Peo v. Miranda

19CA0108 Peo v Miranda 01-27-2022

COLORADO COURT OF APPEALS

Court of Appeals No. 19CA0108

City and County of Denver District Court No. 17CR2725

Honorable, John W. Madden IV, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Daniel Estrada Miranda,

Defendant-Appellant.

JUDGMENT AFFIRMED AND CASE

REMANDED WITH DIRECTIONS

Division V

Opinion by JUDGE WELLING

Dunn and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced January 27, 2022

Philip J. Weiser, Attorney General, Jennifer L. Carty, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Nathaniel E. Deakins, Deputy

State Public Defender, Denver, Colorado, for Defendant-Appellant

1

¶ 1

Defendant, Daniel Estrada Miranda, appeals his judgment of

conviction for sexual assault on a child by one in a position of trust,

sexual assault on a child as part of a pattern of abuse, and sexual

assault on a child. We affirm the judgment but remand for

correction of the mittimus.

I. Background

¶ 2

The victim lived with her father, her primary parent, but

spent weekends with her maternal grandmother and Miranda, her

grandmother’s boyfriend. In 2017, the victim told her father that

Miranda had touched her inappropriately when she was between

the ages of eight and eleven. The victim testified about three

separate incidents where Miranda had touched her inappropriately

— the couch incident, the bedroom incident, and the living room

incident.

¶ 3

Following a jury trial, Miranda was found guilty on seven

separate counts:



Count 1: Sexual assault on a child - pattern of abuse

(couch incident) (class 3 felony);



Count 2: Sexual assault on a child - position of trust (couch

incident) (class 3 felony);

2



Count 3: Sexual assault on a child - position of trust

(bedroom incident) (class 3 felony);



Count 4: Sexual assault on a child - position of trust (living

room incident) (class 3 felony);



Count 5: Sexual assault on a child (bedroom incident) (class

4 felony);



Count 6: Sexual assault on a child (living room incident)

(class 4 felony); and



Count 7: Sexual assault on a child (couch incident) (class 4

felony).

II. Discussion

¶ 4

On appeal, Miranda contends that the trial court erred when it



excluded, under the rape shield statute, relevant defense

evidence offered to show the victim’s bias and motive to

fabricate sexual abuse allegations;



quashed Miranda’s subpoena duces tecum to inspect the

victim’s school records;



refused all defense attempts to obtain and use evidence to

impeach the victim regarding a “sexting” incident; and

3



entered judgments for the class 3 felony versions of sexual

assault on a child by one in a position of trust when the

jury verdicts reflected convictions only for the class 4 felony

versions of that offense.

¶ 5

Miranda also contends that this court should remand for

correction of the mittimus to vacate count 7 because it’s the same

crime as count 1, and to correct the mittimus to specify the length

of parole term for each sentence.

¶ 6

We affirm the judgment but remand for correction of the

mittimus to (1) vacate count 7, because it is the same crime as

count 1, (2) to reflect a controlling mandatory parole period of

twenty years to life, and (3) to remove the use of the word “merge”

and clarify which sentences run concurrently to one another.

A. Rape Shield — Witness Testimony

¶ 7

Miranda first contends that the trial court erred when it

excluded witness testimony under the rape shield statute, section

18-3-407, C.R.S. 2021.

1. Additional Facts

¶ 8

Miranda sought to introduce the victim’s mother’s testimony

regarding a discussion she had with the victim when the victim was

4

ten years old (before the outcry). The discussion was about

inappropriate touching, and during the conversation the mother

revealed to the victim that she too was molested when she was eight

or nine years old. The trial court denied Miranda’s request to admit

evidence of the mother’s sexual abuse, finding as follows: the victim

was thirteen when she outcried, and therefore the evidence wasn’t

probative for demonstrating an alternate source of the victim’s

sexual knowledge; the evidence wasn’t probative of motive; and the

victim’s description of her abuse wasn’t particularly similar to the

mother’s description of her abuse. For these reasons, the trial

court found that the evidence wasn’t sufficiently relevant to pierce

the rape shield.

¶ 9

The trial court allowed the mother to testify at trial that she

had discussed with the victim “stranger danger” and inappropriate

touching, but the mother was precluded from testifying about her

own victimization and subsequent sharing of that story with the

victim.

2. Standard of Review

¶ 10

We review a trial court’s determination of the admissibility of

evidence under the rape shield statute for an abuse of discretion.

5

People v. Marx, 2019 COA 138, ¶ 40. “A trial court abuses its

discretion when its ruling is (1) manifestly arbitrary, unreasonable,

or unfair or (2) based on an erroneous understanding or application

of the law.” People v. Casias, 2012 COA 117, ¶ 17.

3. Analysis

¶ 11

Miranda contends that the trial court erred by excluding the

mother’s testimony regarding her own victimization because the

victim’s story of her own abuse and the mother’s story of her abuse

have similarities, indicating that the victim used the mother’s story

as a basis for fabricating the abuse by Miranda. We disagree.

¶ 12

Evidence of the mother’s prior sexual abuse falls squarely

within the purview of the rape shield statute because it concerns a

witness’s prior sexual conduct. One purpose of the rape shield

statute is to protect sexual assault victims and witnesses from

humiliating public “fishing expeditions” into their sexual histories.

People v. MacLeod, 176 P.3d 75, 79 (Colo. 2008) (citation omitted).

The presumption of irrelevance of sexual conduct evidence applies

regardless of the purpose for which the proponent seeks its

admission. See id. at 76 (the rape shield applies to evidence of a

victim’s or witness’s prior or subsequent sexual conduct no matter

6

the purpose for which the proponent intends to introduce the

evidence at trial). The trial court’s finding that Miranda didn’t

overcome the presumption of irrelevance and inadmissibility is

supported by the record because there is no nonspeculative

connection to the victim’s allegation and the mother’s prior sexual

conduct. People v. Salazar, 2012 CO 20, ¶ 17 (a trial court may

exclude evidence which only has minimal probative value and

which requires the jury to engage in undue speculation as to the

probative value). We can find no compelling reason — and Miranda

provides none — showing why or how the mother’s story motivated

the victim to fabricate a sexual assault. As the trial court observed,

because there was a gap of at least three years since the mother

shared her story with the victim, any connection between the two

accounts was remote at best, and therefore the mother’s testimony

regarding her prior sexual abuse was properly excluded. See

Fletcher v. People, 179 P.3d 969, 974 (Colo. 2007) (evidence which is

too remote either in time or logical relation to a matter in dispute

should not be admitted). Additionally, the victim’s mother wasn’t

precluded from testifying altogether — she was still permitted to

7

testify regarding having a conversation with the victim about

inappropriate touching and “stranger danger.”

¶ 13

For the above reasons, the trial court didn’t abuse its

discretion by precluding the victim’s mother’s description of her

own abuse and subsequent sharing of her victimization with the

victim.

B. The Victim’s School Records

¶ 14

Miranda next contends that the trial court erred in quashing

Miranda’s subpoena duces tecum to inspect the victim’s school

records.

1. Additional Facts

¶ 15

Before trial, Miranda served a Crim. P. 17(c) subpoena on the

custodian of records at the victim’s school compelling production of

all school records pertaining to the victim, including: attendance

records, disciplinary records, and performance records. The

prosecution moved to quash the subpoena and the trial court

granted the prosecution’s request. In its order, the trial court

stated:

The subpoena was issued in early November

2017 — shortly after [Miranda] pled not guilty,

six months before the first trial date in this

8

case, and even before the trial date had been

set. The scope of the request, the timing of the

subpoena, and other circumstances show that

it was issued as means of conducting discovery

(to look through all of the victim’s school

records to see what might be there) rather

than to secure production of specific

documents for use at trial.

2. Legal Principles and Analysis

¶ 16

Miranda contends that the trial court abused its discretion

when it failed to conduct an in camera review of the records before

quashing the subpoena. We disagree.

¶ 17

We review a trial court’s refusal to disclose or inspect a

victim’s education records for an abuse of discretion. People v.

Bachofer, 192 P.3d 454, 461 (Colo. App. 2008).

¶ 18

Crim. P. 17(c) gives counsel in criminal cases the right to

compel attendance of witnesses, as well as to compel a witness to

produce documents by way of subpoena. Crim. P. 17(c) permits

pretrial inspection of documentary evidence under the supervision

of the court to “facilitate and expedite trials involving voluminous

documents, not to grant additional discovery.” People v. Spykstra,

234 P.3d 662, 668 (Colo. 2010).

9

¶ 19

The trial court has the responsibility of balancing the

defendant’s need for the information with the privacy interests of

the student and her parents. Bachofer, 192 P.3d at 461; People v.

Wittrein, 221 P.3d 1076, 1085 (Colo. 2009). Among the factors the

court should consider are: “(1) the nature of the information sought,

(2) the relationship between this information and the issue in

dispute, and (3) the harm that may result from disclosure.”

Bachofer, 192 P.3d at 461 (citing Zaal v. State, 602 A.2d 1247,

1261-62 (Md. 1992)).

¶ 20

If the trial court determines that the defendant’s need

outweighs any privacy interests, then it should review the records

in camera. Wittrein, 221 P.3d at 1085. The trial court, however,

isn’t required to conduct an in camera review of the victim’s school

records; to warrant an invasion of a student’s privacy, even by an in

camera review, there must be a showing that the need for the

information outweighs the victim’s right to privacy. Id. at 1079.

¶ 21

Here, Miranda made no proffer of need directly related to the

victim’s school records. Instead, Miranda argues that the trial court

should have looked through the entirety of the victim’s school

records to determine the existence of any material required to be

10

produced under Brady v. Maryland, 373 U.S. 83 (1963), without

articulating, “in good faith, a specific need for the information

contained in the records.” Wittrein, 221 P.3d at 1085.

¶ 22

The trial court determined that the scope and timing of the

subpoena demonstrated that it was being used as a discovery tool

rather than a method for securing specific documents for trial. The

trial court didn’t abuse its discretion in reaching this conclusion.

The trial court found that Miranda didn’t provide any specific need

for the victim’s school records, and, based on the timing and scope

of the subpoena, it was being used as a fishing expedition rather

than a way to secure specific documents.

¶ 23

Accordingly, the trial court acted within the bounds of its

discretion in declining to conduct an in camera review of these

records.

C. Sexting Incident

¶ 24

Miranda next contends that the trial court erred in refusing all

defense attempts to obtain and use evidence to impeach the victim

regarding a “sexting” incident.

11

1. Additional Facts

¶ 25

In October 2016, before the victim’s February 2017 outcry, the

victim was involved in a sexting incident where she was texting

sexually explicit pictures — “butt pictures,” “boob pictures,” and

“down below” pictures — to five different children. All six of the

children admitted their involvement. The victim wasn’t criminally

charged, but as a result of her involvement, she was required to

complete a diversion program, which she finished in October 2017.

¶ 26

Before and during trial, the parties litigated the admissibility

of the evidence of the victim’s involvement in the sexting incident

and with law enforcement. First, prior to trial, the prosecution

disclosed to the court documents regarding the sexting incident.

Following an in camera review, the trial court declined to release

the documents to the defense.

¶ 27

Second, Miranda sought permission to cross-examine the

victim’s father about the extent to which the victim got in trouble

with him and law enforcement based on the sexting incident.

Miranda argued that the evidence was relevant because “claiming to

have been sexually abused is uniquely effective at diverting any

negative attention” from the sexting incident. Miranda also

12

requested to introduce evidence that the victim was in trouble with

the police at the time of her outcry, without introducing the reason

for the trouble. The trial court excluded the evidence under the

rape shield statute and CRE 403.

¶ 28

Finally, during trial Miranda moved to obtain evidence relating

to benefits or inducements sought by or provided to the victim by

the prosecution. Specifically, the defense sought to inspect an

email exchange between one of the prosecuting attorneys and the

prosecutor overseeing the victim’s compliance under the

requirements of the diversion program.

2. Analysis

¶ 29

We will first address the use of the sexting incident to show

motive to fabricate, then we will address the use of the victim’s

involvement with law enforcement to show motive to fabricate, and,

last, we will address the use of evidence of the prosecutor’s email

exchange as evidence of bias.

a. Evidence of Sexting Offense to Show Motive

¶ 30

The trial court declined to release documents to Miranda’s

defense counsel that pertained to the victim’s involvement in the

sexting incident and subsequent diversion program. The trial court

13

found that disclosure of the records wasn’t necessary for the

“resolution of an issue pending in the case.”

¶ 31

Because this was an evidentiary ruling by the trial court, we

will review for an abuse of discretion. See Marx,, ¶ 40. The trial

court excluded the evidence because admission would violate the

protections afforded by the rape shield statute. Miranda argues

that evidence that the victim was facing discipline for the sexting

incident when she outcried established her motive to fabricate and

deflect negative attention. Miranda argues that he was denied his

constitutional right to a meaningful opportunity to present a

complete defense, resulting in constitutional error by the trial court.

¶ 32

Because the record supports the trial court’s conclusion that

Miranda’s argument for admitting evidence of the sexting incident

didn’t overcome the protections of the rape shield statute, we

conclude that the trial court didn’t abuse its discretion. The rape

shield protections apply no matter the purpose for which the

defendant intended to introduce evidence at trial. MacLeod, 176

P.3d at 78. The evidence of the sexting incident, Miranda argues,

goes to his theory of defense — that the victim was lying and the

sexting incident bears on her credibility. The evidence is

14

presumptively irrelevant, however, because it falls squarely under

the rape shield:

Evidence of specific instances of the victim’s or

a witness’s prior or subsequent sexual

conduct, opinion evidence of the victim’s or a

witness’s sexual conduct, and reputation

evidence of the victim’s or a witness’s sexual

conduct may be admissible only at trial and

shall not be admitted in any other proceeding

except at a proceeding pursuant to paragraph

(c) of subsection (2) of this section. At trial,

such evidence shall be presumed to be

irrelevant . . . .

§ 18-3-407(1).

¶ 33

The trial court determined that the time gap between the

sexting incident (October 2016) and the outcry (February 2017)

made any causal link speculative at best. Additionally, the trial

court determined that Miranda failed to provide any reason why the

victim would wait five months to “divert any negative attention that

may be on her for engaging in her own sexual misconduct.” Thus,

the trial court found that the sexting incident wasn’t probative of

the victim’s motive to make allegations against Miranda. These

reasons and findings are supported by the record. Accordingly, the

trial court’s decision to preclude the introduction of evidence of the

sexting incident wasn’t an abuse of discretion.

15

b. Evidence of Being in Trouble with Law Enforcement to Show

Motive

¶ 34

Second, the trial court precluded Miranda’s counsel from

cross-examining the victim’s father regarding the extent to which

the victim was in trouble with him and with law enforcement

regarding the sexting incident. The trial court also declined to

permit the introduction of a sanitized version of the sexting incident

— one that didn’t reveal the nature of the offense and would,

instead, just tell the jury generally that the victim had been in

trouble with law enforcement and her father.

¶ 35

In a pre-trial hearing, the victim’s father testified that the

victim was never punished for using her cellphone or social media

inappropriately. Finding the victim’s father’s testimony credible,

the trial court concluded that cross-examining the father about his

daughter being in trouble for the sexting incident would be of

minimal probative value and that the father’s indication that the

victim wasn’t in trouble at the time of the outcry mitigated any

probative value.

¶ 36

Additionally, the trial court found that telling the jury that the

victim had been in trouble for some unknown reason would

16

potentially confuse the issues and would possibly require that the

reason for the trouble be revealed, which would ultimately

circumvent the ruling that the rape shield statute barred evidence

of the sexting incident.

¶ 37

Because this was an evidentiary ruling by the trial court, we

will again review for an abuse of discretion. See Marx, ¶ 40. We

conclude that the trial court didn’t abuse its discretion in

precluding Miranda from asking the victim’s father about whether

she was in trouble with him or law enforcement at the time of the

outcry. Its findings — that (1) disclosing the victim had been in

trouble even without including the nature of the offense could lead

to the rape shield being circumvented; (2) the temporal delay

between being in trouble and the victim’s outcry (five months)

makes any link between the two speculative; and (3) Miranda failed

to show why the victim would fabricate an allegation five months

after being in trouble, and why, five months later, the victim would

feel the need to divert attention from herself — are all supported by

the record and provide a sound basis for excluding the evidence

under the rape shield statute and CRE 403. Accordingly, the trial

court didn’t abuse its discretion.

17

c. Evidence of Email Exchange Regarding Diversion Program to

Show Bias

¶ 38

Miranda next contends that an email between a prosecutor in

this case and the prosecutor supervising the victim’s diversion

program should have been disclosed to the defense because it may

have related to providing the victim with a benefit in exchange for

her testimony, which, in turn, could have been used to show bias.

¶ 39

The email at issue was filed with this court under seal, and we

have reviewed it in camera in order to exercise our independent

judgment. See People in Interest of A.D.T., 232 P.3d 313, 319-20

(Colo. App. 2010) (“[I]n a case like this, in which the juvenile court

has performed an in camera review and made disclosure

determinations that are properly being challenged on appeal, the

right to meaningful appellate review necessitates our performing an

independent in camera review.”). In the email, the prosecutor in

this case doesn’t ask the prosecutor in the diversion case to relieve

the victim of any requirement of the diversion program, just that

she not be subject to or provided with duplicate or conflicting

services.

18

¶ 40

Based on our independent in camera review, we conclude that

the email exchange wasn’t probative of bias and, even if provided to

the defense, nothing about it would’ve been relevant or otherwise

admissible. The prosecution in this case wasn’t asking that the

victim be relieved of any requirement under the diversion program.

¶ 41

Simply put, even if the email exchange had been provided to

the defense, nothing about it would’ve been admissible for

impeachment purposes or otherwise. Accordingly, there’s no basis

for reversal.

D. Jury Instructions

¶ 42

Next, Miranda contends that the trial court erred when it

entered convictions for the class 3 felony versions of sexual assault

on a child by one in a position of trust when the jury verdicts

reflected convictions only for the class 4 felony versions of that

offense. We aren’t persuaded.

1. Additional Facts

¶ 43

The jury was provided with the following elemental instruction

for the three sexual assault on a child charges:

The elements of the crime of Sexual Assault on

a Child are:

1. That the Defendant,

19

2. in the State of Colorado, between and

including January 1, 2011 and February 23,

2017,

3. knowingly,

4. subjected [the victim] who was not his

spouse to any sexual contact, and

5. [the victim] was less than fifteen years of

age, and

6. The Defendant was at least four years older

than [the victim].

(Emphasis added.)

¶ 44

The jury was provided with the following elemental instruction

for the three sexual assault on a child by one in a position of trust

charges:

The elements of the crime of Sexual Assault on

a Child by One in a Position of Trust are:

1. That the Defendant,

2. in the State of Colorado, between and

including approximately January 1, 2011, and

February 23, 2017,

3. knowingly,

4. subjected [the victim], under eighteen years

of age, who was not his spouse to any sexual

contact, and

5. the Defendant was in a position of trust

with respect to [the victim].

(Emphasis added.)

¶ 45

Miranda didn’t object to the jury instructions, and the jury

returned guilty verdicts on all three of the sexual assault on a child

20

charges and all three of the sexual assault on a child by one in a

position of trust charges.

2. Analysis

¶ 46

Sexual assault on a child by one in a position of trust is a

class 4 felony, but it becomes a class 3 felony if the prosecution

proves, and the jury finds, that the victim was less than fifteen

years old. § 18-3-405.3(1)-(3), C.R.S. 2021.

¶ 47

Miranda contends that because the jury instructions for the

sexual assault on a child by one in a position of trust charges didn’t

require the jury to find that the victim was less than fifteen, he can

only suffer convictions for the class 4 felony version of the offense,

rather than the class 3 felony convictions that were entered.

¶ 48

Miranda relies on Medina v. People, 163 P.3d 1136, 1140

(Colo. 2007), to support his argument on appeal. We aren’t

persuaded that Medina controls the outcome here.

¶ 49

In Medina, the defendant was charged with accessory for

unlawfully assisting the escape of one who had committed first or

second degree murder, a class 4 felony. Medina, 163 P.3d at 1136.

One of the elements of the class 4 felony version of that offense is

knowingly rendering assistance to someone who had committed first

21

or second degree murder. Id. at 1139. The jury instructions at

trial, however, only required that the jury find that the defendant

knowingly rendered assistance to someone who was suspected of

first degree or second degree murder. Id. Although the jury

returned a verdict for the class 5 felony version of the offense, the

trial court entered a conviction for the class 4 felony version of the

offense. Id. Our supreme court reversed, concluding it was

structural error to enter the class 4 felony conviction when the jury

verdicts only supported the class 5 felony conviction. Id. at 1140.

¶ 50

There is a critical distinction between this case and Medina.

Here, unlike in Medina, we do have a jury finding on the supposedly

missing element. Specifically, the elemental instructions for the

sexual assault on a child charges (couch incident, bedroom

incident, and living room incident) contained the element that the

child was under the age of fifteen.

¶ 51

Put another way, there were three incidents — couch,

bedroom, and living room. For each incident, there were two

charges — sexual assault on a child and sexual assault on a child

by one in a position of trust. For each incident, the jury found

beyond a reasonable doubt that Miranda had committed sexual

22

assault on a child and that the child was less than fifteen at the

time of each event. So, there is a corresponding jury finding that

the victim was under fifteen at the time of each of the three

incidents, and therefore no structural error because Miranda

(unlike the defendant in Medina) wasn’t deprived of a jury finding

on the supposedly missing element.

¶ 52

Unlike Medina, where the jury rendered no finding of an

element required for a more serious conviction, here, the under

fifteen element was proved to and found by the jury beyond a

reasonable doubt, albeit in its verdict on another charge. See

People v. Hoggard, 2017 COA 88, ¶ 52 (looking to other portions of

the jury’s verdicts that were untainted by the identified error to

conclude that the instructional error did not contribute to the

conviction), aff’d on other grounds, 2020 CO 54. Therefore, the

error was harmless beyond a reasonable doubt.

E. Correction of the Mittimus

¶ 53

Lastly, we address the correction of the mittimus. Miranda

argues that this court should remand for correction of the mittimus

for two reasons. First, to vacate count 7, because it’s the same

crime as count 1, and, second, to reflect a controlling mandatory

23

parole period of twenty years to life because the mittimus currently

doesn’t specify the length of the parole term for each prison

sentence, merely stating that the “parole period is discretionary.”

The Attorney General concedes, and we agree, that remand for

correction of the mittimus is required.

¶ 54

Miranda was charged with seven counts based on three

incidents, but the jury was only provided with six verdict forms.

The jury returned six guilty verdicts. Count 1 on the mittimus is

the same as count 7, except that count 1 reflects the sentence

enhancer found by the jury. Therefore, the mittimus must be

modified to reflect this.

¶ 55

We also agree that the mandatory parole period statutorily

required as part of the sentence should be reflected on the

mittimus. See Crim. P. 36; Craig v. People, 986 P.2d 951, 966

(Colo. 1999) (trial court’s failure to specify the term of defendant’s

mandatory parole in mittimus was error, capable of and requiring

correction by the sentencing court). The mittimus must be

corrected to reflect the statutory parole period of twenty years to

life.

24

¶ 56

In addition to Miranda’s contentions, the Attorney General

argues that the mittimus must also be amended to correct the trial

court’s improper merger of certain counts (and that the mittimus as

prepared by the court didn’t accurately reflect the concurrent

sentences that it intended to impose). The Attorney General bases

this argument on the court’s use of the word “merge” on the

mittimus. Specifically, the mittimus says:

 “C[OUN]T 2 MERGES INTO C[OUN]T 1 FOR

SENTENCING”;

 “C[OUN]T 5 MERGES INTO C[OUN]T 3 FOR

SENTENCING”;

 “C[OUN]T 6 MERGES INTO C[OUN]T 4 FOR

SENTENCING”; and

 “C[OUN]T 7 MERGES INTO C[OUN]T 1 FOR

SENTENCING.”

Miranda argues that the use of the word “merge” simply indicates

which sentences run concurrently, not which convictions merged

together, so no correction is required.

¶ 57

We, however, don’t know what the trial court meant when it

used the word “merge” on the mittimus. If it’s as Miranda

25

contends, then the mittimus should be corrected to say as much.

In any event, the mittimus must be corrected to accurately reflect

the convictions it entered and sentences it imposed, including

clarifying which sentences run concurrently to one another.

¶ 58

For the reasons stated above, we remand only for correction of

the mittimus to (1) vacate count 7, because it is the same crime as

count 1, (2) reflect a controlling mandatory parole period of twenty

years to life, and (3) remove the use of the word “merge” and clarify

which sentences run concurrently to one another.

III. Conclusion

¶ 59

We affirm the judgment of conviction and remand only for the

correction of the mittimus.

JUDGE DUNN and JUDGE YUN concur.