### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs D ecem

ber 10, 200 3
STATE OF TENN ESSEE v. MIKE LAFE VER
Direct Appeal from the Criminal Court for P utnam County No. 01-0579 Lillie Ann Sells, Judge

No. M2003-00506-CCA-R3-CD - F iled January 30, 2004

The Defend ant, Mike Lafever, w as indicted on three counts of theft. A jury subsequently convicted him of one count of theft over $10,000, a Class C felony , and one count of theft over $1, 000, a Cla ss D felony. The

jury assesse d fines of

$10,000 a

nd $5,000 f

or these offense s, respectively . The jury acquittedhim of the other count. The trial court sentenced the Def endant to five andone-half y ears for the Class C felony, and to three and on e- ha lf

yea rs fo r t he Cl as s D fe lo ny. The sentences were ordered to run concurr ently and t o be served on community c orrections. In this direct appe al, the Defe ndant argues that the trial court erre d in refusing to admit a statement he made to the police; erred in refus ing to ins truct the jury on mi stak e or ignorance of fact; that the evidence is not sufficient to support

his convictions; that his sentences are excessive; and that the trial cou rt should have wa ived his f ines. We a

ffirm the judgmen ts of the tr

ial cour t. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

D AV ID H. W ELLES , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and D AV ID G. H AYES , J., joined.
Marshall Judd, Cookeville, Tennessee, for the appellant, Mike L afever.

Paul G. Summers , Attorne y General and Repor

ter; P. Robin Dixon, Jr., A ssistant A ttorney Genera l; Bill Gibson, District Attorney Gene ral; and David A. Patterson, Assistant District A

ttorney Genera l, for the appellee, State of Tennessee.

OPINION

Brenda Sue W illi s test ified that s he own ed a 20 00 Dod ge Dakota Club Cab pickup truck on September

16, 2000. On that date, she parked her truck behind the market whe re she worked. When she re tu rn ed to he r p ar ki ng pl ac e l at er th at da y, her truck was gone. There was broken glass on the ground where the truck had been parke d. Ms. Willis called the police. She was later notified that p arts of the tru ck had been locat ed. I n conjunc tion with ma

king an insuranc e claim, M s. Wil li s-2-

delivered her keys to the truc

k to her insurance company

. Ms. Willis sta ted that sh

e did not consent to anyone taking

her truck.

Arnold Kinnard testified that he owned a wrecker business and that

one of hiswreckers was stolen fr om his lot in the fall of 2000. He stated that the stolen

wrecke r was wor th approxima

tely $15,000. Mr. Kinnard notified the p olice. He identified photographs of parts of the wr ecker that were later recovere d.

Gordon King testified that he owned a t

owing bu siness an d, in Nove mber 2000 , a 1986 GM C wrecker was stolen off of his lot. Mr. King reported the theft and later recovere d his stolen ve hicle from the city lot. Mr. King testi fied tha t, at the time it was stol en, the w recker was wort

h approxima

tely $12,5 00. W hen he recove red it , the s teeri ng colu mn had been d amage d; th e front bumper was missing; and the new front aluminum wheels a nd tires w ere missing. Also , all of his identifying

signage on the doors of the wrecker had been removed and painted over. Mr. King testified that he never gave the De fendant permission to have his wrecker.
Agent Randall Gothard with the Tennes see Highway Patrol testified that he visited the Defendant’s salvage y ardin Dece mber 2000 . The Def

endant g ave his c onsent to a search of his yard. Agent Gothard found pieces of a red 2000 Dodg e pickup truck, including both doors. Agent Gothard explained that these pieces were not together , but were spread out over the y ard. Additionally, the parts were hidden in other vehicles and under pieces of carp et. Th e iden tifi catio n mark ings on these parts had been“removed, altered, deface d” such that they c ould not be read. Agent Gothard spoke with Ms. Willi s about her stolen vehicle and recovere d the key from the insura nce company . The key fit the doors found a

t the Defendant’s salvage y ard.

In addition to finding the parts of Ms. Willis’ vehicle, Agent Gothard a lso located parts of Mr. Kinnard’s missing wrecker on the Defendant’s lot. Agent Gothard testified that there ha d also been ide ntify ing mar ks remove d from one

of these parts. Agent Troy Human with the Te

nnessee Highway

Patrol testified that he accompanied Agent Gothardto the Def

endant’ s salvag e y ard. He explained

that a VI N identif ication p la te had been removedfrom a wr

ecker r ecover ed at th e Defen dant’s yard, a nd was determined to belong to a different vehicle, a 1981 C hevrolet pickup truck. This vehicle’s title was held in the Defenda nt’s
name as of October

1, 2000. Inside the wrecke r were found a license plate and a corresponding application for registration filed by the Def

endant in December

using the Chevrolet pickup’s VI N. The wrecker was later dete rmined to be the one stolen from Mr. King’s lot.
Agent Human testified that, when he confronted the Defendant with his suspicions about the King wrecke

r, the De fendant responded, “I

was afr aid y ou was g oing to

ask abou t that, just go ahead and take it.” Agent Human explained on cross-examination that the Defendant later told him that he had bought the wrecker from his cousin, Rick L afever. The Defendant a lso told him that the wrecker parts belonging

to Mr. Kinnard had been left at his lot by Rick Lafever.-3-

At the conclusion of proof, the jury deter mined that

the Defendant was guilty of one count of theft over $10,000 (for the theft of Mr. King’s wrecker) and one count of theft over $1,000 (for the theft of Ms. Harris’ Dodge pickup). The jury acquitted the De

fendant of the alleged theft of Mr. Kinnard’s wrecker.

Ini ti al ly, the Defendant challenges the tria l court’s refusal to admit into evidence a written statemen t that the D efenda

nt made to

the polic e. That st

atement r eads as f ollows:

The red [King] wrecker that is in question was brought to my residen c e approxima

tely 1 1⁄2 weeks ago which

was in November 2000. I paid $1600 c ash and took off approximately $400

or more that was owed to me. I paid the $1600 in two separa te installments. The deal was with one individual. The wrecker was as it is now, with now [sic] identifying numbers, and a peeled steering column. I was going to repair the colum

n. I r eceive d a title f

rom the ind

ividual tha

t I bou ght the truck from. Both

trucks f ound on my

propert y w ith out VI

N plates a

re unknown to me where the plates went. I boug ht one of them from Elmor Williams and the other from Junior Wheeler. The frame in question as to possibly be the one belonging to Kinnard’s was dropped off at my

place a couple of months ago by someone whom

I don’t want

to
name at this time. I

paid appr

oximately $300 to $50 0 in cash a

nd took off

some owedto me for the frame and bed. I wa s o we d f

ro m s om e p ar ts th at [w er e] fa ul ty.

At trial , counse l f

or the State objected to the admission of this statement on the basis that it was he ar sa y. Defense counsel responded that it was “re ally an admission ag ainst the interest,” and that, since Agent Human had already testified about what the Def enda nt told him, it was “the best evidence” of that. The trial court determined tha t the statement was self-serving hear say and not admissible.

We agree with the trial court. The statement is clearly he arsay. See Tenn. R. Evid. 801(c). Hearsay is generally

not admissible unless pursuan t to an exception provided by our Rules of Evidence. See Tenn. R. Evid. 802. The hearsa y e xception f

or statem ents ag ainst

interest does not apply to the Def

endant’ s s tatemen t. First, this excep tion is app licable o nly if the de claran

t is unavaila ble as a witness. See Tenn. R. Evid. 804(b). Here, the declarant wa s the Defendant, who
was availab le to testify . Furthe rmore, a statemen t again st intere st is one “which was at the time of its making so far contra

ry to the dec larant’ s pecunia ry or propr ietary interest , or so fa

r tended to subject the declarant to civil or criminal liability or to render invalid a claim by the declarant

agains t another, that a reasonable person in the declara nt’s po sition wo uld not have made the statement unless believin g it to be

true.” Tenn. R. Evid. 804( b)(3). T he Defe ndant’s s tatement

is an attempt to explain how h e came to be in legitimate possession of stolen property . It does not satisfy the criteri a for the

statemen t again st intere st hears ay

exception . This issue

is without me

rit.-4-

On appeal, the Defendant contends that his statement should have beenadmitted under the hearsay exception

for “the n exis ting st ate of mind.” See Tenn. R. Evid. 803(3). However, a defendant may not offer

one theory a

t trial for the admissibility of evidence , and then offer a different theory on appeal. See State v. A lder , 71 S.W .3d 299, 30 3 (Tenn. Crim. App. 2001) (“ It is w ellsettled that a n appe llant is bo und by th e evid entia ry theory set f orth a t tri al, an d may not c hange theo ries on ap peal.”) . Moreove r, the De fendant ’s statem

ent does not meet the

criteri a for this exception. Tennessee Rule of Evidence 803(3) provides for the admissibility of

statements “of the declarant’s then existing state of mind, emotion , sensati on, or phy sical co ndition (su ch as inte nt, plan, motive, de sign, me ntal f eeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution,
re vocation, i dentification, or terms of declarant’s will.” That is, to qualify for this exception, the statement must be one made at the time of the event in question. Here, however, the Def endant’s statement to Agent Human was not a declara tion of his stat e of mind a t the time he came i nto possession of the stolen ve hicles; it was a statement made long after the fa ct, that is, as a statement of memory or belief

as to how the Defendant had gained possession of the vehicles. The statement was not a dmissible u

nder this exception , and this i ssue is wit hout merit

. The Defendant also contends that the evidence is not sufficient to support

his convictions. Tennessee Rule of Appellate Procedure 13(e) pre scribes that “[f]indings of guilt in criminal actions whether by t he tr ia l c ou rt or ju ry s h all be set aside if the evidence is insufficient to support the findi ngs by the trier of f

act of guilt bey ond a reasonable doubt.” A convicted criminal defendant

who challenges t he suffi cie ncy of the e vidence on appeal bears the burden of demonstrating why

the evidence is insufficient to support the verdict, because a verdict of g uilt destroys the p resu mption of innocence and imposes a presumption of guilt. See State v. Evans , 108 S.W.3d 231, 237 (Tenn. 2003); Statev. Carruthers , 35 S.W.3d 516 , 557-58 (Tenn. 200 0); State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1 982). Thi s Court must reject a convicte d crim

inal def endant’s challenge to the sufficiency

of the evidence if, after considering the evidence in a light most favorabl e to the prosecution, we determine that any rational trie r of fact could have

found the essential elements of the crime bey ond a reasonable doubt. See Jackson v. Virg inia , 443 U.S. 307, 3 19 (1979) ; State v. Hall , 8 S.W.3d 593, 599 (Tenn. 1999).

On appeal, the State

is entitle d to the str

ongest l egitim ate view of the ev idence a nd all
reasona ble and leg itimate

inferences which may

be drawn therefrom. See Carruthers , 35 S.W.3d at 558; Hall , 8 S.W.3d at 59 9. A guil ty verdict by the trie

r of fact accredits the testimony of the State’s witnesses and resolves all conflicts in the evidence in favor of the prosecution’s theory

. See State
v. Bland , 958 S.W.2d 651, 659 (Tenn. 1997). Questions about the c redib ility of witnesses, the weight and value of the evidence, as well as all factual issues raised by the evidence are

resolved by the trier of

fact, and this Court will not re-weigh or re-eva luate the evidence. See Evans , 108 S.W.3d at 236; Bland , 958 S.W.2d at 659. Nor will this Court substitute its own infe rences dr awn from circum sta ntial evidence for those drawn by the trier of fact. See Evans , 108 S.W.3d at 236-37; Carruthers , 35 S.W.3d at 557.-5-

The Defendant was convicted of two counts of theft of property . “A person commits theft of property if, with intent

to deprive the owner of property , the person knowingly obtains or exercises control ov er th e property without the owner’s effective consent.” Tenn. Code Ann. § 39-14-103. The Defendant was convicted of the the

fts of Mr. King’s wrecke

r and Ms. Wi llis’ pick

up (or pa rts thereof). The Defendant claims that his convictions should be reversed bec ause there is no proof that he knew that the King wr

ecker o r Willis parts found on his p roperty were sto len. We dis agree . With respect to the King wrecker, Ag ent Human testified that, when confronted about tha t vehic le, the Defe ndan tstated, “I was af raid you was g oing to ask about that, just go ahead and take it.” Moreover, th e wr eck er’ s VIN pl ate had bee n re mo ved and rep lac ed w it h t he V IN plate from a pickup truck owned by

the Defe

ndant. Th

is evidence is suf

ficie nt to s upport the inference that the Defendant

did, indeed, know that the wrecker was stolen. This conviction is therefore supported by the proof. As to the Willis pickup, the proof established that the various parts to the truck were separated from each other and hidden from view. The pa rts were on the Defendant’s proper ty and the Def endant ma

de a statement to Agent Human indicating that he kne w they wer

e there. The Defend ant was in

the business of selling car parts. That pieces of the Defendant’s inventory were hidden supports the inference that the Defendant kne w that the parts did not

rightf ully belong to him. While not overwhelming, this proof is sufficient to sustain the Defendant’s conviction. This issue is without me

rit.

The Defendant also contends that the trial court erred by refusing to give a r equeste d ju ry instruction. The Defendant requested the trial court to instruct the jury that “ignorance or mistake of fact is a defense to prosecution if such ignorance or mistake neg ates the culpable mental state of the charged offense.”Tenn. Code Ann. § 39-11-502(a). The offense charg ed in this case wa s theft. As set forth above, the offense of theft is committed where “with intent

to deprive the owner of pr op er ty, the [accused] knowingly obta ins or exercises control over the property without the owner’s effectiveconsent.” Id. § 39-14-103. Obviously, the Def en dan t had knowing possession of the propert y in question. The issue, therefore, is whether he g ainedor reta ined posse ssion with

the intent to deprive

the owne r of the p roperty . The Def

endant c ontends that he was mistaken or ignorant about the ownership of the stolen vehicles, and adduced sufficient proof of that

defense to warrant a jury instruction. The trial c ourt determined that the Defendant had not raised sufficient

proof of the defe nse to re quire the

instructi on, and th

us denied the Defe ndant’s r equest.

We recog nize, of c ourse, th at a crim inal def endant ha s the rig

ht to hav e each issue of fact
r aised by the evidence and material to his or her defe nse submitted to the jury upon proper instructions by the

trial court. See State v. Brown , 836 S.W.2d 530, 553 (Tenn. 1992). Ignorance or mistake of fact is a defense to prosecution, and the trial court must instruct the jury on this defe nse if it is fair ly raised b y the proof. See Ten n. C ode Ann . §§ 39- 11- 203 (a) , (c ), 3 9-1 1-5 02( a). In determining whether

a defen se is fairly ra

ised by the proof, a

trial court

should consider the evidence in the light most favorable to the defendant. See State v. Shropshire , 874 S.W.2d 634, 639 (Tenn. Crim. App. 1993).

The only proof of the De

fendant’s state of mind regarding the stolen vehicles came in t h rough Agent Hu man’s testimony. Age nt Human stated that, when he initially beg an speaking wi th th e-6-

Defendant

at the Defend ant’s salva ge yard, he e xplained that he was looking for stolen vehicles and parts to vehicl es. When Agent Human then confronted the Defe ndant with his suspicions aboutthe King wrecker, the Defendant re sponded, “I was af raid you was g oing to ask about that, just go ahead and take it.”Howeve

r, Age nt Human a

lso stated that the D efenda

nt la ter told him that he had purcha sed the wrecker, but refused to reve al from whom he had bought it. Agent Human fur the r e xplained that, af

ter the D efenda

nt spoke w ith his law ye r, he told Agent H uman that he ha d purchased

the wrec ker fro m his cousin

Rick Lafever, “ and that Rick was waiting on him to get done talking to [Agen

t Human] so t

hey could confer more.” As to the

Dodge parts, Agent Human testified that the Defendant told him only that Rick L afever had dropped those parts off a nd that the Defendant and Rick La

fever had “been in a discussion over those par ts.”

We agree with the trial court that the Def endant simply did not

adduce sufficie nt proof o f his alleged ignorance or mistake of fact to wa rrant a jury

instruction. Accordingly , this issue is without merit.

The Defendant also challenges his sentences. With respect to the conviction for the theft of the King wrecker, the trial court sente nced the Defendant as a Rang e I standard offe nder to five ye ars and six months, to be served on community corrections. With respect to the sec ond conviction, the trial court sentenced the Defendant to a c oncurrent sentence of three ye ars and s ix months, al so to be served on community cor rections. Additionally, the jury assessed fines of

$10,000 and $5,000,
re sp ec ti ve ly. The Defendant now complains that the trial court should have shortened the terms of his sentenc es on the b asis of c ertain mitigating factor s; that his s entences are excessive when compared to the sentences received

by his co-defendant; and that the trial court should have waived his fines. The State

respondsthat the tr

ial cour t did not er

r in sente ncing th e Defe ndant.

Before a trial court imposes a sentence upon a convicted criminal defendant, it must consider (a) th e evid ence ad duced at the trial and th e sent encin g hearin g; (b) the presentence report; (c) the principles of sentencing and argume nts as to sentencing alternatives; (d) the nature a nd characteristics of the criminal conduct involved; (e) evidence and infor mation offered

by the parties
on the enha

ncement and mitig ating f

actors s et forth in Tennessee Code Annotated sections 40-35- 113 and 40-35-114; and (f) any statement the defen dant wishe s to make in the defendant’s own behalf about sentencing. See

Tenn. Code Ann. § 40-35-21 0(b); State v. I mfeld , 70 S.W.3d 698, 704 (Tenn. 2002). To fa cilitat e appell ate review, the t rial cou rt is requ ired to pla

ce on the record its
reasons for imposing the specific sentence, including the identification of the mitig ating and enhancement

factors found, the specific facts supporting each enhancement factor found, and the method by w

hich the m

iti gating and

enhanc ement fa

ctors ha ve been evaluat ed and ba lanced in determining the sentence. See State v. Sa muels , 44 S.W.3d 489, 492 (Tenn. 2001).
Upon a challe

nge to the sentence imposed, this Court has a duty to conduct a de novo review of the sentence with a presumption that the determinations made by the trial c ourt arecorrect. See Tenn. Code Ann. § 40-35-401(d). However, this presumption “is conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant

facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). If our review r eflects that-7-

the trial court followed the statutory sentencing procedure, that the court imposed a lawful sentenc e after having given due consideration and pro per weight to the factors and principles set out under the sentencing law, and that the trial court’s findings of fact are adequately

supported by the record, then t he presumption is applicable, and we may not modify the sentence

even if we wo uld hav e preferred a different result. See State v. Pike , 978 S. W.2d 904, 9 26-27 (T enn. 1998 ). We will uphold the sente nce impos ed by

the trial court if ( 1) th e sentence complies with the purposes and principles of the 1989 Sentencing Act, and (2) the trial court’s findings are adequate ly supported by the reco rd. See Sta te v. Arnett , 49 S.W.3d 25 0, 257 (Te nn. 2001) . The bur

den of sho wing tha

t a senten ce is impr oper is upon the appealing party

. See Tenn. Code Ann. § 40-35-401 Sentencing Commission Co mments; Arnett , 49 S.W.3d at 257.

We will initially address the Defe ndant’s concerns regar

ding the trial court’s application of mitigating factors. The Defendant’s conviction for the th ef t o f t he Ki ng wr ec ke r i s a Cl as s C fe lo ny, see Tenn. Cod

e Ann. § 39 -14-105(

4), exposin g the De

fendant to a sente

ncing r ange o f three

to six ye ars, see id. § 40-35-112(a)(3). The Defendant’s conviction for the theft of the Willispickup is a Class D felony, see id. § 39-14-105(3), exposing the Defendant to a sentencing ra nge of two to four ye ars, see id. § 40-35-112(a)(4). The presumptive sentence for Class C and D felonies is the minimum in the ra

nge, increase d as appr

opriate for appl icable enhancement factors, and decr eased as appropriate for applicable mitigating factors. See id. § 40-35-210(c), (e).

After a sentencing hearing, the

trial court found as enhancement factors that the D efendant “has a previous history

of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range,” a nd that he “has a pre

vious histo

ry of unwillingness to comply withthe conditions of a sentence involving release in the c ommunity.” Id. § 40-35-114(2), (9). The proof supports application of these enhancement factor s, and the

Defend ant does n ot contes t them. In mitigation, the tria

l court found that the Defendant’s “criminal conduct ne ither caused nor threatened

serious bodily injury .” Id. § 40-35-1 13(1). T he Defe ndant ass erts that , as an additional mitigating factor, the trial court should have found that he “assisted the a utho rities in uncovering offenses committed by other persons or in de tecting or apprehend ing o ther persons who had committed the offenses,” and that he “assisted the authorities in locating or recoveringany

propert y or person involved in the crime.” Id. § 40-35-113(9), (10).

In support of his assertion, the Defendant relies on a repo rt from the Tennessee Highway Patrol Criminal Investigation Division introduced as an exhibit to the sentencing hearing. How ever, that exhibit is not

included in the record before us and we therefore cannot consider it. See State v. Robinson , 73 S.W.3d 13 6, 154 (Te nn. Crim. App. 2001) (“Generally , this court is precluded from addressing an issue on appeal when the record fails to include releva

nt docume

nts.”); see also

Tenn. R. App. P. 24(

b). The D efenda

nt’s atte mpt to inclu de this report as an attachment to his brief is of
no avail. See State v. Matthews , 805 S.W.2d 776, 783-84 (Tenn. Crim. App. 1990). The trial court sp ecifica lly refused to apply

these mitigation factors, and the record doe s not persuade us that th e trial cou rt there by e rred. Th is issue is without mer

it.-8-

The Def endant a lso compla

ins that hissentenc e reflects an “i ll eg al ly u nj us ti fi ed di sp ar it y” when compare d to his co-defendant Rick Laf ever’s sentence. The Defe ndant raised th is issue in h

is motion for new trial and argued it to the trial court at that hearing. The trial court found this issue to be without merit. The transcript of the motion for new trial hearing indica tes that Rick

Lafever
was indicted along with the Defendant, but entered a guilty plea a

nd received a sentence of

two years
on p ro bation. H owever , the rec ord does not contain a copy of the jud

gments o f convic tion with regard to Rick Lafever, and f

urther does not contain a copy of the transcript of h is guilty plea proceeding or hi s p re se nt en ce re po rt . A cc or di ng ly, th is Co ur t h as no wa y of knowi ng how Rick Lafever’ s sen te nce actually compares to the Defendant’s. The Def endant having offered us insuffic ient infor

mation with

which to analyze this issue, we

must presume the trial court’s ruling was correct. See State v. Gibson , 973 S.W.2d 231, 244 (Tenn. Crim. App. 1997).

Fi na ll y, the Defendant complains that the trial court should have waived the f ines assessed by the jury. I

n his motion for new trial, the Defendant raised as an issue that “the fines returned by the jury are

excessive

and should

be reduc ed.” At th

e hearing on the

motion, defense c ounsel tol d the court that the Defendant was indigent. The transcript of

the hearing indicates that the Defenda nt
was no longer serving his sentence on c ommunity corrections and ha d been incarcerated. Neverth eless, the trial court determined to “leave the fines as they are” with the apparent hope that the Defendant

would eve

ntually get out o n parole

and begin working. The court noted that the fines could be reco nsidere d at a late

r date, i f approp

riate. We also note that the trial court referenced a pr ev io us fi nd in g o f i nd ig en cy.
Our supreme court has determined that “the decision of wh

ether to grant a waiver o f [fines]

. . . rests w ithin the c ourt’s discretion; an d that decision cannot be reversed in the absence of evidenc e inthe record which indicates that ‘such discretion has been explicitly abused to the gr eat injustice and injury of

the party complaining .’” State v. Black , 897 S.W.2d 680, 684 (Tenn. 1995) (quoting Douglas v. Estate of Robertson , 876 S.W.2d 95, 97 (Tenn. 1994)). On the record before us, we see no such abuse of discretion. There is no proof in the record

regarding how

the imposition of the fines will work a financial hardship on the Defenda nt, other than an earlier fi nding of in di ge nc y. By the time the De fendan t is require d to begin pay ing the fines, his financial circumstances may have a ltered s ignifi cantly , for insta nce, thr ough an inherita nce. The record is simply insuffic iently

developed for this C ourt to se cond-g uess the trial court’s ruling on this matter. No abuse of discr etion having bee

n demonstr

ated, thi s issue is w ithout mer it.
The judgments of the trial court are aff irmed.

___________________________________ DAVID H. WEL

LES, JUDGE