# FILED

Au gust 15, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COUR T OF CRIMIN AL APPEALS OF TENN ESSEE

AT NASHVILLE FEBRUARY

1997 SESSION

STATE OF TENNESSEE, *

Appellee, * VS. * CHARLES CLAY

YOUNG, * Appellant. * C.C.A. # 01C0 1-9605-CC- 00195 W HITE COU NTY Hon. Leon Burns, Jr., Judg e (Solicitat ion to Commit F irst Deg ree Murder--Two Counts)

For Appellant : John E. Herbi son 2016 Eight Avenue South Nashvil le, TN 37204 (on appeal) David N. Brady Distric t Public Defender 215 Reagan Street Cookevil le, TN 38501 and Joe L. Finley, Jr. Assistant Publ ic Defender 215 Reagan Street Cookevil le, TN 38501 (at trial) For Appellee: Charles W. Burson Attorney Gen eral & Repor ter Ruth A. Thompson Counsel for the St ate 450 James Roberts on Parkway Nashvil le, TN 37243-0493 Anthony Craighead Assistant D istrict A

ttorney 145 South Jefferson Avenue Cookevil le, TN 38501

OPINION FILE D:

AFFIRMED
GARY R. WADE, JUDGE2 OPINION The defendant, Charles Clay Young, was convicted of two counts of solicitati on to commit first degree murder , a Class B felony. The tri al court impos ed two Range I sentences of ten-year terms. The sentences are consecutive to each other and consecu tive to an u nexpired s entence for arson.

In this appeal o f right, the de fendant presents the foll owing i ssues for
our re view: (1) whe ther the state pr oved venue; (2) whe ther the state fail ed to properly authenticate audio tapes played for the jury , and if so, w hether the admission of the ta pes qualified as plain error; (3) whe ther failure of the state to present original s of the life insurance policies qualified as p lain error; (4) whe ther the admissi on of his prior convicti ons for arson and bail jumping const ituted plain er ror; and (5) whe ther the sentence s were excessive.

We af firm the judgment of the trial cour t.
In September of 1993, the defe ndant arrived at the home of his adult nep hew, R icky Yo ung (R icky), and a sked for h elp in find ing a . 222 rifl e. On the n ext day, the defendan t told Ricky that he was having problems with his ex-wife, Sylv ia Jean Young (Jean), from w hom he had recently been divorced. He ex plained that the settlement awarded her the majority of the property and the custod y and support of their small c hild. The defendant, w ho had a $5,000 life i nsurance poli cy on Jean, asked Ricky

if he or someone el se he knew w ould be wi lling to kill Jean for $2,500. Later that same evening, the defendant r eturned to Ric ky's hous e to inform him that he was als o the beneficiary of a $20,000 insuranc e policy on his older son's life and3 that he woul d be will ing to pay Ricky $15,000 of the death benefits . In order to collect t he dea th bene fits f rom this policy, Ran dy, who was the product of a ma rriage prior to that

of the defendant and Jean Y oung, woul d also have to be killed. Afterward, t he defendant drove R icky to a residence i n the country where Jean dropped off their chi ld for vis itation every Fri day at 6:00 a.m. The defendant suggested that Ricky

should hide behi nd a tree by 5:45 a.m. and then shoot Jean Young as she walked around the car to remove her child from the car seat. He
reason ed that it did not matter what the ch ild saw beca use he " don't kn ow nothin g, no way." The defendant sugges ted that Rick y could es cape on foot throug h the woods in or

der to avoi d detection.
Ricky Young, who was on probation for arson at the time of his encounter with the defen dant, informed officers with the W hite County Sheriff's Department of th e proposal. At their request, he agreed to wear a tape recorde r, transmitter, and micropho ne to an arranged meeting with the def endant. Deputies, approximatel y one-fourth of a mi le away , monitored. D uring a meeti ng at the "county house" i n White County, the defendant and Ri cky You ng discuss ed plans for the two k illings

over a tw

o to three hour interval . The defendant wanted Jean shot the follow ing Fri day morning as she dropped off their child. Ran dy was

to be kille d abo ut a we ek la ter in a pla nne d "ac cide nt." The d efe nda nt gave Ricky a photograph of Jean Young and provided him with her license plate number.

When Ricky Young made i nquiry about the method of pay ment, the defendant assured him t hat he would be paid as soon as the insurance benefits were col lected. The defendant g ave Rick y the titl e to his van as collater al.

I4 The def end ant i niti ally cl aims that the s tate did n ot pr ove ven ue by a preponderance of the ev idence. Arti cle I, § 9 of the Tennes see Constituti on provides that in all c riminal pro secutions by indictment or

presentment, the ac cused has a r ight

to a tr ial by

an impa rtial jury

chosen from thecounty in w hich t he cri me was committe d. See also Tenn. R. Cri m. P. 18. Thus founded in the constituti on, proof of venue is n ecessary to establish j urisdicti on. Hopson v. S tate , 299 S.W.2d 11,14 (Tenn. 1957). Venue may be show n only by a preponderance o f the evidence. The burden is on the state. Harvey v. State , 376 S.W.2d 497, 498 (Tenn. 1964); Hooper v. State , 326 S.W.2d 448, 451 (Tenn. 1959). Sl ight evi dence, including circumstanti al evidenc e, will be sufficient if the ev idence is unco ntradicted. State v. Bennet

t , 549 S.W.2d 949 (Tenn. 1977).
Here, Ricky Young testified that he met with the def endant on Old County Hous e Road in White County w here the two planned the murder s of Jean and Randy Young. A White County deputy testified that he saw the defendant w ith Ricky within the White Coun ty boundaries just as the two men concluded their conversation. Because the def endant did not of fer any proof to contest this evide nce, the s tate , in o ur view, was suc cess ful in est abli shin g venu e by a preponderance of the ev idence.

II

Next, the de fendant claims that i t was err or for the tri al court to al low audi o tap es of

hisconv ers atio n wi th R ick

y be caus e thepol ice offic er d id n ot i dent ify the defendant's voi ce. At tria l, the defendant objec ted to the admissi on of the tapes for failure of the stat e to lay a p roper foundation. I n this appeal, t he defendant argues that a dmission was improper because the police officer never i dentified the defendant's voic e as being thevoice on t he tape. The state presented two s ets of5 tapes into ev idence, one of w hich was the origi nal and the other of which had been electronical ly enhanced by the Tennessee Bureau of Investig ation. The officer w ho monitored the conv

ersation ident ified the enhanced tapes , testifyingthat they were a recording of the conversation he had overheard between the defen dant and Ricky Young. The defense objected, arg uing that the enhanced vers ions "aren't t he tapes." When the original t apes were o ffered as proof, the defense cl aimed the chain of custody had not be en adequately established. Late r, during his crossexamination by

the state, the defendant acknowledg ed his own voice on thetape.
Unfortunately, the def ense failed to raise the issue in the motion for a new trial . "[I]n all cases tried by a jury, no issue pres ented for revi ew [to an appellate court] shall be predicated upon err or in the admis sion or exclusion of evidence .... unless the same was specif ically stated in a motion for a new trial; otherwis e such issues

will be treated as waived." Tenn. R . App. P. 3(e) . Thus, the issuehas bee n wai ved. Had we other wis e reac hed the merit s of the claim , however , we would have r uled in favor of the state.

In order to l ay the proper foundation for the entr y of audio tapes, the moving party must establish either an unbroken ch ain of custody or positively identify the v

ery ev idence presented. Bolen v. State , 544 S.W.2d 918, 920 (Tenn. Crim. App. 1976) . Only one of the conditions must be met. Id. In this cas e, Officer Goff identif ied the first set of tap es as those that were enhanced by the T BI. He further stated that

he had listened to the enhanced tapes and they w ere an accurat e reflection of the con versation he recorded on the day in q uestion. Thus, thetapes had been positively identi fied by Officer Goff as bei ng an accurat e reflection of the conversati on he monitored; i t is not, therefore, necessary to establish an unbroken chai n of cust ody.6 In this appeal, the defendant also arg ues that the tapes should not have been admitte d because Officer Goff failed t o positively identi fy the voi ce on the tape as that of the defendant. In support of his argument, he c ites to State v. Jone s , 598 S.W.2d 209, 222 (Tenn. 1980), asser ting that the holding req uires a w itness to i d e n t i fy t h e v o i c e s b e fo r e t h e t a p e r e c o r d i n g i s a d m i t t e d i n t o e v i d e n c e . We disagree w ith the defendant's i nterpretation of the rule in Jones . The case prov ides in pertinent part as follows:

[W]e hold that the tape recordin gs and compared transcripts are admissible and may be prese nted in evidence by any witness who was present during their recording or who moni tored the conversations, i f he was so situated and c ircumstanced t hat he was i n a position to identify the declarant with certainty, and provided his testimony i n whole, or

in part, compor

ts with other rules of evidence. Id. at 223.

Here, Ric ky Young had already testified that he met with the defendant on September 27, 1993 at Old County

House Road. H e stated that at t hat time he wore a mic rophone, transmi tter and tape re corder for the pu rpose of taping the defendant. He recal led that he spoke to the defendant from two to three hours

. Ricky testified that he returned to where Of ficer Goff an d the other off icers were monitoring t he conversation as soon as the defendant left.

Officer Goff testified that h e was pres ent when Ri cky You ng was equipped w ith recordi ng equipment for the purpose of recording a co nversatio n between them. H e stated that he recorded a leader on the tape, w hich included the date, place and pur pose of the recordi ng, before Ric ky left to meet with the defendant. Officer Goff then parked about one quar ter of a mile up theroad from the meeting point. From that p oint, he monitored the conversation between his informant and the defendant. As the meeting drew to a c lose, the officers drove by7 so as to observ

e Ricky sitting in the defendant's v an. Later, the defendant acknowledg ed that it was his voi ce recorded on the tape.

Rule 901(a) of the Ten nessee Rules of Evidence requires tangible evidence to be authenticate d and further provides as fo llows:

The requirement of authentication or identif ication as a condition prec edent to admissib ility is satisfied b y evidence suffici ent to the court to support a findi ng by the trier of fact that the matter in q uestion is w hat its proponent claims

. Jones , the opinion relied upon by the def endant, preceded the adoption of th is rule by almost ten years. While our supreme court has s ince cited Jones as a guidel ine for the admission of tapes, none of ou r courts have held that the procedure approved in Jones is the ex clusive method for the authentication of audio tapes. See State v. Smit h , 868 S.W.2d 561, 577 (Tenn. 1993) (relying on Jones to uphold admission of audio t apes).

Identification of an obj ect need not be absol utely cer tain. Stat e v. Woods , 806 S.W.2d 205, 212 (Tenn. Crim. App . 1990); State v. Fer guson , 741 S.W.2d 125, 127 (Tenn. Crim. App. 1987) . Whether tangible evi dence has been properly authenticated i s left to the dis cretion of the tr ial court. Tenn. R. Evi d. 901(a); see also Ritter v . State , 462 S.W .2d 247 (Tenn. 197 0). The trial court's decision w ill not be di sturbed absent a clearly mistaken ex ercise of that di scretion. State v. Baldwin , 867 S.W .2d 358, 361 (Tenn . Crim. App. 1993). In this case, there was substa ntial evi dence that the tapes were of the recorded conversation between the defendant and Rick y Young . Under thes e circumstanc es, the trial court wa s correct in finding that th e tapes had been suffici ently ident ified for the purpos e of admission into evidence.8 III The defen dant argues that the state violated th e best evidence rule when it fail ed to present the original insurance pol icies, instead offering oral testimony and a report. We disagree.

Tenn. R. Evid. 1002 provides as follows: To prove the content of a wri ting, recording, or photograph, the original writi ng, record ing or photog raph is requi red, except

as otherw ise provi ded in these rul es or by Act of Congress or the Tennessee Legi slature. Tenn. R. Evi d. 1004 offers sever al excepti ons to the rule ; subpart 4 is pertinent to this case: The o rig inal is n ot requ ire d, an d oth er e vi denc e of a

writing, recording or photograph is admissible if-- (1) Orig inals Lost or

Destroy ed. All ori ginals are lost or destroyed, unless the prop onent lost or d estroyed th em in bad faith; or (2) Orig inal Not Obtai nable. No ori ginal can beobtained by any av

ailable judi cial proces s or procedure; or (3) Orig inal in Poss ession of Opponent. A t a time when an original was under the control of the party against whom offered, that par ty was put on notice by

the pleadings or

otherwis e that the contents would be a subject of proof at thehearing but does not produce t he original at the hearing ; or (4) Coll ateral matters . The wri ting, recording, or photograph is

not closely

related to a controlling issue. Tennessee Law of Evidence , Neil P. C ohen, et al. (3d ed. 1995), prov ides: "[T]he best evidenc e rule is i napplicable i f the writi ng, record ing or photog raph is not closely related to a co ntrolling issue. The facts of each case are cr itical in assessing whether a w riting i s collatera l." Id. § 1004.2.

At tr ial , J. R. S immo ns, a mar keti ng s uper vi sor at C ommon wea lth Life Insurance Company , testified about t he status of two life insuranc e policies a s of9 October 1, 1993. He stated that Jean Young' s $5,000 policy lapsed in June, 1993; but that on the first of October of that year, there was residual value in the policy which would have resulted in payment of the death benefit less only the unpaid prem iums . Si mmons

als o tes tifi ed th at th e defe ndan t purchas ed a $ 50,0 00 l ife insurance pol icy on hi s son, Randy , which w as in full force and effect on October 1, 1993. He acknow ledged that the defendant was the be neficiary o f both policies.

After Simmons testi fied, the court admi tted as evi dence two co mpany reports showing the status and history of the policies. Beca use the defend ant did not object to the evidence and the issue was not raised in the motion fo r new trial, the issue is

waived. Tenn. R. App. P. 3(e); State v. Ha rrington , 627 S.W.2d 345 (Tenn. 1981).
In any event, the insura nce policies , in our v iew, q ualified as col lateral mat ters and wi thin the e xcept ion t o the rule. W hile the e viden ce in dica ted a moti ve for the murders, the po licies were not essential elements of th e offenses. Moreover, there was no material q uestion on the con tent of the life insur ance contracts . The more important det ermination was whether the defendant was t he beneficiary and whether the policy w

as in force on Oc

tober 1, 1993. Because the status of the poli cy as to thes e fa ctor s cou ld no t be d eter mine d fro m the origin al po licie s, we believe the reports offered q ualified as "col lateral" and thepremium payment status was the most important question. Because t here was no error, any

analysis under the plain error doctrine, as the def endant suggests, would not be helpf ul.

IV As his fourth i ssue, the defendant cl aims that the tr ial court committed
error w hen it allowed in eviden ce of two of the defendant' s past crimes : arson and10 bail jumping . Because the defendant failed to raisethis issue in his motion for new trial, the i ssue has been waived. Our analysis must, therefore, be predicated upon the assertion of plain error

. See Tenn. R. Cri m. P. 52(b).

Tennessee Rule of Evidence 609 allows for the admission of a past conviction for a crime for the purpo se of attacking a witness's credibility. There are
seve ral c riter ia that

must bemet befor

e the ev idencecan be produc ed. The crime must either be a felony or a mi sdemeanor show ing dishonesty or false statement. Tenn. R. Evi d. 609(a)(2) . When the witness is t he defendant in a cri minal prosecution, t he state must g ive advanced wri tten notice. Id. , 609(a)(3) . The probative v

alue must outw eigh the prej udicial effect. Id. The trial co urt shall r ule on the propriety

of such evidenc e before the wi tness takes the stand to testify

. Id. Here, the tr ial court di d not rule on theadmissibil ity of such ev idence until after the defendant had taken the st and. The defense lodged an objection bas ed on irrelevancy and prej udicial effect, but did not object t o the procedure used by the trial cour t.

In our vi ew, the defendant's convicti on for bail jumpi ng would be admissible. The def endant was released on bail upon his promise to return to court at a specific time. That he failed to appea r as represented reflects upo n his credibili ty.

Evidence of the d efendant's past ars on convict ion was pr ejudicial. There were no

specific facts pr

esented to show

the relevance of the arson conviction as to the defend ant's credibility. Even so, the evidence of the def endant's guilt, both direct and ci rcumstantial, was overwhelming . The admission of the prior arson convi ction did not, in our vi ew, haveany effect upon the verdicts.11 V Next, the d efe nda nt cla ims t he le ngth of h is sen tenc es was exces sive and should not have been ordered to be served consecutively. W hen there is a challenge to

the length, r

ange, or manner

of serviceof a sentence, it i s the duty of this court t o conduct a de novo review with a pr

esumption that the de terminations made by the trial court are correct. Tenn. Cod e Ann. § 40-35-401(d). This presumption is

"conditioned upon the affirmative s howing i n the record t hat the trial court conside red the sentenci ng princi ples and all r elevant facts and circumstances ." State v. Ash by , 823 S.W.2d 166, 169 (Tenn. 1991); see Stat e v. Jones , 883 S.W.2d 597 (Tenn. 1994). The Sentenci ng Commissi on Comments provide that the burden is on the defendant to show the impropri ety of the sentenc e.

Our revi ew requ ires an analy sis of (1) theevidence, i f any, receiv ed at the trial and sentencing hea ring; (2 ) the presentenc e report; (3) the principl es of sentencing and the arguments of counsel relati ve to sentenc ing alter natives; ( 4) the nature and charac

teristics of the offense; (5) any mitigatingor enhancing factors;12 (6) any statements made by the defendant in his o wn behalf; and ( 7) the defendant's potential for rehabilit ation or treat ment. Tenn. Code Ann. §§40-35- 102, -103, and -21 0; State v. Smit h , 735 S.W .2d 859, 863 (Tenn . Crim. App. 1987).

At the time of this offense, the presumptive sentence w as the minimum in the ran ge absent enhancement or mitigating factors. Tenn. Code Ann. § 40-35-210. Should the trial court find mitigating and enhance ment factors, it must start at the mi nimum sentence in t he range and enhanc e the sentence based upon any applic able enhancement factors , then reduce the sentence based upon an y appropriate mit igating factors. Tenn. Code Ann. § 40-35-210( e). The wei ght given to each factor is

within the trial court's disc retion prov ided that the record supports its findings

and it complie s with t he Sentencing A ct. See Ashby , 823 S.W.2d at 169. The trial cour

t, however, should make specific finding s on the recor d which i ndicate his applicat ion of the sentencin g princi ples. Tenn. Code A nn. §§ 40-35-209 and - 210.

Prior to the enactment of the Cri minal Sentencing Reform Act of 1989, the limited classifications f or the imposition of con secutive sentences were set out in Gray v . State , 538 S.W .2d 391, 393 (Tenn . 1976). In that case our suprem e court ruled that ag gravati ng circumstances must be present before placement in any one of the classificat ions. Later, in State v. Tay lor , 739 S.W.2d 227 (Tenn. 1987), the court establi shed an additional category for those defendants conv icted of two o r more statutory offe nses involving sexual abuse of minors. There were, however, additional words of caution: "[C]onsecutive sentences shoul d not routinely be imposed . . . and . . . the agg regate max imum of consecutive terms must be reasonably related to the s everity of the offenses invol ved." Taylor , 739 S.W.2d at 230. The Sentencing Commission C omments adopted the cauti onary lang uage.1 The fir st fo ur cri teri a are fo und in Gray . A f if th cat egoryin Gray , based on a speci fi c number of pr ior felon y con victions , m ay enh anc e the sen tenc e ran ge b ut is no longe r a listed criterion

. See Tenn. Code Ann. § 40-35-115 , Sent encing Com mission Comm ents. 13 Tenn. Code Ann. § 40- 35-115.

The 1989 Act is, i n essence, the codification of the hol dings in Gray and Taylor ; consecutive sentences may be imposed in the discretion of the trial court only upon a determination that one or more of the following criteria 1 exist:

(1) The defendant is

a professional c riminal w ho has knowing ly devoted himself to cr iminal acts a s a major source of livelihood; (2) The defendant is

an offender whose r

ecord of criminal ac

tivity is extens ive; (3) The defendant is

a dangerous ment ally abnor mal person so decl ared by a competent psychi atrist w ho concludes as a result of an investigation prior to sentencing t hat the defendant's cr iminal conduct has been characteri zed by a pattern of repetit ive or compulsive behavior w ith heedless i ndifference to consequences; (4) The defenda nt is a dangerous offe nder whose behavior i ndicates lit

tle or no reg ard for human life, and no hesitation about com mitting a crime in which the risk to human life is hi gh; (5) The defenda nt is convicted of two (2) or more statutory offenses involv ing sex ual abuse of a minor with consideration of the aggrav ating circumstances ari sing from the relationship b etween the defend ant and victim or vict ims, the time sp an of defendant's undetected sexual act ivity , the nature and s cope of the sexual acts and the extent o f the residual, p hysical and mental damage to the victim or victims; (6) The defenda nt is sentenced for an of fense committed whi le on probation; (7) The defendant is

sentenced for cr iminal contempt. Tenn. Code Ann. § 4 0-35-115(b).

In Gray , our supreme court ruled that before consecuti ve sentenci ng14 could be imposed up on the dangerous offender, as now defin ed by subsec tion (b)(4) i n the statute, other conditions mus t be present: ( a) that the cr imes invol ved aggravating cir

cumstances; (b) that consecuti ve sentences are a necessar

y means to protect the pu blic from the defendant; and (c) that t he term reasonabl y relates to the severity of the offen ses.

More recentl y, in State v. Wilkerson , 905 S.W.2d 933, 938 (Tenn. 199 5), o ur hig h cou rt rea ff irme d tho se pr incip les, hold ing th at co nsec utive senten ces ca nnot be requi red of t he dang erous offender "unles s the t erms reasonably relate[] to the severity of the of fenses committe d and are necessary in order to prot ect the public (society) from further cr iminal acts b y those per sons who resort to ag gravated criminal conduct." The Wilkerson decision, w hich modified somewhat the s trict factual guidelines for consecutive sentencing adopted in Stat e v. Woods , 814 S.W .2d 378, 380 (Tenn . Crim. App. 1991), described sent encing as a "human process that

neither can nor

should be reduc ed to a set of fixed and mechanical rul es." Wilkerson , 905 S.W.2d at 938.

The trial court found no mitigating factors applicable. Becau se these offenses were commi tted whil e the defendant was on probation for anot her crime, the trial court observed that the def endant had a prior record of felony convictions, arson and bail jumping, and had been unwill ing to comply with cond itions inv

olving release in th e community. See Tenn. Code Ann. § 40 -35-114(1), (8). Because each of these enhancement facto rs were applicable, mid-range s entences of ten years for eac h of the Class B felonies were appropriate.

Also, the tri al court found that the defendant was a dangerous offender and on pr oba tion at th e tim e the crime s were c omm itte d. Af ter ca ref ul revi ew, we2 At th e sen te nci ng he ari ng t he st at e pr esen te d part o f t he de fen dant 's conv ers at io n wi th Ric ky Young. This part

had been red acted when pl ayed f or t he jury. In t his di alogue, the def endant br ags that he assaul ted, wit h the i ntent ion t o kil l, another ex-wi fe as wel l as se veral other women. 15 have determine d that was a proper basis

for the consecuti ve sentenci ng. The trial court found that d efendant's crimes were particularly egregious because the y were against his

own family . It found that the defendant2 had maintained a willingness and likeliho od to kill t he victi ms. In our v iew, a l engthy i ncarceration was warranted to pr otec t soc iety.

The defendant also complai ns that the tri al court err ed by order ing the two ten-year sentences t o be served consecutively to a pr ior unserved sentence. The trial cour

t found that the defendant was on probation w hen he committed the solicitati ons. Rule 32( c)(3), Tenn. R . Crim. P., makes consecuti ve sentences mandatory if the def endant is convicted of a crime com mitted while on parole, bail, or on escape; it does not ma ke consecutive sentences man datory if the crime is committed while the defe ndant is on probation. Th ere is, however, a statutory basis for ordering consecutive sentencing in this si tuation:

[I]n any cas e of revocati on of suspension [of pr obation] on account of conduct by the defendant w hich has resulted in a

judgment of conv iction agai nst him during his period of pr

obation, the tri al judge may order that the term of imprisonment imposed by the original judgment be served consecutivel y to any sentence wh ich was imposed upon such conviction. Tenn. Code Ann. § 40- 35-310.

Consecutive sentences may be impose d when the "defend ant is sentenced for an offense commit ted while on probation." Tenn. Code Ann. § 40-35- 115(b)(6). See State v. Moore , 942 S.W.2d 570 (Tenn. Crim. App. 199 6) (ruli ng that both of these statutor

y prov isions all ow for consec utive ser vice of the pr ior unexpired s entence).16 We cannot conclude the trial court erred by ordering the prior unexpired s entence to be ser ved consecut ively . We do, however, conc lude that the aggreg ate length of all three sentences is appropri ate under the Wilkerson requirements . Thus, this i ssue is w ithout merit.

Accordingl y, the judg ment of the trial court is affirmed.

Gary R. W ade, Ju dge CONCUR:

David G. Hayes, Jud ge

Curwood Witt, Judge