v. Oliver

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
October 29, 2020

2020COA150

No. 17CA1127, People v. Oliver — Constitutional Law — Fourth
Amendment — Searches and Seizures — Investigatory Stops

A division of the court of appeals concludes that, when

detaining an individual fleeing from the scene of a shooting, the

officer’s handcuffing of the individual and placing him in the back

of the patrol car were appropriate measures taken for officer safety

and thus did not convert the contact from a valid investigatory

detention into an arrest. However, the division further concludes,

for the first time, that the continued use of such restraints after the

officer safety concerns were dispelled was improper, and the stop

became an arrest that was not supported by probable cause.

Because the evidence obtained after the arrest should have been

suppressed, and the failure to do so was not harmless beyond a

reasonable doubt, the division reverses the defendant’s convictions
for first degree murder and first degree assault. However, the

division rejects the defendant’s contention that there was

insufficient evidence of intent and deliberation and thus remands

for a new trial on the original charges.
COLORADO COURT OF APPEALS 2020COA150

Court of Appeals No. 17CA1127
City and County of Denver District Court No. 15CR5059
Honorable Kandace C. Gerdes, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jesse L. Oliver,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division VII
Opinion by JUDGE TOW
Navarro and Lipinsky, JJ., concur

Announced October 29, 2020

Philip J. Weiser, Attorney General, Katharine Gillespie, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Stephen Arvin, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Jesse L. Oliver, appeals his judgment of conviction

entered on jury verdicts finding him guilty of first degree murder

and first degree assault. We conclude that the investigatory stop of

Oliver became an arrest when officers failed to remove his

handcuffs after officer safety concerns were dispelled and the

officers ascertained Oliver’s identity. Because the officers did not

have probable cause at that time, the arrest was unconstitutional.

Further, because we cannot conclude beyond a reasonable doubt

that there is no reasonable possibility that evidence obtained as a

result of this unlawful arrest contributed to the verdicts, we reverse

the judgment and remand the case for a new trial. We also direct

the trial court to determine whether one witness’s in-court

identification was sufficiently supported by the witness’s

independent recollection or, instead, whether it was tainted by the

show-up proceeding that itself was a fruit of the unlawful arrest.

I. Background

¶2 According to the evidence presented at trial, when A.Q. — one

of the victims in this case — and four others arrived at an

apartment complex, they encountered three men they did not

recognize. One of the men, later identified by members of A.Q.’s

1
group as Oliver, asked “what’s bracking,” a question that came

across as aggressive.1

¶3 Soon after, B.B., a resident at the complex, went out to his car

in the parking lot. As he left his car and began walking back

towards his apartment, the man witnesses identified as Oliver

walked up to B.B. and fired approximately six bullets at him. Two

of the bullets struck B.B., killing him, while another bullet hit A.Q.

as she stood on the apartment stairs, paralyzing her. A nearby

police officer saw Oliver running from the area and apprehended

him.

¶4 A jury convicted Oliver of first degree murder and first degree

assault. He was sentenced to life plus a consecutive thirty-two

years in the custody of the Department of Corrections.

II. Sufficiency of the Evidence

¶5 Oliver first contends that there was insufficient evidence of

intent and deliberation to support his conviction for first degree

murder. He also asserts that there was insufficient evidence that

he had the intent to commit first degree assault. We disagree.

1The prosecution offered no evidence at trial regarding the meaning
of “bracking.”

2
A. Standard of Review

¶6 When evaluating a claim of insufficient evidence, we review the

record de novo to determine whether the relevant evidence, both

direct and circumstantial, when viewed as a whole and in the light

most favorable to the prosecution, is “sufficient both in quantity

and quality” to support the conviction beyond a reasonable doubt.

Clark v. People, 232 P.3d 1287, 1291 (Colo. 2010). We give the

prosecution the benefit of every reasonable inference that may be

drawn from the evidence. People v. Perez, 2016 CO 12, ¶ 32. A

conviction will not be set aside merely “because a different

conclusion might be drawn from the evidence.” People v.

Tumbarello, 623 P.2d 46, 49 (Colo. 1981).

B. Additional Facts

¶7 The jury heard testimony that Oliver and two other men

appeared angry and aggressive several minutes before the shooting.

A witness testified that, as she watched B.B. walking away from his

car and back to his apartment, she saw Oliver walk “up to [B.B.]’s

car.” “He walked up to the driver’s side in the back,” while B.B.

stood alone by “the top of his car on the driver’s side.” When B.B.

turned around towards Oliver, Oliver “started shooting him.”

3
Standing six feet away, he fired approximately six shots at B.B. and

then ran away. Other than firing the gun, Oliver did not move as he

shot at B.B. Prior to the shooting, Oliver and B.B. did not speak to

one another or interact in any way.

C. First Degree Murder

¶8 Section 18-3-102(1)(a), C.R.S. 2019, provides, “[a] person

commits the crime of murder in the first degree if . . . [a]fter

deliberation and with the intent to cause the death of a person

other than himself, he causes the death of that person or of another

person.” “A person acts ‘intentionally’ or ‘with intent’ when his

conscious objective is to cause the specific result proscribed by the

statute defining the offense.” § 18-1-501(5), C.R.S. 2019.

¶9 As to intent, a juror could reasonably infer from the evidence

that Oliver’s conscious objective was to cause B.B.’s death when he

fired multiple shots at him at close range. See People v. Madson,

638 P.2d 18, 26 (Colo. 1981) (“The circumstances surrounding the

victim’s death permit the reasonable inference that the defendant

fired a pistol at close range into her skull in a manner clearly

intended to cause death.”). Therefore, the evidence was sufficient to

support the element of intent.

4
¶ 10 Further, “[t]he term ‘after deliberation’ means not only

intentionally but also that the decision to commit the act has been

made after the exercise of reflection and judgment concerning the

act. An act committed after deliberation is never one which has

been committed in a hasty or impulsive manner.” § 18-3-101(3),

C.R.S. 2019. Deliberation requires that the decision to kill be made

after “the exercise of reflection and judgment,” but “the length of

time required for deliberation need not be long.” People v.

Bartowsheski, 661 P.2d 235, 242 (Colo. 1983).

¶ 11 Here, the witnesses testified that Oliver had been acting

angrily and aggressively, had remained in or near the parking lot for

as much as twenty minutes, approached B.B. as B.B. walked from

his car toward the apartment building, and, once B.B. turned to

face him, shot him multiple times. Providing the prosecution with

the benefit of every reasonable inference that might be drawn from

this evidence, a fact finder could conclude that Oliver acted after

reflection and judgment, rather than with haste and impulsiveness.

Thus, the evidence was sufficient to show he acted after

deliberation.

5
¶ 12 Oliver argues that the People failed to establish either intent or

deliberation because there was no evidence that he possessed

animosity towards B.B. or otherwise had a motive to kill him. But

Oliver’s argument is unavailing. While often relevant, proof of

motive is not necessary to prove the commission of a crime. Wooley

v. People, 148 Colo. 392, 400-01, 367 P.2d 903, 907 (1961). The

People did not need to prove why Oliver intentionally and

deliberately killed B.B., only that he did so. Even without evidence

of Oliver’s motive, for the reasons we discussed above, a reasonable

juror could look to the circumstances surrounding B.B.’s death and

infer that Oliver acted with intent and after deliberation.

¶ 13 The evidence was therefore sufficient to support a finding of

guilt beyond a reasonable doubt.

D. First Degree Assault

¶ 14 Oliver also argues that the evidence was insufficient to

establish that he acted with intent when he injured A.Q. because, in

his view, there is no evidence that he consciously sought to cause

her serious bodily injury. Again, we disagree.

¶ 15 Under section 18-3-202(1)(a), C.R.S. 2019, a person commits

first degree assault if “[w]ith intent to cause serious bodily injury to

6
another person, he causes serious bodily injury to any person by

means of a deadly weapon.” A jury may find that a defendant

intended to cause injury to one person but actually caused injury to

another. People v. Whittiker, 181 P.3d 264, 278 (Colo. App. 2006);

cf. People v. Jackson, 2020 CO 75, ¶ 21 (holding that, because the

language of the first degree murder statute references killing the

intended victim or another person, the statute “deems the identity

of the person harmed immaterial to the issue of intent”). Here, as

discussed above, there was sufficient evidence that Oliver intended

to cause B.B. serious bodily injury and, in attempting to do so,

caused A.Q. serious bodily injury. Thus, the evidence presented

was sufficient to support Oliver’s conviction of first degree assault.

III. Investigatory Stop and Arrest

¶ 16 Oliver next contends that Officer Joseph Guagliardo was not

justified in stopping him and, even if any initial stop was justified,

the stop eventually became an arrest unsupported by probable

cause. Therefore, he argues, evidence obtained as a result of the

stop should have been suppressed. We conclude that the initial

stop was proper, but we agree that the stop transformed into an

arrest unsupported by probable cause.

7
A. Additional Facts

¶ 17 Officer Guagliardo was parked in his patrol car near the

apartment complex when he heard gunshots. Moments after

hearing the shots, he observed a man, later identified as Oliver,

running from the complex parking lot. He pursued Oliver in his

patrol vehicle. When he attempted to contact Oliver, Oliver

proceeded to run faster. During this pursuit, Officer Guagliardo

heard screams coming from the complex.

¶ 18 Eventually, Oliver stopped in a yard. Officer Guagliardo

stepped out of his vehicle, held Oliver at gunpoint, instructed him

to lie on his stomach, and waited until at least one cover officer

arrived. Once cover arrived, Officer Guagliardo handcuffed Oliver,

performed a pat-down search, and, finding no weapons, placed him

in the back of his patrol car. This process took about two minutes.

At this point, Officer Guagliardo asked Oliver for his name and date

of birth, which Oliver provided.

¶ 19 Over thirty minutes later, gunshot residue (GSR) swabs of

Oliver’s hands were collected to be tested later at a crime

laboratory. And approximately two hours after Officer Guagliardo

apprehended Oliver, a witness, D.T., was brought to their location,

8
where he positively identified Oliver. During these two hours and

during the show-up identification, Oliver remained handcuffed. The

record indicates that, after stopping in the yard, Oliver was

cooperative with police.

¶ 20 Oliver’s identifying information was used to compile two photo

arrays, which were shown to witnesses who identified Oliver from

the arrays. Additionally, after Oliver was taken to the police

station, officers conducted a second GSR test, which ultimately

revealed the presence of gunshot residue on Oliver’s shirt. Oliver

filed a motion to suppress any evidence obtained as the result of the

stop, which the trial court denied. The photo arrays, GSR results,2

and testimony regarding D.T.’s show-up identification were all

presented as evidence at trial. On appeal, Oliver argues that these

pieces of evidence should have been suppressed.

B. Standard of Review

¶ 21 A trial court’s order regarding a motion to suppress involves “a

mixed question of law and fact.” People v. Threlkel, 2019 CO 18,

¶ 15 (quoting People v. Gothard, 185 P.3d 180, 183 (Colo. 2008)).

2 The GSR test of Oliver’s hands was negative. Only the positive
test of the shirt is at issue in this case.

9
We defer to the trial court’s findings of fact that are supported by

competent evidence in the record, but review conclusions of law de

novo. People v. Allen, 2019 CO 88, ¶ 13.

C. Governing Law and Analysis

¶ 22 Police-citizen interactions are classified as one of three types:

consensual contacts, investigatory stops, or arrests. People v.

Archuleta, 980 P.2d 509, 512 (Colo. 1999). Neither party argues

that the encounter between Oliver and officers was consensual.

Therefore, we must evaluate whether the contact constituted an

investigatory stop or an arrest.

¶ 23 An arrest requires probable cause that the person has

committed, is committing, or is about to commit a crime. People v.

Pigford, 17 P.3d 172, 175 (Colo. App. 2000). An investigatory stop

is constitutionally valid if three criteria are met: “(1) the officer must

have a reasonable suspicion that criminal activity has occurred, is

taking place, or is about to take place; (2) the purpose of the

intrusion must be reasonable; and (3) the scope and character of

the intrusion must be reasonably related to its purpose.” People v.

Padgett, 932 P.2d 810, 814-15 (Colo. 1997) (quoting People v.

Sutherland, 886 P.2d 681, 686 (Colo. 1994)).

10
1. Reasonable Suspicion

¶ 24 Reasonable suspicion means that an officer has an articulable

and specific basis in fact for suspecting that the individual is

committing, has committed, or is about to commit a crime. Id. An

officer is entitled to draw reasonable inferences from a person’s

conduct. Threlkel, ¶ 20.

¶ 25 Here, Officer Guagliardo heard multiple shots coming from an

apartment complex and seconds later saw Oliver, and only Oliver,

fleeing the area. When instructed to stop, Oliver ran faster. Officer

Guagliardo heard screams coming from the complex. Based on the

specific and articulable facts, in conjunction with the inferences

drawn from the circumstances, it was reasonable for Officer

Guagliardo to infer that a crime had been committed and that

Oliver may have been involved.

2. Purpose of the Stop

¶ 26 Moreover, given what Officer Guagliardo had observed, it was

reasonable for him to briefly stop Oliver to determine if Oliver had

been involved in the criminal activity. See People v. Contreras, 780

P.2d 552, 555 (Colo. 1989).

11
3. Reasonableness of the Scope and Character of the Intrusion

¶ 27 In assessing whether the scope and character of the intrusion

are reasonably related to its purpose, we may look to the use of

force applied by officers. People v. King, 16 P.3d 807, 814 (Colo.

2001). The use of force or restraint, such as handcuffs, “increase[s]

the degree of intrusion on an individual’s privacy and liberty and

‘heighten[s] our concern as to whether the action taken exceeds

what is reasonably necessary.’” Id. (quoting People v. Smith, 13

P.3d 300, 305 (Colo. 2000)).

¶ 28 Nevertheless, the use of force does not automatically convert

an investigatory detention into an arrest. Police officers may use

reasonable measures to ensure their safety during an investigatory

stop, but only if the use of such force is a reasonable precaution for

the protection and safety of the officers. People v. Wambolt, 2018

COA 88, ¶ 84; see also King, 16 P.3d at 814. “If the People fail to

prove that the use of force was necessary for officer safety, the

encounter must be characterized as an arrest and, thus, must be

supported by probable cause.” Wambolt, ¶ 84; see also King, 16

P.3d at 817.

12
¶ 29 A division of this court has held that officers’ decision to place

suspects in handcuffs after determining they were not armed and

were cooperative constituted an arrest because “no specific facts

supported a reasonable belief that a threat to officer safety required

the use of handcuffs and weapons.” Wambolt, ¶ 87.

¶ 30 But, unlike the officers in Wambolt, Officer Guagliardo was

justified in his initial use of force. He had heard gunshots, had

seen Oliver running from the area of the shots, and knew Oliver had

attempted to evade him. Thus, drawing his weapon until cover

arrived was a reasonable measure to ensure his safety. Further,

placing Oliver in handcuffs before performing the pat-down search

was reasonable due to the distinct possibility that Oliver might be

armed. It was also reasonable to leave Oliver in handcuffs while

obtaining his identification until he could ascertain whether Oliver

presented a danger due to having outstanding warrants. See United

States v. Shareef, 100 F.3d 1491, 1507-08 (10th Cir. 1996) (holding

that it was reasonable to hold unarmed suspects in handcuffs until

confirming whether one was a wanted felon); see also People v.

Smith, 926 P.2d 186, 189 (Colo. App. 1996) (holding that

13
ascertaining a detainee’s identification is a valid purpose of an

investigatory detention).

¶ 31 Thus, despite the use of force and handcuffs, the initial

contact did not exceed the scope of its purpose. This contact,

therefore, was a proper investigatory detention.

¶ 32 However, once the officers had ensured that Oliver was

unarmed and had ascertained his identification, they did not

remove Oliver’s handcuffs. Instead, they left the handcuffs on for

the entirety of the stop — approximately two hours.

¶ 33 While our supreme court has held that the use of handcuffs in

an investigatory stop is justified only if necessary for officer safety,

Smith, 13 P.3d at 305, Colorado case law does not specifically

address whether the continued use of handcuffs is justified after an

initial threat to officer safety has dissipated. Several other

jurisdictions have concluded that failing to remove handcuffs under

similar circumstances is unreasonable and therefore elevates an

investigatory detention to an arrest. See, e.g., Shareef, 100 F.3d at

1507-08 (holding that, once confirmation was received that he was

not a wanted felon, “the continued use of handcuffs constituted an

unlawful arrest”); United States v. Polanco, No. 10 CR 627 RPP,

14
2011 WL 240140, at *8 (S.D.N.Y. Jan. 19, 2011) (unpublished

opinion) (finding that, “the moment in which [the officer] did not

remove [the defendant] from handcuffs after finding no weapons on

his body, the stop was converted into a de facto arrest because the

maximal intrusion of handcuffing, a hallmark of formal arrest, was

no longer justified by ‘legitimate safety concerns’”). Cf. United

States v. Salas-Garcia, 698 F.3d 1242, 1252 (10th Cir. 2012)

(finding that the fact that officers released the defendant from

handcuffs as soon as they learned he was not a safety risk because

he was unarmed and cooperating prevented the detention from

becoming an unlawful arrest); United States v. Gil, 204 F.3d 1347,

1351 (11th Cir. 2000) (finding it appropriate to leave a defendant

handcuffed because no female officer was available to search the

defendant, and thus officers on scene were unable to determine if

she was armed); Reynolds v. State, 592 So. 2d 1082, 1085 (Fla.

1992) (noting that “[a]bsent other threatening circumstances, once

the pat-down reveals the absence of weapons the handcuffs should

be removed”); State v. Munson, 594 N.W.2d 128, 137 (Minn. 1999)

(concluding that officers acted reasonably when they handcuffed

the occupants and frisked them for weapons, and then removed the

15
handcuffs once it was determined that the occupants were not

armed).

¶ 34 We find the above authorities persuasive and equally

applicable to the circumstances present here. Thus, we hold that

where initially reasonable concerns regarding officer safety have

been dispelled and the individual being detained has been

identified, the continued use of handcuffs transforms an otherwise

proper investigatory detention into an arrest.

¶ 35 Oliver’s pat-down by officers revealed no weapons, he was

outnumbered by police, his identification had been ascertained

revealing no flight risk or safety concerns, and he was cooperating.

Because officer safety concerns had been dispelled and no other

threatening conditions existed, there was no basis for leaving the

handcuffs on, and they should have been removed. Oliver’s

detention thus became an arrest.

¶ 36 The People concede that the earliest point at which probable

cause existed was at 12:40 a.m. — approximately eighty-five

minutes after the stop — once D.T. had provided a statement to the

officers describing the man (fitting Oliver’s description) he had seen

at the scene carrying a gun. This was long after the detention had

16
developed into an arrest. Unsupported by probable cause, Oliver’s

arrest was unconstitutional.3

4. The Court Erred in Part by Denying the Motion to Suppress

¶ 37 Because the investigatory stop became an unlawful arrest

when officers failed to remove Oliver’s handcuffs after officer safety

concerns had been dispelled and in the absence of other

threatening conditions, we must next evaluate whether the trial

court should have granted Oliver’s motion to suppress the evidence

obtained as a result of that stop and arrest. See People v. Davis,

903 P.2d 1, 4 (Colo. 1995) (“[E]vidence obtained as a result of an

unlawful arrest must be suppressed.”).

¶ 38 Oliver argues that the evidence of the (1) photo array

identifications; (2) show-up identification; and (3) GSR was obtained

as a result of the unlawful detention and, thus, should have been

suppressed. We disagree that the photo arrays are “fruits of the

poisonous tree,” see Wong Sun v. United States, 371 U.S. 471, 488

3 Nor does the fact that officers later developed probable cause cure
the violation. Were that the rule, officers would be encouraged to
detain someone as long as they could — even unconstitutionally —
in the hope of ultimately developing probable cause to make the
arrest they have already made.

17
(1963), but agree that the other evidence should have been

suppressed.

¶ 39 First, the photo arrays were compiled using Oliver’s identifying

information, which, as noted above, was obtained during a proper

investigatory stop. Thus, neither the identifying information nor the

lineups were derivative of an unlawful seizure. The trial court,

therefore, did not err by declining to suppress the arrays and

evidence that witnesses had identified Oliver in the arrays.

¶ 40 But the showup occurred approximately two hours after the

incident, while Oliver remained in handcuffs. This was long after

the officer’s continued use of restraint exceeded the scope of the

investigatory stop. Therefore, because the showup took place after

Oliver had been improperly arrested, it should have been

suppressed.

¶ 41 Similarly, the GSR test on Oliver’s shirt was not performed

until after Oliver’s detention had become an arrest. Thus, for the

same reason, the GSR results were derivative of the illegal detention

and should have been suppressed.

18
¶ 42 In sum, the trial court erred in part by denying Oliver’s motion

to suppress evidence of the show-up identification and the GSR

results obtained as the result of an unlawful arrest.

5. The Error Requires Reversal

¶ 43 Having concluded that the trial court erred, we must

determine whether the error requires reversal. As this issue

implicates Oliver’s constitutional rights, we review it for

constitutional harmless error. Hagos v. People, 2012 CO 63, ¶ 11.

Under this standard, the People must demonstrate beyond a

reasonable doubt there is no reasonable possibility that the error

may have contributed to the verdict. Id. They have not done so.

¶ 44 While much of the People’s properly admitted evidence could

be characterized as strong, it was far from overwhelming. The

People’s case significantly relied on contradictory and inconsistent

eyewitness testimony. The improperly admitted GSR found on

Oliver’s shirt was one of the few pieces of scientific evidence

presented at trial. As the prosecutor stated in closing arguments,

the “GSR positive result means [Oliver] fired a gun, handled a gun,

. . . or was in the area that a gun was fired.” In other words, the

prosecution placed specific emphasis on the GSR.

19
¶ 45 Given the relative importance of the improperly admitted GSR

evidence, we cannot say that the verdict “was surely unattributable

to the error.” Bernal v. People, 44 P.3d 184, 201 (Colo. 2002)

(citation omitted). Thus, we are unable to “declare a belief that [this

error] was harmless beyond a reasonable doubt.” Hagos, ¶ 11

(quoting Chapman v. California, 386 U.S. 18, 24 (1967)). Reversal is

therefore required.4

IV. The Show-up Identification and Subsequent In-Court
Identification

¶ 46 Oliver also asserts that the trial court erred by denying his

motion to suppress the show-up identification by D.T. As stated

previously, the show-up identification was derivative of the unlawful

arrest and is therefore inadmissible. However, as Oliver

acknowledges, even where an out-of-court identification was itself

subject to suppression as the fruit of an improper detention, a

subsequent in-court identification may nevertheless be admissible if

the witness had a “sufficient independent recollection of the [crime]

4We note that, because none of the improperly admitted evidence
had any bearing on whether Oliver acted with intent or after
deliberation, our reversal on this point does not affect our analysis
of Oliver’s first claim, i.e., his challenge to the sufficiency of the
evidence.

20
to identify the defendant at trial.” People v. Suttles, 685 P.2d 183,

187 (Colo. 1984).

¶ 47 Although D.T. testified at the motions hearing, the court

limited its findings regarding his testimony to whether the showup

was impermissibly suggestive, concluding that it was not. Given

that we have concluded that admitting evidence of the showup was

impermissible, as it flowed from an unconstitutional arrest, we need

not address whether it was also unduly suggestive. Rather, the

issue turns to whether D.T.’s ability to identify Oliver would be

independent of the improper arrest and subsequent showup.

¶ 48 We cannot make this determination on the record before us.

On remand, the trial court must determine, with additional

testimony if needed, “whether the [witness has] an ‘independent

recollection . . . uninfluenced by the [tainted] pretrial

identifications.’” Id. at 189 (quoting States v. Crews, 445 U.S. 463,

473 (1980)). If so, the court should allow D.T. the opportunity to

make an in-court identification of the defendant. Id.

¶ 49 We therefore remand to the trial court for further proceedings.

21
V. Batson Violation

¶ 50 Because we reverse on the grounds stated above and remand

for a new trial, we do not address whether a Batson violation

occurred during voir dire.

VI. Conclusion

¶ 51 The judgment is reversed, and the case remanded for further

proceedings consistent with this opinion.

JUDGE NAVARRO and JUDGE LIPINSKY concur.

22