Court of Appeals of Indiana | Memorandum Decision 45A03-1511-PC-2020 | September 8, 2016 Page 1 of 18

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Stephen T. Owens

Public Defender of Indiana

Victoria Christ

Deputy Public Defender

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Eric P. Babbs

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Robert L. Albores, Jr.,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

September 8, 2016

Court of Appeals Case No.

45A03-1511-PC-2020

Appeal from the Lake Superior 

Court

The Honorable Diane Ross 

Boswell, Judge

The Honorable Daniel J. Molter, 

Special Judge

Trial Court Cause No.

45G03-1405-PC-5

Altice, Judge.

Case Summary
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[1] Robert L. Albores, Jr., appeals from the denial of his petition for postconviction relief. He asserts that the post-conviction court erred in rejecting his 

claims of ineffective assistance of trial and appellate counsel.

[2] We affirm.

Facts & Procedural History

[3] The facts underlying Albores’s conviction for murder were set forth by this 

court on direct appeal as follows:

Albores and the victim in this case, Michael Miranda, got along 

with no problems for several years. However, in 2008, Albores’s 

cousin[, Ruben Mercado,] was shot and killed. Albores believed 

Miranda was involved in the shooting. On July 22, 2010, Albores 

and Miranda found themselves stopped at an intersection at the 

same time. Albores fired [seven] shots at Miranda and drove 

away. Miranda died five days later.

Albores was charged with murder and criminal gang activity. 

During the jury trial, the State presented evidence that Albores 

and Miranda were members of rival street gangs and argued that 

Albores shot Miranda in retaliation for his cousin’s death in 

2008. Albores testified at trial and denied being part of a gang. 

He did not deny he shot Miranda, but claimed he did so out of 

fear for his life. He described a turbulent relationship between the 

parties and a history of shootings that had allegedly occurred 

during the two years prior to the shooting that led to Miranda’s 

death. The jury was instructed on both self-defense and the lesser 

included offense of reckless homicide. The jury returned a verdict 

of guilty on the murder charge and not guilty on the criminal 

gang activity charge. The trial court sentenced Albores to a fiftyfive year term of imprisonment.
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Albores v. State, 987 N.E.2d 98, 99 (Ind. Ct. App. 2013), trans. denied.

[4] Albores raised one issue on direct appeal: whether the trial court abused its 

discretion by refusing to give his proposed jury instruction regarding the 

presumption of innocence. This court found no abuse of discretion and 

affirmed the murder conviction. Thereafter, our Supreme Court denied transfer 

by a vote of three to two on October 25, 2013.

[5] Shortly thereafter, Albores filed for post-conviction relief (PCR). His amended 

PCR petition was filed November 12, 2014, alleging ineffective assistance of 

trial and appellate counsel. An evidentiary hearing took place on March 19, 

2015, at which trial counsel, Samuel Cappas, and appellate counsel, Thomas 

Vanes, testified. The post-conviction court issued a lengthy written order on 

October 30, 2015, denying the PCR petition. Albores now appeals. Additional 

facts will be provided below as needed.

Discussion & Decision

Standard of Review

[6] In a post-conviction proceeding, the petitioner bears the burden of establishing 

grounds for relief by a preponderance of the evidence. Bethea v. State, 983 

N.E.2d 1134, 1138 (Ind. 2013). “When appealing the denial of post-conviction 

relief, the petitioner stands in the position of one appealing from a negative 

judgment.” Id. (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)). In 

order to prevail, the petitioner must demonstrate that the evidence as a whole 
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leads unerringly and unmistakably to a conclusion opposite the post-conviction 

court’s conclusion. Id. Although we do not defer to a post-conviction court’s 

legal conclusions, we will reverse its findings and judgment only upon a 

showing of clear error, i.e., “that which leaves us with a definite and firm 

conviction that a mistake has been made.” Id. (quoting Ben–Yisrayl v. State, 729 

N.E.2d 102, 106 (Ind. 2000)).

[7] A petitioner will prevail on a claim of ineffective assistance of counsel only 

upon a showing that counsel’s performance fell below an objective standard of 

reasonableness and that the deficient performance prejudiced the petitioner. 

Bethea, 983 N.E.2d at 1138. To satisfy the first element, the petitioner must 

demonstrate deficient performance, which is “representation that fell below an 

objective standard of reasonableness, committing errors so serious that the 

defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.” Id.

(quoting McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)). To satisfy the 

second element, the petitioner must show prejudice, which is “a reasonable 

probability that, but for counsel’s errors, the result of the proceeding would 

have been different.” Id. at 1139. “A reasonable probability is one that is 

sufficient to undermine confidence in the outcome.” Kubsch v. State, 934 

N.E.2d 1138, 1147 (Ind. 2010) (quoting Strickland v. Washington, 466 U.S. 668, 

694 (1984)). Because a petitioner must prove both deficient performance and 

prejudice in order to prevail on a claim of ineffective assistance of counsel, the 

failure to prove either element defeats such a claim. See Young v. State, 746 

N.E.2d 920, 927 (Ind. 2001) (holding that because the two elements of 
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Strickland are separate and independent inquiries, the court may dispose of the 

claim on the ground of lack of sufficient prejudice if it is easier). This standard 

applies to both ineffective assistance of trial counsel and appellate counsel 

claims. Wright v. State, 881 N.E.2d 1018, 1022 (Ind. Ct. App. 2008), trans. 

denied.

Ineffective Assistance of Appellate Counsel

[8] Our Supreme Court has recognized three types of ineffective assistance of 

appellate counsel: (1) denial of access to appeal; (2) failure to raise issues that 

should have been raised; and (3) failure to present issues well. Wrinkles v. State,

749 N.E.2d 1179, 1203 (Ind. 2001), cert. denied. Albores’s claim falls into the 

second category. This category will lead to a finding of deficient performance 

only if we determine that the omitted issues were significant, obvious, and 

clearly stronger than those presented. Id. Ineffectiveness is “very rarely found 

in these cases” because “the decision of what issues to raise is one of the most 

important strategic decisions to be made by appellate counsel.” Bieghler v. State, 

690 N.E.2d 188, 193 (Ind. 1997), cert. denied. On review, therefore, we are 

“particularly deferential to counsel’s strategic decision to exclude certain issues 

in favor of others, unless such a decision was unquestionably unreasonable.” 

Id. at 194.

[9] Albores claims that appellate counsel was ineffective for failing to challenge the 

admission of certain evidence, which he and his trial counsel believed violated 
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Ind. Evidence Rule 404(b). Trial counsel fully preserved the issue and alerted 

appellate counsel to it.

[10] The evidence challenged at trial and admitted through the testimony of several 

witnesses related to a February 2004 incident that occurred when Albores was 

seventeen years old. On the afternoon in question, Albores waited in a vehicle 

while his cousin, Ruben Mercado, went into a convenience store. On the way 

inside, Mercado encountered Lee Hernandez, who appeared to be in a rival 

gang. The two exchanged words and a brief physical altercation ensued, ending 

with Mercado being shot in the head. As Hernandez ran from the scene with 

his handgun, Albores jumped into the driver seat and pursued him. Albores 

eventually drove onto the sidewalk and ran Hernandez down at a high rate of 

speed.1 Hernandez went airborne. Albores then drove back to pick up 

Mercado, where a witness heard him tell Mercado that he had run over the 

shooter and they had to go. Shortly thereafter, a responding officer pulled over 

the vehicle being driven by Albores, with Mercado injured inside. Albores 

falsely informed the officer that Mercado had been driving when Hernandez 

was run down. The jury heard all of this evidence, but did not learn that 

Albores was charged with attempted murder and pled guilty to a reduced 

charge of criminal recklessness for hitting Hernandez.

 

1 At the instant trial, Albores claimed he pursued Hernandez in an attempt to apprehend him. Albores 

testified further that he “bumped” Hernandez with the car out of fear only after Hernandez turned and pulled 

his handgun again. Trial Transcript at 787. 
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[11] In response to Albores’s 404(b) objections, the State argued that evidence of the 

2004 incident was relevant to rebut his current self-defense claim and went to 

establish motive and intent. In other words, the State wanted to show that if 

you mess with Mercado, Albores is going to get you. The trial court took the 

issue under advisement and on the third day of trial ruled the evidence 

admissible under the “motive” exception of Rule 404(b).2

[12] Appellate counsel testified at the PCR hearing that he seriously considered 

raising the 404(b) issue on direct appeal. After reviewing the trial transcript and 

case law, however, he ultimately decided not to raise the issue because he 

believed it would not be a “winner on appeal, not likely to produce a reversal.” 

PCR Transcript at 33. Instead, counsel raised an instructional issue that he 

believed was the best issue and supported by case law.

[13] The instructional issue raised on direct appeal, though ultimately unsuccessful, 

was strong and well argued. Indeed, the rejected jury instruction was identical 

to the one rejected in Lee v. State, 964 N.E.2d 859 (Ind. Ct. App. 2012), trans. 

denied, which was found by this court to be an abuse of discretion and reversible 

error. Further, our Supreme Court denied transfer of Albores’s direct appeal by 

a narrow vote of three to two on October 25, 2013. A little over a year later, the 

Court granted transfer in McCowan v. State, 27 N.E.3d 760 (Ind. 2015) to resolve 

 

2

“Evidence of a crime, wrong, or other acts is not admissible to prove a person’s character in order to show 

that on a particular occasion the person acted in accordance with the character.” Evid. R. 404(b)(1). The 

evidence, however, may be admissible for a purpose other than propensity, such as proving motive or intent. 

Evid. R. 404(b)(2).
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the split of authority in our court and held that if requested by the defendant, 

the court must give an instruction like the one at issue in Lee, Albores, and 

several other cases.3

[14] We cannot agree with Albores that the 404(b) issue was clearly stronger than 

the instructional issue raised by appellate counsel. At trial, the parties’ 

competing theories were fixed from the start: Albores contended that he shot 

Miranda in self-defense, and the State argued that it was an act of revenge for 

the 2008 killing of Mercado. Accordingly, Albores’s motive was affirmatively

placed in issue by the defense. The 2004 incident involving Albores, Mercado, 

and Hernandez was relevant to a matter at issue other than Albores’s general 

propensity to commit the charged act. The evidence helped establish the State’s 

theory of motive and rebut Albores’s self-defense claim. Moreover, with respect 

to prejudice, we observe that the jury was not made aware of the charge and 

conviction related to the 2004 events. 

[15] We commend Albores for his thorough 404(b) argument in the instant appeal. 

On the facts of this case, however, we conclude that it was not unquestionably 

unreasonable for appellate counsel to choose not to raise the 404(b) issue and 

instead present only the instructional issue. 

 

3

Specifically, the Court stated “unequivocally and prospectively that it is the absolute right of every criminal 

defendant to receive the following jury instruction upon request: ‘The presumption of innocence continues in 

favor of the defendant throughout the trial. You should fit the evidence to the presumption that the 

defendant is innocent if you can reasonably do so.’” McCowan, 27 N.E.3d at 762. 
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Ineffective Assistance of Trial Counsel

[16] Albores raises a number of alleged errors committed by trial counsel, each of 

which he claims constituted ineffective assistance. We will address each in 

turn.

1. Admonishment/Limiting Instruction Regarding the 2004 Incident

[17] After losing the evidentiary battle regarding the 2004 incident, trial counsel 

requested a mistrial, which was denied, but did not request an admonishment 

or limiting instruction. Counsel explained this decision at the PCR hearing. 

He did not believe such was needed because the State’s use of the evidence was 

clearly defined at trial. It was being used by the State solely to establish motive, 

and the jury knew that. While Albores would have been entitled to a limiting 

instruction and admonishment, counsel’s strategic decision not to request such 

in this case did not amount to deficient performance or result in prejudice. See 

Curtis v. State, 905 N.E.2d 410, 414 (Ind. Ct. App. 2009) (“[c]ounsel is afforded 

considerable discretion in choosing strategy and tactics, and we will accord 

those decisions deference), trans. denied.

2. Evidence of 2008 Shootings

[18] Miranda’s girlfriend, Nada Wills, and her mother, Nola Wills, testified about 

two instances where Nola’s house was shot at soon after Mercado’s death in 

2008. Neither witness could identify the shooter, but Nada testified that she 

believed Albores was responsible because he and his family blamed Miranda for 
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Mercado’s death. Nada testified that, out of fear, she and Miranda moved to 

another state with their children after these shootings. Nola also moved out of 

her longtime home to another community. Three officers offered very brief 

testimony regarding the 2008 shootings.

[19] On the morning of trial, counsel unsuccessfully moved in limine to exclude any 

evidence related to the 2008 shootings. The trial court ruled that the evidence 

would be admissible as relevant to Albores’s state of mind (that is, he believed 

Miranda killed Mercado). Counsel did not reassert any objections with respect 

to this evidence at trial. Albores argues that counsel was ineffective for failing 

to challenge the evidence at trial as irrelevant because the shooting could not be 

linked to him.4

[20] We do not agree with the trial court’s assessment that this evidence was 

admissible as relevant to Albores’s state of mind. It could not be because 

insufficient evidence linked him to the 2008 shootings. Cf. Camm v. State, 908 

N.E.2d 215, 224 (Ind. 2009) (“The value of specific acts evidence to prove 

motive rests on the strength of proof that the defendant in fact committed that 

other act. With no evidence connecting the defendant to the injuries, the 

inquiry lacked purpose.”); Wells v. State, 441 N.E.2d 458, 463 (Ind. 1982) 

 

4 Albores also asserts that counsel should have moved to exclude this evidence because the State “never filed 

a notice of intent to offer 404(b) evidence about the 2008 shootings.” Appellant’s Brief at 32. There is no 

support for this assertion in the record. At the PCR hearing, there was a reference to a “late disclosure” but 

no indication regarding a complete failure to provide notice in this regard. PCR Transcript at 14. Further, the 

hearing on the morning of trial establishes that counsel had notice of the State’s potential use of evidence 

from the 2008 shootings.
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(requiring evidence of probative value showing that the defendant actually 

engaged in the prior acts).

[21] Nevertheless, we believe the evidence was relevant and inextricably bound up 

with the charged crimes. See Pope v. State, 740 N.E.2d 1247, 1250 (Ind. Ct. 

App. 2000) (“Evidence is relevant if it has any tendency to make the existence 

of any fact that is of consequence to the determination of the action more or less 

probable than it would be without the evidence.”). It established that within 

days of Mercado’s death, Nola’s otherwise peaceful residence5 was shot up on 

two separate occasions. Although the perpetrator was never identified, it is 

apparent that these shootings were in retaliation for Mercado’s death, for which 

Miranda was believed responsible. Further, the shootings resulted in Miranda 

and Nada fleeing the state and Nola leaving her home for a period of time. All 

of this was relevant to the State’s theory that Miranda was killed in a gangrelated, retaliation shooting twenty-one months after Mercado’s death – the 

delay being the result, at least in part, of Miranda’s relocation. Further, 

considering the balancing test of Ind. Evidence Rule 403, any unfair prejudice 

resulting from this evidence was tempered by the witnesses’ acknowledgments 

that they could not identify the shooter. 

[22] In sum, we cannot say that had trial counsel objected to this evidence at trial, it 

would have been excluded. See Taylor v. State, 929 N.E.2d 912, 918 (Ind. Ct. 

 

5 Nola testified that she had lived in the home for about eighteen years and had never had such problems.
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App. 2010) (“To establish ineffective assistance for counsel’s failure to object, a 

petitioner must show that the trial court would have sustained the objection had 

it been made and that the petitioner was prejudiced by the failure to object.”), 

trans. denied.

6

3. Hearsay Evidence

[23] Albores argues further that counsel should have objected to certain hearsay 

statements made by Miranda and admitted during the testimony of Nada and 

Nola. Both witnesses testified that at some point after Mercado’s death, 

Miranda told them that he was afraid Albores was going to kill him and that he 

(Miranda) did not kill Mercado.

[24] Evidence of a declarant’s then-existing state of mind is a well-recognized 

exception to the hearsay rule. See Ind. Evidence Rule 803(3). Such testimony is 

relevant and admissible when the defendant puts the victim’s state of mind in 

issue. See Hatcher v. State, 735 N.E.2d 1155, 1161 (Ind. 2000); Vehorn v. State, 

717 N.E.2d 869, 873 (Ind. 1999).

[25] Both during opening statement and Albores’s trial testimony, the defense 

detailed a number of threatening encounters between Miranda and Albores, all 

 

6 We find wholly without merit the State’s repeated assertion that the trial court was unlikely to change the 

ruling it made with regard to this evidence before trial. See id. (“It makes no difference whether counsel had a 

reasonable expectation that the trial court would change its ruling upon objection. Instead, the proper 

inquiry is whether the trial court would have had no choice but to sustain the objection; that is, whether the 

evidence should have been excluded.”).
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allegedly initiated by Miranda or his fellow gang members. Albores claimed 

that Miranda shot at him or his residence on multiple occasions from 2008 to 

2010. He also testified that shortly before Miranda was killed, Miranda drove 

past Albores’s place of employment, rolled down his window, and extended his 

arm while saying “You’re snoozing.” Trial Transcript at 852. Albores claimed 

to be scared for his life as a result of these encounters. 

[26] In light of this evidence and argument, Albores clearly put Miranda’s state of 

mind at issue and contrary evidence that Miranda was the one fearful of 

Albores was relevant. While counsel could have requested a limiting 

instruction, we do not find the lack of one to have prejudiced Albores.

[27] With respect to the testimony that Miranda told Nada and Nola that he did not 

kill Mercado, we find that any error in its admission was harmless. Both the 

State’s and the defendant’s cases were premised on the theory that Albores 

believed Miranda killed Mercado. Whether he did or not was really beside the 

point. Further, Nola and Nada’s testimonies were contradicted by Albores’s 

testimony that Miranda admitted to Albores that he killed Mercado. 

4. “Bloodhound” Evidence

[28] Albores contends that counsel should have objected to “bloodhound evidence”

admitted at trial. Appellant’s Brief at 19. Citing Brafford v. State, 516 N.E.2d 45 

(Ind. 1987), Albores argues that such evidence is too unreliable to be 

admissible. Brafford, however, was decided prior to the adoption of the Indiana 

Rules of Evidence and is no longer controlling. See Myers v. State, 33 N.E.3d 
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1077 (Ind. Ct. App. 2015), trans. denied. Seemingly acknowledging this, Albores 

goes on to baldly assert that counsel could have argued that the evidence was 

inadmissible under Indiana Evidence Rule 702 because it was not based on 

reliable scientific principles.

[29] The evidence in question involved police K9 searches (not what is commonly 

understood as a bloodhound search) of Miranda’s vehicle five days after the 

shooting and Albores’s apartment upon his arrest seven months after the 

shooting. In each search, the K9s did not alert to the presence of a firearm.

[30] Albores wholly failed to establish at the PCR hearing that the K9 evidence 

presented at trial was not based on reliable scientific principles. Further, trial 

counsel testified at the PCR hearing that he did not object to evidence of the K9 

search of the impounded vehicle, even though it was done five days after the 

shooting, because he considered the evidence “superfluous.” PCR Transcript at 

17. Indeed, other evidence at trial established that Miranda was not armed at 

the time Albores shot him.7

5. Amendment Adding Criminal Gang Activity Count

[31] A week before trial, the State amended the charging information to add a 

second count, criminal gang activity. Trial counsel did not object to the late 

 

7

For example, the evidence technician who processed the scene, Officer Yon Fletcher, testified that he did 

not find a gun or knife anywhere in Miranda’s vehicle. 
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filing because he did not believe the amended count changed the substance of 

the case. Albores claims this constituted ineffective assistance.

[32] A charging information may be amended in matters of substance any time 

before the commencement of trial if the amendment “does not prejudice the 

substantial rights of the defendant.” Ind. Code § 35-34-1-5. “A defendant’s 

substantial rights include a right to sufficient notice and an opportunity to be 

heard regarding the charge; and, if the amendment does not affect any 

particular defense or change the positions of either of the parties, it does not 

violate these rights.” Gomez v. State, 907 N.E.2d 607, 611 (Ind. Ct. App. 2009)

(quoting Ramon v. State, 888 N.E.2d 244, 252 (Ind. Ct. App. 2008)), trans. 

denied. In the end, the question is whether the defendant had a reasonable 

opportunity to prepare for and defend against the charges. Gomez, 907 N.E.2d 

at 611.

[33] Prior to the amendment, Albores was already facing a murder charge with a 

criminal gang enhancement. Although the new charge of criminal gang activity 

was a separate count, Albores does not dispute that the evidence related to this 

charge would be virtually the same as the evidence for the enhancement. 

Further, Albores’s argument that the gang evidence coming in during the guilt 

phase of trial (instead of the enhancement phase) affected his substantial rights

misses the mark. There is simply no indication that the amendment altered 

Albores’s defense theory or resulted in him being unprepared to defend against 

the charges. Accordingly, trial counsel was not ineffective in this regard.
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6. Self-Defense Instruction

[34] Finally, Albores contends that trial counsel should have objected to the court’s 

instruction on self-defense. This instruction provided:

The killing of another human being may be justified on the 

theory of self-defense if the perpetrator:

1) acted without fault;

2) was in a place where he had a right to be;

3) was in real danger of great bodily harm or in such 

apparent danger as to cause him in good faith to fear death 

or great bodily harm.

The danger of death or great bodily harm need not be actual. It 

need be only apparent to a reasonable person under the 

circumstances. The law protects persons who feel compelled to 

act at such times, even though in retrospect it is proven they have 

erred, if they acted reasonably, in view of the surrounding 

circumstances under which the events took place. The law of 

self-defense does not, however, protect one who kills another 

human being through anger or revenge in an encounter provoked 

and brought on by himself.

The State has the burden of proving beyond a reasonable doubt 

that the Defendant did not act in self-defense.

If you believe from the evidence in this case that the defendant 

killed the decedent in self-defense or if you have a reasonable 

doubt as to whether or not the defendant killed the decedent in 

self-defense, then he cannot be found guilty of the offense of 

murder.

Direct Appeal Appendix at 136. Albores argues that the instruction failed to 

indicate that he did not have a duty to retreat or that deadly force could be used 
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to prevent a forcible felony. He also asserts that the instruction improperly 

included language that unduly emphasized the State’s revenge theory.

[35] In order to establish trial counsel ineffectiveness based on failure to object to a 

jury instruction, a petitioner must first prove that a proper objection would have 

been sustained. Lambert v. State, 743 N.E.2d 719, 741 (Ind. 2001), cert. denied. 

Additionally, a petitioner must prove that the failure to object was unreasonable 

and resulted in sufficient prejudice such that there exists a reasonable 

probability the outcome would have been different had counsel objected. Id. 

[36] It is true that, in Indiana, a person confronted with deadly force is not obliged 

to retreat. See Patton v. State, 837 N.E.2d 576, 581 (Ind. Ct. App. 2005) (citing 

French v. State, 403 N.E.2d 821, 825 (Ind. 1980)). This case, however, was not 

about mutual combat or who was the aggressor, and the State did not argue 

that Albores had a duty to retreat once he believed he was facing deadly force. 

Indeed, the evidence reveals that the shooting occurred almost immediately as 

the two vehicles were stopped side by side. Albores shot at an unarmed man 

seven times. The jury was tasked with determining whether Albores truly 

believed he saw Miranda pointing a gun at him, placing him in fear of being 

shot. Retreat at this point was not an issue, and we fail to see how exclusion of 

this point of law prejudiced Albores.

[37] Similarly, no prejudice resulted from omission of “fear of forcible felony” as a 

justification for using deadly force. Albores’s defense at trial was that he 

reasonably believed he was defending himself in a situation where he was 
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confronted with deadly force. The suggested addition to the instruction –

though a correct statement of the law – would have had no effect on the 

outcome of the murder trial.

[38] Albores’s final challenge to the instruction is not well-developed and not 

adequately supported by relevant authority. Essentially, he baldly asserts that 

“inclusion of non-statutory language that killing in revenge or anger 

unnecessarily emphasized one particular evidentiary fact the prosecutor 

stressed, invaded the province of the jury and was not proper language for an 

instruction.” Appellant’s Brief at 50. His argument falls far short of establishing 

deficient performance and resulting prejudice. 

[39] Judgment affirmed.

[40] Bailey, J. and Bradford, J., concur.