IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs December 11, 2013

STATE OF TENNESSEE v. LEONEL LOPEZ, 

aka LEONEL LOPEZ RAMOS 

Appeal from the Criminal Court for Davidson County

No. 2011-C-2591 Seth Norman, Judge

No. M2013-01264-CCA-R3-CD - Filed February 24, 2014

The defendant, Leonel Lopez, also known as Leonel Lopez Ramos, was convicted by a

Davidson County Criminal Court jury of second degree murder and sentenced to twenty years

as a violent offender in the Department of Correction. On appeal, he argues that: (1) the

evidence is insufficient to sustain his conviction, and (2) the service of a convicted felon as

the grand jury foreman invalidated the indictment against him as a matter of law. After

review, we affirm the judgment of the trial court.

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

ALAN E. GLENN, J., delivered the opinion of the Court, in which JERRY L. SMITH and

CAMILLE R. MCMULLEN, JJ., joined.

Joseph L. Morrissey, Jr. (on appeal) and Ivan Lopez (at trial), Nashville, Tennessee, for the

appellant, Leonel Lopez, aka Leonel Lopez Ramos.

Robert E. Cooper,Jr., Attorney General and Reporter; Caitlin E.D. Smith, Assistant Attorney

General; Victor S. Johnson, III, District Attorney General; and Katrin N. Miller, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTS

The defendant was charged with first degree murder as a result of the assault and

subsequent death of his girlfriend, Ana Cruz, at Guadalajara Bar where she worked in

Nashville, Tennessee, on May 3, 2011.
Franklin Guillen, the victim’s son, testified that he was eighteen years old and a high

school student when the victim died. He had a younger brother who was three years old

when the victim died. At the time of the assault, the victim lived with her two sons and the

defendant, who was her boyfriend. The defendant lived in the victim’s home for two to three

months before the assault. The defendant worked at a restaurant in downtown Nashville, and

the victim worked as a manager at Guadalajara Bar. The defendant went to Guadalajara Bar

every day to see the victim. The bar closed at 1:00 a.m. on week nights and 3:00 a.m. on

weekends.

Guillen testified that he learned of the assault against his mother when the police came

to his house and notified him. He visited her at Vanderbilt Hospital, though she never

regained consciousness. He was present when the doctors removed the victim from life

support. He saw the injuries to the victim’s body, including bruises on her arms and injuries

to her head.

Guillen testified that the defendant moved out of the victim’s house the day of the

assault. When Guillen got home from school that day, the defendant’s belongings were not

there and the victim’s bedroom “was a mess.” He went to the bar where his mother worked

to ask her what had happened, and she told him that she had asked the defendant to leave

because “he kept blaming her and she was tired of him.”

Guillen testified that, about a week before the assault, he was awakened in the middle

of the night by the defendant and a friend arguing with the victim. He heard his mother ask

the defendant to leave and, the next day, she had bruises on her face. He asked his mother

about the bruises, but she would not tell him what happened. During the time the defendant

lived with them, Guillen noticed bruises on his mother on several occasions.

Augustin Bustillo, through an interpreter, testified that he knew both the victim and

the defendant. He was present at the bar the night of the assault, having arrived between

11:00 p.m. and midnight. The defendant was at the bar with some other people when

Bustillo arrived, some of whom Bustillo knew and one he did not. Bustillo did not drink any

alcohol that night, but the defendant and his companions were drinking beer. When the

victim was ready to close the bar, she asked the defendant to leave. Bustillo heard the victim

say, “You-all have to leave because it’s time to close the place.” The defendant responded

to the victim, “[Y]ou and how many people are going to take me out of here.” The victim

told him that “if he didn’t want to leave she wasn’t going to take him out of there, the police

would.” At that time, the only people remaining in the bar were himself; Mari and Carmen

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Sanchez, who were working as waitresses; the victim; and the defendant and his friends.

1

Bustillo testified that the defendant told the victim to call the police, and they began

to argue. Bustillo dialed 911 but did not say anything to the operator, thinking that the

defendant would stop upon seeing Bustillo calling the police. The victim turned around, and

the defendant “took her by the shoulder and then by the shirt, and he hit her with his fist in

the face.” The victim fell to the ground, and Bustillo grabbed the defendant. The defendant

told Bustillo not to touch him and then punched him in the stomach. The defendant turned

back to the victim and kicked her while she was on the ground. The victim tried to get away

from him. The defendant grabbed a pool stick, and his companions, who were evidently the

defendant’s cousins, tried to take the pool stick out of his hands.

Bustillo testified that he did not know how many times he saw the defendant kick the

victim, but said that it occurred many times. He also saw the defendant grab the victim by

the hair. The victim crawled under a pool table, but the defendant pulled her out and

continued kicking her all over her body, focusing mostly on her head. Mari screamed at the

defendant to stop, and the defendant lifted his hand up like he was going to hit her. Mari told

him that he could not hit her because she was pregnant, to which the defendant responded,

“And[?]”

Bustillo went to the beer supply room and called 911, actually speaking to an operator

this time. While he was in the closet, Bustillo heard the defendant scream that he had already

killed the victim and that her children were next. When Bustillo returned to the room, the

defendant’s cousins had gone, and Mari and Carmen Sanchez were screaming. Mari was on

the floor trying to resuscitate the victim, who had foam with blood coming out of her mouth.

Bustillo relayed to the 911 operator that the defendant said that he had killed the victim and

was going to kill her children next. The operator asked for the victim’s home address, and

Bustillo gave it to him. The defendant left the bar and got into his truck.

Bustillo testified that, after the defendant left the bar, “[h]e went in reverse and he

made a lap around everything [and then] . . . came back in.” The defendant took the

unconscious victim by the arms and lifted her up, saying, “[W]ake up, stupid, don’t fake like

you’re dead. Stop faking, wake up.” The defendant put the victim over his shoulders like

he wanted to carry her, but Mari told him that he could not take her. The defendant “let go

of [the victim] and she fell to the floor,” and he left. As the defendant was leaving, Bustillo

heard a siren approaching. The defendant said, “[T]hat’s what you-all wanted, that’s what

you-all wanted me to do” as he left. Bustillo understood the defendant’s statement to mean

Because some of the witnessesshare the same surname, we will at times refer to them by first name 1

only for clarity. We intend no disrespect by this practice. 

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that he kept hitting the victim because they called the police.

Bustillo testified that firemen and police arrived on the scene. Approximately ten

minutes after the defendant left the scene, he called Bustillo and said, “Augustin, forgive me.

What did I do?” A police officer took Bustillo’s phone and told him that he should not talk

to the defendant. Bustillo then went to the police station and gave a statement. He also

identified a photograph of the defendant as the person who assaulted the victim. Bustillo

stated that he did not see the victim hit the defendant at any point during the altercation.

Carmen Sanchez, through an interpreter, testified that she worked as a waitress at

Guadalajara Bar in May 2011 and, although not working on the night of the incident, was

present at the bar and witnessed the assault. Carmen was familiar with the defendant because

he was the victim’s boyfriend and came to the bar frequently. She was already at the bar that

night when the defendant arrived with three other people. Carmen was not drinking any

alcohol that night, explaining that she was at the bar to keep her sister, Mari, company as she

worked as a waitress.

Carmen testified that she heard the victim ask the defendant to leave so she could

close the bar, and the defendant told her that they were not going to leave. The victim told

him that she was going to ask someone to call the police if he did not leave, to which he

responded, “What are you saying, bitch?” The defendant picked up a pool stick as if to hit

the victim, but his friend got between them. The defendant’s friend took the pool stick away,

and the three friends tried unsuccessfully to get the defendant to leave.

Carmen testified that the victim went under the pool table, and the defendant grabbed

her by the hair and pulled her out. The defendant hit the victim in the face and she screamed

but then fell unconscious. The defendant’s friends saw what was occurring and left. The

defendant then began kicking the victim repeatedly all over her body. The victim never

regained consciousness. Carmen said that her sister, Mari, told the defendant to stop, and he

made a fist like he was going to hit her. Mari told the defendant that he could not hit her

because she was pregnant, and he said, “So what[?]”

Carmen testified that the defendant left the bar, but came back and tried to pick up the

victim, saying “Get up, you bitch, I haven’t done anything to you, get up.” Because the

victim was unconscious, she did not stand up. Carmen recalled that, after the victim did not

stand up, the defendant “didn’t put her [down], he let her go.” The defendant said to Carmen

and the others remaining at the bar, “Is that what you wanted?” The defendant then left the

bar. An ambulance arrived, followed by the police. Carmen went to the police station and

provided a statement. Carmen stated that she had witnessed the defendant hit the victim on

a prior occasion. Carmen tried to intervene and stop the defendant from hitting the victim

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on that occasion, and the defendant grabbed her and “left [her] some bruises” as a result.

Through an interpreter, Mari Sanchez, Carmen’s older sister, testified thatshe worked

at Guadalajara Bar with the victim and was working the night of the assault. Mari was

familiar with the defendant and noted that he came into the bar around 10:00 p.m. by himself

on the night of the assault. She recalled that the defendant and the victim went into the

storage room to talk and then the defendant left the bar. The defendant returned around

11:00 p.m. with three other people, apparently his cousins. Mari served the defendant and

his cousins three buckets of beer, each containing six beers. Around midnight or 1:00 a.m.,

the victim asked the defendant and his cousins to leave so they could close the bar, but the

defendant refused because he still had beer to finish. The defendant told the victim, “You

get me out of here if you can.” There was a brief exchange of words with the defendant’s

cousin, and the defendant appeared to get ready to hit the victim with a pool stick. The

defendant’s cousins intervened and took the pool stick from him and tried to take him

outside. The defendant refused to leave, and his cousins left.

Mari testified that the victim crouched under the pool table, and the defendant pulled

her out by the hair and hit her in the face with his fist. The victim screamed and fainted,

falling to the ground. The defendant repeatedly hit and kicked the victim while she was lying

unconscious on the floor. Mari screamed for the defendant to stop, and he came towards her

like he was going to hit her as well. She told the defendant that he could not hit her because

she was pregnant, and the defendantsaid, “So what[?]” Marisaw Bustillo grab the defendant

by the hands from behind to try to stop the defendant from hitting the victim, and the

defendant punched Bustillo in the stomach.

Mari testified that she was unsure whether the defendant finally stopped hitting and

kicking the victim because he got tired, but he left the bar. The victim appeared to be dead

when he left. The defendant returned and tried to pick up the victim. He let the victim fall

by her own weight to the ground and said to her, “Get up, stupid, what are you doing . . .

What are you faking like you’re playing dead?”

Mari recalled that the victim’s cell phone rang during the assault and the defendant

told her, “Answer it, bitch,” but the victim was unconscious. Mari never saw the victim

regain consciousness during the attack. When the defendant left, he took the victim’s cell

phone with him. Mari waited at the scene for the police to arrive, then went to the police

station and provided a statement.

Officer Justin Pinkleton with the Metropolitan Nashville Police Department testified

that he responded to a domestic violence call at the Guadalajara Bar on the night of the

assault. Officer Pinkleton spoke with witnesses, who informed him that the perpetrator was

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the victim’s boyfriend. Paramedics were on the scene working on the victim when he

arrived. He was initially informed that the victim was in cardiac arrest and died on the scene.

The paramedics later informed him that they successfully revived the victim and took her by

ambulance to the emergency room. Officer Pinkleton called a domestic violence detective

to investigate the case.

Bryan Jones, a paramedic with the Nashville Fire Department and District Chief over

Logistics Operations, testified that he was dispatched to the scene of the assault at

approximately 2:30 a.m. on May 3, 2011. The police had not yet arrived, and the victim was

just inside the door of the bar being cradled by another individual. The victim did not have

a pulse and was not breathing; she was essentially dead. The paramedics initiated

cardiopulmonary resuscitation (“CPR”), immobilized and intubated her. They gave her

Epinephrin twice in order to revive her heart. The victim’s heart started beating but she did

not start breathing again, so the paramedics inserted a breathing tube and took her to the

hospital.

Detective Derry Baltimore with the Metropolitan Nashville Police Department

testified that he assisted Detective Corey Wall in apprehending the defendant. They located

the defendant based on a description of his vehicle, which was parked a few houses down

from the defendant’s address. Detective Baltimore knocked on the door, looked through a

window, and saw the defendant lying on the couch. The detective knocked on the window,

and the defendant got up and came outside. Backup officers were present to assist in

apprehending the defendant. They took the defendant into custody without incident.

Detective Corey Wall, a homicide detective with the Metropolitan Nashville Police

Department, testified that he investigated the assault and resulting death of the victim.

Detective Wall interviewed Bustillo, and Carmen and Mari Sanchez at the police station,

with the help of another detective serving as an interpreter. The witnesses told Detective

Wall of the defendant’s involvement and provided the address where the defendant and the

victim lived. Detective Wall drafted a search warrant for the address, which he executed

along with Detective Chad High and other officers. Among the items in the home, officers

found fourteen photographs of the defendant, a pay stub in the defendant’s name from Big

River Brewery, and a couple of cell phones. The victim’s son identified the defendant as his

mother’s boyfriend from the photographs. Bustillo identified the defendant as the person

who committed the assault on the victim from the photographs. Detective Wall spoke with

the manager of the Big River Brewery, who confirmed that the defendant worked there and

identified him from the photographs.

Detective Wall testified that, after the defendant was apprehended, he spoke with him

at the police station, with the help of an interpreter. The defendant was read his Miranda

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rights, and the interview was videotaped. The defendant’s sandals and clothing were

collected during the interview, which were the same shoes and clothing the defendant

indicated he was wearing during the assault. The defendant was placed under arrest after the

interview. At that time, the victim was in critical condition, but she later died.

Felicia Evans, a crime scene investigator civilian employee of the Metropolitan

Nashville Police Department, testified that she photographed the defendant at the police

station after he was arrested. She specifically photographed the defendant’s hands and the

clothing he was wearing at the time of the assault. She noted that the photographs showed

bruising on the defendant’s knuckles. The defendant’s shirt and jeans had what appeared to

be reddish-brown stains on them, consistent with a “[m]edium velocity spot or stain . . .

consistent with a beating, a bludgeoning, a stabbing or something of that type.”

Detective William Stewart with the Metropolitan Nashville Police Department

testified that he assisted in the investigation of the victim’s assault and served as a translator

during the interviews of the witnesses and the defendant. Officer Stewart read the transcript

of the interview with the defendant, in which the defendant stated that he had been living

with the victim and that they were experiencing problems in their relationship. He admitted

that he was at the bar with a cousin and friends, drinking and playing pool since

approximately midnight. The defendant claimed that the victim insulted one of his friends,

and he became angry. He admitted that he grabbed and pushed the victim, hitting her two

or three times. The victim fell to the floor and he wanted to pick her up, but she was

unconscious and others in the bar wanted to leave her until the ambulance or police arrived.

The defendant continued in his statement, admitting to pushing one of his friends, as

well as a “[p]otbellied” man whose name he could not recall. The defendant denied trying

to hit the victim with a pool stick. When asked if he kicked the victim, the defendant

admitted pulling her out from under the pool table but denied purposefully kicking her. He

acknowledged hitting the victim in the stomach. He later admitted that he hit the victim in

the head and kicked her in the stomach three times. The defendant said that he did not wait

at the scene for the ambulance or police out of fear of getting in trouble. The defendant

denied choking the victim.

Dr. Adele Lewis, the Deputy Chief Medical Examiner for Metropolitan Nashville,

testified that, although she was not the pathologist who conducted the autopsy, she reviewed

the notes and photographs from the autopsy, as well as the victim’s medical records. The

victim was treated at Vanderbilt Hospital for approximately one week before she was taken

off life support. After review of the aforementioned materials, Dr. Lewis agreed that the

victim’s cause of death was complications of multiple, blunt-force injuries, and the manner

of death was a homicide. Dr. Lewis noted that the victim had multiple bruises on her legs,

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a large bruise on her arm, and bruising on her face and scalp. The doctor recalled that

Vanderbilt Hospital placed the victim on a breathing machine, and inserted multiple

intravenous lines to supply medications and a catheter to drain her urine. The victim also had

a neck collar in case she had any broken bones in her neck. The victim never regained

consciousness while in the hospital. The medical records indicated that the victim was dead

upon arrival of the paramedics after the assault, but she was revived with CPR. However,

the victim’s physical condition continued to decline while she was in the hospital, and she

was ultimately pronounced dead because her brain had become so swollen that it ceased

functioning.

Dr. Lewis testified that the internal examination of the victim revealed multiple, deep

bruises on her scalp that occurred either when her head hit an object or an object hit her head,

and her brain became very soft with bleeding around the base and top of the brain. The

victim’s injuries were consistent with someone having kicked and punched the victim in the

head. The bruises on the victim’s legs and thighs were linear and consistent with having

been hit with a pool stick.

After the conclusion of the proof, the jury convicted the defendant of the lesserincluded offense of second degree murder.

ANALYSIS

I. Sufficiency of the Evidence

The defendant challenges the sufficiency of the evidence in support of his second

degree murder conviction. In considering this issue, we apply the rule that where sufficiency

of the convicting evidence is challenged, the relevant question of the reviewing court is

“whether, after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Tenn. R. App. P. 13(e)

(“Findings of guilt in criminal actions whether by the trial court or jury shall be set aside if

the evidence is insufficient to support the findings by the trier of fact of guilt beyond a

reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v.

Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). The same standard applies

whether the finding of guilt is predicated upon direct evidence, circumstantial evidence, or

a combination of direct and circumstantial evidence. State v. Matthews, 805 S.W.2d 776,

779 (Tenn. Crim. App. 1990).

A criminal offense may be established entirely by circumstantial evidence. State v.

Majors, 318 S.W.3d 850, 857 (Tenn. 2010). It is for the jury to determine the weight to be

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given the circumstantial evidence and the extent to which the circumstances are consistent

with the guilt of the defendant and inconsistent with his innocence. State v. James, 315

S.W.3d 440, 456 (Tenn. 2010). In addition, the State does not have the duty to exclude every

other reasonable hypothesis except that of the defendant’s guilt in order to obtain a

conviction based solely on circumstantial evidence. See State v. Dorantes, 331 S.W.3d 370,

380-81 (Tenn. 2011) (adopting the federalstandard of review for cases in which the evidence

is entirely circumstantial).

All questions involving the credibility of witnesses, the weight and value to be given

the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754

S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the

trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in

favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our

supreme court stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and

the jury see the witnesses face to face, hear their testimony and observe their

demeanor on the stand. Thus the trial judge and jury are the primary

instrumentality of justice to determine the weight and credibility to be given

to the testimony of witnesses. In the trial forum alone is there human

atmosphere and the totality of the evidence cannot be reproduced with a

written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212

Tenn. 464, 370 S.W.2d 523 (1963)). “A jury conviction removes the presumption of

innocence with which a defendant is initially cloaked and replaces it with one of guilt, so that

on appeal a convicted defendant has the burden of demonstrating that the evidence is

insufficient.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

To sustain a conviction for second degree murder, the State had to prove beyond a

reasonable doubt that the defendant committed a knowing killing of the victim. See Tenn.

Code Ann. § 39-13-210(a)(1) (2010). Tennessee Code Annotated section 39-11-302(b)

provides in pertinent part that “[a] person acts knowingly with respect to the result of the

person’s conduct when the person is aware that the conduct is reasonably certain to cause the

result.” Id. § 39-11-302(b).

In the light most favorable to the State, the evidence showed that the defendant

repeatedly punched and kicked the victim all over her body, including her head, even after

she lost consciousness. The defendant punched another bar patron who attempted to

intervene. The attack on the victim grew so vicious that the defendant’s friends tried to make

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him stop and took a pool stick away from him to prevent him from hitting the victim with it.

After he stopped, the defendant screamed that he had killed the victim and that her children

“would be next.” The victim suffered severe injuries from the attack, her brain swelled, and

she died a week later. This evidence is sufficient for a rational trier of fact to conclude that

the defendant knowingly killed the victim.

The defendant contends that it was simply a fight that had “gotten out of hand”;

however, there was no proof that the victim ever hit or even fought back against the

defendant’s vicious and unrelenting attack. The defendant also suggests that, because he had

been drinking, “he was unaware that the overall effect of his actions would be the death of

the victim.” However, evidence of the defendant’s alcohol consumption was before the jury,

which determined, in its province, that such did not affect the defendant’s awareness of his

actions. The defendant is not entitled to relief on this issue.

II. Grand Jury Foreman

The defendant also argues that the indictment against him was invalid as a matter of

law because the foreman of the grand jury was a convicted felon. He asserts that he could

not have objected to such before trial because “if [the] State did not know the foreman was

a felon, then how could [he].”

This exact issue appears to be a case of first impression. Our research has revealed

prior cases dealing with the competency of a member of the petit jury, but not the grand jury.

Those cases held that an objection to the competency of a juror is an objection “propter

defectum,” which “must have been made before the verdict, and ignorance of the fact does

not excuse the omission.” Goad v. State, 61 S.W. 79, 80 (Tenn. 1900); see also Walker v.

State, 99 S.W. 366, 366-67 (Tenn. 1907); State v. Joseph D. Bishop, No.

01C01-9309-CR-00333, 1994 WL 474874, at *2-3 (Tenn. Crim. App. Sept. 1, 1994), perm.

app. denied (Tenn. Jan. 3, 1995). Although such cases are interesting, the defendant’s

challenge is more particularly classified as a challenge to the validity of the indictment due

to the grand juror’s incompetence.

Rule 12(b)(2)(B) of the Tennessee Rules of Criminal Procedure providesthat a motion

alleging a defect in the indictment, presentment, or information must be raised before trial

but that “at any time while the case is pending, the court may hear a claim that the indictment,

presentment, or information fails to show jurisdiction in the court or to charge an offense[.]”

Id. “‘Lack of jurisdiction’ refers to subject matter jurisdiction,” State v. Nixon, 977 S.W.2d

119, 120 (Tenn. Crim. App. 1997), which refers to a court’s authority to adjudicate a dispute

brought before it. Freeman v. CSX Transp., Inc., 359 S.W.3d 171, 176 (Tenn. Ct. App.

2010). “[A]ll objections or defects in the indictment[,] other than those [related to the subject

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matter jurisdiction of the court and failure to charge an offense,]” must be raised prior to trial

or will result in waiver. Nixon, 977 S.W.2d at 121.

The defendant’s case was tried before the Davidson County Criminal Court, which

has subject matter jurisdiction over crimes occurring within Davidson County. See Tenn.

Code Ann. § 16-10-102. The status of the grand jury foreman as a convicted felon does not

relate to the power of the court to hear and decide a case. Moreover, the defendant does not

contend that the indictment failed to charge an offense. Neither of the narrow exceptions

permitting objections to an indictment after trial applies; therefore, the defendant waived any

objection to the grand jury foreman’s status as a felon because it was not raised prior to trial.

Moreover, the historic doctrine of aider by verdict stands for the proposition that any

defects in the indictment are cured if the jury reaches a verdict. See, e.g., Kimbro v. Bomar,

333 F.2d 755, 757 (6th Cir. 1964); Allen v. State, 288 S.W.2d 439, 440 (Tenn. 1956); Jones

v. State, 277 S.W.2d 371, 372 (Tenn. 1955); Driscoll v. State, 232 S.W.2d 28, 29 (Tenn.

1950); Pope v. State, 258 S.W.775, 776 (Tenn. 1924); State v. Smith, 7 Tenn. 165 (Tenn.

1823). In this case, the jury deliberated and returned a verdict of guilty of second degree

murder and, by doing so, cured any defect in the indictment. The defendant is not entitled

to relief.

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the judgment of the trial

court.

_________________________________

ALAN E. GLENN, JUDGE

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