Joseph Pratt v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-KA-01584-COA
JOSEPH PRATT
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEE
9/22/2000
HON. R. KENNETH COLEMAN
CHICKASAW COUNTY CIRCUIT COURT
JASON LEE SHELTON
OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
JAMES M. HOOD, III
CRIMINAL - FELONY
SALE OF A CONTROLLED SUBSTANCE:
SENTENCE OF 15 YEARS WITH 5 YEARS
SUSPENDED TO SERVE IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS
AFFIRMED - 4/6/2004
BEFORE KING, P.J., THOMAS AND MYERS, JJ.
MYERS, J., FOR THE COURT:
¶1.
Joseph Pratt was convicted by a jury for the sale of cocaine, a Schedule II controlled
substance, in violation of Mississippi Code Annotated Sections 41-29- 139(a)(1) and 41-29-142 (1)
(Rev. 2001). The Circuit Court of Chickasaw County sentenced him to serve fifteen years, with five
years suspended in the custody of the Mississippi Department of Corrections. Aggrieved by his
conviction, Pratt raises the following four issues on appeal.
ISSUES PRESENTED
I. Did the trial court err by refusing to allow the jury venire to be drawn from both the First and
Second Judicial Districts of Chickasaw County?
II. Did the trial court err by denying Pratt’s motion for directed verdict at the close of the case?
III. Was the jury verdict against the overwhelming weight of the evidence?
IV. Did the trial court err by granting the State’s proposed jury instructions in violation of Rule
3.07 of the Uniform Circuit and County Court Rules?
STATEMENT OF FACTS
¶2.
On November 23, 1999, Joseph Pratt, Titus Atkinson a/k/a “Sugarman” and Sheldon
Johnson were gathered at a car wash in Houston, Mississippi, when a woman in a car drove into the
car wash parking lot. Pratt, Atkinson and Sheldon were not aware that the woman, Paula Oatsvall,
was an confidential informant for the Houston Police Department. All three men approached
Oatsvall’s car. She wore a body wire and had two video cameras concealed in her vehicle. The
appellant, Pratt, approached Oatsvall after Atkinson and Johnson and said to Oatsvall, “Let me get
that twenty.” Oatsvall asked Pratt, “Do you have a twenty sack?” Pratt replied, “Follow me to my
house.” When Oatsvall arrived at Pratt’s house, Atkinson was already there waiting in the yard.
Atkinson went over to Pratt’s car, got something from Pratt and walked over to Oatsvall’s car.
Atkinson got into the car with Oatsvall and handed her twenty dollars worth of cocaine. Atkinson
said to Oatsvall, “Let’s cut a block.” As they were driving away, Oatsvall gave Atkinson twenty
dollars. Oatsvall dropped Atkinson by a convenience store and then took him back to Pratt’s house.
After the sale took place, Oatsvall went back to the disclosed location, met Brian Ely, a narcotics
investigator, and gave him the drugs.
LEGAL ANALYSIS
I. DID THE TRIAL COURT ERR BY REFUSING TO ALLOW THE JURY VENIRE TO BE
DRAWN FROM BOTH THE FIRST AND SECOND JUDICIAL DISTRICTS OF CHICKASAW
COUNTY?
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¶3.
Pratt asserts as his first issue that the trial court erred by overruling his motion to quash
the jury venire and thereby refusing to allow the jury venire to be drawn from both the First and
Second Judicial Districts of Chickasaw County. Pratt argues that because the jury venire was
taken from the First Judicial District only, he was denied a fair cross-section of potential jurors
from Chickasaw County as guaranteed by the Sixth Amendment.
¶4.
The crime, sale of a controlled substance, occurred in Houston, Mississippi, which is in the
First Judicial District of Chickasaw County. The applicable statute for selecting a jury when a
county contains two circuit court districts states:
In counties where there are two (2) circuit court districts, the jury
commission shall make a list of jurors for each district in the manner directed
for a county, and the same shall be treated in all respects as for an entire
county. In such counties a juror shall not be required to serve out of his
district, except should the court, in its discretion, otherwise direct, and except
when drawn on a special venire. In either of such excepted cases, the jury
shall be drawn from the two (2) jury boxes if the court so direct, one (1)
n a m e
f o r
e a c h
a l t e r n a t e l y .
Miss. Code Annotated § 13-5-21 (Rev. 2002). Pratt claims that drawing the jury venire from one
district violated Mississippi Code Annotated Section 13-5-2, which provides:
It is the policy of this State that all persons selected for jury service be selected at
random from a fair cross section of the population of the area served by the court,
and that all qualified citizens have the opportunity in accordance with this chapter
to be considered for jury service in this State and an obligation to serve as jurors
when summoned for that purpose. A citizen shall not be excluded from jury service
in this State on account of race, color, religion, sex, national origin, or economic
status.
¶5.
Pratt makes an identical argument to the one made in Thomas v. State, 818 So. 2d 335 (Miss.
2002), although he wants the opposite result. In that case, the court held that the trial court did not
err by drawing the jury venire from both judicial districts of Chickasaw County. Thomas, 818 So.
2d at 342 (¶ 14).
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¶6.
Section 13-5-21 meets the constitutional requirements of the Sixth Amendment. Myers v.
State, 353 So. 2d 1364, 1368 (Miss. 1978). Juror selection as provided by statute is not mandatory,
but directory. De La Beckwith v. State, 707 So.2d 547, 597 (Miss.1997). In counties that have two
judicial districts, the trial judge has discretion to draw a special venire from both districts, but is not
required to do so. Myers, 353 So. 2d at 1368 (citing Taylor v. State, 148 Miss. 621, 114 So. 390
(1927 )). Unless the defendant shows that the method used was fraudulent or a radical departure
from the method prescribed by statute as to be unfair or the prevent due process of law, the appellate
court will not reverse. De La Beckwith, 707 So. 2d at 597. Absent an abuse of discretion, the
appellate court will not reverse the trial judge’s decision to draw the jury venire from one district
only. Davis v. State, 660 So. 2d 1228, 1261 (Miss. 1995). In Davis, the court held that the trial
court did not abuse its discretion by refusing the defendant’s request to draw the jury venire from
both judicial districts without a showing that the defendant was tried by a partial and biased jury.
Davis, 660 So. 2d at 1261.
¶7.
Similarly to Thomas, Pratt asserts that the jury venire was not representative of a cross-
section of the community in which he lived because the jury was pooled from the First Judicial
District only. Pratt contends that his arguments go well beyond those proposed in Thomas.
¶8.
As in Thomas, Pratt directs our attention to the Supreme Court cases of Taylor v. Louisiana,
419 U.S. 522 (1975), and Duren v. Missouri, 439 U.S. 357 (1979). In Taylor, the Supreme Court
held that the “Sixth Amendment right to a trial by impartial jury of the State and District wherein
the crime shall have committed, requires that the jury be drawn from a fair cross section of the
community.” Thomas, 818 So. 2d at 341 (¶ 9) (citing Taylor, 419 U.S. at 531). In Duren, a threeprong test was designed for establishing a prima facie violation of the fair-cross section requirement.
To satisfy this test, the defendant must show: (1) that the group alleged to be excluded is a
"distinctive" group in the community, (2) that the representation of this group in venires from which
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juries are selected is not fair and reasonable in relation to the number of such persons in the
community, and (3) that this under representation is due to systematic exclusion of the group in the
jury selection process. Duren, 439 U.S. at 364.
¶9.
Regarding the first prong of Duren, the exclusion of racial groups from jury service has been
said to be “at war with our basic concepts of a democratic society and a representative government.”
Taylor, 419 U.S. at 527(citing Smith v. Texas, 311 U.S. 128, 130 (1940)). In Thomas, the court
stated that it was not provided any statistical data regarding the racial composition of Chickasaw
County but that “elaborate and comprehensive data as to this one element is unnecessary.” Thomas,
818 So. 2d at 341 (¶ 10). Pratt alleges that he provided documentation from the 1990 census report
that showed the First Judicial District as being an area of primarily white residents and the Second
Judicial District as being an area of primarily black residents. Unfortunately, the census reports
were not contained in the record for our review on appeal.
¶10.
Regarding the second prong of Duren, "the defendant must demonstrate the percentage of
the community made up of the group alleged to be under represented.” Thomas, 818 So. 2d at 341
(¶ 11) (citing Duren, 439 U.S. at 364) In Thomas, the court held that the defendant did not meet this
prong because he made unsubstantiated assertions that the Houston District is primarily white and
the Okolona District is primarily African American. Id. Pratt argues that he provided 1990 census
figures that indicated a total population for the City of Houston at 3,903. Of this total, 2,555
residents were white and 1,298 residents were black. The total population for the City of Okolona
was 3,267 with 1,621 white residents and 1,640 black residents. Once again, these are assertions
made in Pratt’s brief and cited to the trial judge in the record, but the reports themselves were not
provided in any form to this Court on appeal.
¶11.
Regarding the last prong of Duren, Pratt was required to show that the under representation
of African Americans in general and on his venire was due to a systematic exclusion. Thomas, 818
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So. 2d at 341-42 (¶ 12). In his appellate brief, Pratt attributes the systematic exclusion of African
Americans on juries in the First Judicial District of Chickasaw County to the practice of “importing
white jurors to try cases on the black side of the county, but denying blacks the opportunity to sit
on juries on the white side of the county.” The Supreme Court has defined systematic exclusion as
"inherent in the particular jury-selection process utilized." Duren, 439 U.S. at 366. In Duren, the
defendant was able to demonstrate that such abuses occurred in every weekly venire for a period of
one year. Id. Pratt alleges that this practice of systematic exclusion occurs in Chickasaw County
but offers no data to support his conclusions. This does not satisfy the requirements set forth in
Duren.
¶12.
In Taylor, the court stated, "in holding that petit juries must be drawn from a source fairly
representative of the community we impose no requirement that petit juries actually chosen must
mirror the community and reflect the various distinctive groups in the population. Defendants are
not entitled to a jury of any particular composition." Thomas, 818 So. 2d at 342 (¶ 13)(quoting
Taylor, 419 U.S. at 537). This assignment of error is without merit.
II. DID THE TRIAL COURT ERR BY DENYING PRATT’S MOTION FOR DIRECTED
VERDICT AT THE CLOSE OF THE CASE?
¶13.
Pratt argues that the trial court erred by denying his motion for directed verdict based upon
the insufficiency of the evidence. The standard of review for denial of a judgment notwithstanding
the verdict (JNOV) and directed verdict are the same. Grihim v. State, 760 So. 2d 865, 866 (¶ 6)
(Miss. Ct. App. 2000) (citing Am. Fire Prot., Inc. v. Lewis, 653 So. 2d 1387, 1390 (Miss. 1995)).
An appellant challenges the sufficiency of the evidence when he appeals from an overruled motion
for JNOV or directed verdict. Noe v. State, 616 So. 2d 298, 302 (Miss. 1993).
¶14.
Our state’s supreme court offered guidance on this issue in McClain v. State, 625 So. 2d 774
(Miss. 1993). In McClain, the court stated that in appeals from a denied JNOV, the sufficiency of
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the evidence as a matter of law is viewed and tested in a light most favorable to the State. Id. at 778
(citing Esparaza v. State, 595 So.2d 418, 426 (Miss.1992)). The credible evidence consistent with
[the defendant’s] guilt must be accepted as true. Spikes v. State, 302 So. 2d 250, 251 (Miss.1974).
The prosecution must be given the benefit of all favorable inferences that may be reasonably drawn
from the evidence. Wetz v. State, 503 So.2d 803, 808 (Miss.1987). Matters regarding the weight and
credibility of the evidence are to be resolved by the jury. Neal v. State, 451 So. 2d 743, 758
(Miss.1984). “We are authorized to reverse only where, with respect to one or more of the elements
of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors
could only find the accused not guilty.” Wetz, 503 So. 2d at 808; McClain, 625 So. 2d at 778.
¶15.
The jury heard the testimony of Paula Oatsvall, the confidential informant, who was working
with Officer Brian Ely to arrange drug buys in Chickasaw County. Oatsvall testified that she was
wearing a wire provided by agents and two cameras were located in her vehicle. Oatsvall stated that
when she arrived at Shiner’s car wash, she was approached by Sheldon Johnson and Titus Atkinson
a/k/a “Sugarman.” Oatsvall asked Atkinson for a dime sack. Atkinson returned to Oatsvall’s
vehicle with the marijuana. Oatsvall further stated that Pratt came over to her vehicle and said, “Let
me get that twenty.” Oatsvall asked Pratt if he had a twenty sack and Pratt replied, “Follow me to
my house.” Pratt claims that he wanted Oatsvall to come over to his house so they could have
intercourse. Oatsvall testified that she went to Pratt’s house to get the cocaine. Oatsvall explained
that Atkinson was in Pratt’s car when Pratt handed Atkinson the cocaine. Atkinson came over to
Oatsvall’s vehicle and handed the cocaine to her. In exchange, she gave Atkinson the money.
¶16.
The videotape from Oatvall’s car shows Titus Atkinson, and Pratt’s voice is heard several
times. Pratt admitted on cross-examination that his voice was on the tape. However, Pratt claims
that since he was not seen on the videotape actually selling the cocaine to Oatsvall that the trial court
should have granted his motion for directed verdict. Pratt claims that he had nothing to do with the
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drug transactions. Pratt also claims that Oatsvall’s credibility was questioned by her testimony on
cross-examination. Oatsvall strongly denied having a current romantic relationship with Pratt or
anyone on the tape. She denied that she was paid to get convictions. She stated that she was paid
somewhere between $20 and $50 for assisting in setting up drug sales.
¶17.
The jury also heard the testimony of Officer Brian Ely which corroborated Oatsvall’s
testimony regarding the drug sale. Ely was monitoring the cocaine sale by listening over the audio
monitor. He corroborated Oatsvall’s testimony about requesting a dime sack from Atkinson before
the cocaine sale. Ely further testified that Oatsvall told him on the transmitter that she just bought
a $20 rock from Joseph Pratt, but “Sugarman” gave it to her. Edwina Ard with the State Crime Lab
testified that based on several scientific tests on the substance recovered by Oatsvall, the substance
was crack cocaine.
¶18.
Pratt admitted that he was present at the car wash, that it was his voice heard on the tape and
that he was present at his house when the drugs were purchased. Pratt denied that he sold the
cocaine to Oatsvall. This testimony created a conflict in the evidence that was for the jury to
resolve. It was for the jury to decide the credibility of each witness. Neal, 451 So. 2d at 758.
Viewing the evidence in the light most favorable to the State and accepting all evidence as true, the
trial judge properly denied Pratt’s motion for directed verdict.
III. WAS THE JURY VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE
EVIDENCE?
¶19.
Pratt argues that the State failed to meet its burden of proof based on weaknesses and
inconsistencies in the State’s case. The State argues that it did, in fact, meet its burden of proof as
demonstrated by excerpts from the record.
¶20.
The standard of review for determining whether a jury verdict is against the overwhelming
weight of the evidence is well-settled. "[T]his Court must accept as true the evidence which
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supports the verdict and will reverse only when convinced that the circuit court has abused its
discretion in failing to grant a new trial." Williams v. State, 757 So. 2d 1064, 1065 (¶ 6) (Miss. Ct.
App. 2000) (citing Dudley v. State, 719 So. 2d. 180, 182 (Miss. 1998)). On review, the State is
given "the benefit of all favorable inferences that may reasonably be drawn from the evidence."
Griffin v. State, 607 So. 2d 1197, 1201 (Miss. 1992). "Only in those cases where the verdict is so
contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an
unconscionable injustice will this Court disturb it on appeal." Dudley, 719 So. 2d at 182. "This
Court does not have the task of re-weighing the facts in each case to, in effect, go behind the jury
to detect whether the testimony and evidence they chose to believe was or was not the most
credible." Langston v. State, 791 So. 2d 273, 280 (¶ 14) (Miss. Ct. App. 2001).
¶21.
The State presented evidence that showed Joseph Pratt was present at Shiner’s car wash, that
Pratt approached Oatsvall’s car and made several statements, including “Let me get that twenty" and
“Follow me to my house.” The State also presented evidence that Oatsvall went to Pratt’s house to
pick up the cocaine. Testimony was given that supported the State’s claim that Pratt gave the
cocaine to Atkinson who in turn gave the cocaine to Oatsvall in return for money. Once again Pratt
argues that because he did not actually give the cocaine to Oatsvall he could not be guilty of selling
cocaine.
¶22.
The State relies on the theory of “constructive sale” or “constructive transfer” as set forth
by this Court in York v. State, 751 So. 2d 1194 (Miss. Ct. App. 1999). A “constructive transfer”
occurs when the transfer was controlled and directed by the defendant and when the “transferor had
either direct or indirect control of the substance transferred, and the transferor knew of the existence
of the transferee.” York, 751 So. 2d at 1197 (¶ 9). Oatsvall testified that after she asked Pratt for
a $20 sack she drove to Pratt’s house. She stated that Atkinson got something from Pratt, who was
sitting in his car, and walked over to her vehicle. Atkinson handed her the cocaine and she gave him
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$20 in exchange for the drugs. Oatsvall testified that the drugs came from Pratt and that Atkinson
was merely an intermediary. The appellant’s conviction may be sustained when it is based on the
uncorroborated testimony of a single witness whose testimony is not unreasonable and has not been
successfully impeached. Pate v. State, 419 So. 2d 1324, 1326 (Miss. 1982). The facts of this case
reach beyond that statement of law because Oatsvall’s testimony was corroborated by Officer Brian
Ely.
¶23.
Judging these facts in a light most favorable to the State, a reasonable juror could infer that
Pratt was guilty of sale of a controlled substance, specifically cocaine, beyond a reasonable doubt.
The weight of the evidence against Pratt demonstrates that sufficient proof was offered by the State
for the jury to find Pratt guilty of sale of a controlled substance pursuant to Mississippi Code
Annotated Sections 41-29- 139(a)(1) and 41-29-142 (1) (Rev.2001).
IV. DID THE TRIAL COURT ERR BY GRANTING THE STATE’S PROPOSED JURY
INSTRUCTIONS IN VIOLATION OF RULE 3.07 OF THE UNIFORM CIRCUIT AND COUNTY
COURT RULES?
¶24. Pratt asserts that the trial judge erred by granting the State’s proposed jury instructions in
violation of Rule 3.07 of the Uniform Circuit and County Court Rules. Pratt argues that the State
was allowed to give numerous instructions which he was not given until after his trial was underway.
The following occurred during objections to jury instructions:
Mr. Shelton (defense attorney): I have an objection to all of the State’s instructions
for not being timely disclosed. I just, when we started questioning on the jury
instructions was the first time I had received all of them with the exception of one
which I received, well, which the prosecution laid on my area here while I was
questioning a witness, yesterday. I don’t think I was given proper notice; but other
than that, your Honor, I think S-1 is a proper statement of the law.
By the Court: It will be given.
¶25.
Rule 3.07 of the Uniform Circuit and County Court Rules states: “At least twenty-four hours
prior to trial each of the attorneys must number and file the attorney’s jury instructions with the
clerk, serving all other attorneys with copies of the instructions. Except for good cause shown, the
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court will not entertain a request for additional instruction or instructions, which have not been prefiled.” In Claire v. State, 845 So. 2d 733, 736 (Miss. Ct. App. 2003), this Court stated that without
a showing of prejudice to the defendant, failure to pre-file instructions was harmless error.
¶26.
Pratt argues that the prejudice to him occurred because by giving the aiding and abetting
instruction the State was able to change the nature of the charges against him. Pratt claims that
because he was indicted for the sale of a controlled substance and not as an accessory, the instruction
was improper. Jury Instruction S-3 reads:
The court instructs the jury that each person present at the time of, consenting to and
encouraging, aiding or assisting in any manner in the commission of a crime, or
knowingly and willfully doing any act which is an ingredient in the crime, is as much
a principal as if he had with his own hands committed the whole offense.
¶27.
The following occurred during objections to jury instructions:
Mr. Shelton: Yes, your Honor, I have an objection to that. I don’t think it is a proper
statement of the law; and furthermore, Joseph Pratt has not been charged with that.
Your Honor, Joseph Pratt was charged with the sale of cocaine. He was not charged
with aiding and abetting, accessory, conspiracy, encouraging, anything like that; and
I think that it would error to allow the state to come in now at the end at the close of
the case and to change their theory of the case. Their theory, what they have to
prove, your Honor, is in the indictment; and there’s nothing like this in the
indictment; and I think it’s inappropriate.
Mr. Stallings (Assistant District Attorney): Your Honor, Section 97-1-3 of the
Mississippi Code says that a person who is accessory before the fact can be charged
or indicted the same as if he was a principal. That’s what happened.
By the Court: That’s the law, Mr. Shelton.
Mr. Shelton: Your Honor, I think they have to be charged as an accessory with
something, don’t they?
By the Court: No, sir. That’s what the statute says; that if they are an accessory
before the fact, then they can be charged and tried and sentenced as a principal.
That’s my understanding of it and has been for a number of years.
¶28.
In Hollins v. State, 799 So. 2d 118, 123 (Miss. Ct. App. 2001), this Court held that an aiding
and abetting instruction was proper where the evidence showed the defendant, Hollins, was present
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and assisted others in the commission of the drug sale. Hollins was indicted for the sale of cocaine
as a principal, not as a accomplice. However, the evidence showed a constructive sale. Hollins, 799
So. 2d at 122 (¶ 8). The Court stated:
In this case Hollins was present at the time the crime was committed, he gave the
drugs to Jackson to sell to the agent and he shared in the profits from the sale. He
obviously aided and abetted the crime committed. The instruction clearly informs
the jury that if it finds that Hollins aided and abetted Jackson in the commission of
the crime, he can be held guilty as a principal and punished as such. Although aiding
and abetting was not officially part of Hollins’s indictment, the evidence presented
clearly supports the instruction.
Hollins, 799 So. 2d at 123 (¶ 14). Pratt admitted to being present at the car wash. Pratt admitted
that his voice was on the tape saying “Let me get that twenty" and “Follow me to my house.” Paula
Oatsvall testified that Pratt gave the drugs to Atkinson and Atkinson then sold the drugs to her. As
in Hollins, there was evidence that Pratt aided and abetted in the sale of cocaine to Oatsvall. Even
though his indictment charged him as a principal, the evidence presented supports the instruction
given. This issue is without merit.
¶29. THE JUDGMENT OF THE CIRCUIT COURT OF CHICKASAW COUNTY OF
CONVICTION OF SALE OF A CONTROLLED SUBSTANCE AND SENTENCE OF
FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS WITH FIVE YEARS SUSPENDED ON POST-RELEASE SUPERVISION,
PAY RESTITUTION OF $90 TO HOUSTON POLICE DEPARTMENT AND $100 TO
VICTIM'S COMPENSATION FUND IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLANT.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
CHANDLER AND GRIFFIS, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.
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