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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 47760

STATE OF IDAHO,

Plaintiff-Respondent,

v.

RACHEL ELIZABETH LUNA,

Defendant-Appellant.

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Filed: November 23, 2021

Melanie Gagnepain, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada

County. Hon. Jonathan Medema, District Judge. 

Judgment of conviction for exploitation of a vulnerable adult, affirmed.

Eric D. Fredericksen, State Appellate Public Defender; Andrea W. Reynolds, 

Deputy Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Andrew V. Wake, Deputy Attorney 

General, Boise, for respondent. 

________________________________________________

HUSKEY, Chief Judge

Rachel Elizabeth Luna appeals from her judgment of conviction for exploitation of a 

vulnerable adult. Luna argues the district court erred by prohibiting evidence of specific instances 

in which the victim gave gifts to Luna and other women, as well as evidence of specific instances 

when Luna previously accessed the victim’s bank account with the victim’s permission. Luna also 

argues the district court abused its discretion by concluding the victim’s history of gift giving was 

inadmissible character evidence. Finally, Luna argues the district court erred in instructing the 

jury that an agent acting under a power of attorney may not authorize gifts to themselves unless 

the power of attorney expressly provides the agent with such authority. She argues that the district 

court’s instruction created a variance with the charging document. For the reasons set forth below, 

we affirm the judgment of conviction. 
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I.

FACTUAL AND PROCEDURAL BACKGROUND

“Skip” Benton Hofferber and Luna became close friends based on his patronage at a bar 

where Luna worked as a bartender. Over time, Luna and her daughter lived with Hofferber, and 

Hofferber gave Luna various gifts and money. After Hofferber suffered a stroke in September 

2016, he gave Luna power of attorney1over his bank account (Bank POA). Thereafter, Hofferber 

also executed a springing power of attorney (Springing POA) in March 2017 that designated Luna 

as his agent. The Springing POA stated that Luna did not have authority to make a gift or use 

Hofferber’s property to benefit herself. 

During the course of the friendship, Hofferber gave Luna a $24,000 Rolex watch, which 

Luna sold and kept the proceeds. Hofferber and Luna also decided to sell Hofferber’s house, and

Hofferber received an offer, which he accepted. Prior to closing, Hofferber suffered a significant 

medical event. As a result, the doctor authored a letter stating that Hofferber was unable to make 

decisions and that it was necessary to defer to a power of attorney. The letter triggered the 

Springing POA. Luna used the Springing POA to execute the necessary documents to close the 

sale of Hofferber’s home, which netted approximately $90,000. Luna appropriated $60,000 for 

her own personal use by completing a cash withdrawal from Hofferber’s bank account. She then 

resigned her power of attorney position.

Thereafter, law enforcement received a call alleging that Luna had taken advantage of 

Hofferber. In response to the call, law enforcement spoke with Shauna Urzua, who at that time 

was designated as Hofferber’s power of attorney. Urzua explained the circumstances giving rise 

to Hofferber’s and Luna’s friendship, as well as Urzua’s version of Luna’s appropriation of the 

proceeds from the sale of the house. Urzua said there were multiple checks made out to cash from 

Hofferber’s account and that Luna wrote multiple checks from Hofferber’s account to pay her 

personal expenses. Urzua also told law enforcement about the watch. 

In a separate interview with law enforcement, Hofferber stated that he and Luna were 

friends and that after his stroke in 2016, he designated Luna as his power of attorney to assist him 

with daily and personal issues. Hofferber said he did not receive the $60,000 in proceeds from the 

 

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It is not entirely clear from the record whether there was one Bank POA (and the date it 

was executed) or whether there were two. On appeal and in the district court, Luna asserts the 

Bank POA was executed in October 2016. Defendant’s Exhibit C, the Bank POA, reflects it was 

executed in January 2017. The discrepancy does not affect the analysis or outcome of the case. 
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sale of his home or the $24,000 from the sale of the watch. Hofferber explained that he had never 

intended for the proceeds from either sale to go to Luna and that he did not authorize Luna to 

receive the proceeds. 

The State charged Luna with two counts of felony exploitation of a vulnerable adult in 

violation of Idaho Code § 18-1505(3), alleging that on two occasions, Luna exploited Hofferber, 

a vulnerable adult, by “taking and/or obtaining proceeds and/or money from Mr. Hofferber, where 

the monetary damage from such exploitation exceed[ed] one thousand dollars.” Count I was 

alleged to have occurred on April 28, 2017, and stemmed from Luna’s receipt of $24,000 in 

proceeds from the sale of the watch. Count II was alleged to have occurred on May 8, 2017, and 

stemmed from the $60,000 in proceeds Luna obtained from the sale of Hofferber’s home. 

Prior to trial, Luna filed a motion in limine seeking to introduce evidence of prior gifts 

Hofferber had given to Luna and other women before and after his stroke in 2016. The district 

court denied the motion as being untimely filed and indicated that it would rule on the evidentiary 

issues at trial. The district court took up the issue on the first day of trial, and Luna’s counsel 

argued that evidence of specific instances of Hofferber giving gifts to Luna and other women was 

relevant to show Hofferber’s intent. The district court held that evidence of specific gifts Hofferber 

gave to Luna and others was irrelevant and otherwise inadmissible character evidence. 

Luna also moved to admit evidence of checks she wrote from Hofferber’s bank account

prior to the withdrawal of the $60,000 from the account. The district court held that evidence of 

the specific instances that Luna wrote checks to herself, aside from the $60,000 check from the 

proceeds of the sale of Hofferber’s home, was irrelevant and, as such, inadmissible. The court 

explained:

[T]he defense can present evidence that Mr. Hofferber was of sound mind and 

simply gave these sums to Ms. Luna either on the date that the checks were 

transmitted or on some earlier occasion. 

If, however, the defense is not that these were gifts, that these were simply 

legitimate exercises of Ms. Luna’s power granted to her under a power of attorney, 

then, her powers are stated in the written documents themselves, and the jury can 

simply read them and decide whether she exercised the power accordingly.

In both circumstances, how she exercised those powers on other occasions, 

or how Mr. Hofferber gave her gifts on other occasions, is in my view, simply not 

relevant. It doesn’t say anything about whether these were gifts or whether these 

were appropriate exercises of her powers granted to her in the written power of 

attorney guidelines.
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The district court also indicated that Luna could introduce evidence of Hofferber’s character for 

generosity in the form of opinion or reputation evidence. 

Luna was the only witness for the defense. She introduced a copy of the Bank POA signed 

by Luna and Hofferber in January 2017, which authorized Luna to deposit and withdraw funds 

from Hofferber’s bank account and did not include guidelines regarding gift giving. Luna testified 

that she received the check for $24,000 from the sale of the watch and deposited it into her bank 

account. Luna further testified that on the same day the proceeds from the sale of Hofferber’s 

house were deposited to his bank account, $60,000 of the proceeds were transferred to Luna’s bank 

account. Luna stated that Hofferber’s bank understood Luna to be acting under the Bank POA and 

that she did not present the bank with a copy of the Springing POA. Luna did not testify that it 

was her belief that either the Bank POA or the Springing POA authorized her to make gifts to 

herself and provided no other evidence that she was authorized to do so. 

During the jury instructions conference, Luna’s counsel objected to jury instruction 12, 

which stated: 

A person (the agent) who has been given a power of attorney by another

person (the principal) may give the principal’s money to others if the written power 

of attorney expressly grants the agent the power to make gifts of the principal’s 

property.

However, the agent may not give the principal’s money or other property to 

the agent himself unless the written power of attorney expressly authorizes the 

agent to do so.

Luna’s counsel asked the district court where the instruction came from, and the district 

court explained:

It’s the paraphrasing of the Uniform Power of Attorney Act. . . . 

So it’s partially taken from Idaho Code 15[-]12-217. The legislature has 

said that the language in a power of attorney granting a general authority with

respect to gifts [a]uthorizes the agent to make gifts to other persons up to particular

amounts set in the Internal Revenue Code. Idaho Code 15[-]12-201, talks about

the authorities that require a specific grant as opposed to a general grant of 

authority. 

It includes making gifts, and in (4) of that statute, the law provides that 

“unless the power of attorney otherwise provides a grant of authority to make a gift, 

subject to 1512-217.”

(2) of 15[-]12-201 provides that “notwithstanding a grant of authority to 

exercise authority in (1), including the authority under 1(b) to make gifts [u]nless 

the power of attorney otherwise provides, an agent that is not an ancestor, spouse, 

or descendant of the principal, may not exercise authority under the power of 
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attorney to create an agent or an individual to whom the agent owes a legal 

obligation an interest in the principal’s property including by gift.”

Luna’s counsel objected “just on the fact that that’s a civil code section, not a criminal”

code section. The district court overruled the objection and asked Luna’s counsel whether he had 

any authority that the law did not apply to criminal cases and if he was arguing that the instruction 

was an incorrect statement of the law. Luna’s counsel stated, “This instruction effectively creates 

its own crime. You’re taking civil prohibition and turning that into a crime.” The district court 

responded:

Idaho Code 18-1505 defines abuse of vulnerable adult to include the misuse 

of the vulnerable adult’s power of attorney, so when the jury has to interpret what 

misuse is, doesn’t it make sense that they understand the lawful use of power of 

attorney under the Uniform Power of Attorney Act? 

The district court again asked Luna’s counsel if he thought the instruction was an accurate 

statement of the law, and Luna’s counsel said:

The only thing I guess, Judge, the however is kind of like the first paragraph 

and second paragraph are against each other. I know the other one is talking about 

what the person can expressly can’t do as well. It’s just talking about money to

others versus money to self.” 

The district court said “okay,” and Luna’s counsel stated, “I don’t care if it’s in there, or not.” 

The jury returned a not-guilty verdict on Count I, related to the sale of the watch, and a 

guilty verdict on Count II, related to the proceeds from the sale of Hofferber’s home. Luna timely 

appealed. 

II.

STANDARD OF REVIEW

Whether evidence is relevant is reviewed de novo, while the decision to admit relevant 

evidence is reviewed for an abuse of discretion. State v. Garcia, 166 Idaho 661, 669, 462 P.3d 

1125, 1133 (2020). When a trial court’s discretionary decision is reviewed on appeal, the appellate 

court conducts a multi-tiered inquiry to determine whether the lower court: (1) correctly perceived 

the issue as one of discretion; (2) acted within the boundaries of such discretion; (3) acted 

consistently with any legal standards applicable to the specific choices before it; and (4) reached 

its decision by an exercise of reason. State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 

(2018).

Whether the jury has been properly instructed is a question of law over which we exercise 

free review. State v. Severson, 147 Idaho 694, 710, 215 P.3d 414, 430 (2009). When reviewing 
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jury instructions, we ask whether the instructions as a whole, and not individually, fairly, and 

accurately reflect applicable law. State v. Bowman, 124 Idaho 936, 942, 866 P.2d 193, 199 (Ct. 

App. 1993). 

The existence of an impermissible variance between a charging instrument and the jury 

instructions is a question of law over which we exercise free review. State v. Sherrod, 131 Idaho 

56, 57, 951 P.2d 1283, 1284 (Ct. App. 1998). Our task in resolving the issue presented is twofold. First, we must determine whether there is a variance between the information used to charge 

Luna with exploitation of a vulnerable adult and the instructions presented to the jury. See State 

v. Brazil, 136 Idaho 327, 329, 33 P.3d 218, 220 (Ct. App. 2001). Second, if a variance exists, we 

must examine whether it rises to the level of prejudicial error requiring reversal of the conviction. 

Id. A variance between a charging instrument and a jury instruction necessitates reversal only 

when it deprives the defendant of the right to fair notice or leaves him or her open to the risk of 

double jeopardy. State v. Windsor, 110 Idaho 410, 417-18, 716 P.2d 1182, 1189-90 (1985); Brazil, 

136 Idaho at 330, 33 P.3d at 221. 

III.

ANALYSIS

A. The District Court Did Not Err by Excluding Evidence of Other Gifts

Luna argues the district court erred by preventing her from introducing evidence of other 

gifts Hofferber gave Luna prior to his hospitalization in April 2017, as well as evidence of gifts he 

gave to other women. Luna contends this evidence was relevant because it has a tendency to make 

it more probable that Luna’s use of Hofferber’s money was not unjust or improper. The State 

asserts the evidence was inadmissible under various Idaho Rules of Evidence. 

Evidence that is relevant to a material and disputed issue concerning the crime charged is 

generally admissible. State v. Garcia, 166 Idaho 661, 670, 462 P.3d 1125, 1134 (2020). Evidence 

is relevant if it has any tendency to make the existence of any fact that is of consequence to the 

determination of the action more probable or less probable than it would be without the evidence. 

I.R.E. 401; Garcia, 166 Idaho at 670, 462 P.3d at 1134. Whether a fact is of consequence or 

material is determined by its relationship to the legal theories presented by the parties. State v. 

Johnson, 148 Idaho 664, 671, 227 P.3d 918, 925 (2010).

The district court found that evidence of specific gifts Hofferber gave to Luna and other 

women was not relevant because it did not make it more or less likely that Hofferber gave Luna a 
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gift on any particular occasion. The district court further explained that evidence of Hofferber’s 

past gift giving was not relevant to whether he intentionally conveyed certain property to Luna.

At trial, Luna did not dispute that Hofferber was a vulnerable adult and that she took over 

$1,000 from Hofferber. Luna was acquitted on Count I, which was premised upon the proceeds 

from the sale of the watch, thus, any error in excluding the evidence as it related to Count I is 

harmless. State v. Stell, 162 Idaho 827, 830, 405 P.3d 612, 615 (Ct. App. 2017) (error is not 

reversible unless it is prejudicial). The only disputed element of Count II was whether it was 

unjust or improper for Luna to take the $60,000 from the proceeds of the sale of Hofferber’s home. 

Evidence of Hofferber’s history of generosity towards Luna and other women does not 

make it more or less likely that it was unjust or improper for Luna to take the $60,000 when she 

was acting as his agent under the Springing POA. Luna sought to introduce evidence of specific 

gifts Hofferber had given her and others prior to Hofferber’s incapacitation in April 2017. Actions 

Hofferber took prior to being incapacitated do not inform whether Luna properly executed her 

duties as an agent when she transferred $60,000 to herself while Hofferber was incapacitated. The 

Bank POA did not expressly authorize Luna to make gifts to herself and the Springing POA

expressly prohibited Luna from making gifts. As neither document gave Luna the authority to 

make gifts to herself, evidence of Hofferber’s generosity towards Luna and others prior to 

Hofferber’s incapacitation did not make it more or less likely that it was unjust or improper for 

Luna to use either power of attorney to gift herself $60,000. Thus, the district court correctly 

concluded that evidence of specific gifts Hofferber gave to Luna and other women on prior 

occasions was not relevant.

Even if Hofferber’s history of generous behavior was relevant, the district court did not 

abuse its discretion by precluding Luna from introducing evidence of specific instances of gift 

giving and by allowing only reputation evidence of Hofferber’s character for generosity. Idaho 

Rule of Evidence 404(a) governs the use of character evidence and provides, in relevant part:

(1) Prohibited Uses. Evidence of a person’s character or trait of character is not 

admissible to prove that on a particular occasion the person acted in accordance 

with the character or trait.

(2) Exceptions for a Defendant or Victim in a Criminal Case. The following 

exceptions apply in a criminal case:

. . . .

(B) a defendant may offer evidence of an alleged victim’s pertinent trait of 

character, and if the evidence is admitted, the prosecutor may offer evidence 

to rebut it[.]
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Idaho Rule of Evidence 405(a) limits the introduction of character evidence: “When evidence of 

a person’s character or character trait is admissible, it may be proved by testimony about the 

person’s reputation or by testimony in the form of an opinion.” Only when a person’s character 

or character trait is an essential element of a charge, claim, or defense may character be proved by 

specific instances of the person’s conduct. I.R.E. 405(b). 

Luna does not argue on appeal that evidence of Hofferber’s generosity was an essential 

element of a charge, claim, or defense; therefore, any admissible evidence of his character was 

limited under Rule 405 to reputation and opinion testimony. The district court allowed Luna to 

present evidence of Hofferber’s character for generosity in the form of opinion or reputation 

evidence. As evidence of specific acts of generosity was precluded under Rule 405, the district 

court did not abuse its discretion by limiting evidence of Hofferber’s generosity to reputation and 

opinion testimony. 

B. The District Court Did Not Err by Excluding Evidence of Luna’s Additional Use of 

Hofferber’s Bank Account

Luna contends the district court erred by excluding evidence of Luna’s prior use of 

Hofferber’s bank account. The State asserts this evidence was irrelevant to whether Luna’s

conduct was unjust or improper and was therefore inadmissible. 

Luna sought to introduce records of specific checks she had written from Hofferber’s bank 

account prior to his incapacitation based on the Bank POA. The district court explained that 

specific instances of Luna accessing Hofferber’s bank account were irrelevant because access to 

the account did not indicate that any of the transactions, including the $60,000 Luna transferred to 

herself, were appropriate exercises of Luna’s authority under the Bank POA. The district court 

did, however, allow Luna to present evidence that Hofferber generally permitted her to access his 

bank account, and Luna testified that she regularly did so. 

The district court did not err by preventing Luna from introducing evidence of specific 

instances when Luna wrote checks from Hofferber’s bank account. As explained above, evidence 

is relevant if it has any tendency to make the existence of any fact that is of consequence to the 

determination of the action more probable or less probable than it would be without the evidence. 

I.R.E. 401; Garcia, 166 Idaho at 670, 462 P.3d at 1134. Evidence of Luna’s prior use of 

Hofferber’s bank account to write checks for various expenses does not help resolve whether Luna 

was authorized to transfer $60,000 from the sale of Hofferber’s home to herself while acting as his 
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agent and, therefore, does not make it more or less probable that Luna acted unjustly or improperly 

in doing so. Thus, the district court did not err by excluding this evidence. 

C. The Jury Instruction Did Not Create a Variance 

Luna argues jury instruction 12 created a variance from the information because the 

information did not allege that Luna exploited Hofferber by failing to act in accordance with the 

Uniform Power of Attorney Act. Luna contends, as she did at trial, that the instruction effectively 

creates its own crime by taking a civil prohibition and turning it into a crime. Luna asserts that the 

alleged variance was fatal because it deprived her of her constitutional right to due process by 

depriving her of fair notice of the charges against her. In response, the State argues the instruction 

did not create a variance, as the instruction matched the information with respect to the means by 

which Luna was alleged to have violated I.C. § 18-1505. 

Luna’s counsel objected to instruction 12: “Judge, I would object just on the fact that that’s 

a civil code section, not a criminal” code section. The district court asked Luna’s counsel:

Idaho Code 18-1505 defines abuse of vulnerable adult to include the misuse 

of the vulnerable adult’s power of attorney, so when the jury has to interpret what 

misuse is, doesn’t it make sense that they understand the lawful use of power of 

attorney under the Uniform Power of Attorney Act?

Jury Instruction 12 did not create a variance. A variance exists when the jury instructions 

do not match the allegations in the charging document as to the means by which a defendant is 

alleged to have committed the charged crime. State v. Bernal, 164 Idaho 190, 194, 427 P.3d 1, 5

(2018). In Count II of the information, the State alleged that in violation of I.C. § 18-1505(3), 

Luna:

on or about the 8th day of May 2017, in the County of Ada, State of Idaho, did 

exploit Mr. Benton “Skip” Merrill Hofferber, Jr., a vulnerable adult, by taking 

and/or obtaining proceeds and/or money from Mr. Hofferber, where the monetary 

damage from such exploitation exceeds one thousand dollars ($1,000.00).

Idaho Code § 18-1505(4)(c) defines exploitation as: “an action which may include, but is 

not limited to, the unjust or improper use of a vulnerable adult’s financial power of attorney, funds, 

property or resources by another person for profit or advantage.” 

The district court instructed the jury on the elements of exploitation of a vulnerable adult. 

This included instructing the jury that, in order to find Luna guilty, it was required to find beyond 

a reasonable doubt that Luna “exploited’ Hofferber “by taking and/or obtaining proceeds and/or 

money from” him. The district court also provided the jury with instruction 15, which defined 
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“[e]xploitation” or “exploit” using the exact language of I.C. § 18-1505(4)(c). Jury instruction 12

stated: 

A person (the agent) who has been given a power of attorney by another

person (the principal) may give the principal’s money to others if the written power 

of attorney expressly grants the agent the power to make gifts of the principal’s 

property.

However, the agent may not give the principal’s money or other property to 

the agent himself unless the written power of attorney expressly authorizes the 

agent to do so.

As the district court explained, instruction 12 paraphrased I.C. § 15-12-201(2), which 

provides:

Notwithstanding a grant of authority to exercise authority in subsection (1) 

of this section, unless the power of attorney otherwise provides, an agent that is not 

an ancestor, spouse or descendant of the principal, may not exercise authority under 

a power of attorney to create in the agent, or in an individual to whom the agent 

owes a legal obligation of support, an interest in the principal’s property, whether 

by gift, right of survivorship, beneficiary designation, disclaimer or otherwise.

Idaho Code § 15-12-201 is part of the Uniform Power of Attorney Act. Luna contends that 

by paraphrasing I.C. § 15-12-201, the district court lowered the State’s burden of proof by allowing 

the jury to find Luna exploited Hofferber simply by failing to comply with the Uniform Power of 

Attorney Act. We disagree. Luna was charged with exploiting a vulnerable adult; exploitation 

includes the unjust or improper use of a vulnerable adult’s financial power of attorney. Instruction 

12 defined the lawful use of a power of attorney under the Uniform Power of Attorney Act. The 

instruction provided the jury with an explanation of an agent’s authority under a power of attorney 

when the power of attorney does not explicitly authorize the agent to give gifts to themselves. 

Even if the jury found that Luna failed to comply with either of the powers of attorney, it still had 

to find the additional element that such misuse was either improper or unjust. Thus, the jury could 

not find Luna guilty based only on her lack of compliance with the paraphrased section of the 

Uniform Power of Attorney Act. Instead, the jury was required to find that Luna exploited 

Hofferber. This distinction is recognized by Luna, as she argues in her reply brief that “Whether 

Ms. Luna exceeded her authority under the springing power of attorney is relevant to the charged 

crime, but it is not determinative. The critical question was whether Ms. Luna’s admitted use of 

Mr. Hofferber’s funds was unjust or improper.” 

Luna contends that whether her actions were unjust or improper is dependent on her intent, 

and that instruction 12 permitted the jury to read intent out of this case. This assertion is misplaced. 
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Idaho Code § 18-1505(4)(c) does not require a finding of intent, and the information did not allege 

intent. As such, there was no variance between what Luna was charged with and the jury 

instructions on that charge. 

However, even if there was a variance, the variance was not fatal because it did not deprive 

Luna of fair notice of the charges against her. A variance between a charging instrument and a 

jury instruction necessitates reversal only when it deprives the defendant of the right to fair notice 

or leaves him or her open to the risk of double jeopardy. Windsor, 110 Idaho at 417-18, 716 P.2d 

at 1189-90 (1985); Brazil, 136 Idaho at 330, 33 P.3d at 221. The notice element requires courts to 

determine whether the record suggests the possibility that the defendant was misled or embarrassed 

in the preparation or presentation of his or her defense. Windsor, 110 Idaho at 418, 716 P.2d at 

1190. 

Luna argues the variance was fatal because jury instruction 12 required her to defend her 

actions as proper under the Uniform Power of Attorney Act and because prior to the jury 

instructions conference, Luna’s counsel was unaware of the Act’s limitations on gifts. Neither the 

Bank POA nor the Springing POA provided Luna with the authority to make gifts to herself, and 

Luna presented no evidence that she was authorized to do so. The premise of the State’s case was 

that Luna exploited Hofferber by unlawfully using the powers of attorney to take Hofferber’s 

money. That Luna’s counsel was apparently unaware of applicable law in Idaho regarding the 

limitations of one acting as an agent under a power of attorney does not mean that Luna was misled 

or embarrassed in the preparation or presentation of her defense. Because Luna had fair notice of 

the crime she was alleged to have committed and the means by which she committed it, she was 

not prejudiced in the presentation of her defense; any variance between the charging document 

and jury instruction 12 was not fatal. 

IV.

CONCLUSION

The district court did not err by prohibiting evidence of specific instances in which 

Hofferber gave gifts to Luna and other women and evidence of specific instances when Luna wrote 

checks from Hofferber’s bank account. Jury instruction 12 regarding an agent’s gift giving 

authority under a power of attorney did not create a fatal variance. Therefore, Luna’s judgment of 

conviction is affirmed. 

Judge LORELLO and Judge BRAILSFORD CONCUR.