LAWRENCE ELMER PATE V. COMMONWEALTH OF KENTUCKY
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AS MODIFIED : JULY 23, 2004
RENDERED : MAY 20, 2004
BL-PUU,jSHEQ
,suprrme (gourf of
2002-SC-0890-MR
LAWRENCE ELMER PATE
APPELLANT
APPEAL FROM PENDLETON CIRCUIT COURT
HONORABLE ROBERT MCGINNIS, JUDGE
2002-CR-0028
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE KELLER
AFFIRMING
I. INTRODUCTION
A Pendleton Circuit Court jury found Appellant, Lawrence Elmer Pate (a/k/a
Tommy Pate), guilty of Manufacturing Methamphetamine, and the trial court, in
accordance with the jury's recommendation, imposed a twenty (20) year sentence of
imprisonment . Appellant appeals to this Court as a matter of right' and contends (1)
the evidence was insufficient to warrant his conviction ; (2) the trial court erred in forcing
Appellant's wife to testify after she invoked her spousal privilege ; (3) the trial court erred
in denying Appellant's Motion for a New Trial, and (4) the trial court erred in failing to
suppress evidence obtained as the result of a warrantless search of Appellant's vehicle .
A review of the record reveals Appellant's contentions to be meritless, and we affirm his
conviction .
1
KY . CONST. § 110(2)(b); RCr 12.02 .
II . BACKGROUND
On May 9, 2002, Kathy Pate (a/k/a Katherine Pate), Appellant's wife, who had
come to the Pendleton County Sheriffs Office to make a domestic violence complaint
against Appellant, informed Deputy Sheriff Craig Peoples that on the previous
weekend, she, Appellant, and Alicia Aulick Gregg (a/k/a Alicia Aulick or Alicia Gregg)
had gone to Illinois and returned with a tank of anhydrous ammonia that Appellant
stored behind Alicia Gregg's trailer-residence . She also informed Deputy Peoples that
Appellant was armed with a .38 handgun and provided him with a description of
Appellant's vehicle and its license plate number.
Deputy Peoples testified that he proceeded immediately to Gregg's residence
because of the extremely volatile nature of anhydrous ammonia . He located the tank,
discovered that the anhydrous ammonia was housed in an unapproved container, and
based upon the discoloration of the tank's brass fittings, he determined that the tank
created a risk of exploding . He contacted the Fire Department and the Drug
Enforcement Administration to facilitate the destruction of the tank .
A short time later, Deputy Peoples noticed a vehicle, much like the one that
Kathy Pate had described as Appellant's, approaching Gregg's residence . The vehicle
stopped, as if to turn around, and Deputy Peoples drove up behind the vehicle, blocking
it, confirmed the license plate number, and recognized the driver as Appellant . He then
ordered Appellant out of the car and onto the ground where he was handcuffed and
placed under arrest . , Alicia Gregg was a passenger in Appellant's vehicle .
Deputy Peoples frisked Appellant, attempting to locate the .38 weapon that Kathy Pate
had stated Appellant would be carrying . He did not find the handgun ; however, he found a
pocket knife on Appellant's person and a search of the car revealed a quantity of .38 shells .
The search of the vehicle also revealed an array of methamphetamine precursors .
Specifically, Deputy Peoples discovered camping fuel, a butane torch, table salt, two packs of
lithium batteries, Rooto drain opener, STP Oil Treatment, three boxes of pseudoephedrine,
three boxes of suphedrine, five boxes of nasal decongestant, a plastic tea jug, mixing spoons,
and plastic tubing . Receipts, in the name of Katherine Pate, for nasal decongestant and
muriatic acid2 were also found in the car, along with maps of all Wal-Mart and Dollar General
Store locations within a fifty-mile radius of Cincinnati, Ohio . Appellant was charged with
Manufacturing Methamphetamine and Carrying a Concealed Deadly Weapon .4
111. ANALYSIS
A. Directed Verdict
Claiming insufficiency of the evidence, Appellant contends that he was entitled to
a directed verdict on the charge of Manufacturing Methamphetamine . We review a
motion for directed verdict under the standard set forth in Benham v. Commonwealth :5
On motion for directed verdict, the trial court must draw all
fair and reasonable inferences from the evidence in favor of
2 The muriatic acid was later located in a storage facility . Kathy Pate had
informed the police of the storage unit, provided them with a key, and gave the police
permission to enter the unit. Therein, the police found a plastic container of muriatic
acid . Appellant admitted at trial that the muriatic acid found in the storage facility
belonged to him; he claimed, however, that he intended to use it to clean stains from a
concrete porch and not for use in the manufacture of methamphetamine .
3 The significance of the maps was explained by Deputy Peoples during direct
examination by the Commonwealth :
"The significance [of the maps] is they can go from store, to store, to store to buy
their amphedrine or any other by-products or precursors, and they don't throw up any
red flags, and the police are not notified if you buy the over allotted number of boxes."
4 Appellant was acquitted of the charge of Carrying a Concealed Deadly
Weapon .
5 Ky., 816 S .W . 2d 186 (1991).
the Commonwealth . If the evidence is sufficient to induce a
reasonable juror to believe beyond a reasonable doubt that
the defendant is guilty, a directed verdict should not be
given. For the purpose of ruling on the motion, the trial court
must assume that the evidence for the Commonwealth is
true, but reserve[e] to the jury questions as to the credibility
and weight to be given to such testimony .
Appellant was convicted
of
violating subsection (1)(b) of KRS' 218A .1432 which
reads as follows :
(1) A person is guilty of manufacturing methamphetamine
when he knowingly and unlawfully:
(a) Manufactures methamphetamine ; or
(b) Possesses the chemicals or equipment for the
manufacture of methamphetamine with the intent to
manufacture methamphetamine .
(2) Manufacture of methamphetamine is a Class B felony for
the first offense and a Class A felony for a second or
subsequent offense .
In Kotila v . Commonwealth ,8 we held that a person must possess all of the chemicals,
as opposed to any of the chemicals, or all of the equipment necessary to manufacture
methamphetamine in order to be properly convicted under KRS 218A.1432(1)(b) . 9
Thus, a trial court should direct a verdict in the defendant's favor if the Commonwealth
fails to show that the defendant possessed either all of the chemicals or all of the
equipment necessary to manufacture methamphetamine .
Appellant contends that the instant case is just the scenario contemplated by
Kotila . Because it is undisputed that Appellant did not possess all of the equipment
6 Id . at 187.
Kentucky Revised Statutes .
8 Ky ., 114 S .W . 3d 226 (2003).
9 _Id. at 240-41 ("KRS 218A.1432(1)(b) applies only when a defendant possesses
all of the chemicals or all of the equipment necessary to manufacture
methamphetamine.").
necessary to manufacture methamphetamine, he claims that he was entitled to a
directed verdict when the Commonwealth failed to present evidence that he
"possessed" anhydrous ammonia, a critical ingredient in the manufacture of
methamphetamine.
First, we note that Appellant did not preserve this issue for our review. Although
his lawyer moved for a directed verdict at both the conclusion of the Commonwealth's
case and at the conclusion of all of the evidence, he did not state any grounds for the
motion, much less specific grounds . At the conclusion of the Commonwealth's case, he
merely stated, "I make a motion for a directed verdict, Your Honor," and at the
conclusion of all of the evidence,' ° he simply stated, "For the record, we would renew
our motion for a directed verdict ." These utterances were not sufficient . CR11 50.01
requires that a directed verdict motion "state the specific grounds therefor(,J" 12 and
Kentucky appellate courts have steadfastly held that failure to do so will foreclose
10
Kimbrough v. Commonwealth , Ky., 550 S.W .2d 525, 529 (1977) ("In effect,
therefore, a motion for directed verdict made only at the close of one party's evidence
loses any significance once it is denied and the other party, by producing further
evidence, chooses not to stand on it.").
Kentucky Rules of Civil Procedure .
12
CR 51 .01 reads as follows :
A party who moves for a directed verdict at the close of the
evidence offered by an opponent may offer evidence in the
event that the motion is not granted, without having reserved
the right so to do and to the same extent as if the motion
had not been made . A motion for a directed verdict which is
not granted is not a waiver of trial by jury even though all
parties to the action have moved for directed verdicts . _A
motion for a directed verdict shall state the specific grounds
therefor . The order of the court granting a motion for a
directed verdict is effective without any assent of the jury.
(emphasis added) .
appellate review of the trial court's denial of the directed verdict motion . 13 Accordingly,
we find that the issue of whether the trial court erred in denying Appellant's directed
verdict motion was not properly preserved for our review.
But, even if we disregard the lack of preservation and review this claimed error
under RCr14 10 .26, 15 the evidence was sufficient for the jury to convict Appellant of
Manufacturing Methamphetamine because the dispositive question is whether the
evidence was sufficient to support a finding by the jury that Appellant possessed
anhydrous ammonia at the time of his arrest, and we find that it was.
13
Daniel v. Commonwealth , Ky., 905 S.W .2d 76, 79 (1995) ("After a review of
the record, this Court finds this issue is not properly preserved for appellate review.
The sole ground in seeking a directed verdict given by Appellant was that the
prosecution had asked leading questions . Pursuant to CR 50 .01 '[a] motion for directed
verdict shall state specific grounds therefor."'); Temple v. Helton , Ky .App ., 571 S .W.2d
647, 649 (1978) ("However, the motion for directed verdict was not accompanied by a
statement of the 'specific grounds therefor.' CR 50.01 . Failure to specify the grounds
for a directed verdict forecloses appellate review of the circuit court's denial of the
motion for directed verdict .") ; Hercules Powder Co . v. Hicks, Ky., 453 S .W.2d 583, 589
(1970) ("CR 50.01 provides in pertinent part: 'A motion for a directed verdict shall state
the specific grounds therefor .' Failure to specify the ground or grounds for a directed
verdict forecloses a party's right for appellate review of the court's denial of the motion
for directed verdict."); Gulf Oil Corp . v. Vance , Ky., 431 S .W.2d 864, 866 (1968) ("In the
record under consideration, there is nothing to show the insufficiency pointed out to the
trial court . . . . The necessity of maintaining an orderly administration of justice by
following such rules is justified despite the harsh results that may occasionally obtain .
The record does not show any grounds for either of the motions made ; therefore, there
is nothing to do but affirm the judgment.").
14
Kentucky Rules of Criminal Procedure .
15 RCr 10 .26 provides :
A palpable error which affects the substantial rights of a
party may be considered by the court on motion for a new
trial or by an appellate court on appeal, even though
insufficiently raised or preserved for review, and appropriate
relief may be granted upon a determination that manifest
injustice has resulted from the error.
The definition of "possession" under the Kentucky Penal Code '6 only applies to penal
code offenses," and KRS Chapter 218A does not define "possess" or any of its cognate
forms . Consequently, we employ the common meaning of "possess .' ,18 The AMERICAN
HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE
(4th ed .2000) defines "possess" as "[t]o have
as property ; own." In other words, if a person owns; he possesses . Here, Kathy Pate's
statements placed the tank's ownership in Appellant .
Additionally, we have held that "possession" for purposes of KRS Chapter 218A
includes both actual and constructive possession .' 9 "To prove constructive possession, the
Commonwealth must present evidence which establishes that the contraband was subject to
the defendant's dominion and control ." 2° Appellant secreted the tank in a box behind Alicia
Gregg's trailer ; its location apparently known only to Appellant, Kathy Pate, and Alicia Gregg .
Clearly this situation allowed Appellant to exercise a high degree of control over the tank. His
control of the tank did not need to be exclusive .2'
" KRS 500 .080(14) .
"
Beaty v. Commonwealth , Ky., 125 S.W .3d 196, 211 (2003) .
18
Kentucky Unemployment Ins . Co . v. Jones, Ky.App., 809 S.W.2d 715,
("When there is no specific statutory definition, words of a statute shall be
construed according to their common and approved usage ."); KRS 446 .080(4) .
716 (1991)
19
Houston v. Commonwealth , Ky., 975 S .W .2d 925, 927 (1998) "Kentucky
have continued to utilize the constructive possession concept to connect
courts
defendants to illegal drugs and contraband ."); Franklin v. Commonwealth , Ky., 490
S .W.2d 148, 150 (1972) ("Two or more persons may be in possession of the same drug
at the same time and this possession does not necessarily have to be actual physical
possession . It may be constructive as well as actual.").
2°
Burnett v. Commonwealth , Ky., 31 S.W.3d 878, 881 (2000) (citing Harg rave v.
Commonwealth , Ky., 724 S .W .2d 202, 203 (1986),cert . denied, 484 U.S . 821, 108 S .Ct.
81, 98 L. Ed .2d 43 (1987)).
21
Franklin , 490 S .W.2d at 150 ("[T]he general rule relating to the possession of
dangerous drugs is that the possession need not be exclusive . Two or more persons
may be in possession of the same drug at the same time and this possession does not
-7-
We find no merit in Appellant's assertions regarding his wife's credibility. Issues
of credibility are solely within the purview of the finder of fact and a reviewing court will
not substitute its judgment for the jury's on such matters . The evidence presented by
the Commonwealth included (1) testimony by Deputy Peoples that he had received
information that Appellant, Kathy Pate, and Alicia Gregg had placed a tank of
anhydrous ammonia behind Alicia Gregg's residence ; (2) Appellant was with Alicia
Gregg when he was stopped ; and (3) he was on the road to Alicia Gregg's residence in
a vehicle which contained all of the necessary ingredients, except for anhydrous
ammonia, with which to manufacture methamphetamine . The anhydrous ammonia was
at Alicia Gregg's trailer; presumably Appellant's destination at the time of his arrest.
In Varble v. Commonwealth , we held that where a defendant was found in
possession of all of the other chemicals necessary to manufacture methamphetamine
and there was sufficient evidence to base a belief that the defendant had possessed
anhydrous ammonia at the same time, then it was for the jury to decide whether he
possessed those same chemicals at the same time that he possessed the anhydrous
ammonia . We stated : "The requirement is that the chemicals or equipment be
possessed simultaneously, not that they be possessed at the time of the arrest. ,23 In
the present case, the jury could have reasonably concluded that Appellant possessed
the tank of anhydrous ammonia at the same time that he possessed the other
methamphetamine precursors found during the search of his vehicle, and therefore, it
necessarily have to be actual physical possession . It may be constructive as well as
actual .").
22
Ky ., 125 S .W .3d 246 (2004) .
23
Id . at 254.
was reasonable for the jury to conclude that Appellant possessed all of the chemicals
necessary to manufacture methamphetamine .
Appellant also claims that there was insufficient evidence to find that he had
"intent" to manufacture methamphetamine as required under KRS 218A.1432(1)(b) .
We disagree ; "[t]he jury is allowed reasonable latitude in which to infer intent from the
facts and circumstances surrounding the crime.
,24
Here, because Appellant possessed
such large quantities of the methamphetamine precursors and maps were found in
Appellant's vehicle listing all locations of Wal-Marts and Dollar General Stores within a
fifty-mile radius, such an inference was clearly permissible . We therefore hold that it
was reasonable for the jury to find that Appellant had the requisite intent to manufacture
methamphetamine .
B . Spousal Testimony Privilege
Next, Appellant contends that the trial court erred in failing to permit Kathy Pate
to assert her spousal testimony privilege - also referred to as "adverse testimony
privilege ,25 - under KRE26 504(a) and refuse to testify against him . Appellant admits
that this claimed error is not preserved. Regardless, whether or not the trial court
erroneously refused to allow Kathy Pate to assert her privilege is immaterial ; it was her
privilege that she was attempting to assert, not his. Appellant had every opportunity to
assert his own adverse testimony privilege under KRE 504(a) in order to prevent his
wife from testifying against him. Appellant made no effort to do so ; thus, Appellant's
failure to assert his own privilege precludes review of this issue .
24
Simpson v. Commonwealth, Ky., 759 S.W .2d 224, 226 (1988)
25
ROBERT B . LAWSON, THE KENTUCKY EVIDENCE LAW HANDBOOK § 5 .10[2],
(4t' ed . 2003) .
26
Kentucky Rules of Evidence .
at 365
In essence, Appellant contends that the trial court's denial of Kathy Pate's
spousal testimony privilege was somehow a violation of his rights . We fail to see how
Appellant has standing to assert his wife's privilege, and Appellant does not offer any
authority in support for this proposition . In addition, we agree with the Commonwealth's
contention that Appellant's failure to assert his adverse testimony privilege to preclude
Kathy Pate from testifying could very well have been a trial strategy . Kathy Pate did not
testify voluntarily, and the prosecutor was granted permission to treat her as a hostile
witness . Based on Kathy Pate's reluctance to testify against him, it is certainly possible
that Appellant assumed that her testimony overall might be beneficial to his case .
Finally, we would note that there is no privilege under KRE 504 when "[i]n any
criminal proceeding . . . sufficient evidence is introduced to support a finding that the
spouses conspired or acted jointly in the commission of the crime charged ."2' By Kathy
Pate's own admission, she accompanied Appellant on his trip to acquire the anhydrous
ammonia . Thus, it is doubtful if Kathy Pate was entitled to assert the spousal privilege,
or if Appellant, himself, could assert the privilege and prevent her from testifying against
him .
We find no merit in this claim of error.
C . Newly-Discovered Evidence
Appellant next claims that the trial court erred in denying his Motion for New Trial
based on newly discovered evidence regarding the competency of Kathy Pate.
Appellant brought the motion pursuant to RCr 10 .02(1) and 10 .06(1), which permits a
new trial on the basis of newly discovered evidence . Initially, we observe that
Appellant's Motion for a New Trial was filed on January 6, 2003, which was more than
27
KRE 504(c)(1) .
-10-
three months after the jury's verdict on September 30, 2002 . Accordingly, Appellant's
appeal from the judgment of conviction is an improper vehicle to assert error in the trial
court's ruling upon his new trial motion ,28 and we thus will not address the merits of that
allegation . However, because Appellant also asserts that the introduction of his wife's
testimony constituted palpable error justifying relief notwithstanding his failure to make
a contemporaneous objection, we will briefly address that claim . Appellant asserts on
appeal that he had discovered after his trial that his wife was incompetent based upon
documents provided by her; however, these documents do not appear in the record
before this court . Apparently, these documents demonstrate that Pate was diagnosed
with bipolar affective disorder and borderline personality disorder . In its denial of
Appellant's new trial motion, the trial court held that Kathy Pate's competency was not
contested at trial and that challenging her competency after the trial was not sufficient
to fall within the purview of the "new evidence" exception . In addition, given that the
witness in question was Appellant's own wife, we doubt that evidence relating to her
mental condition would constitute "newly discovered" evidence, and we again observe
that the failure to object to his wife's testimony may have been trial strategy.
28
RCr 12 .02(3) :
The time within which an appeal may be taken shall be
thirty (30) days after the date of entry of the judgment or
order from which it is taken, subject to Rule 12 .06, but if a
timely motion has been made for a new trial an appeal from
a iudgment of conviction may be taken within thirty (30) days
after the date of entry of the order denying the motion;
providing, however, that in the case of a motion for new trial
made later than five (5) days after return of the verdict, the
appeal_must be from the order overruling or denying the
motion , and the review on appeal shall be limited to the
grounds timely raised by the motion as provided by Rule
10 .06 .
(Emphasis added) .
In any
event, however, as the purported "new evidence" has not been placed in the record
before us, we defer to the determination of the trial court, and we perceive no palpable
error justifying relief under RCr 10.26 .
D. Suppression of Evidence
Finally, Appellant contends that the trial court committed reversible error in failing
to grant Appellant's Motion to Suppress evidence obtained as a result of the
warrantless search of his vehicle . Appellant claims (1) that the stop was not justified by
a reasonable articulable suspicion or probable cause, and thus, the ensuing warrantless
and consentless search was improper ; (2) that his arrest was not justified by probable
cause and therefore, the search of his vehicle was not incident to a lawful arrest; and
(3) that the evidence from the search should have been suppressed as fruit of the
poisonous tree.
The Commonwealth contends that the trial court properly denied Appellant's
Motion to Suppress because Deputy People's stop was based on a reasonable
articulable suspicion, probable cause existed for Appellant's arrest, and the search was,
therefore, proper. The Commonwealth maintains that the Officer reasonably suspected
that Appellant had been involved in the manufacture of methamphetamine based on
the tank of anhydrous ammonia he had just discovered on the property which Appellant
was approaching . Further, the officer had information that Appellant was in possession
of a weapon, and he merely took necessary precautions in order to ensure his own
safety . Once Appellant was stopped and arrested, the Commonwealth asserts that the
search was incident to a lawful arrest and the fruits of that search were properly
presented to the jury.
The trial court found that the connection between Appellant and the anhydrous
ammonia tank, as well as his presence in the vicinity of the tank and in the identified
vehicle, was enough to provide Deputy Peoples with probable cause to stop Appellant's
vehicle . We agree with the trial court. At the very least, this information was sufficient
to warrant a "Terry ,29 stop based on a reasonable suspicion that Appellant was involved
in criminal activity . In Terry v. Ohio ,30 the Supreme Court established the articulable
reasonable suspicion standard, which requires less proof than the probable cause
standard . In Debery v. Commonwealth ,3' this Court stated that "officers are permitted
to make brief stops or seizures of persons for purposes of investigation when the
circumstances are such that the action appears reasonable . . . . In such cases no
probable cause need exist at the time for believing the person stopped had actually
committed a crime .,,32 Whether an officer had adequate "reasonable suspicion," to
engage an individual in a Terry stop is determined on appeal under a de novo standard
of review. 33 Deputy Peoples had been informed by a reliable source that Appellant was
engaged in criminal activity and would be carrying a weapon . Deputy Peoples had
independently confirmed the presence of the anhydrous ammonia at the Gregg
residence that Kathy Pate had linked to Appellant . Appellant was approaching the
Gregg residence . So, Deputy Peoples had a reasonable articulable suspicion that
Appellant was engaged in criminal activity, and in order to ensure his own safety, he
29 Terry v . Ohio, 392 U .S. 1, 88 S .Ct. 1868, 20 L.Ed .2d 889 (1968).
30
Id .
3' Ky., 500 S.W .2d 64, 66 (1973) .
32
Id .
33
Commonwealth v. Banks, Ky., 68 S.W.3d 347, 349 (2001) .
-13-
reasonably believed that it was necessary to order Appellant out of the car and onto the
ground . After Appellant got out of the car and left the driver's side door open, Deputy
Peoples approached the car, and the methamphetamine precursors in the vehicle came
into plain view. In the context of the information that Kathy Pate had provided to Officer
Peoples regarding the anhydrous ammonia, his discovery of the anhydrous ammonia
tank on the Gregg property, and the fact that Appellant was approaching the Gregg
property with Alicia Gregg in a car filled with methamphetamine precursors, we find that
under the totality of the circumstances, Deputy Peoples had probable cause to believe
that Appellant was manufacturing methamphetamine and, thus, probable cause to
arrest him. Although not argued by the Commonwealth, we would add that Kathy
Pate's statement that Appellant possessed anhydrous ammonia, together with Deputy
Peoples' knowledge that the anhydrous ammonia was in an unapproved container, was
sufficient to establish probable cause that Appellant committed a felony and therefore
justified Appellant's arrest by Deputy Peoples and the incidental search of Appellant's
vehicle.34 Accordingly, the search was incident to a lawful arrest and the trial court
properly denied Appellant's motion to suppress .
IV . CONCLUSION
For the foregoing reasons, we affirm the judgment of the Pendleton Circuit Court .
All concur.
34
KRS 250 .489 ; KRS 250.991 ("Any person who knowingly possesses
anhydrous ammonia in a container other than an approved container in violation of KRS
250 .489 is guilty of a Class D felony . . . .") .
- 1 4-
COUNSEL FOR APPELLANT :
Amy Michelle Daniel
2643 Erlanger Cresent Springs
Erlanger, Kentucky 41017
COUNSEL FOR APPELLEE :
Gregory D . Stumbo
Attorney General
Carlton S. Shier
Assistant Attorney General
Office of the Attorney General
1024 Capital Center Drive
Frankfort, Kentucky 40601
,$ixyrrMP C~Vurf of Rtufurhv
2002-SC-0890-MR
LAWRENCE ELMER PATE
V.
APPELLANT
APPEAL FROM PENDLETON CIRCUIT COURT
HONORABLE ROBERT MCGINNIS, JUDGE
2002-CR-0028
COMMONWEALTH OF KENTUCKY
APPELLEE
ORDER
On the Court's own motion, the Opinion of the Court by Justice Keller rendered
May 20, 2004 shall be modified on page 10, line 21, by changing the words "RCr
10.07(1)" to "RCr 10.02(1) and 10 .06(1)" . Due to pagination, pages 10 and 11 shall be
substituted, as attached hereto, in lieu of pages 10 and 11 of the Opinion as originally
rendered . Said modification does not affect the holding.
Entered : July 23, 2004.
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