on the road, which is a public place. Thus there was sufficient evidence to convict the defendant for possessing an open can of alcohol in a public place. Tulensru v. Kosrae, 15 FSM Intrm. 122, 127 (App. 2007).

Criminal Law and Procedure ) Traffic Offenses; Evidence

       Even assuming that the photos not admitted would have shown that the defendant was not at fault in the accident, that would have had no bearing on his state of intoxication because even if the other driver were 100% at fault, there is no question that the defendant was driving a vehicle, and he would still have been subject to conviction under the driving under the influence statute if he were driving that vehicle while under the influence. Tulensru v. Kosrae, 15 FSM Intrm. 122, 127 (App. 2007).

Evidence

      It was not error to exclude photos from evidence when the probative value of the photos of an accident scene taken some months after the accident, and without the vehicles present, is negligible. Tulensru v. Kosrae, 15 FSM Intrm. 122, 127 (App. 2007).

Criminal Law and Procedure ) Pleas

      A plea of "nolo contendere" literally means "I do not contest it." Tulensru v. Kosrae, 15 FSM Intrm. 122, 128 (App. 2007).

Criminal Law and Procedure ) Sentencing

      At the time of sentencing, a trial court is entitled to consider a defendant’s prior conviction, and the plea upon which it was based, even when the prior conviction was based upon a nolo contendere plea because it is not only the plea that is considered, but the conviction based upon the plea as well. Tulensru v. Kosrae, 15 FSM Intrm. 122, 128 (App. 2007).

Courts ) Judges

      When the only evidence in the appellate record regarding the timing of the trial judge’s resignation is the judge’s statement that he has resigned from the court as chief justice and February 28, 2006 is his final day of service as chief justice and the appellate court is left to rely upon its import when determining the question of the judge’s authority on February 28, 2006 and when no "take effect" language is present in the appellate record, the judge’s statement clearly indicates his understanding and intent to conduct official business on February 28, 2006, and if put in the rigid context, the appellate court is left with no other conclusion than that the trial judge’s resignation was to "take effect" on March 1, 2006, or after the close of business on February 28, 2006. Tulensru v. Kosrae, 15 FSM Intrm. 122, 129 (App. 2007).

Courts ) Judges

      A judge de facto must have all the qualifications to hold the office which he claims under color of authority. A de facto officer is one who is in possession of an office, and discharging its duties, under color of authority. By color of authority is meant authority derived from an election or appointment, however irregular or informal, so that the incumbent be not a mere volunteer. Tulensru

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v. Kosrae, 15 FSM Intrm. 122, 129 (App. 2007).

Courts ) Judges

      When the trial judge’s original appointment as chief justice established his qualifications for the office and the trial judge physically possessed the office of chief justice on February 28, 2006 and on that day discharged the duties of the office and when the trial judge’s color of authority stems from his original appointment as chief justice, the dispute relates not to the fact of the trial judge’s appointment to the bench but rather concerns the exact length of the trial judge’s appointment as chief justice. Tulensru v. Kosrae, 15 FSM Intrm. 122, 129 (App. 2007).

Courts ) Judges

      When the only relevant evidence in the record on appeal supports the conclusion that the judge’s appointment extended through the day of February 28, 2006, as he was clearly acting under the color of authority vested with him by his original appointment as chief justice and not as an unknown usurper attempting to wrestle authority from its appropriate guardian, and when an additional source for the trial judge’s color of authority is derived from the fact that he presided over the trial in this matter and twice scheduled the sentencing hearing to take place before February 28, 2006, all acts which he undertook without protest from any party, this is the type of situation contemplated by the de facto principle as a safeguard against the unnecessary interruption of public governance. Thus, even if it were true that the trial judge’s tenure with the court officially ended before February 28, 2006, the sentencing order of February 28, 2006 would remain valid as the act of a judge de facto. Tulensru v. Kosrae, 15 FSM Intrm. 122, 129 (App. 2007).

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COURT’S OPINION

DENNIS YAMASE, Associate Justice:

      Espil Tulensru appeals from a February 28, 2006 judgment of conviction.  He was convicted on one count each of violating Kosrae’s driving under the influence statute, Kos. S.C. § 13.710, and of violating its open container law, Kos. S.C. § 13.517(4).

     For the reasons that follow, we affirm the judgment of the trial court.

I.   Facts and Procedural History

      The trial court’s findings of fact are reported in Kosrae v. Tulensru, 14 FSM Intrm. 115, 118-20 (Kos. S. Ct. Tr. 2006).  Briefly, they are as follows.

      Around 1:00 p.m. on the afternoon of Saturday, May 7, 2005, Tulensru collided with a vehicle driven by Juleen Tolenoa at the Sronsrono intersection in Tafunsak, Kosrae.  After the accident, Tulensru got out of his car and approached Tolenoa’s vehicle with an open can of Budweiser in his hand.  Tulensru demanded that Tolenoa move her vehicle, and she could smell the odor of alcohol on Tulensru’s breath.  Kosrae State Police Officers Stomar Palik and Jerry Palsis arrived at the scene, where an additional officer, Ludick Nithan, who was off-duty, was already present.  Officer Palsis observed that Tulensru appeared to be intoxicated and that he smelled of alcohol.  Officer Palik then administered field sobriety tests (FST’s): the finger-to-nose test, the walk-a-straight-line test, and the one-legged stand test. Tulensru failed two of the three tests, and was arrested.

      On May 9, 2006, Tulensru was charged by information with one count of driving "under the

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influence" in violation Section 13.710 of the Kosrae State Code, and one count of possessing an open container of alcohol in a public place in violation of Section 13.517(4) of the Kosrae State Code.  Tulensru joined in a pre-trial motion for declaratory judgment filed in another case then pending in Kosrae State Court, Kosrae v. Phillip, Crim. Case No. 123-2004.  (That case was also appealed, and we have recently issued our decision in that case.  [Phillip v. Kosrae, 15 FSM Intrm. 116 (App. 2007).]  The motion sought a declaration that the Kosrae DUI statute was void for vagueness, and was denied by order entered on June 21, 2005.  The matter proceeded to trial, and Tulensru was convicted on both counts.  The court rendered its decision in open court on February 20, 2006.

      Sentencing was originally scheduled for February 27, 2006, but on February 26, Tulensru was admitted to the Kosrae hospital.  When Kosrae offered to hold the hearing at the hospital, Tulensru indicated he would be available at the court the following day, February 28, 2006, which was Judge Yosiwo George’s last scheduled day on the bench in the Kosrae State Court.  At the hearing, Tulensru moved that the judge not sentence him because it was his last day on the bench. The motion was denied, and sentence was imposed: a $200 fine and 30 days in jail on the driving under the influence charge (one year with 11 months suspended conditioned on successfully completing 11 months probation); and a $50 fine and 12 months in jail suspended conditioned on successfully completing 12 months probation on the possessing an open container of alcohol in a public place charge.  The judgment of conviction and sentencing order was issued on February 28, 2006, and a timely notice of appeal was filed on March 7, 2006.

II.   Issues

      Tulensru raises the following issues on appeal:

       1.   Whether the trial court erred when it found that the Kosrae DUI statute provides sufficient standards for enforcement.

       2.   Whether the trial court’s finding that Tulensru was driving under the influence was supported by sufficient evidence.

       3.   Whether the trial court’s finding that the defendant possessed an open container of alcohol was based on sufficient evidence.

       4.   Whether the court erred in excluding photos of the crime scene from the evidence.

       5.   Whether the court abused its discretion in denying the defendant’s motion to exclude consideration of a prior nolo contendere plea in a different criminal case at the time of sentencing.

       6.   Whether the trial judge had authority to impose sentence, since the trial judge had submitted his resignation effective the day of the sentencing.

III.   Standard of Review

      Issues of law are reviewed de novo, Tulensru v. Wakuk, 10 FSM Intrm. 128, 132 (App. 2001).  The standard of review applied to sufficiency of the evidence challenges in a criminal case is whether, in reviewing the evidence in the light most favorable to the trial court’s determinations of fact, there is sufficient evidence to convince a reasonable trier of fact, relying on evidence which it had the right to believe and accept as true, that the defendant is guilty beyond a reasonable doubt.  Engichy v. FSM, 1 FSM Intrm. 532, 546 (App. 1984); Yow v. Yap, 11 FSM Intrm. 63, 65 (Yap. S. Ct. App. 2002).

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IV.    Discussion

Issue 1:   Whether the DUI statute is unconstitutional because it does not provide sufficient standards for enforcement.

      In conformity with our recent decision in Phillip v. Kosrae, App. No. K1-2006, reported at 15 FSM Intrm. 116 (App. 2007), we reject this claim, which is identical to the issue of law that Tulensru raises as his first issue here.  Nothing about the facts of this case causes us to depart from our analysis of the same issue in PhillipPhillip stands as our disposition of Tulensru’s first issue.

Issue 2:   Whether the trial court’s finding that Tulensru was driving under the influence was supported by sufficient evidence.

        At trial, Juleen Tolenoa testified that Tulensru went through a stop sign and collided with her vehicle.  Tr. at 26.  Tulensru then got out of his vehicle and approached Tolenoa’s vehicle with an open can of beer in his hand.  Tr. at 27.  Tolenoa could smell the odor of alcohol on Tulensru.  Id.  Officer Palik testified that when he arrived at the scene, Tulensru appeared to be drunk and that he could smell alcohol on Tulensru.  Tr. at 103-04.  After asking Tulensru if he had any physical problems, to which Tulensru answered "no," Tr. at 51-52, Officer Palik administered field sobriety tests (FST’s), and Tulensru failed two out of the three.  Tr. at 56.  He passed the walk-a-straight-line test, but failed the finger-to-nose test, and the one-leg-stand test.  Tr. at 56-58.  A reasonable trier of fact was entitled to consider this evidence, and accept it as true.  Engichy, 1 FSM Intrm at 546; Yow, 11 FSM Intrm at 65.  It was sufficient to prove Tulensru guilty beyond a reasonable doubt of the offense of driving a vehicle while under the influence of alcohol.

      At pages 13 through 18 of his brief, Tulensru lists 7 ways in which he contends that the evidence was insufficient.  The first five of these points question either the manner in which the FST’s were administered or their reliability. In light of the other evidence, however, we need not address these points.  There was sufficient evidence apart from the FST’s to sustain the conviction for driving under the influence.

       Leuer v. Flowood, 744 So. 2d 266, 267 (Miss. 1999), like the case at bar, involved a void-for-vagueness challenge to the Mississippi DUI statute, which like Kosrae’s, proscribes driving under the influence of alcohol.  In Mississippi, the statute applies when there are no accurate intoxilyzer or blood test results available, the results are below the presumed intoxication level, or where a test has been refused.  Id. at 268.  In Leuer the arresting officer testified that Leuer had refused the test, while Leuer testified that the machine would not register.  Id. at 269.  In holding that the Mississippi statute was not unconstitutionally vague, the court observed that the defendant was stopped after he ran off the shoulder of the road, made a left turn, and then went into the middle of the roadway at 2:30 a.m.  Id.  The defendant smelled strongly of alcohol, had glassy eyes, and difficulty speaking.  Id.  The court held that this evidence alone was sufficient to sustain the conviction, apart from any test results.  Id.

      Similarly, in this case Tulensru went through a stop sign, collided with a vehicle, got out of the vehicle with an open can of Budweiser in his hand, appeared to be intoxicated, and smelled of alcohol.  Apart from any concerns about the FST’s, this evidence was sufficient to sustain the conviction.

      Tulensru asserts as his sixth point under the sufficiency of the evidence challenge that it was error for the trial court to admit into evidence the incident report prepared by Officer Palik. Although the report was identified as an exhibit, Tr. at 52, the court indicated that it would take the ruling under advisement and rule on the admission of the report later.  A review of the transcript and the trial court’s written findings and conclusions offers no indication that this subsequently occurred, and the report

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does not appear tohave been admitted.  However, given Officer Palik’s testimony on the witnessstand, it was harmless error even if the report was admitted.

      As his seventh point, Tulensru urges that the "the trial court was clearly erroneous in concluding that the defendant was ‘under the influence’ beyond a reasonable doubt based on testimonies that the defendant appeared drunk and had the smell of alcohol on him."  Appellant’s Br. at 17.  We disagree.  Evidence of this sort, together with the fact that Tulensru exhibited these characteristics when he emerged from his vehicle carrying an open can of Budweiser after going through a stop sign and colliding with another vehicle, was sufficient to sustain the conviction for driving under the influence in violation of Kos. S.C.§ 13.710.

Issue 3:   Whether the trial court’s finding that the defendant possessed an open container of alcohol was based on sufficient evidence.

      Tulensru was also convicted of possessing an open container of alcoholic drink in a public place under Kos. S.C. § 13.517(4).  He claims there was insufficient evidence to convict him, but the fact remains that Juleen Tolenoa testified that he got out of his vehicle and came to her vehicle carrying an open Budweiser can.  Tulensru argues that there was no evidence that the can contained any beer.  But a trier of fact is entitled to rely on properly admitted evidence and reasonable inferences drawn from that evidence.  Epiti v. Chuuk, 5 FSM Intrm. 162, 166 (Chk. S. Ct. Tr. 1991).  A reasonable inference is that Tulensru, who smelled of alcohol and had appeared to be intoxicated, would not have emerged from a vehicle immediately after an accident carrying an empty Budweiser can with him.  He had this can in hand when he was on the road, which is a public place.  Thus there was sufficient evidence to convict Tulensru for possessing an open can of alcohol in a public place in violation of Kos. S.C. § 13.517(4).

      Tulensru contends that his open container conviction was improper, because he was "on" the road, and not "in" it.  This semantic distinction is one without a difference.  A public road is a public place, and one is present there whether one is in it, or on it.  Tulensru’s contention is without merit.

Issue 4:   Whether the court erred in excluding photos of the crime scene from the evidence.

       Tulensru urges that the trial court erred when it excluded pictures of the accident scene from the evidence because the photos, which were taken months after the accident, "were offered to show the site of the collision inasmuch as they were relevant to show whether or not the defendant was at fault or not, whether or not he deviated from the rules of the road because he was impaired."  Appellant’s Br. at 19.  Assuming arguendo that the photos would have shown that Tulensru was not at fault, that would have had no bearing on Tulensru’s state of intoxication.  Even if the other driver were 100% at fault, there is no question that Tulensru was driving a vehicle, and he would still have been subject to conviction under the Kosrae DUI statute if he were driving that vehicle while under the influence.  This consideration notwithstanding, he argues that it is less likely that Tulensru was under the influence of alcohol if he did not cause the accident.  However, the probative value of photos of an accident scene taken some months after the accident, and without the vehicles present, is negligible.  It was not error to exclude the photos.

Issue 5:   Whether the court abused its discretion in denying the defendant’s motion to exclude consideration of a prior nolo contendere plea in a different criminal case at the time of sentencing.

      At sentencing, the trial judge took into account that Tulensru had a prior DUI conviction.  That

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conviction was based on a plea of "nolo contendere," which literally means "I do not contest it." Black’s Law Dictionary 1048 (6th ed. 1990).  Tulensru argues that the plea should not have been considered.  This argument misses the point.  It was not only the plea that was considered, but the conviction based upon the plea as well.  14 FSM Intrm. at 124.  Even then, a judge at the time of sentencing may take into account cases in which the defendant was accused, and not convicted. Kallop v. FSM, 4 FSM Intrm. 170, 178 (App 1989).  Thus the trial court was entitled to consider Tulensru’s prior conviction, and the plea upon which it was based, at the time of sentencing.

Issue 6:   Whether the trial judge had authority to impose sentence, since the sentencing judge had submitted his resignation effective the day of the sentencing.

      Judge Yosiwo George’s last day on the bench was February 28, 2006.  Tulensru was scheduled for sentencing on the 27th, but checked into the hospital on the 26th.  Arrangements were made to conduct the hearing at the hospital on the 27th, whereupon Tulensru assured the court that he would be in court the next day, the 28th, when he requested that Judge George not impose sentence because that day was Judge George’s last day on the bench.  The court denied the request and sentenced Tulensru.

       Tulensru makes this sequence of events a basis for his appeal.  Tulensru asserts that a resignation from a public office to take place on a certain day becomes effective at the first minute of that day, and that Judge George lacked authority to sentence him.  According to Tulensru, Judge George’s resignation would have had to be effective March 1, 2006, in order for him to have the authority to sentence him on February 28th.  Judge George had resigned from the bench of the Kosrae State Court to take another position.  It lay within his power to resign at the close of business on February 28th, just as it lay within his power to resign at the close of business the day before or the day after.  The fact that he remained on the bench and continued to discharge his duties of office throughout the day on February 28, 2006, manifested his intent that his resignation take place at the close of business on that day.  Thus the trial judge had the authority to impose sentence on Tulensru.

      Tulensru rests his argument upon a statement of law from the American Jurisprudence 2d treatise.  He argues for a rigid application of the following statement of law:  "In this regard, a resignation of public office to take effect on a certain day operates in the first moment of that day, terminating the officer’s authority to perform official acts in the course of the day."  63C Am. Jur. 2d Public Officers and Employees § 159 (1997).  Am. Jur. extracts this principle from City of Lawrence v. MacDonald, 62 N.E.2d 850 (Mass. 1945), a U.S. state court opinion from Massachusetts decided over sixty years ago.  The MacDonald decision involved the resignation of a department of public works commissioner and the consequence of that resignation as it related to an official vote made by the commissioner on the day that his resignation was to take effect. There are several reasons this case is not persuasive in the present matter, including the distinction that MacDonald pertains to an executive department commissioner while the present matter pertains to a judicial officer.  Also, the Massachusetts Supreme Judicial Court’s chief justice issued an articulate, well reasoned dissent lamenting the failure of the majority to take equitable considerations into account, namely the right of the public to fair and efficient adjudication of public matters and the related applicability of the de facto officer principle.  MacDonald, 62 N.E.2d at 855-59 (Field, C.J., dissenting).

       More importantly, the essential operative facts of MacDonald are distinguishable from the present matter.  The MacDonald court cites to the commissioner’s actual letter of resignation in which the commissioner requested for his resignation "’to take effect not later than December 15.’"  MacDonald, 62 N.E.2d at 852.  Hence, the triggering language of "take effect," as employed by the treatise, was explicitly supported by the appellate record in MacDonald.

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       Tulensru’s factual support for his argument is found in his opening brief and is as follows:  "It is undisputed that the trial judge resigned from his position effective on February 28, 2006." Tulensru’s citation is to the trial judge’s order of February 28, 2006.  The only relevant portion of the cited page of the order serves to weaken Tulensru’s position:  "Defendant’s observation is correct that I have resigned from this Court as Chief Justice.  Today [February 28, 2006] is my final day of service as Chief Justice.  Therefore it is within my authority and my duty to conduct the sentencing hearing in this matter." 14 FSM Intrm. at 126.  Tulensru does indeed point us to the only evidence in the appellate record regarding the timing of the trial judge’s resignation and we are left to rely upon its import when determining this question.  However, no "take effect" language is present in this part of the appellate record or elsewhere in the appellate record.  What the cited language does clearly indicate is the trial judge’s understanding and intent to conduct official business, including Tulensru’s sentencing hearing, on February 28, 2006.  If put in the rigid context of the treatise provision, we are left with no other conclusion than that the trial judge’s resignation was to "take effect" on March 1, 2006, or after the close of business on February 28, 2006.  This conclusion must be accepted as fact given that it is not disputed by any other part of the record on appeal.

       Kosrae’s argument that the trial judge may have acted as a de facto judge on February 28, 2006 is well taken.  Tulensru is correct that the only published FSM cases addressing the validity of de facto judicial officers pertain to powers exercised by specially assigned temporary judicial officers.  A judge de facto must

have all the qualifications to hold the office which he claims under color of authority . . . . "A de facto officer is one who is in possession of an office, and discharging its duties, under color of authority. By color of authority is meant authority derived from an election or appointment, however irregular or informal, so that the incumbent be not a mere volunteer."

Kupenes v. Ungeni, 12 FSM Intrm. 252, 260 (Chk. S. Ct. Tr. 2003).  In the present matter, the trial judge’s original appointment as chief justice established his qualifications for the office.  The trial judge physically possessed the office of chief justice on February 28, 2006 and on that day discharged the duties of the office.  The trial judge’s color of authority stems from his original appointment as chief justice.  The dispute here relates not to the fact of the trial judge’s appointment to the bench but rather concerns the exact length of the trial judge’s appointment as chief justice.  To reiterate, the only relevant evidence in the record on appeal supports the conclusion that this appointment extended through the day of February 28, 2006, as he was clearly acting under the color of authority vested with him by his original appointment as chief justice and not as an unknown usurper attempting to wrestle authority from its appropriate guardian.

       The trial judge presided over the trial in this matter and initially scheduled the sentencing hearing to take place on February 20, 2006, at the request of Tulensru, a date also falling within the trial judge’s undisputed tenure.  Tulensru’s self-admitted hospitalization on February 26, 2006 was the precipitating reason for the sentencing hearing being continued a second time to February 28, 2006.  An additional source for the trial judge’s color of authority is derived from the fact that he presided over the trial in this matter and twice scheduled the sentencing hearing to take place before February 28, 2006, all acts which he undertook without protest from any party.

      In sum, this is the type of situation contemplated by the de facto principle as a safeguard against the unnecessary interruption of public governance.  Even if it were true that the trial judge’s tenure with the court officially ended before February 28, 2006, as contended by Tulensru, the sentencing order of February 28, 2006 would remain valid as the act of a judge de facto.  Hartman v. FSM, 6 FSM Intrm. 293, 298 (App. 1993).

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V.   Conclusion

      For the foregoing reasons, we affirm the judgment of the trial court.

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