Filed 4/12/16 P. v. Temple CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

ALEXANDER JERRY TEMPLE,

Defendant and Appellant.

 D067143

 (Super. Ct. No. SCE338940)

APPEAL from a judgment of the Superior Court of San Diego County, 

Patricia K. Cookson, Judge. Affirmed.

Patrick Morgan Ford, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Kathryn 

A. Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
2

I.

INTRODUCTION

Defendant Alexander Jerry Temple appeals from a judgment of conviction after a 

jury convicted him of nine counts of lewd acts on a child and one count of possession of 

child pornography. On appeal, Temple first contends that the trial court erred in allowing 

the People to introduce evidence of sexually explicit text messages between Temple and 

two other individuals in which Temple indicated having a sexual interest in boys the 

same age as the victim. Temple next contends that the court erred by excluding evidence 

of the victim's sexual history. We conclude that neither contention has merit, and we 

affirm the judgment.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual background

1. The prosecution case

Temple met D.L. when D.L. was 11 years old and a participant in the U.S. Naval

Sea Cadet Corps, a youth organization. Temple was the "executive officer" in charge of 

D.L.'s group. At some point, a Sea Cadet officer asked D.L.'s mother if Temple could 

stay at her home during Sea Cadet training weekends because Temple did not live close 

by. D.L.'s mother agreed, and for approximately a year and a half, Temple would spend 

one weekend a month at D.L.'s home.

A few months after Temple started spending weekends at D.L.'s home, Temple 

began sexually molesting D.L. D.L. was either 11 or 12 years old at the time the 
3

molestations began. Temple touched D.L.'s penis, over his clothes initially, and then 

under his clothes. D.L. touched Temple's penis under Temple's clothes. Temple also 

kissed D.L., sometimes using his tongue. On other occasions, Temple would show D.L. 

pornographic photos and videos of Temple and Temple's husband.

Temple helped D.L. set up social networking and texting accounts, some of which 

were geared toward gay men. Temple sometimes used these accounts to contact D.L., 

and would occasionally send D.L. naked photographs of himself.

When D.L. was 13, Temple stayed at D.L.'s home for approximately three weeks. 

During that time, Temple molested D.L. frequently. Temple would touch D.L.'s penis, 

and D.L. would touch Temple's penis. On the final night of this visit, Temple asked D.L. 

to accompany him to the car wash. After they went to the car wash, Temple drove with 

D.L. to a grocery store parking lot. While parked in the parking lot, Temple had 

intercourse with D.L.

A few days later, Temple had a conversation with D.L.'s mother in which Temple 

told her that D.L. was gay and was afraid to tell her. D.L.'s mother began to think that 

Temple may have been involved with her son. She said, "You need to tell me what 

you've done to my son. If I need to get my son help, you need to tell me." Temple 

admitted that he had engaged in intercourse with D.L., and admitted to having hugged, 

kissed, and touched D.L. D.L.'s mother called the police.

Officers interviewed Temple. During his first interview, Temple admitted that he 

had engaged in sexual intercourse with D.L. while they were in the grocery store parking 

lot. He said that he had taken D.L. to the parking lot to talk with him, but once they 
4

arrived there, they started kissing each other and touching each other, instead.1 During 

the interview, Temple denied having molested D.L. prior to the parking lot incident, but 

he conceded that they had "cuddled" on prior occasions and had touched each other over 

their clothing "a little bit."

During a subsequent interview, Temple denied molesting D.L. He implied that the 

incident in the grocery store parking lot had involved his husband, and not D.L. Temple 

also said that it was D.L. who had taken Temple's hand and made Temple touch him a 

few times. According to Temple, D.L. had tried to touch Temple approximately once a 

day, but Temple would "just push him off." Temple mentioned during this interview that 

D.L. had told him that he had "been with over thirty guys." Despite initially denying any 

molestation during this interview, by the end of the interview, Temple again confessed to 

engaging in intercourse with D.L., although he claimed that D.L. had initiated the 

encounter.

2. The defense case

Temple testified at trial. He asserted that he and D.L. would "horseplay" and 

"play[ ] around," but he denied having touched D.L. in a sexually inappropriate way. He 

also denied having any sexual attraction to D.L.

Temple explained that during the three-week period he stayed at D.L.'s home, D.L. 

told Temple that he was gay. According to Temple, D.L. had tried to touch him sexually 

 

1 During this interview, Temple indicated that D.L. had told Temple that he was 

gay, and had indicated that "he'd been with 30—30 something guys since he was 11 and 

he was meeting them on hookup sites."
5

a few times, but Temple rebuffed his advances. Temple explained that he took 

photographs of D.L. touching him so that he could show D.L.'s mother what D.L. was 

doing.

With respect to the incident in the grocery store parking lot, Temple claimed that 

he had gone with D.L. to that location only because D.L. had told him that he had been 

meeting other men there, and Temple wanted to sort out what had been going on so that 

he could tell D.L.'s mother. Temple denied touching D.L. in a sexual way, and claimed 

that he reclined the seats of his truck in order to "get [D.L.] talking." According to 

Temple, while Temple was distracted by his cell phone, D.L. took off his own shorts and 

"jumped" into Temple's lap. Temple "didn't really know how to react to that." He 

claimed that he told D.L. to "get back on his side of the car." Temple acknowledged that 

he did not tell D.L.'s mother about the incident, but said that this was because he did not 

think she would believe him.

Temple described the conversation he had with D.L.'s mother a few days after the 

grocery store parking lot incident. According to Temple, in response to her question as to 

whether something had happened between D.L. and Temple, Temple replied, "Sort of." 

He intended to tell her that D.L. had come on to him while they were in the truck, but she 

did not give him an opportunity to explain and instead, called the police.

Temple testified that when he was first interviewed by police, he said he had sex 

with D.L. in the parking lot because he was "frightened by what was going on." Temple 

claimed that during the second interview, he again told police that he had engaged in 
6

sexual conduct with D.L. because he was "still slightly afraid of [D.L.'s mother] 

retaliating in some sort of way."

B. Procedural history

Temple was charged with 15 counts of lewd acts on a child in violation of Penal 

Code section 288, subdivision (a), including 4 counts based on kissing, 10 counts based 

on illicit touching, and 1 count based on anal sex. The information also charged Temple 

with one count of possessing child pornography in violation of Penal Code section 

311.11, subdivision (a). With respect to counts 1 through 11, the information alleged that 

appellant engaged in substantial sexual conduct with the victim within the meaning of 

Penal Code section 1203.066, subdivision (a)(8).

A jury convicted appellant of nine counts of lewd acts on a child (counts 1-6, 8, 

10, 11), as well as the single count of possession of child pornography (count 14).2 With 

respect to counts 1 through 6 and count 8, the jury also found true the substantial sexual 

conduct enhancement allegations.

The trial court sentenced Temple to a total term of 20 years eight months in prison, 

which included the following terms: the upper term of 8 years on count 1; six 

consecutive 2-year terms (one-third the middle term) on counts 2 through 6 and count 8; 

a consecutive eight-month term on count 14; and concurrent 8-year upper terms on 

counts 10 and 11.

Temple filed a timely notice of appeal.

 

2 The trial court declared a mistrial as to the remaining counts, which were 

ultimately dismissed.
7

III.

DISCUSSION

A. The trial court did not err in admitting evidence of text messages between Temple 

and two other individuals

Temple contends that the trial court erred in admitting evidence of sexually 

explicit text messages sent between Temple and two other individuals regarding Temple's 

interest in engaging in sexual conduct with young boys.

1. Additional background

Prior to trial, the prosecutor brought a motion in limine to admit evidence of 

sexually explicit text messages between Temple and two individuals, identified as 

"Kevin" and "Sir Anthony." The prosecutor maintained that the messages were 

admissible to show Temple's intent and absence of mistake with respect to various 

incidents of alleged sexual misconduct with D.L., because Temple had claimed during his 

interviews with police that certain of these incidents involved D.L. initiating the touching 

and therefore could be viewed as "accidental" touching on Temple's part. The prosecutor 

argued that the text messages showed that Temple had a sexual interest in children D.L.'s 

age, making it more likely that he had engaged in intentional lewd conduct with the 

victim.

Defense counsel argued that the text messages were extremely prejudicial, and that 

the issue of intent was not "such a big issue" because Temple had admitted to some of the 

conduct underlying the charges.
8

The trial court concluded that the text messages between Temple and "Kevin" and 

"Sir Anthony" were relevant to show Temple's intent, motive, and opportunity, as well as 

to show the absence of any mistake or accident on his part. The trial court further 

concluded that under Evidence Code section 352, the probative value of the text 

messages outweighed their potential for prejudice. The trial court ordered the prosecutor 

to redact the text messages to remove any references to Temple's sexual proclivities that 

were not references to his sexual interest in children.

Thereafter, during the prosecution's case-in-chief, one of the detectives who had 

interviewed Temple read some of the text messages to the jury and explained how her 

discovery of the text messages affected her investigation of Temple.

In the text messages between Temple and "Sir Anthony," "Sir Anthony" said to 

Temple, "We can find other young boys to serve just you and me. I have no age limits." 

Temple responded, "Me neither." Temple later said, "I want to fuck a 15 year old." In 

other messages to "Sir Anthony," Temple said, with respect to an 11-year-old, "He wants 

to be fucked so he deserves to be." In other messages, Temple described watching the 

Sea Cadets in the shower and said that there were some "10 to 13 year olds" that he 

would have sex with "in a second." Temple referenced one Sea Cadet boy who had come 

out to Temple, saying "he had a really, really, really nice dick and a perfect body."

In the text messages with "Kevin," Temple asked to see photographs of an 11-

year-old boy, including "full body from both sides and some nice ass shots, pretty 

please." Temple also discussed having anal intercourse with "Kevin's" purported adopted 

children, who were described as being 9- and 11-year-old boys.
9

At the close of the evidence, the trial court gave a limiting instruction regarding 

the jury's use of the text message evidence:

"The People have presented evidence of other behavior by the 

defendant in this case that the defendant texted with third parties of 

their mutual sexual interests in 9- and 11-year-old boys and interest 

in sodomizing . . . 9- and 11-year-old boy[s]. You may consider this 

evidence only if the People have proved by a preponderance of 

evidence that the defendant, in fact, texted with these third parties 

regarding their mutual sexual interests in 9- and 11-year-old boys 

and interest in sodomizing . . . 9- and 11-year-old boy[s]. Proof by a 

preponderance of evidence is a different burden of proof than proof 

beyond a reasonable doubt. A fact is proved by a preponderance of 

evidence if you conclude that it is more likely than not that the fact 

is true. If the People have not met this burden, you must disregard 

this evidence entirely.

"If you do decide that the defendant texted with these parties about 

said sexual interest and sexual acts, you may but are not required to 

consider that evidence for the limited purpose of deciding whether or 

not the defendant acted with the intent to commit the act of willfully 

touching any part of a child's body either on the bare skin or through 

the clothing with the intent of arousing, appealing to or gratifying 

the lusts, passions, or sexual desires of himself or the child in this 

case; or the defendant had a motive to commit the offenses alleged 

in this case; or the defendant's alleged actions were [not] the result of 

mistake or accident; or the defendant had a plan or scheme to 

commit the offenses alleged in this case.

"In evaluating this evidence, consider the similarity or lack of 

similarity between the acts of texting these third parties regarding 

sexual interest in and sodomy of a 9- and 11-year-old boy and the 

charged offenses. Do not consider this evidence for any other 

purpose. Do not conclude from this evidence that the defendant has 

a bad character or is disposed to commit crime. If you conclude that 

the defendant committed these acts, that conclusion is only one 

factor to consider along with all of the other evidence. It is not 

sufficient by itself to prove that the defendant is guilty of lewd and 

lascivious acts or that he acted with substantial sexual conduct. The 

People must still prove each charge and allegation beyond a 

reasonable doubt."
10

During closing argument, the prosecutor reminded the jury that the text messages 

could be used only to prove intent, motive, plan or scheme, or absence of mistake.

2. Analysis

Evidence Code section 1101, subdivision (b) provides that the trial court may 

admit evidence that the defendant committed "a crime, civil wrong, or other act when 

relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, 

knowledge, identity, absence of mistake or accident, or whether a defendant in a 

prosecution for an unlawful sexual act or attempted unlawful sexual act did not 

reasonably and in good faith believe that the victim consented) other than his or her 

disposition to commit such an act." Evidence of conduct by defendants similar to 

composing and sending the text messages at issue here has been determined to be 

admissible pursuant to Evidence Code section 1101, subdivision (b). For example, in 

People v. Memro (1995) 11 Cal.4th 786, 864 (Memro), the court concluded that evidence 

that the defendant possessed magazines and photographs depicting clothed and unclothed 

children was admissible pursuant to Evidence Code section 1101, subdivision (b), to 

prove the defendant's motive and intent to commit a lewd act on a child. (Memro, supra,

at p. 864.) In People v. Goldman (2014) 225 Cal.App.4th 950, 959-960, the appellate 

court approved of the trial court's admission of evidence of sexually explicit text 

messages that the defendant had sent to one of his victims seven years after he molested 

her, concluding that the text messages were admissible to show the defendant's sexual 

interest in the victim.
11

Like the magazines and photographs in Memro and the text messages in Goldman, 

the text messages between Temple and "Kevin" and "Sir Anthony" demonstrated that 

Temple is sexually attracted to young boys the same age as the victim, and tended to 

show that any touching in which Temple engaged with the victim was done with the 

requisite intent. The evidence was relevant since the prosecutor was required to prove, 

pursuant to Penal Code section 288, that when Temple touched D.L., he had the "intent of 

arousing, appealing to, or gratifying the lust, passions, or sexual desires" of himself or the 

victim. (Pen. Code, § 288, subd. (a).) These text messages also tended to show that 

Temple had a motive to engage in lewd conduct with the victim, that he had a plan to 

interact with D.L. in order to sexually molest him, and that any touching that occurred 

was not a result of accident or mistake.

Temple contends that the text messages should have been excluded because the 

question of his sexual "intent" was not truly at issue since he had admitted more than 

once that he had engaged in sexual activity with the victim. However, Temple 

specifically denied having sexual contact with D.L., both during his testimony at trial and 

during his second interview with police. Temple's intent in touching D.L. was clearly at 

issue in this case.

Temple also contends that the text messages consisted of "sexual fantasies" and 

therefore cannot constitute conduct for purposes of Evidence Code section 1101, 

subdivision (a). This contention is without merit. Temple's act of writing about his 

interest in having sexual contact with young boys is clearly conduct that tends to 
12

demonstrate his intent, motive, plan or scheme, and lack of accident with respect to his 

sexual molestation of D.L.

Finally, we reject Temple's contention that even if the evidence was admissible 

under Evidence Code section 1101, the trial court should have excluded it pursuant to 

Evidence Code section 352 on the ground that this evidence was more prejudicial than 

probative. The text messages were probative of Temple's intent, and they constituted 

independent evidence that corroborated the testimony of the victim, which formed most 

of the People's case. Further, the messages were no more prejudicial than the direct 

evidence pertaining to the charged offenses. The trial court required the prosecutor to 

redact any potentially prejudicial comments that were not sufficiently related to the 

charges in this case. The trial court did not err with respect to the admission of the 

evidence of text messages between Temple and the two other individuals.

B. The trial court did not err in limiting the defense cross-examination of D.L. 

regarding his past sexual conduct

Temple contends that the trial court erred in excluding evidence of D.L.'s prior 

sexual conduct, and thereby violated Temple's right to present a defense, his right to 

confront witnesses, and his right to due process. We conclude that the trial court did not 

err in this regard. First, the trial court did not exclude the evidence; rather, the court 

limited the presentation of such evidence. Further, defense counsel never formally 

requested to be permitted to introduce additional evidence of D.L.'s sexual conduct by 

way of cross-examination of the victim, which is a prerequisite to the introduction of 

such evidence, pursuant to the rape shield law. Finally, even if Temple had not forfeited 
13

any claim that he should have been permitted to cross-examine the victim regarding his 

prior sexual conduct, the trial court's ruling limiting the presentation of such evidence 

was proper.

1. Additional background

Prior to trial, the prosecutor sought to limit the presentation of evidence of D.L.'s 

prior sexual history. The prosecutor proffered that during a police interview, Temple 

claimed that D.L. had engaged in previous sexual relationships with approximately 30 

men. Temple had indicated that he was trying to counsel D.L. about these relationships 

when he drove D.L. to the grocery store parking lot. The prosecutor sought to prevent 

the defense from cross-examining the victim regarding these alleged prior sexual 

relationships, arguing that the victim's sexual history was irrelevant to the charged 

offenses.

The trial court agreed with the prosecutor, and concluded that permitting defense 

counsel to cross-examine the victim regarding his prior sexual history would be highly 

prejudicial and could violate the rape shield law. The trial court therefore ruled that 

defense counsel would not be permitted to cross-examine the victim regarding this sexual 

history. However, the trial court deferred ruling on whether defense counsel would be 

permitted to question Temple regarding Temple's claims about his purpose in driving 

D.L. to the grocery store parking lot—i.e., to counsel D.L. with respect to his many 

sexual relationships with other men—if Temple were to testify at trial. The trial court 

later ruled that it would not permit "discussion about the 30 men or so" on the ground that 

this would be unduly prejudicial under Evidence Code section 352.
14

2. Analysis

Although Temple argues that the trial court "excluded" evidence of D.L.'s prior 

sexual conduct, this is not an accurate description of the trial court's ruling.

For example, Temple contends that the trial court "erred by redacting appellant's 

interview with police in order to exclude his statements regarding [D.L.'s] prior sexual 

activities." As the People point out, however, the redaction never occurred. Although 

the prosecutor initially attempted to redact portions of the interview to eliminate 

references to the victim's prior sexual conduct, she later stated that she would proffer 

Temple's statement without redaction of the references to the victim's alleged prior sexual 

history. During trial, Temple's statement to police was admitted without redaction. In 

the statement, Temple claimed that he took D.L. to the grocery store parking lot to talk to 

him because he had heard that D.L. had been with 30 or so men whom he had met on 

various "hookup sites." The transcript of a subsequent interview that was admitted in 

evidence included another reference by Temple to the effect that D.L. had told Temple 

that he'd "been with over thirty guys." Further, when Temple testified at trial, he stated 

that he had taken D.L. to the grocery store parking lot because D.L. had told him that he 

was meeting other men there, and Temple wanted to figure out what was going on so that 

he could tell D.L.'s mother about it. According to Temple, he went there wanting to talk 

with D.L. about how D.L. was "hooking up" with men.

It is thus clear that evidence of D.L.'s prior sexual conduct was not entirely 

excluded. In fact, the jury heard both of Temple's statements about D.L.'s sexual history, 

as well as Temple's trial testimony in which he said that he had taken D.L. to the grocery 
15

store parking lot in order to talk to him about his sexual conduct. Temple was able to 

present to the jury his explanation as to why he was in the grocery store parking lot with 

D.L. on the day in question.

Further, although Temple contends on appeal that the trial court erred in not 

permitting him to cross-examine D.L. regarding his sexual history, the record discloses 

that Temple did not formally request to be permitted to cross-examine the victim on this 

issue. "A defendant generally cannot question a sexual assault victim about his or her 

prior sexual activity. [Citation.] However, a limited exception [may apply] if the 

victim's prior sexual history is relevant to the victim's credibility." (People v. Bautista

(2008) 163 Cal.App.4th 762, 781-782 (Bautista), citing Evid. Code, § 1103, subd. (c)(4); 

People v. Chandler (1997) 56 Cal.App.4th 703, 707.) "In prosecutions brought pursuant 

to section 288, Evidence Code section 782 provides for a strict procedure that includes a 

hearing outside of the presence of the jury prior to the admission of evidence of the 

complaining witness's sexual conduct. [Citations.] Evidence Code section 782 is 

designed to protect victims of molestation from 'embarrassing personal disclosures'

unless the defense is able to show in advance that the victim's sexual conduct is relevant 

to the victim's credibility." (Bautista, supra, at p. 782.)

Evidence Code section 782 provides in pertinent part:

"(a) In any of the circumstances described in subdivision (c) [which 

includes prosecutions pursuant to Penal Code section 288], if 

evidence of sexual conduct of the complaining witness is offered to 

attack the credibility of the complaining witness under Section 780, 

the following procedure shall be followed:
16

"(1) A written motion shall be made by the defendant to the court 

and prosecutor stating that the defense has an offer of proof of the 

relevancy of evidence of the sexual conduct of the complaining 

witness proposed to be presented and its relevancy in attacking the 

credibility of the complaining witness.

"(2) The written motion shall be accompanied by an affidavit in 

which the offer of proof shall be stated. The affidavit shall be filed 

under seal and only unsealed by the court to determine if the offer of 

proof is sufficient to order a hearing pursuant to paragraph (3). After 

that determination, the affidavit shall be resealed by the court.

"(3) If the court finds that the offer of proof is sufficient, the court 

shall order a hearing out of the presence of the jury, if any, and at the 

hearing allow the questioning of the complaining witness regarding 

the offer of proof made by the defendant.

"(4) At the conclusion of the hearing, if the court finds that evidence 

proposed to be offered by the defendant regarding the sexual 

conduct of the complaining witness is relevant pursuant to Section 

780, and is not inadmissible pursuant to Section 352, the court may 

make an order stating what evidence may be introduced by the 

defendant, and the nature of the questions to be permitted. The 

defendant may then offer evidence pursuant to the order of the court.

"(5) An affidavit resealed by the court pursuant to paragraph 

(2) shall remain sealed, unless the defendant raises an issue on 

appeal or collateral review relating to the offer of proof contained in 

the sealed document. If the defendant raises that issue on appeal, the 

court shall allow the Attorney General and appellate counsel for the 

defendant access to the sealed affidavit. If the issue is raised on 

collateral review, the court shall allow the district attorney and 

defendant's counsel access to the sealed affidavit. The use of the 

information contained in the affidavit shall be limited solely to the 

pending proceeding."

Temple did not file a written motion, nor did he submit an accompanying 

affidavit, as required pursuant to Evidence Code section 782. He therefore forfeited his 

contention that the trial court erred in not permitting his attorney to cross-examine D.L. 

regarding D.L.'s prior sexual conduct.
17

We reject Temple's attempt to frame this as a constitutional issue in order to avoid 

the procedural requirements of Evidence Code section 782. If Temple's attorney had 

believed that cross-examination of D.L. on this issue was truly significant to his defense, 

then defense counsel could have filed a motion pursuant to Evidence Code section 782 

seeking permission to do so from the court. The mere existence of this evidentiary rule 

does not necessarily impinge on a defendant's right to present a defense, since it permits a 

court to allow for cross-examination regarding a complaining witness's prior sexual 

conduct where that conduct is relevant to the witness's credibility.

Finally, even if Temple had not forfeited his challenge to the trial court's limitation 

on cross-examination of D.L. regarding D.L.'s sexual history, we would conclude that the 

trial court did not abuse its discretion in limiting cross-examination on this topic. (See 

Bautista, supra, 163 Cal.App.4th at p. 782 [a trial court's ruling on the admissibility of 

prior sexual conduct is reviewed for an abuse of discretion].) Temple contends that if he 

had been permitted to cross-examine D.L. about his sexual history, he would have been 

able to "challenge [D.L.'s] claim that appellant had sex with him in his car in the store 

parking lot, rather than talk to him about his promiscuity with other men." It is not clear 

how cross-examining D.L. about his sexual history would "challenge" D.L.'s claim that 

Temple had sex with D.L. in the parking lot. The extent of D.L.'s sexual history neither 

proves nor disproves whether D.L. and Temple ultimately engaged in the charged sexual 

act that day. It is entirely possible that Temple originally intended to "counsel" D.L. 

when they went to the grocery store parking lot, but this does not preclude a finding that 

they also engaged in intercourse that day. Whether D.L. had previously engaged in sex 
18

with one other man or as many as 30 other men, as Temple contended, was simply 

irrelevant to the question the jury had to decide, which was whether Temple and D.L.

engaged in sex in the grocery store parking lot. The trial court therefore would not have 

abused its discretion in limiting cross-examination of D.L. concerning his sexual history, 

even if Temple had not forfeited this issue.

IV.

DISPOSITION

The judgment of the trial court is affirmed.

AARON, J.

WE CONCUR:

HUFFMAN, Acting P. J.

HALLER, J.