County of Monroe v. Christian Wayne Kling

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
December 30, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2022AP339 Cir. Ct. No. 2021TR2416

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

COUNTY OF MONROE,

PLAINTIFF-RESPONDENT,

V.

CHRISTIAN WAYNE KLING,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Monroe County:
TODD L. ZIEGLER, Judge. Affirmed.

¶1 GRAHAM, J.1 Christian Kling, pro se, appeals the circuit court’s
entry of a civil forfeiture judgment, following a bench trial, finding Kling guilty of

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(g) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2022AP339

failing to notify law enforcement of a single-vehicle accident in violation of WIS.
STAT. § 346.70(1). Under that statute, if the operator of a motor vehicle is
involved in an accident resulting in total damage to property owned by any one
person to an apparent extent of $1,000 or more, the operator must immediately
notify law enforcement of the accident by the quickest means of communication.
See § 346.70(1). Kling challenges the sufficiency of the evidence used to prove
that his vehicle was damaged to an apparent extent of $1,000 or more. I reject
Kling’s arguments and affirm.

BACKGROUND

¶2 The following summary of facts is derived from the evidence
introduced at the bench trial and the circuit court’s findings of fact.

¶3 Around 3:00 p.m. on April 7, 2021, Kling was travelling home from
work in his 2005 Mustang when he veered to the side of the road, hit a mailbox,
overcorrected his steering, and drove into a ditch. Kling’s vehicle sustained
damage, the extent of which was disputed at trial. Kling was unable to drive his
vehicle out of the ditch, presumably because the tires on the passenger side had
popped off their rims and possibly because the vehicle was grounded out in the
mud and dirt.

¶4 Kling emerged from his vehicle unharmed. Bystanders gathered on
the side of the road to render assistance, including a volunteer firefighter and
emergency medical technician named Donald Brown. Kling asked Brown for a
ride, and Brown refused. Brown asked Kling whether he had called law
enforcement, and Kling said he had not. Brown left the scene to call in the
accident, and when he returned, he saw Kling being driven away as a passenger in
another vehicle. Brown believed that Kling was violating the law by leaving the

2
No. 2022AP339

scene of the accident, and he attempted to chase down the departing vehicle to
obtain its license plate.

¶5 Twelve minutes after Brown’s call to law enforcement, Deputy
Matthew Hoskins arrived at the scene. When Hoskins arrived, Kling and the other
bystanders were gone. Hoskins observed the damage to Kling’s vehicle and to the
mailbox of a nearby property owner. Hoskins knocked on the property owner’s
door to inform her of the damage to her mailbox, and he called for a tow truck to
remove Kling’s vehicle.

¶6 Meanwhile, Kling arrived at his residence. Upon arrival, he charged
his cell phone, called for a tow truck, and called law enforcement. Kling was
transferred to Deputy Hoskins, who was still at the scene. Kling’s call to law
enforcement occurred approximately 34 minutes after Brown’s initial call.

¶7 Robert Larkin, the tow truck driver that Kling called, arrived at the
scene of the accident shortly thereafter. Larkin towed Kling’s vehicle to his shop.
Shop employees reattached the tires to the rims, inflated them, and checked for
any oil leaks, but they did not assess or estimate the cost of any needed bodywork.
The vehicle remained at Larkin’s shop for two days, after which Kling and his
girlfriend picked it up and drove it home.

¶8 Following the accident, law enforcement issued Kling a traffic
citation for failing to report an accident in violation of WIS. STAT. § 346.70(1).2

2
Law enforcement also issued Kling a citation for failure to keep his vehicle under
control in violation of WIS. STAT. § 346.57(2). The circuit court dismissed that citation because it
determined that the County did not meet its burden of proof. That determination is not a subject
of this appeal, and I discuss it no further.

3
No. 2022AP339

Kling challenged the citation and the case proceeded to a bench trial held over
Zoom, during which Kling represented himself.

¶9 To establish a violation of WIS. STAT. § 346.70, the County was
required to prove that: (1) Kling was the operator or occupant of a vehicle
involved in an accident; (2) the accident resulted in total damage to property
owned by any one person to an apparent extent of $1,000 or more; and (3) Kling
failed to immediately give notice of the accident to law enforcement by the
quickest means of communication. See City of Rhinelander v. Wakely,
No. 2015AP302, unpublished slip op. ¶¶7 & n.5, 8, (WI App Mar. 8, 2016)
(noting three elements).3

¶10 Kling’s defense centered on the second element—he argued that he
was not required to report the accident because it was not apparent to him that his
vehicle had sustained at least $1,000 of damage.4 I now summarize the relevant
trial testimony and exhibits, focusing on any evidence relating to the apparent
extent of the damage to Kling’s vehicle.

¶11 Brown was the County’s first witness, and his testimony focused on
his actions on the day of the accident. Brown acknowledged that he never told
Kling to stay at the scene of the accident or to report it, but Brown testified that it
is “common sense to not leave the scene of the accident.” Brown provided no
testimony about the nature or extent of the damage to Kling’s vehicle.

3
I cite this authored, unpublished, one-judge opinion for its persuasive value pursuant to
WIS. STAT. RULE 809.23(3)(b).
4
Kling also challenged the third element—that is, that he failed to immediately give
notice of the accident to law enforcement by the quickest means of communication. Kling does
not renew his challenge to this element on appeal, and I address it no further.

4
No. 2022AP339

¶12 The County also called the owner of the damaged mailbox to testify.
She testified that, the day after the accident, Kling arrived at her home to replace it
with a mailbox of her choice. It is undisputed that the cost of replacing the
mailbox did not exceed $1,000. The owner of the mailbox provided no testimony
regarding the nature or extent of the damage to Kling’s vehicle.

¶13 Deputy Hoskins was the sole witness for the County to provide any
evidence about the nature and extent of the damage to Kling’s vehicle. Hoskins
testified that he had worked in law enforcement for 25 years, and that he had been
a deputy with the sheriff’s department for the past seven. Hoskins testified that,
over his career, he had responded to thousands of accidents and had written
thousands of accident reports.5

¶14 During Hoskins’ testimony, the County played portions of the
footage from his body camera, which showed Kling’s vehicle positioned in the
ditch. Overall, the vehicle appeared largely intact, with no fluids visibly leaking.
The driver’s side of the vehicle looked to have sustained no visible damage. On
the passenger side, both tires were deflated, and the side panel appeared to have
sustained some damage. The footage does not show any visible damage to Kling’s
bumper; however, it shows Hoskins retrieving a piece of dislodged bumper trim
that was lying on the ground.

5
Hoskins also testified that he had training and expertise in investigating accidents, and
that he had attended accident reconstruction school. Although such expertise may have been
relevant to Hoskins’ testimony about the cause of the accident, I do not see any obvious link
between the expertise Hoskins had in accident reconstruction and his opinion on the cost of
repairs for the vehicle damage he observed.

5
No. 2022AP339

¶15 As far as the damage to Kling’s vehicle, Hoskins testified that it was
inoperable and had sustained the following damage: “you have both the tires [on
the passenger side] peeled off [their rims], [and] you have damage all along the
passenger side, you have a lot of front end damage and the vehicle’s leaking.”
Hoskins testified that, based on the damage he observed, “that’s way over the
threshold of $1,000.” The only specific cost estimate Hoskins provided was for
replacing the bumper—he testified that, based on his personal and professional
experience, “you can just about estimate, you know, any vehicle bumper …
replacement is going to be approximately $1,000 plus, give or take.”

¶16 Kling called the tow truck driver, Larkin, as his first witness. Larkin
testified that he did not observe any leakage when he towed Kling’s vehicle on the
date of the accident, and that, had the vehicle been leaking fluids, the fluids would
have been noticeable on the bed of his tow truck. Larkin opined that the vehicle
was “drivable other than a flat tire.” Larkin guessed that his shop charged Kling
“a couple hundred dollars, between towing and putting the tire back on the rim and
checking it over.” Consistent with Larkin’s testimony, Kling introduced a receipt
showing that the shop checked for leakage and found none, and indicating that the
total cost of towing the vehicle and repairing the tires was $200.45. Larkin did not
recall whether the vehicle had sustained body damage, and he acknowledged that
his shop does not do body repairs and that it did not and could not estimate the
cost of any body damage to Kling’s vehicle.

¶17 Kling’s girlfriend testified that she observed the vehicle at Larkin’s
shop following the accident. As far as the damage she observed, she testified that
“the tires were off and the side panel was off, and the front bumper.” She testified
that she checked for leaks at the shop and did not observe any. She also saw Kling

6
No. 2022AP339

check the vehicle’s fluid levels and confirm that the levels were full following the
accident.

¶18 Kling then presented his own testimony. He testified that he did not
believe that his vehicle had sustained at least $1,000 of damage and did not
believe that he had to report the accident to law enforcement. According to Kling,
the reason he ultimately chose to call law enforcement was to “let them know that
[his vehicle] was there, [that he was] okay, and that [he would] retrieve [his]
vehicle.”

¶19 As far as the damage to his vehicle, Kling testified that his vehicle
was not leaking following the accident. Kling observed that both passenger side
tires were “knocked off the rims,” and he observed a big hole in the bumper where
the bottom trim popped off the bumper. Kling believed the only “major” damage
he sustained was to his bumper. Kling acknowledged an issue with the “side
piece,” but he testified that, with the use of some “body tabs,” the panel would
“just pop[] back into place.”

¶20 As far as the cost of repairing his vehicle, Kling testified that he
knew he was “out 450 bucks, maybe 500 bucks” for the bumper because he had
“repaired that same bumper” in 2017. He testified that, for the 2017 repair, he had
purchased the part for $80 on eBay, and that he paid a body shop $480 to install
and paint it. Kling presented receipts corroborating those charges. He
acknowledged that prices have increased since 2017, and presented evidence
showing that, at the time of the trial, he could purchase a comparable bumper part
on eBay for $146.91. Kling provided no estimate for the cost of repairing the side
panel. He acknowledged that he had not had any of that bodywork repaired by the

7
No. 2022AP339

time of trial, but he testified that, in his opinion, the total cost of repairing the
damage to his vehicle would be approximately $500-$600.

¶21 At the close of evidence, the circuit court issued an oral ruling in
which it determined that the County had proven by clear and satisfactory evidence
that Kling was guilty of failing to report an accident under WIS. STAT. § 346.70(1).

¶22 In explaining this decision, the court indicated that “the issue for me
is really whether or not it was apparent that there was $1,000 or more of damage.”
The court determined that it could not find that “there was or wasn’t a leak.”
Hoskins’ testimony that there had been a leak was “a good guess,” and based on
the position of the vehicle, “there very well could have been leaks.” However, the
court stated that it was not sure that “anyone,” including Kling or presumably
Hoskins, “could assess at [the scene of the accident] whether there [were] or
[weren’t] any leaks.” The court did not make any express findings regarding the
cost of repairing any specific part of the vehicle that had been damaged. Instead,
it found that Hoskins “was confident [the total damage] was much more than
$1,000” based on his experience with responding to accidents over the years and
“maybe even car repairs of his own,” and the court appeared to credit Hoskins’
testimony.

¶23 Ultimately, the court stated that it was satisfied that the County “met
its burden that the apparent damage to the vehicle, when you add in the mailbox as
well, and even without the mailbox, exceeds $1,000.”

DISCUSSION

¶24 On appeal, Kling asserts that the evidence presented at trial was
insufficient to meet the County’s burden to prove that he violated WIS. STAT.

8
No. 2022AP339

§ 346.70(1). More specifically, he argues that the County failed to prove that the
total damage from the accident to any one person’s property was to an apparent
extent of $1,000 or more.

¶25 Kling’s sufficiency of the evidence argument turns on the proper
interpretation and application of WIS. STAT. § 346.70(1). State v. Schutte, 2006
WI App 135, ¶15, 295 Wis. 2d 256, 720 N.W.2d 469. I therefore begin by
interpreting the text of § 346.70(1) to identify what the County was required to
prove at trial. I then apply that legal standard to the trial evidence to determine
whether it was sufficient to sustain the judgment.

¶26 “[S]tatutory interpretation begins with the language of the statute.”
State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d
633, 681 N.W.2d 110 (internal quotation marks and quoted source omitted).
“Statutory language is given its common, ordinary, and accepted meaning,” id.,
and must be “interpreted in the context in which it is used, not in isolation but as
part of a whole; in relation to the language of surrounding or closely-related
statutes; and reasonably, to avoid absurd or unreasonable results.” Id., ¶46. The
interpretation and application of a statute to undisputed facts is a question of law,
which I review independently of any determination made by the circuit court.
State v. Grandberry, 2018 WI 29, ¶11, 380 Wis. 2d 541, 910 N.W.2d 214.

¶27 As mentioned above, WIS. STAT. § 346.70(1) applies to accidents
resulting in “total damage to property owned by any one person … to an apparent
extent of $1,000 or more.” The statute further defines “total damage to property
owned by any one person” to mean “the sum total cost of putting the property
damaged in the condition it was before the accident, if repair thereof is

9
No. 2022AP339

practical[.]” Id. I discern the following principles based on this statutory
language.

¶28 First, the apparent purpose of this portion of the statute is to provide
a bright-line rule establishing when accidents that cause property damage but no
injury must be reported, and to relieve owners and operators of the obligation to
report accidents that result in property damage that is relatively minor.6

¶29 Second, an accident like Kling’s must be reported only if the total
damage to any one person’s property appears to equal or exceed $1,000. WIS.
STAT. § 346.70(1). That is, the operator of a vehicle who causes $900 in apparent
damage to their vehicle and $200 in apparent damage to a different person’s

6
WISCONSIN STAT. § 346.70(1) also contains provisions that apply if any person is
injured or killed in the accident, or if government-owned property is damaged in the accident.
Section 346.70(1) provides in full:

The operator or occupant of a vehicle involved in an accident resulting in injury
to or death of any person, any damage to state or other government-owned
property, except a state or other government-owned vehicle, to an apparent extent
of $200 or more, or total damage to property owned by any one person or to a
state or other government-owned vehicle to an apparent extent of $1,000 or more
shall immediately by the quickest means of communication give notice of such
accident to the police department, the sheriff's department or the traffic
department of the county or municipality in which the accident occurred or to a
state traffic patrol officer. In this subsection, “injury” means injury to a person of
a physical nature resulting in death or the need of first aid or attention by a
physician or surgeon, whether or not first aid or medical or surgical treatment
was actually received; “total damage to property owned by one person” means
the sum total cost of putting the property damaged in the condition it was before
the accident, if repair thereof is practical, and if not practical, the sum total cost
of replacing such property. For purposes of this subsection if any property which
is damaged is held in a form of joint or multiple ownership, the property shall be
considered to be owned by one person.

In this case, it is undisputed that no one was injured in the accident, and that the accident
did not involve state or other government-owned property. I therefore discuss those provisions of
WIS. STAT. § 346.70(1) no further.

10
No. 2022AP339

mailbox is not required to report the accident because the damage to any one
person’s property is not to an apparent extent of $1,000 or more.

¶30 Third, based on WIS. STAT. § 346.70(1)’s definition of “total damage
to property,” the apparent extent of the damage from an accident is calculated as
the cost of repairing the damaged property to the condition it was in before the
accident, but not better. That is, if a vehicle was damaged before the accident, the
apparent extent of damage to the vehicle would be the cost of restoring it to its
imperfect pre-accident condition. And, if the vehicle was equipped with after-
market parts, the apparent extent of damage to the vehicle would be the cost of
replacing the after-market parts with similar after-market parts.

¶31 With these principles in mind, I consider the undefined term
“apparent.” The meaning of this term is important because the proper application
of the statute turns on the “apparent extent” of total property damage. And the
parties’ arguments raise additional questions about the point in time at which the
damage must be apparent, and to whom it must be apparent.

¶32 The common thread of multiple dictionary definitions is that
“apparent” means a condition that is visible to the eyes and easily seen, but

11
No. 2022AP339

possibly unconfirmed.7 From these definitions, I conclude that, as used in WIS.
STAT. § 346.70(1), the term apparent refers to damage that is visible and obvious,
whether or not that damage is borne out by later inspection and testing.
Conversely, any speculative or latent damage is not apparent under § 346.70(1).
Likewise, any damage that would require specialized training or expertise to
identify is not apparent.

¶33 As for the point in time at which damage must be apparent, I
conclude that, consistent with the purpose of the statute and the common meaning
of apparent, the “apparent extent” of the damage must be measured at the time of
the accident. Although a fact finder may consider after-the-fact estimates of repair
costs when assessing the apparent extent of the damage at the time of the accident,
such estimates are not dispositive. Accordingly, an operator would violate the
statute by failing to report an accident that, at the time of the accident, appeared to
have caused more than $1,000 of damage, even if it actually required only $900 to
repair. Likewise, an operator would not violate the statute by failing to report an
accident that actually resulted in $1,100 in repair costs for a given vehicle,

7
For example, The Oxford English Dictionary defines “apparent” as “meeting the eyes,
showing itself; open to sight, visible, plainly seen.” Apparent, THE OXFORD ENGLISH
DICTIONARY 598 (2d. ed. 1989). Black’s Law Dictionary defines “apparent” as “that which is
obvious, evident, or manifest,” “open to view,” “plain,” and “patent.” Apparent, BLACK’S LAW
DICTIONARY (6th ed. 1990). Webster’s New College Dictionary defines “apparent” as “easily
seen: visible”; “easily understood: obvious”; “appearing as such but not necessarily so.”
Apparent, WEBSTER’S NEW COLLEGE DICTIONARY (2d ed. 1998) Cambridge Dictionary defines
“apparent” as “seeming to exist or be true.” Apparent, https://dictionary.cambridge.org/
us/dictionary/english/apparent (last visited Dec. 12, 2022). And, Webster’s Third New
International Dictionary, defines “apparent” as “readily manifest to the senses or mind as real or
true and supported by credible evidence of genuine existence but possibly distinct from or
contrary to reality or truth.” Apparent, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY
(3d ed. 1993).

12
No. 2022AP339

provided that the apparent extent of the damage at the time of the accident was
less than $1,000.

¶34 Finally, I consider to whom the extent of damage must be apparent.
Kling suggests that the extent of the damage must be apparent to the operator of
the vehicle, but I disagree. On its face, WIS. STAT. § 346.70(1) appears to be a
strict liability statute that does not require proof of the operator’s subjective
knowledge or intent.8 Instead, the term “apparent extent” incorporates an
objective reasonable person standard. Accordingly, I conclude that the extent of
the total damage must be apparent to a reasonable person of ordinary intelligence
and experience who is aware of information known to the operator and facts that
are visible and obvious at the scene of the accident. Any subjective assessment of
the extent of the damage by the operator of the vehicle—or by any other witness
on the scene, for that matter—may be relevant evidence, but it is not dispositive.

¶35 In sum, considering all of the language of WIS. STAT. § 346.70(1), I
conclude that an operator of a vehicle must report an accident when it would be
obvious to a reasonable person in the operator’s position, at the time of the
accident, that the total cost of repairing the visible damage to any one person’s

8
“There are several factors a court may look to when deciding whether the legislature
meant to impose strict liability, including: (1) the language of the statute; (2) legislative history;
(3) related statutes; (4) law enforcement practicality; (5) protection of the public from harm; and
(6) severity of punishment.” State v. Luedtke, 2014 WI App 79, ¶8, 355 Wis. 2d 436, 851
N.W.2d 837. And here, those factors weigh in favor of reading WIS. STAT. § 346.70(1) as a strict
liability statute: § 346.70(1) nowhere mentions an operator’s knowledge or intent; the penalty
imposed for violations of § 346.70(1) is a civil forfeiture of “not less than $200 nor more than
$500 for the first offense,” see WIS. STAT. § 346.74(2g); like many traffic regulations, its purpose
is public-safety oriented; and, enforcement would be impracticable if prior to writing a ticket, an
officer was required to ascertain a particular operator’s familiarity with vehicle repairs in order to
determine whether it was “apparent” to a particular operator that the extent of the damage
exceeded $1,000. See id. Thus, an operator may violate the statute even though it was not
apparent to the operator that the extent of the damage would cost $1,000 to repair or replace.

13
No. 2022AP339

property to as good of a condition as before the accident equals or exceeds $1,000.
Although the parties do not specifically discuss whether the apparent extent of
damage is a question of law or fact, I conclude that it is a question of fact. See,
e.g., Keithley v. Keithley, 95 Wis. 2d 136, 138, 289 N.W.2d 368 (Ct. App. 1980)
(providing that, in a different context, the amount of damages is considered to be a
question of fact).

¶36 Applying this legal standard, I now assess whether the evidence was
sufficient to sustain the circuit court’s finding that the apparent extent of the
damage to Kling’s vehicle exceeded $1,000.9 In this case, the circuit court made
its finding following a bench trial. Under such circumstances, the court’s
“[f]indings of fact shall not be set aside unless clearly erroneous, and due regard
shall be given to the opportunity of the trial judge to judge the credibility of
witnesses.” WIS. STAT. § 805.17(2).

¶37 On appeal, Kling takes the position that the trial evidence was
insufficient and the judgment against him should be reversed because it was
“apparent to [him]” that the cost to repair the damage to his vehicle was less than
$1000. According to Kling, he demonstrated that his assessment was reasonable
by providing documentary proof that the total cost to repair his vehicle would be
only $760.45. This total is comprised of $80 to purchase a bumper on eBay, $480
to install and paint it, and $200.45 for the tow and tire work. There are several
problems with Kling’s argument.

9
The circuit court initially appeared to include the damage to the mailbox in its
assessment of the apparent extent of total damage. However, the court immediately corrected
itself, clarifying that, “even without the mailbox,” the apparent extent of the damage to Kling’s
vehicle “exceeds $1,000.”

14
No. 2022AP339

¶38 First, as discussed above, the question is not whether it was apparent
to Kling that the damage exceeded $1,000. And, after-the-fact estimates and bills
are not dispositive. The pertinent question is whether it would have been apparent
that the visible damage was at least $1,000 to a reasonable person of ordinary
intelligence and experience who is aware of the facts known to the operator at the
scene of the accident.

¶39 Second, the circuit court was not required to credit Kling’s testimony
and evidence about his repair costs. That is particularly true here, where his
estimate of the bumper work was based on data points that were several years old,
and his total cost assessment did not account for the full extent of the damage
testified to by other witnesses. Specifically, Deputy Hoskins testified that there
was “damage all along the passenger side,” and Kling and his girlfriend both
acknowledged an issue with the side panel during the trial.10 Accordingly, the
circuit court did not err when it discredited Kling’s estimate of the apparent extent
of the total damage to his vehicle.

¶40 Having addressed Kling’s arguments to the contrary, I conclude that
the evidence was sufficient for the circuit court to conclude that there was clear
and convincing evidence that the apparent extent of the damage was at least
$1,000. Specifically, the court could have credited Hoskins’ testimony that the
visible damage was “way over … $1,000,” and that, in his experience, the cost of
replacing a bumper alone is “going to be approximately $1,000 plus, give or take.”
Kling does not address this testimony from Hoskins on appeal and, apart from the

10
Although Kling now informs me in his appellate brief that he was able to reaffix the
side panel using panel tabs he purchased for $10, he did not present that testimony during the
trial, and it is not part of my assessment of the sufficiency of the evidence on appeal.

15
No. 2022AP339

arguments I have already rejected, Kling does not provide any argument that the
circuit court erred in crediting Hoskins’ testimony. Generally speaking, it is up to
the circuit court to assess the credibility of witnesses, and appellate courts do not
second guess such assessments on appeal. See Welytok v. Ziolkowski, 2008 WI
App 67, ¶28, 312 Wis. 2d 435, 752 N.W.2d 359 (“When there is conflicting
testimony, the circuit court is the ultimate arbiter of the witnesses’ credibility.”).
Kling does not demonstrate that the court’s finding of fact, which was based on
Hoskins’ testimony, was clearly erroneous.

For all of these reasons, I reject Kling’s arguments and affirm the judgment.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.

16