People v. Davis

COLORADO COURT OF APPEALS 2017COA40

Court of Appeals No. 14CA0842
Mesa County District Court No. 13CR443
Honorable Valerie J. Robison, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Kelly Gene Davis,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE J. JONES
Dailey and Berger, JJ., concur

Announced April 6, 2017

Cynthia H. Coffman, Attorney General, Brock J. Swanson, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Anne Stockham, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Kelly Gene Davis, appeals the judgment of

conviction entered on a jury verdict finding him guilty of conspiracy

to distribute a schedule II controlled substance and court verdicts

finding him guilty on several habitual criminal charges. His

primary contention on appeal is that the People were required to

prove, and the jury was required to find, that he committed a

particular overt act in furtherance of the alleged conspiracy. We

hold, however, that where the People properly charge a single

conspiracy, they are required to prove only that the defendant

committed an overt act in furtherance of the conspiracy; that is, the

jury must agree unanimously that the defendant committed such

an overt act, but it need not agree unanimously that the defendant

committed a particular overt act. It follows that the district court

did not err in failing to require the prosecution to elect a particular

overt act on which it was relying to prove the charge or in failing to

give the jury a special unanimity instruction. Because we also

reject defendant’s other contentions of error, we affirm the

judgment of conviction.

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 I. Background

¶2 In January 2013, the Grand Junction Police Department and

a Drug Enforcement Agency Taskforce began investigating the

activities of Leonel Gonzalez-Gonzalez. The investigation entailed

wiretapping several of Mr. Gonzalez-Gonzalez’s telephones from

February 2013 through April 2013. Police recorded several

telephone calls between him and defendant during that time.

¶3 As a result of the investigation, the People charged defendant

with one count of conspiracy to distribute a schedule II controlled

substance (methamphetamine) and several habitual criminal

counts.

¶4 At trial, Deziree Fisher, a named co-conspirator, testified to

participating in and witnessing drug transactions involving

defendant. She said that she provided defendant with drugs, which

he would then sell, using the money he made to pay her back. Ms.

Fisher also said that she had been convicted of intent to distribute

a controlled substance for her role in drug sales involving defendant

and other co-conspirators, and that she was testifying in the hope

of receiving a sentence reduction.

2
¶5 Terry Lawrence testified that he was present in January or

February 2013 when Mr. Gonzalez-Gonzalez and his associate

delivered an ounce or more of methamphetamine to defendant and

collected money from him. At the time of the trial, Mr. Lawrence

had been charged with racketeering and conspiracy to distribute

drugs. He testified that he had not yet been convicted or entered

into a plea agreement, and that he was testifying in the hope of

receiving a favorable plea offer.

¶6 Detective Jason Sawyer testified that in phone calls recorded

in February through April 2013, Mr. Gonzalez-Gonzalez agreed to

supply defendant with methamphetamine to sell. He also testified

that a series of recorded calls from April 1, 2013, showed Mr.

Gonzalez-Gonzalez and defendant planning to rent a car to use to

pick up drugs. Police officers watched the car rental franchise

where the two had arranged to meet and identified one of the people

who arrived at the meeting as defendant.

¶7 A jury convicted defendant of the conspiracy charge, and the

district court, after finding that defendant was a habitual criminal,

sentenced him to forty-eight years in the custody of the Department

of Corrections.

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 II. Discussion

¶8 Defendant contends that the district court erred in (1) not (a)

requiring the prosecution to elect the overt act on which it was

relying to prove the conspiracy charge or (b) giving the jury a

special, modified unanimity instruction regarding the particular

overt act; (2) not providing a limiting instruction to preclude the

jury from considering witnesses’ guilty pleas or desires to plead

guilty as evidence of his guilt; and (3) imposing an aggravated

sentence based on its own findings of prior criminality. We address

and reject each contention in turn.

A. Unanimity

1. Preservation and Standard of Review

¶9 The parties agree that this issue was not preserved: defense

counsel never requested that the prosecution elect a particular

overt act, nor did counsel request a special unanimity instruction.

Because of this, the People argue that defendant waived his

contention. That is so, they say, because defendant didn’t make a

multiplicity challenge under Crim. P. 12(b).1 But the supreme court

1The Double Jeopardy Clauses of the United States and Colorado
Constitutions protect “against multiple punishments for the same
4
 recently rejected this argument in People v. Zadra, 2017 CO 18,

¶ 17, and Reyna-Abarca v. People, 2017 CO 15, ¶¶ 38-45.

¶ 10 Reviewing defendant’s contention requires us to determine

whether the court erred and, if so, whether the error requires

reversal.

¶ 11 Determining whether to require the prosecution to elect a

particular act on which it is relying to prove a charge involves an

exercise of the district court’s discretion, see Thomas v. People, 803

P.2d 144, 154 (Colo. 1990), as does determining whether to give a

particular jury instruction, People v. Marks, 2015 COA 173, ¶ 53.

offense.” Woellhaf v. People, 105 P.3d 209, 214 (Colo. 2005)
(quoting Whalen v. United States, 445 U.S. 684, 688 (1980)).
“Multiplicity” — the charging of multiple counts and the imposition
of multiple punishments for the same offense — is a way of running
afoul of this prohibition. See Quintano v. People, 105 P.3d 585, 589
(Colo. 2005); Woellhaf, 105 P.3d at 214. Crim. P. 12(b)(2) provides,
in relevant part, as follows:

Defenses and objections based on defects in
the institution of the prosecution or in the
indictment or information or complaint, or
summons and complaint, other than that it
fails to show jurisdiction in the court or to
charge an offense, may be raised only by
motion. . . . Failure to present any such
defense or objection constitutes a waiver of it,
but the court for cause shown may grant relief
from the waiver.

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 So in reviewing both decisions for error, we must decide whether

the district court abused its discretion.

¶ 12 But where the court did not have the opportunity to exercise

discretion because the defendant did not move for an election or

request the instruction now claimed to have been required, how can

we even determine whether the court abused its discretion? We can

do so by framing the inquiry in a slightly different way: had the

defendant timely moved for an election or asked for the instruction,

would the court have abused its discretion in refusing either of

those requests?

¶ 13 If, in this case, we answer that question “yes” with respect to

either requiring an election or instruction, because defendant did

not timely move for an election or ask for an instruction, we must

then determine whether the error was plain. Under that standard,

we will reverse only if the error is obvious and so undermined the

fundamental fairness of the trial as to cast serious doubt on the

reliability of the judgment of conviction. People v. Miller, 113 P.3d

743, 750 (Colo. 2005).

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 2. Analysis

¶ 14 In Colorado, jury verdicts in criminal cases must be

unanimous. § 16-10-108, C.R.S. 2016; Crim. P. 23(a)(8), 31(a)(3);

People v. Durre, 690 P.2d 165, 173 (Colo. 1984). To ensure jury

unanimity, when the prosecution offers “evidence of multiple acts,

any one of which would constitute the offense charged, the People

may be compelled to elect the acts or series of acts on which they

rely for a conviction.” Melina v. People, 161 P.3d 635, 639 (Colo.

2007) (citing Laycock v. People, 66 Colo. 441, 182 P. 880 (1919)).

But when the People charge a defendant with crimes occurring in a

single transaction, they do not have to elect among the acts that

constitute the crime, and a special unanimity instruction — that is,

one telling the jury that it must agree unanimously as to the act

proving each element — need not be given. Id. at 639-42. The first

issue before us, then, is what constitutes a single transaction in the

context of a conspiracy charge.

¶ 15 The General Assembly’s enactments necessarily inform our

inquiry. Section 18-2-204(1), C.R.S. 2016, provides that

“[c]onspiracy is a continuing course of conduct which terminates

when the crime or crimes which are its object are committed.”

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 (Emphasis added.) Another statute also specifies that “[i]f a person

conspires to commit a number of crimes, he is guilty of only one

conspiracy so long as such multiple crimes are part of a single

criminal episode.” § 18-2-201(4), C.R.S. 2016. Read together, the

applicable statutes make clear that a defendant can participate in a

number of crimes or events to accomplish a single conspiracy. Put

another way, committing a number of crimes, or engaging in a

number of noncriminal overt acts, does not necessarily mean there

is more than one conspiracy.

¶ 16 Accordingly, we must determine how broadly the prosecution

may define a conspiracy without the charge encompassing multiple

criminal episodes, consequently requiring either an election or a

special unanimity instruction.

¶ 17 We begin with the principle that a single conspiratorial

agreement may not be divided into multiple charges. E.g., United

States v. Papa, 533 F.2d 815, 820 (2d Cir. 1976); United States v.

Young, 503 F.2d 1072, 1075 (3d Cir. 1974); United States v.

Palermo, 410 F.2d 468, 470 (7th Cir. 1969). The Supreme Court

explained this principle in Braverman v. United States, 317 U.S. 49,

53-54 (1942):

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 Whether the object of a single agreement is to
commit one or many crimes, it is in either case
that agreement which constitutes the
conspiracy which the statute punishes. The
one agreement cannot be taken to be several
agreements and hence several conspiracies
because it envisages the violation of several
statutes rather than one.

. . . Since the single continuing agreement,
which is the conspiracy here, thus embraces
its criminal objects, it differs from successive
acts which violate a single penal statute and
from a single act which violates two statutes.

See also Model Penal Code § 5.03(3) (Am. Law Inst. 1985) (“If a

person conspires to commit a number of crimes, he is guilty of only

one conspiracy so long as such multiple crimes are the object of the

same agreement or continuous conspiratorial relationship.”). As

the above-quoted statutes indicate, Colorado has adopted this

approach as it pertains to conspiracy charges. See also People v.

Brown, 185 Colo. 272, 277, 523 P.2d 986, 989 (1974) (noting that

Colorado has adopted the above-quoted language from Braverman),

overruled on other grounds by Villafranca v. People, 194 Colo. 472,

573 P.2d 540 (1978); People v. Bradley, 169 Colo. 262, 265-66, 455

P.2d 199, 200 (1969) (adopting the above-quoted language from

Braverman).

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¶ 18 The supreme court has indicated that the following factors

tend to show a single criminal episode: the acts alleged occurred

during the same period, the type of overt act alleged is the same,

the unlawful objective of the conspiracy is the same, the modus

operandi is the same, and the same evidence would be relevant to

the charges. Pinelli v. Dist. Court, 197 Colo. 555, 558, 595 P.2d

225, 227 (1979). Conversely, factors that may suggest that the

People have charged multiple criminal episodes are that the

defendant is “charged with conspiring (1) with different parties; (2)

in different counties; (3) in different agreements; and [4] with

allegations of different overt acts.” Id.

¶ 19 Federal courts employ a similar multi-factor test to determine

whether there was only one agreement, and thus only one

conspiracy. See, e.g., United States v. Rigas, 605 F.3d 194, 213 (3d

Cir. 2010) (en banc) (considering whether the locations of the

alleged conspiracies were the same; whether there was a significant

degree of temporal overlap between the conspiracies charged;

whether there was an overlap of personnel between the conspiracies

(including unindicted as well as indicted co-conspirators); the

10
 nature of the overt acts charged; and whether the role played by the

defendant was similar).

¶ 20 Applying the relevant factors, we conclude that the evidence

presented in this case shows one criminal episode, and hence one

conspiracy. First, the actions occurred in a relatively short time

frame — from February 21, 2013, to April 8, 2013 — and in one

county. Cf. People v. Rivera, 56 P.3d 1155, 1160 (Colo. App. 2002)

(noting the two-year period over which the alleged crimes occurred

as one factor showing multiple conspiracies). Second, evidence of

defendant’s phone conversations with one person (Mr. Gonzalez-

Gonzalez) primarily established the conspiracy.2 Third, all the overt

acts on which the jury could have relied — defendant ordering

drugs from Mr. Gonzalez-Gonzalez, accepting drugs from Ms. Fisher

and Mr. Gonzalez-Gonzalez, and showing up to the car rental

franchise at Mr. Gonzalez-Gonzalez’s request — were done in

furtherance of the same unlawful objective — to distribute one type

2 Ms. Fisher testified that in January or February 2013, Mr.
Gonzalez-Gonzalez supplied drugs to someone who then sold them
to her. She sold those drugs to defendant, who then sold them to
others. She stopped selling drugs to defendant after about a month
and a half, after which Mr. Gonzalez-Gonzalez supplied defendant
directly.

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 of drug supplied by one co-conspirator. Though some of these acts

were not crimes,3 they were all a part of a single course of conduct

in which Mr. Gonzalez-Gonzalez would regularly supply

methamphetamine to defendant to sell. A single crime of

conspiracy can be defined this broadly. See Commonwealth v.

Albert, 745 N.E.2d 990, 997 (Mass. App. Ct. 2001) (“No unanimity

instruction was required because a conspiracy refers to a

continuing course of conduct, rather than a succession of clearly

detached incidents.”). And given the nature and limited scope of

defendant’s arrangement with Mr. Gonzalez-Gonzalez, it is clear

that “[n]o danger exists that some jurors would think [defendant]

was guilty of one conspiracy and others would think []he was guilty

of a different one.” People v. Russo, 25 P.3d 641, 647-48 (Cal.

2001).

¶ 21 Though the prosecution alleged numerous overt acts in

furtherance of the single conspiracy, that did not require

unanimous agreement by the jurors as to the precise overt act

defendant committed. This is so because the Colorado Supreme

3See Braverman v. United States, 317 U.S. 49, 53 (1942) (“The overt
act . . . need not be itself a crime.”).
12
 Court has held that “unanimity is required only with respect to the

ultimate issue of the defendant’s guilt or innocence of the crime

charged and not with respect to alternative means by which the

crime was committed.” People v. Taggart, 621 P.2d 1375, 1387 n.5

(Colo. 1981). Indeed, it has long been established that a jury need

not unanimously decide “which of several possible sets of

underlying brute facts make up a particular element,” or “which of

several possible means the defendant used to commit an element of

the crime.” Richardson v. United States, 526 U.S. 813, 817 (1999);

see also Schad v. Arizona, 501 U.S. 624, 631 (1991) (plurality

opinion) (“[A]n indictment need not specify which overt act, among

several named, was the means by which a crime was committed.”);

United States v. Griggs, 569 F.3d 341, 343 (7th Cir. 2009) (“The law

distinguishes between the elements of a crime, as to which the jury

must be unanimous, and the means by which the crime is

committed.”) (jury not required to agree unanimously on particular

overt act taken in support of conspiracy).

¶ 22 In United States v. Gonzalez, 786 F.3d 714, 718 (9th Cir.

2015), the Ninth Circuit, addressing the overt act element of

conspiracy specifically, reasoned as follows:

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 To be sure, because the instruction for the
overt-act element requires the jury to find
merely “[a]n overt act” committed by a person
who has agreed and intended to commit a
particular murder, it is possible that, although
the jury unanimously agreed that an overt act
was taken with respect to the unanimously
agreed-upon murder conspiracy, different
jurors may have concluded that different
particular overt acts satisfied this element.
Even if this occurred, however, [the
defendant’s] right to a unanimous jury verdict
was not violated because, so long as the jurors
unanimously agreed that the overt-act element
was satisfied, it was not necessary for them to
agree on which overt act satisfied this element.

¶ 23 Courts in other jurisdictions have also applied this principle to

the overt act requirement of conspiracy charges. The California

Supreme Court, for example, has explained that the element of an

overt act “consists of an overt act, not a specific overt act.” Russo,

25 P.3d at 647; see also United States v. Kozeny, 667 F.3d 122, 132

(2d Cir. 2011) (“[W]hich overt act among multiple such acts

supports a proof of a conspiracy conviction is a brute fact and not

itself an element of the crime.”); Griggs, 569 F.3d at 343; State v.

Ayala-Leyva, 848 N.W.2d 546, 553-54 (Minn. Ct. App. 2014) (the

jury was not required to unanimously agree on which of twenty

overt acts had been committed in furtherance of drug conspiracy;

14
 distinguishing between unanimity on the elements of a crime and

unanimity as to the facts establishing each element of a crime).

Colorado’s statute criminalizing conspiracy reflects this approach.

§ 18-2-201(2) (“No person may be convicted of conspiracy to commit

a crime, unless an overt act in pursuance of that conspiracy is

proved . . . .”) (emphasis added).

¶ 24 In sum, courts agree that “a special unanimity instruction is

not necessary where an indictment charges a single conspiracy

because ‘the crux of a conspiracy charge . . . [is] [t]he defendant’s

voluntary agreement with another or others to commit an offense.’”

United States v. Dvorin, 817 F.3d 438, 447 (5th Cir. 2016)

(alterations in original) (quoting United States v. Dillman, 15 F.3d

384, 391 (5th Cir. 1994)); see also United States v. Cromer, 436 F.

App’x 490, 493 (6th Cir. 2011) (“[T]he jury need only unanimously

decide that there was an agreement to violate drug laws . . . .”).

¶ 25 People v. Rivera, on which defendant relies, is distinguishable.

In that case, the prosecution presented evidence of securities

transactions “involving at least twenty-five investors, concerning

two proposed daycare facilities in different cities, and spanning a

two-year period.” 56 P.3d at 1160. Further, there was substantial

15
 variety in the defendant’s involvement in the various acts:

“Defendant took part in soliciting some investors, but not others,

and as to at least one transaction there was no evidence that she

had any direct contact with the investor.” Id. The division therefore

concluded that “[u]nder these circumstances, there is a reasonable

likelihood that the jury could have disagreed concerning the act or

acts defendant committed.” Id. In essence, there were multiple

conspiracies.

¶ 26 As discussed above, the conspiracy in this case occurred over

only a few months in one county. There is also a uniformity of

defendant’s involvement in the acts that was lacking in Rivera —

defendant was convicted based on ongoing phone calls and

transactions with one person ordering methamphetamine in similar

quantities. See United States v. Sutherland, 656 F.2d 1181, 1202

(5th Cir. 1981) (“[T]he evidence as to each [of the overt acts] is

remarkably similar. Therefore this series of alleged acts comprises

one ‘conceptual group’ and the jury need not have unanimously

agreed as to which was proven.”).

¶ 27 We therefore conclude that the People charged only one

criminal episode. It follows that the district court did not err, much

16
 less plainly err, in failing to require an election or to give the jury a

special unanimity instruction.4

B. Limiting Instruction

¶ 28 We also reject defendant’s contention that the district court

erred by failing to provide a limiting instruction telling the jurors

they could not consider Ms. Fisher’s guilty plea and Mr. Lawrence’s

desire to receive a favorable plea offer as evidence of defendant’s

guilt.

¶ 29 Because defendant did not request a limiting instruction, we

review for plain error. People v. Griffin, 224 P.3d 292, 298 (Colo.

App. 2009).

4 Given the abundance of authority holding that no special
instruction is required in comparable circumstances, any error was
certainly not “so clear cut and so obvious that a trial judge should
have been able to avoid it without benefit of the objection.” People
v. Conyac, 2014 COA 8M, ¶ 54. “Generally, an error is obvious
when the action challenged on appeal contravenes (1) a clear
statutory command; (2) a well-settled legal principle; or (3) Colorado
case law.” People v. Dinapoli, 2015 COA 9, ¶ 30; accord People v.
Pollard, 2013 COA 31M, ¶ 40; see also People v. Valdez, 2014 COA
125, ¶ 27 (where case law on an issue is unsettled, an error is not
obvious); Dougherty v. State, 21 A.3d 1, 6-7 (Del. 2011) (“Several
state and federal courts have concluded that a trial judge does not
commit plain error where defense counsel fails to request, and the
trial judge does not give sua sponte, a specific unanimity
instruction on the overt act requirement of a conspiracy count.”).
17
¶ 30 Pursuant to CRE 105, where there is evidence that is

admissible for one purpose but not for another, “the court, upon

request, shall restrict the evidence to its proper scope and instruct

the jury accordingly.” And, “[a]s a general rule, defense counsel is

charged with the task of deciding whether a limiting instruction is

desirable,” Griffin, 224 P.3d at 298, because “for strategic or tactical

reasons, [defense counsel] may consider that such an instruction

would be more harmful than beneficial.” People v. Gladney, 194

Colo. 68, 72, 570 P.2d 231, 234 (1977) (A limiting instruction

“might tend to draw special attention to the evidence, thus giving it

greater emphasis and jury impact than it would have had if left

alone.”).

¶ 31 Thus, absent a special statutory duty, a trial court has no

duty to give a limiting instruction sua sponte. See, e.g., Davis v.

People, 2013 CO 57, ¶ 21 (“Unless a limiting instruction is either

required by statute or requested by a party, a trial court has no

duty to provide one sua sponte.”). Defendant does not point to any

such statutory duty applicable in this case.

¶ 32 Defendant’s reliance on People v. Brunner, 797 P.2d 788, 789

(Colo. App. 1990), is misplaced. In that case, the division held that

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 a trial court “should normally instruct the jury that [an

accomplice’s guilty plea] may be used only for limited purposes and

may not be used as substantive evidence of another’s guilt.” Id.

But in this case, because defense counsel failed to request such an

instruction, “appellate review is limited to determining whether

plain error occurred.” People v. Shepherd, 43 P.3d 693, 696 (Colo.

App. 2001). And numerous cases hold that a trial court’s failure to

give a limiting instruction sua sponte does not constitute plain

error. See, e.g., People v. Montalvo-Lopez, 215 P.3d 1139, 1145

(Colo. App. 2008) (failure to request a limiting instruction on how

the jury should consider an accomplice’s guilty plea did not place a

duty on the trial court to give one sua sponte). None of the cases

defendant cites says otherwise.

¶ 33 Further, there was no obvious error. The testimony was

relevant for two reasons. First, it allowed the People to “blunt an

expected attack on the credibility of the accomplice as a witness.”

Brunner, 797 P.2d at 789. Second, it “show[ed] acknowledgement

by the accomplice of participation in the offense,” id., which is

particularly relevant in establishing a conspiracy. And defendant

19
 took strategic advantage of the witnesses’ plea and potential plea,

using the testimony to undermine their credibility.

¶ 34 Given all this, the district court “did not commit the kind of

obvious error that may lead to reversal under the plain error

doctrine.” Griffin, 224 P.3d at 299; see also People v. Pollard, 2013

COA 31M, ¶ 40 (for an error to be obvious, it must contravene a

clear statutory command, a well-settled legal principle, or Colorado

case law).

C. Judicial Determination of Habitual Criminality

¶ 35 Lastly, defendant contends that his rights to a trial by a jury

and to due process of law were violated when the judge, instead of a

jury, found that he had been convicted of three prior felonies.

¶ 36 As the law stands today, “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond

the prescribed statutory maximum must be submitted to a jury,

and proved beyond a reasonable doubt.” Apprendi v. New Jersey,

530 U.S. 466, 490 (2000) (emphasis added); see also Blakely v.

Washington, 542 U.S. 296, 301 (2004) (applying this rule). The

Colorado Supreme Court, in applying this rule, has held that the

fact of a prior conviction, called a “Blakely-exempt” fact, “is

20
 expressly excepted from the jury trial requirement” for aggravated

sentencing. Lopez v. People, 113 P.3d 713, 723 (Colo. 2005); see

also People v. Huber, 139 P.3d 628, 630 (Colo. 2006). The court has

said that, “[a]lthough there is some doubt about the continued

vitality of the prior conviction exception, we conclude that it

remains valid after Blakely.” Lopez, 113 P.3d at 723 (footnote

omitted); see also Huber, 139 P.3d at 631.

¶ 37 Defendant argues that Lopez was wrongly decided or that

developments after Lopez indicate that the “prior conviction

exception” is no longer valid. Specifically, he asserts that, “[w]hile it

has not been expressly overruled,” the case from which the prior

conviction exception arose — Almendarez-Torres v. United States,

523 U.S. 224 (1998) — has been called into question and will be

overturned by the United States Supreme Court when the

opportunity arises. See Apprendi, 530 U.S. at 488-90; Misenhelter

v. People, 234 P.3d 657, 660 (Colo. 2010).

¶ 38 But because the Supreme Court has not overruled the prior

conviction exception recognized in Apprendi and Blakely, those

authorities continue to control our resolution of defendant’s

argument. See People v. Hopkins, 2013 COA 74, ¶ 25; see also

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 People v. Gladney, 250 P.3d 762, 768 n.3 (Colo. App. 2010) (“[W]e

are bound to follow supreme court precedent.”). “We do not have

the power to ignore those precedents based on speculation of how

the Court might rule in a future case.” Hopkins, ¶ 25. Therefore,

defendant’s argument fails.

III. Conclusion

¶ 39 The judgment is affirmed.

JUDGE DAILEY and JUDGE BERGER concur.

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