COURT OF APPEALS OF VIRGINIA Present: Judges Frank, Kelsey and Haley Argued at Richmond, Virginia JOSEPH JAMES BUTOR, II MEMORANDUM OPINION * BY v. Record No. 0830-09-2 J UDGE D. ARTHUR KELSEY FEBRUARY 23, 2010 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PRINCE GEORGE COUNTY Samuel E. Campbell, Judge (Amanda Nicole Mann; Law Offices of David L. Cloninger, on brief), for appellant. Appellant submitting on brief. Erin M. Kulpa, A ssistant Attorney Ge neral (William C. Mims, Attorney General, on brief), for appellee.
The trial court convicted Joseph James Butor, II, of unauthorized use of a vehicle in violation of Code § 18.2-102. On appeal, Buto r contends the evidence was insufficient to support his conviction. We disagree and affirm.
I. On appeal, we review the evidence in the “light most favorable” to the Commonwealth. Commonwealth v. Hudson , 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). This principle requires us to “discard the evidence of the accu sed in conflict with th at of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.” Parks v. Commonwealth , 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and citation omitted). Our examination of the record “is not limited to the evidence mentioned by a party in trial argument or by the trial court in its ruling. In determining whether there is evidence to sustain a conviction, an appellate court must consider all the

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - evidence admitted at trial that is contained in the record.” Bolden v. Commonwealth , 275 Va. 144, 147, 654 S.E.2d 584, 586 (2008) (emphasis added). Butor moved into the home of Mary Janosik in June 2008. Janosik, a close family friend, provided him with a place to st ay and free use of her vehicle. 1 She let him use the vehicle to get back and forth from work so she would not have to transport him. Without fail, he returned the vehicle each night after work. In September 2008, Butor told Janosik he intended to move out. After Butor failed to show up one night after wo rk, Janosik retrieved Butor’s cell phone number from a “caller ID” device which had captured hi s number when he had called her residence on prior occasions. On September 24, Janosik left a voice message on Butor’s cell phone. 2 Her message instructed Butor to return her vehicl e and pick up his belongings from her home. A short time after Janosik left the voice message, Butor returned to her home to retrieve his belongings. He did not, howev er, return her vehicle. On September 25, Janosik reported the matter to the police and secured a warrant for Butor’s arrest. Police la ter found Butor and the vehicle at his mother’s residence. A grand jury indicted Butor for unauthorized use of Janosik’s vehicle “on or about” September 24 to 25. At trial, Butor took the stand in his own defense and claimed he believed he had Janosik’s permission to keep the vehicle even after he moved out of her home. Butor admitted he had a cell phone, but denied Janosik ev er left a voice message asking hi m to return her vehicle and pick up his belongings from her home. The trial court found Butor, a convicted felon, not credible and accepted in full the inculpatory testimony of Janosik. Finding Buto r guilty, the trial court stated: “There’s no

1 In her testimony, Janosik refers to Butor as her nephew. Janosik is an ex-sister-in-law of Nancy Simpson, Butor’s mother.
2 At trial, Janosik testified she went to th e police the day after l eaving the voice message for Butor.- 3 - question that [Janosik] revoked her permission for him to have this vehicle after he was gone . . . . And he had the vehicle sometime after he moved out of the house, and he knew that that was not proper.” Butor appeals his conviction, challenging the sufficiency of the evidence.
II. A. A PPELLATE S TANDARD OF R EVIEW An appellate court does not “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Williams v. Commonwealth , 278 Va. 190, 194, 677 S.E.2d 280, 282 (2009) (quoting Jackson v. Virginia , 443 U.S. 307, 318-19 (1979)) (emphasis in original). 3 “Rather, the relevant question is whether ‘ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” Id. (citation omitted and emphasis in original). We are “not permitted to reweigh the evidence,” Nusbaum v. Berlin , 273 Va. 385, 408, 641 S.E.2d 494, 507 (2007), because appellate courts have no authority “to preside de novo over a second trial,” Haskins v. Commonwealth , 44 Va. App. 1, 11, 602 S.E.2d 402, 407 (2004).
B. U NAUTHORIZED U SE OF A V EHICLE To establish unauthorized use of a vehicle, “the Commonwealth needs to show that a defendant knew he was not authorized to use the vehicle.” Montague v. Commonwealth , 40 Va. App. 430, 437, 579 S.E.2d 667, 670 (2003). “The main difference between common law larceny and the statutory offense of unauthorized use is that in the former there must be an intent to deprive the owner of his property permanently , while in the latter the intent is to deprive the owner of possession of his automobile temporarily and without any intent to steal the same.”

3 See also McMillan v. Commonwealth , 277 Va. 11, 19, 671 S.E.2d 396, 399 (2009); Jones v. Commonwealth , 277 Va. 171, 182, 670 S.E.2d 727, 734 (2009); Maxwell v. Commonwealth , 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008).- 4 - McEachern v. Commonwealth , 52 Va. App. 679, 684, 667 S.E.2d 343, 345 (2008) (citation omitted and emphasis in original). A defendant violates Code § 18.2-102 when he knowingly exceeds the scope of his authorized use or continues to use the vehicle after the owner has withdrawn consent: When an owner consents to another person having temporary possession of the owner’s vehicle, but does not consent to its use beyond a designated period of posse ssion, the statute is violated when such use continues without the owner’s consent and is accompanied by an intent to temporarily deprive the owner of possession of the vehicle. Tucker v. Commonwealth , 268 Va. 490, 494, 604 S.E.2d 66, 68 (2004); see also Overstreet v. Commonwealth , 17 Va. App. 234, 238, 435 S.E.2d 906, 908-09 (1993). In this case, the trial court specifically found Butor received Janosik’s voice message. The evidence supports this finding. After he mo ved out of her home, Janosik retrieved Butor’s cell phone number from her “caller ID,” called him using that numb er, and left a voice message instructing him to pick up his belongings from her home and return her vehicle. See generally Tatum v. Commonwealth , 17 Va. App. 585, 588, 440 S.E.2d 133, 135-36 (1994) (noting a witness’s use of “caller ID” to identify a defendant’s phone number). 4 Shortly after Janosik left this message, Butor showed up at her home, pick ed up his belongings, and drove away with her vehicle. Butor took the stand in his own defense. What he did not say was as telling as what he did say. He offered no explanation for the coincide ntal timing of his return to Janosik’s home. He gave no reason why he chose to pick up his belongings that particular day as opposed to any

4 We do not address whether “[ o]ur law of evidence requir es certain foundation testimony to establish the identity of the parties to the c onversation before a witne ss may testify as to the substance of a conversation over the telephone or internet.” Post at 8. Butor did not raise this issue either at trial or on appeal. We thus cannot consider it as a basis for reversing his conviction. See Commonwealth v. Brown , 279 Va. 235, 241-42, 684 S.E.2d ___, ___(2010).- 5 - other. He did not deny Janosik’s testimony of receiving prior calls plac ed by him from his cell phone. Nor did he question her assertion that, beca use of those calls, she wa s able to capture his cell phone number on her “caller ID ” and leave a voice message on his phone. Equally telling, Butor did not claim he had lost his cell phone, mi splaced it, replaced it, turned it off, or discovered it was broken. Nor did he claim he received the voice message but did not listen to it until after he left Janosik’s home with his belongings and her vehicle. In short, he offered no reason to disbelieve Janosik’s testimony (other th an his unsupported denial) that she left him the voice message 5 and that he returned to her home in response to it. 6 The trial court was at liberty to disbelieve the testimony of Buto r, a convicted felon, 7 and to “conclude that he was ‘l ying to conceal his guilt.’” Bly v. Commonwealth , 55 Va. App. 1, 12, 682 S.E.2d 556, 562 (2009) ( en banc ) (citation omitted). “This principle naturally follows from the broader observation that ‘whe never a witness testifies, his or her credibility becomes an issue.’” Coleman v. Commonwealth , 52 Va. App. 19, 25-26, 660 S.E.2d 687, 690-91 (2008) (citation omitted). Even when not “ inherently incredible,” a defendant’s exculpatory version of events need not be accep ted by the factfinder. Montgomery v. Commonwealth , 221 Va. 188, 190, 269 S.E.2d 352, 353 (1980) (emphasis in original).

5 In her testimony at trial, Janosik initially described the message as a text message but later clarified she meant a voice message. Janosik ’s clarification did not, as Butor contends, render her testimony incredible in toto . As the trier of fact, the trial court may resolve any such conflicts for “the power to segr egate a witness’s testimony into the believable, partly believable, or wholly unbelievable is an exer cise of decisional discretion intrinsic to the factfinding task and essential to its proper performance.” James v. Commonwealth , 53 Va. App. 671, 679 n.2, 674 S.E.2d 571, 575 n.2 (2009) (citation omitted).
6 At trial, Butor likewise di d not dispute that the voice me ssage, if received by him, would have terminated his permitted use of Janosik’s vehicle. His counsel asked on direct:

“ 

### Had you received it, 

### what would you have done? ” 

### Butor answered: “I would have returned the vehicle to her.”
7 See Code § 19.2-269 (providing “the fact of c onviction” may serve to impeach a felon’s testimony).- 6 - We appreciate, but cannot adopt, our dissenting colleague’s contrary view. It rejects the factfinder’s conclusion that Buto r received Janosik’s voicemail and reasons even if he did, his return to Janosik’s home to collect his belongings te nded to prove his innocence rather than his guilt: “I think that a different inference — that th e evidence of Butor’s retu rn to the house has an exculpatory tendency, albeit a slig ht one — is more persuasive, since by returning to Janosik’s house Butor accepted the risk that Janosik might be at home, that she would find him there, and that she would then personally or der him to return her car.” Post at 13. On appeal, we cannot “‘substitute our judgment for that of the trier of fact’ even if our opinion were to differ.” Ferguson v. Commonwealth , 51 Va. App. 427, 435, 658 S.E.2d 692, 696 (2008) ( en banc ) (citation omitted). And for good reason: A trial judge’s “major role is the determination of fact, and with experience in fulfilling that role comes expertise.” Haskins , 44 Va. App. at 12, 602 S.E.2d at 407 (citation omitted). Wh en they sit as triers of fact, trial judges deserve “the wide discretion to which a living record, as disti nguished from a printed record, logically entitles them.” James v. Commonwealth , 53 Va. App. 671, 677, 674 S.E.2d 571, 574 (2009). “The living record cont ains many guideposts to the trut h which are not in the printed record; not having seen them ourselves, we should give great weight to th e conclusions of those who have seen and heard them.” Id. This deferential standard of review “applies not only to the historical facts themselves, but the inferences from those facts as well.” Clanton v. Commonwealth , 53 Va. App. 561, 566, 673 S.E.2d 904, 907 (2009) ( en banc ) (citation omitted).
III. Because the evidence supports the trial court’ s finding that Butor used Janosik’s vehicle after she revoked her consent, we affirm his convi ction for unauthorized use in violation of Code § 18.2-102. Affirmed.- 7 - Haley, J., dissenting. A conviction for violating Code § 18.2-102 requ ires proof that the defendant knew he was not authorized to use the owner’s vehicle. Montague v. Commonwealth , 40 Va. App. 430, 437, 579 S.E.2d 667, 670 (2003). In this case, there is no dispute that before the time interval designated within the in dictment (September 24-25, 2008), Butor had consent to use the vehicle from its owner, Mary Janosik. Accordingl y, the question for resolution is whether the Commonwealth proved beyond a reasonable doubt that Janosik, in fact, communicated her
revocation of that permission to Butor by the voic email she purportedly left on his cellular telephone on September 24, 2008. I do not believe the Commonwealth met its burden. I, therefore, respectfully dissent from the majority’s opinion. Janosik admitted she never spoke to Butor on th e telephone. The majority is correct that Janosik testified that she did cal l Butor’s cellular telephon e. She further testified that the reason she believed she had called Bu tor’s cellular telephone was that the number that she called was displayed on her “Caller ID” device, and Butor had previous ly called her from the number Janosik read on the display. Yet she did not explain how she could know that this number corresponded to Butor’s telephone, and not some other telephone that Butor might previously have used to call Janosik’s house. In her testimony, Janosik did not say whether she listened to any recorded greeting before leaving her voicem ail message. She never indicated whether the recorded greeting left any inst ructions for callers seeking to send a message, what those instructions were, or whether she followed t hose instructions. Nor did she say whether the recorded greeting, if there was one , was a recording of Butor’s voi ce, or whether it, otherwise, announced to callers that they had reached a voi cemail service, the purpose of which was to record messages for Joseph Butor and forward to him the same.- 8 - Given these uncertainties, I would hold th at the Commonwealth’s evidence was insufficient as a matter of law to prove that Ja nosik successfully communi cated the revocation of her consent to Butor. Our law of evidence requ ires certain foundation te stimony to establish the identity of the parties to the conversation before a witness may testify as to the substance of a conversation over the telephone or internet. Bloom v. Commonwealth , 34 Va. App. 364, 369-70, 542 S.E.2d 18, 20-21, aff’d , 262 Va. 814, 554 S.E.2d 84 (2001) (internet); Snead v. Commonwealth , 4 Va. App. 493, 496, 358 S.E.2d 750, 752 (1987) (telephone); Armes v. Commonwealth , 3 Va. App. 189, 193, 349 S.E.2d 150, 152 (1986) (telephone). Snead first contends that the ta ped telephone conversation between a person who identified himself as “Leonard Snead” and Special Agent Peters should not have been admitted because no one identified the caller’s voice as that of Snead. It is well settled in Virginia that “conversations overheard on a telephone are admissible as substantive evidence when the identity of the parties to the conversation is establishe d, either by direct evidence or by facts and circumstances.” Opanowich v. Commonwealth , 196 Va. 342, 351, 83 S.E.2d 432, 438 (1954) (citations omitted); accord Benson v. Commonwealth , 190 Va. 744, 751, 58 S.E.2d 312, 315 (1950). Although it is possible to establish a part y’s identity by circumstantial evidence, “[a] stat ement of his identity by the party called [or calling], standing alone, is not generally regarded as sufficient proof of such identity unless it is corroborated by other circumstances.” Benson , 190 Va. at 751, 58 S.E.2d at 315 (citations omitted). We agree with Snead that the circumstantial evidence in this case was not sufficient to establish his identity as the caller. Snead , 4 Va. App. at 496, 358 S.E.2d at 752. The majority’s argument would be more convi ncing if the record contained evidence more closely resembling the strict proof of identity established by the Commonwealth’s evidence
in Tatum v. Commonwealth , 17 Va. App. 585, 440 S.E.2d 133 (1994). In Tatum , a panel of this Court held that a witness’s te stimony that his “Caller ID” display indicated that his daughter called him from the defendant’s telephone numbe r at the time of her abduction was not inadmissible hearsay. Id. at 586, 440 S.E.2d at 134. The Cour t also rejected the defendant’s- 9 - contention that the Commonwealth failed to prove the reliability of the “Caller ID” device. Id. at 588, 440 S.E.2d at 135-36. The proof that the call came from the defendant included the following testimony from the witness: On direct examination, Mr. Orsini testified, in part, as follows: A. I went to answer the phone and I press [sic] this caller ID. I do that automatically. This happe ned to be Saturday morning, [12:01]. The 10th of August. Q. And did you happen to write down that number?
A. I did. I have notes on that. I do that instinctively every time I get a call at that hour of the even ing. It happened to be [12:01] in the morning, Saturday, the 10th of August. And my daughter was on the phone. Q. Do you recall from the caller ID what number? A. Yes, sir. It was a Ma ryland number, 301, 248-[**** ]. And that happens to be a Maryland number, same number I received a call --
* * * * * * * Q. Now when that caller ID number came up did you recognize it?
A. I recognized it was a Maryland number. Q. Did you recognize the number from –
A. Yes, sir, I did. Q. How did you recognize it? A. Because I had received previous calls. One was on the - received a previous call on July the 13th, it was a Saturday, at nine-eighteen a.m. and Mr. Tatum was on the phone calling my daughter. I also received another call on the same line --
* * * * * * * Q. Did you recognize the voice?- 10 - A. I recognized it after he gave hi s name. He gave his name, this is Mr. Charles Tatum. And I recognized that voice from a previous conversation on Mother’s Day, May the 12th. Q. What happened on May the 12th?
A. He asked for my daughter.
* * * * * * * Q. Did you have the caller ID on then? A. Caller ID was there – Q. What came up on – A. Same number. This was a Maryland number. Id. at 589-90, 440 S.E.2d at 136. Th e testimony of the witness in Tatum was that he wrote the phone number down, told the court exactly what the number was, and explained how he knew that it was the defendant’s number: because he recognized the defendant’s voice as the person who made previous calls to his house from the same number, telephone calls in which he had asked to speak to the witness’s daughter. The ev idence in this case shows that Janosik did none of these things. Of course, our precedents demanding strict proof of the identity of parties to a telephone communication, including Tatum and Snead , do not directly apply to th is case, since the parties here dispute the sufficiency of the evidence to support a conviction, rather than the admissibility into evidence of Janosik’s testimony about her attempt to send a message to Butor. But the sufficiency of the evidence to s upport a conviction here depends on proof that Butor received Janosik’s message. It logically follows that proo f that Janosik sent the message successfully and further proof that she sent the message to Buto r’s telephone were also required. However, the Commonwealth failed to elicit from Janosik th e kind of foundation testimony which would have been absolutely required before the finder of fact could even ha ve considered the substance of- 11 - Janosik’s message, if Janosik had delivered he r message during the course of an ordinary telephone conversation, i.e. , testimony that when she called she recognized the voice of the person who answered as the voice of Butor. Because the standard for the admissibility of evidence is a less demanding standard than the standard for determ ining whether evidence in the record is sufficient to su pport a criminal conviction, compare Ward v. Commonwealth , 264 Va. 648, 654, 670 S.E.2d 827, 831 (2002) (“Generally, evidence is admissible if it is relevant and its probative value outweighs any prejudicial effect.”), and Yarborough v. Commonwealth , 247 Va. 215, 218, 441 S.E.2d 342, 344 (1994) (“In order to convi ct an accused of a crime, the evidence must establish the accused’s guilt beyond a reas onable doubt and exclude every reasonable hypothesis of innocence.”), the failure of Janosik’s testimony to meet the test for admissibility under our prior cases concerning telephone conversations is logi cally inconsistent with the majority’s opinion that her testimony supplied proof of an element of the offense. The majority’s answer is that, in the trial court, Butor never objected to the failure to introduce foundation testimony sufficient to esta blish the identity of the telephone number Janosik called, so our prior cas es on this point cannot serve as a basis for reversing his conviction. See footnote 4, supra . According to Rule 5A:18: “N o ruling of the trial court . . . will be considered as a basis for reversal un less the objection was stated together with the grounds therefor at the time of the ruling.” Butor did waive any objection, based upon an insufficient foundation, to the testimony as to th e identity of the telephone number Janosik called. “Evidence is relevant if it ha s any logical tendency, however s light, to establish a fact at issue in the case.” Ragland v. Commonwealth , 16 Va. App. 913, 918, 434 S.E.2d 675, 678 (1993). Consider the following: A defendant is convicted upon only irrelevant evidence, all admitted without objection, but the defendant, noneth eless, makes a motion to strike. Surely we- 12 - would not affirm such a conviction by invocatio n of Rule 5A:18. Rather, we would reverse because the irrelevant evidence was ipso facto insufficient, an error preserved by the motion to strike. A failure to contemporaneously object, in violation of Rule 5A:18, does waive an erroneous admission of evidence as a singular basis for reversal . However, that Rule does not necessarily prevent us from considering the legal reasoning of prior evidence cases if they have a logical relationship to the separate issue of the sufficiency of the evidence to support a conviction. As noted above, ther e is a logical connection between our prior decisions concerning the evidentiary requirement as to the parties to a telephone conve rsation and the sufficiency of the evidence; that connection is not severed by Rule 5A:18. I further disagree with the majority’s suggest ion that Butor’s retu rn to the house after Janosik attempted to send him the voicemail message confirms that Butor received the message. There was no dispute that Butor was in the pr ocess of moving out of Janosik’s house and, thus, nothing remarkable in Butor’s return to the house to collect his things. I agree that on appeal we must view the facts in the light most favorable to the party prevailing below, in this case, the Commonwealth. Shropshire v. Commonwealth , 40 Va. App. 34, 38, 577 S.E.2d 521, 523 (2003). But our deference to the trial court on ly demands that we give the Commonwealth the benefit of “all reasonable inferences” deducible from those facts, Singleton v. Commonwealth , 278 Va. 542, 548, 685 S.E.2d 668, 671 (2009) (emphasis adde d), and given the facts of this case, the majority’s inference is not a reasonable one. Assume, arguendo , that Butor did receive the voicemail message and, in spite of Janosik’s known wishes, intended to illegally retain the use of the vehicle for some additional time period without the consent of its owner. If those were his intentions, why then would Butor return to Jano sik’s house at all? The most likely answer is because some of Butor’s belongings remained at Janosik’s house, and he wanted to retrieve- 13 - them, a motivation which would have existed whet her Butor had received Janosik’s message or not. In short, Butor’s return to Janosik’s house has no logical tendency to prove that Janosik had communicated to Butor the revocatio n of her prior consent to use her vehicle. Indeed, I think that a different inference – that the evidence of Butor’s return to the house has an exculpatory tendency, albeit a slight one – is more persuasi ve, since by returning to Janosik’s house Butor accepted the risk that Janosik might be at home, that she would find him there, and that she would then personally order him to return her car. Compare Tucker v. Commonwealth , 268 Va. 490, 492, 604 S.E.2d 66, 67 (2004) (affirming defendant ’s conviction for unauthorized use of a vehicle where defendant ignored owner’s wishes after owner personally met the defendant in a restaurant and asked him to bring the owner’s car back to owner’s house). Even if the evidence at trial proved that Janosik did successfully send Butor the message that she described, it does not n ecessarily follow that Butor listened to the message during the time interval alleged in the indictment, which charges that Butor committed the offense “on or about September 24 through September 25, 2008 . . . .” Janosik’s testimony was that after leaving her message she waited a single day befo re calling the police to report that her car was missing. According to Detective Carmichael, th e police took her report on September 25, which means that Janosik attempted to leave Butor a message on September 24th. Because of the dates mentioned in the indictment, the time interval between September 25 and the eventual recovery of Janosik’s car is not relevant to the question before us, i.e

. , whether there is sufficient evidence to support Butor’s conviction of the cr ime charged in that indictment. See Zirkle v. Commonwealth , 189 Va. 862, 873, 55 S.E.2d 24, 30 (1949) (“the Commonwealth is usually confined to the introduction of evidence relevant to the charge stated in the indictment”); cf. Ortiz v. Commonwealth , 276 Va. 705, 715-16, 667 S.E.2d 751, 758 (2008).- 14 - Proof that Butor actually listened to his voicemail messages during the time interval alleged in the indictment is indispensable to the majority’s ultimate holding that the evidence was sufficient to prove that, during the time interv al alleged in the indictment, he continued to use the vehicle, even after he knew that he no longer had the owner’s authorization. Because the passage of time between Janosik’s message and the end of the time interval alleged in the indictment was a single day, the majority’s hold ing necessarily creates a common law rule that persons with voicemail are legally presumed to listen to their messages every day. No doubt some voicemail users are very attentive in check ing their messages, but I am not sure whether the practice is so close to universal that it mer its a legal presumption of this kind. By way of comparison, the legislature has decided that a person’s failure to pay the amount due on an insufficient funds check may not be used as prima facie evidence of an intent to defraud until “five days after [defendant’s] receiving written no tice that such check draf t or order has not been paid to the holder thereof.” Code § 18.2-183. Of course, when a person borrows a vehicle fr om someone else and has not responded to messages asking him to bring it back, I agree that there is some interval of time after which it becomes reasonable to conc lude that the borrower has listened to the messages and is ignoring them. If, perhaps, there is a technical problem with the borrower’s voicemail or telephone, there is also some interval of time after which it b ecomes reasonable to assume that the borrower is recklessly ignoring the possibility that the vehicle’s owner might want it back. I have my doubts about whether this period of time is only one day. I would not reach the question of what length of time is a reasonable one, becau se I would decide as a matter of law that there was insufficient evidence to prove that Janosik successfully sent her voicemail message to Butor’s telephone. For the reasons above, I would reverse Butor’s conviction and dismiss the indictment. I, therefore, respectfully dissent from the majority opinion.