Peo v. Westerfield

23CA1662 Peo v Westerfield 12-04-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1662
Arapahoe County District Court No. 16CR2483
Honorable Eric B. White, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Brett Russell Westerfield,

Defendant-Appellant.

ORDER AND SENTENCE AFFIRMED

Division VI
Opinion by JUDGE WELLING
Kuhn and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 4, 2025

Philip J. Weiser, Attorney General, Jaycey DeHoyos, Assistant Attorney
General, Yaried A. Hailu, Assistant Attorney General Fellow, Denver, Colorado,
for Plaintiff-Appellee

The Noble Law Firm, Tara Jorfald, Lakewood, Colorado, for Defendant-
Appellant
¶1 Defendant, Brett Russell Westerfield, appeals the trial court’s

order revoking his probation and resentencing him to Sex Offender

Intensive Supervision Probation (SOISP). We affirm.

I. Background

¶2 In 2016, police found over 55,000 photos and over 300 videos

of child sexual exploitation on Westerfield’s computer. He was

charged with three counts of third degree felony child exploitation

and one count of fourth degree felony child exploitation. Westerfield

rejected a plea deal that would have required him to serve four

years in prison. But he went on to plead guilty to all the charges,

and the court sentenced him to twelve years on SOISP.

¶3 Upon being placed on SOISP, Westerfield was advised of and

acknowledged that he understood the various terms of his

probation sentence. Among those terms, was compliance with a

“Computer Use Agreement for Sex Offenders” (computer use

agreement). As relevant to the issues before us, the computer use

agreement contained the following provisions, each of which

Westerfield acknowledged with his initials:

1
¶4 In order to monitor Westerfield’s compliance with the

computer use agreement, AJ Monitoring (the monitoring service)

installed monitoring software on his electronic devices, including

his personal computer. The monitoring service would send

probation periodic reports regarding Westerfield’s computer use.

¶5 By all accounts, Westerfield’s progress in SOISP was a

success. Based on this progress, Westerfield was granted

permission to have and use a personal computer, an external hard

drive, and USB devices (all still subject to the computer use

agreement). After over four years on SOISP, his probation officer

recommended the discontinuation of SOISP and that he be placed

on regular probation. The trial court granted the motion. Even

after transitioning from SOISP to regular probation, the court

required Westerfield’s compliance with the computer use

agreement, including the terms excerpted above.

2
¶6 About four months after he was transitioned from SOISP to

regular probation, the probation department received a report from

the monitoring service indicating that Westerfield had accessed a

folder on his computer named “Boys” and that the “Boys” folder

contained images of children. The report also indicated that the

monitoring service had detected in the “Boys” folder a picture of a

young boy pulling up a young girl’s skirt.

¶7 Three days after the department received the report from the

monitoring service, Westerfield told his probation officer that he was

in possession of pictures of minors in a folder named “Boys” and

said that the folder contained “a series of odd things boys do.”

Three days later, Westerfield’s probation officer requested that

Westerfield bring his computer to the probation office so that it

could be inspected. Westerfield complied with this request. When

Westerfield brought his computer into the probation department,

the probation officers were unable to locate the “Boys” folder,

3
leading probation to believe that Westerfield had deleted it.1 Eleven

days later, two probation officers viewed Westerfield’s laptop, and

they found pictures of children in various folders on Westerfield’s

laptop.

¶8 Based on this series of events, the department filed a

complaint to revoke Westerfield’s probation. The complaint

referenced finding “multiple pictures of minor-aged children . . .

within multiple folders” and alleged that Westerfield “was not given

permission to possess or store any pictures of minor-aged children.”

The complaint further alleged that, by possessing pictures of minors

on his computer, Westerfield had violated the terms of his probation

as set forth in the computer use agreement. About seven months

after filing the initial probation revocation complaint, the

1 After the probation department filed the initial complaint,

Westerfield brought his laptop to the department again, and this
time the probation officer was able to locate the folder labeled
“Boys.” The folder contained numerous photos of minors (including
the one depicting a young boy pulling up a young girl’s skirt).
Based on this second inspection, the probation department
determined that — contrary to earlier suspicion — Westerfield
hadn’t deleted the “Boys” folder or any of the files contained in the
folder. To the extent that the probation complaint contained an
allegation or inference that Westerfield violated probation by
deleting files or a folder, the allegation was abandoned by the time
the complaint proceeded to a hearing.

4
department filed an amended complaint; no additional allegations

were made in the amended complaint.2

¶9 After the court advised him concerning the complaint,

Westerfield entered a denial and requested a hearing. After a two-

day revocation hearing, the trial court found that the pictures in the

“Boys” folder weren’t “deviant” or “sexually explicit or exploitive.”

Still the court found that by possessing pictures of minors — even

ones that were “arguably innocent” — Westerfield violated the terms

and conditions of his probation. Based on this finding, the trial

court revoked Westerfield’s probation and sentenced him to eight

years of SOISP with a thirty-day jail sentence as a condition of

probation.

II. Issues on Appeal

¶ 10 Westerfield advances three contentions on appeal. He

contends that the trial court erred by (1) finding that he violated the

terms of his probation because the evidence was insufficient to

2 The complaints are substantially similar to each other except that

the amended complaint doesn’t contain language from the
computer use agreement forbidding Westerfield from deleting
“records of computer use” without authorization from probation.
The amended complaint also removed probation’s request that the
court issue a warrant for Westerfield’s arrest.

5
sustain the violation as alleged in the amended complaint; (2) failing

to make sufficient findings when it revoked and reinstated his

probation sentence; and (3) violating his due process rights by

permitting the probation department to arbitrarily apply the Sex

Offender Management Board (SOMB) guidelines in determining

whether to file the complaint to revoke his probation without

consulting his former therapist and treatment provider. We

address, and reject, his contentions in turn.

A. The Record Supports the Trial Court’s Finding that Westerfield
Violated Probation

¶ 11 Westerfield argues that the prosecution didn’t offer sufficient

evidence to prove that he violated his probation by using his

computer to possess material that is sexual in nature or part of the

grooming cycle for his crimes. Alternatively, he argues that because

the trial court found that he violated his probation by virtue of the

terms of the safety plan requests, the department never gave him

sufficient notice of that alleged violation. We disagree that the trial

court erred.

6
1. Standard of Review

¶ 12 To sustain a probation revocation petition, the prosecution

must prove by a preponderance of the evidence that a probationer

violated a condition of probation. People v. Howell, 64 P.3d 894,

896 (Colo. 2002). We review sufficiency of the evidence claims de

novo. McCoy v. People, 2019 CO 44, ¶ 2. In doing so, we review the

record to determine whether the evidence offered at the revocation

hearing, when viewed in the light most favorable to the prosecution,

was substantial and sufficient to sustain the probation violation.

People v. Perez, 2016 CO 12, ¶ 8.

¶ 13 Notice in the context of a probation revocation proceeding is

critical in two respects. First, “[a] defendant must be given written

notice of the conditions of his probation.” People v. Calderon, 2014

COA 144, ¶ 24; see § 18-1.3-204(3), C.R.S. 2025. After all, “a

criminal defendant is presumed to know that the violation of any

term of his probation may result in revocation.” People v.

Zimmerman, 616 P.2d 997, 999 (Colo. App. 1980). And for that

principle to operate, a probationer must be given notice of the terms

and conditions of probation so that the probationer can comply with

them. Id.

7
¶ 14 Second, a defendant facing revocation is entitled to written

notice of the alleged violations. Finney v. People, 2014 CO 38, ¶ 28;

see § 16-11-205(5), C.R.S. 2025. Under section 16-11-205(5), a

complaint alleging that a probationer has violated a condition of

probation must “identify the violation charged and the condition of

probation alleged to have been violated,” among other things.

Whether a complaint gives the notice required by section 16-11-

205(5) is a mixed question of law and fact, so we review the trial

court’s conclusions of law de novo but defer to its findings of fact.

Calderon, ¶ 32.

2. Additional Facts

¶ 15 The amended complaint contains a single count, containing

both the probation terms the department alleges Westerfield

violated and the conduct it alleges violated those terms. The count

begins by setting forth the following terms of the computer use

agreement:

On December 28, 2018, the defendant signed a
Computer Use Agreement for Sex Offenders
acknowledging the following:

“Client shall not use the computer for any
purpose which might further sexual activity.
Such use includes, but is not limited to,

8
possession or viewing of material that is sexual
in nature”, and,

“Client shall be prohibited from possessing or
viewing certain materials related to, or part of,
the grooming cycle for his/her crime. Such
materials include, but are not limited to, the
following: Stories or images related to your
crime or similar crimes and [i]mages which
depict individuals similar to your victims”.

(Emphasis added.)

¶ 16 The complaint goes on to allege that Westerfield violated the

terms of his probation, as follows:

On May 10, 2022, the probation officer
reviewed a computer monitoring report from
AJ Monitoring. The report indicated that
between March 28, 2022 and April 27, 2022,
the defendant accessed a folder on his laptop
named, “Boys”, which was located in a “My
Pictures” folder. A picture of a young boy
pulling up a young girl’s skirt was caught
during the monitoring search under the file
name, “Curious”. . . .

On May 13, 2022, the defendant advised the
probation officer he was in possession of
pictures of minors in the folder “Boys” and that
the folder contained “a series of pictures
depicting odd things boys do”.

On May 24, 2022, [two] probation officer[s] . . .
viewed the defendant’s laptop. Multiple
pictures of minor-aged children were located
within multiple folders. The defendant was not
given permission to possess or store any
pictures of minor-aged children.

9
¶ 17 At the revocation hearing, four witnesses testified: (1) Rachelle

Boespflug, Westerfield’s probation officer; (2) Michelle Kellond, a

private investigator retained by the defense; (3) Jacque Sumida,

Westerfield’s therapist and former SOISP treatment provider; and

(4) Linda Westerfield, Westerfield’s wife.

¶ 18 Based on the evidence presented at the hearing, the trial court

found that Westerfield violated the two conditions of probation set

forth in the amended complaint by possessing images of children on

his computer, as follows:

With respect to these complaints, what it
comes down to is the allegation of the
defendant while on probation inappropriately
was in possession of[,] on a computer[,] a
number of files containing children. . . .

There are two relevant conditions alleged in
the [complaints] . . . . [C]lient shall not use the
computer for any purposes which might
further sexual activity. Such uses includes
but is not limited to possession or viewing of
material that is sexual in nature and the next
condition immediately underneath it, client
shall be prohibited from possessing or viewing
certain materials related to or a part of the
grooming cycle for his or her crime. Such
materials include but are not limited to — the
actual agreement here says image — images of
your victims, stories or images related to your
crime or similar crimes, images which depict
individuals similar to your victims, stories

10
written about or for individuals similar to your
victim, materials focused on the culture of
your victim.

....

So what we’ve got here is the defendant having
pled guilty to offenses regarding [sexual
exploitation of children] and now we have
pictures that are showing up with children,
albeit arguably innocent pictures of children
that he knew he couldn’t possess and that he,
himself, indicated in his safety plan that were
dangerous for him to possess.

....

So the Court does find that the People have
proven by a preponderance of the evidence
that the defendant violated his probation as
alleged in [the complaints] for the reasons I’ve
just indicated.

3. Analysis

a. Sufficiency of the Evidence

¶ 19 Westerfield first argues that simply possessing pictures of

minors — which is all that was proved at the hearing — on its own,

is insufficient to establish that he violated the terms of his

probation. Instead, he argues that in order to establish a violation

of the provisions of the computer use agreement cited in the

probation revocation complaint, the prosecution had to prove that

11
the images he possessed were sexual in nature. We disagree for

several reasons.

¶ 20 To begin, we disagree with Westerfield’s constrained reading of

the computer use agreement and its restrictions. The materials he

is prohibited from possessing under the computer use agreement

aren’t limited to sexually explicit material. To be sure, the

computer use agreement does prohibit Westerfield from

“possessi[ng] or viewing . . . material that is sexual in nature,” but

that is not the full extent of the limitations the agreement imposes.

The computer use agreement also prohibits Westerfield from

possessing material related to or part of “the grooming cycle” for his

crime. Those “grooming cycle” materials are explicitly defined to

include “[i]mages which depict individuals similar to your victims.”

This definition expressly captures images of children as part of

Westerfield’s grooming cycle. And this prohibition is in no way tied

to the materials being sexual in nature — just that they “depict

individuals” similar to his victims, that is, children.

¶ 21 And the court found, with record support, that Westerfield did

possess images of children who were similar to his victims. Recall

that the charges that Westerfield pleaded guilty to were based on

12
Westerfield possessing over 55,000 photos and over 300 videos of

child sexual exploitation on his computer. Westerfield’s therapist

confirmed during her testimony that the images that Westerfield

admitted to possessing in connection with his criminal conviction

included “many photos and videos of prepubescent boys as well as

pubescent boys.” Each of these children depicted in the materials

Westerfield possessed was a “victim” of his criminal offense. Cf.

§ 18-6-403(1.5), C.R.S. 2025 (noting that each time child

exploitation “material is shown or viewed, the child [depicted] is

harmed”). Accordingly, the evidence presented at the hearing

supports the trial court’s finding that he violated the terms of his

probation by possessing the images contained in the “Boys” folder.

¶ 22 Still, Westerfield contends that the prosecution didn’t prove

that the pictures were part of his “grooming cycle.” His contention

in this regard may have had some purchase if what constituted

“materials related to, or part of, the grooming cycle for

[Westerfield’s] crime” was undefined. But it’s not. As discussed,

the computer use agreement goes on to provide that such materials

include, but are not limited to, “[i]mages which depict individuals

similar to your victims.” And this prohibition doesn’t require that

13
the images be sexual or exploitive in nature to fall within its scope.

Thus, the sufficiency question turns not on whether the images

were sexual but instead whether they depicted individuals similar

to Westerfield’s victims — and they did.

¶ 23 In short, the terms of the computer use agreement specifically

prohibited Westerfield from not only possessing images that are

sexual in nature but also images that “depict individuals similar to

[his] victims.” The evidence presented at the hearing established

that there were multiple pictures of minor-aged children located

within multiple folders on Westerfield’s laptop. Westerfield wasn’t

given permission to possess or store any pictures of minor-aged

children. Because all the prosecution had to prove was that

Westerfield possessed images of minors similar to his victims on his

computer, and it did, the evidence was sufficient and substantial

enough to prove Westerfield violated his probation by a

preponderance of the evidence.

b. Sufficiency of the Notice

¶ 24 Westerfield appears to also contend that if the terms of his

probation prohibited him from possessing any images of children,

that restriction came not from the computer use agreement but was

14
based on the terms of various safety plans, violations of which were

not alleged in the probation revocation complaint.

¶ 25 During the revocation hearing, the prosecution introduced into

evidence several “safety plans” that Westerfield signed as part of his

requests to use various electronic devices including a phone, a

computer, and an external hard drive. Each safety plan stated,

High Risk Factors can be Internal (thoughts and
feelings), and external (people, places
situations, sights, sounds, etc.) experiences that
threaten your self-control and present a threat
to you maintaining your abstinence from
inappropriate or deviant thoughts, feelings, and
behaviors.

List as many of your High Risk Factors you
can think of that are connected with your
request. Consider where you will be, who you
may come in contact with, feelings and
situations that may arise, etc. Be sure to
consider all of the restrictions of probation and
your Treatment Contracts.

¶ 26 The first high-risk factor that Westerfield identified in

connection with his use of electronic devices was “contact with

minors/pictures of minors.” As Westerfield’s response illustrates,

he knew that he was prohibited from possessing images of minors

and that the prohibition was intended to prevent him from falling

back into his grooming cycle.

15
¶ 27 Westerfield’s argument appears to be that the only provision of

his probation that prohibited him from possessing nonsexual

images of minors was the safety plan, and the complaint didn’t

allege that he violated the safety plan. Thus, he argues, the

probation revocation complaint didn’t give him sufficient notice of

the alleged violation he was defending against. Where this

argument falls short, however, is that both the safety plans and the

computer use agreement prohibited him from possessing any

images of children. The fact that the safety plans are more specific

than the computer use agreement doesn’t make the latter

insufficient to put Westerfield on notice of the condition of

probation he was accused of violating — that is, the condition that

precluded him from viewing or possessing images that depicted

individuals similar to his victims. And, as previously explained,

Westerfield’s statements in the safety plan confirm that he

understood that he was prohibited from possessing images of

children, whether sexual or not.

¶ 28 As discussed above, due process demands that a probationer

be given two types of notice when they are alleged to have violated

probation. First, a probationer must have been given notice of the

16
terms of their probation. Calderon, ¶ 24. The second type of

required notice is written notice of the alleged condition of

probation he is accused of violating. Finney, ¶ 28; see § 16-11-

205(5). Westerfield received both types of notice. The terms of the

computer use agreement restricted him from possessing or viewing

images that depicted individuals similar to his victims, and the

safety plans demonstrate that Westerfield understood that provision

to be a blanket ban on possessing or viewing images of minors —

deviant or otherwise.3 The amended probation revocation complaint

cited this provision of the computer use agreement and referenced

the fact that Westerfield had images of minors on his computer as

the offending conduct. Accordingly, we reject Westerfield’s

argument that he didn’t have notice of the terms of probation he

was accused of violating.

3 We note that, in finding the probation violation, the district court

stated that it wasn’t considering any “family photos” on
Westerfield’s computer. Neither party raises issues concerning
family pictures on appeal, so we need not address that issue
further. See generally People v. Cooley, 2020 COA 101 (discussing
constitutional limitations on prohibiting probationers from having
contact with their children).

17
B. Revocation of Probation

¶ 29 Westerfield next argues that the trial court abused its

discretion by revoking and reinstating his probation because, even

if the prosecution presented sufficient evidence at the hearing to

prove a violation, the trial court failed to make the necessary

findings on why revoking Westerfield’s probation was necessary.

Again, we disagree.

1. Additional Facts

¶ 30 About two months after the revocation hearing, the trial court

held a sentencing hearing, at which the trial court heard arguments

from the prosecution that Westerfield hadn’t disclosed certain

information about his sexual history on his newest offense-specific

evaluation (OSE). The prosecution argued that Westerfield hadn’t

disclosed all his sexual history so that he could lower his risk

assessment.

¶ 31 The trial court agreed with the prosecution and inquired as to

whether a jail sentence was appropriate:

It seemed to me — in — in very brief review,
and I didn’t have much time — that there are
less robust disclosures made related to this
more recent OSE. So what this comes down to
is whether or not that means that I should

18
now sentence [Westerfield] to the penitentiary
based upon the findings that I made related to
his violations here. So that’s really what it’s
going to come down to. That’s all we’re down
to.

The Court heard — and I think that [defense
counsel]’s right — it was two separate days of
testimony related to these violations.

¶ 32 Ultimately, the trial court revoked Westerfield’s probation and

sentenced him to eight years of SOISP — one more year than what

he had left on his original sentence:

So what we’ve got then is: What price is
[Westerfield] to pay for having done these
things that by the People’s reckoning, I
suppose, are indicative of his deceit, his
sneakiness, his desire to fail to fully disclose
the information that he should be disclosing in
the course of treatment? What price is to be
paid for that decision as it also relates then to
this lack of additional full robust disclosure
that the People argue should have been
presented, at least by implication, to the
current OSE evaluator?

The Court is comfortable that Probation can
sort this out in the course of treatment and
figure out what it is going wrong if Probation is
right, if the People are right, with probation
and how it is that [Westerfield] continues to
deceive probation.

....

So here’s what I’m going to do. I’m going to
sentence [Westerfield] to eight years of SOISP

19
probation. That gives [Westerfield] some credit
for the time on the things he did right and the
progress that he made and doesn’t overly
punish him.

¶ 33 The trial court also sentenced Westerfield to thirty days in jail

as a condition of probation:

All right. Well, here’s the thing. At the end of
the day, a jail sentence is punitive, right? And
so the violations here, although characterized
by the [d]efense as minor and characterized by
the People as concerning, I suppose, for a lack
of a better word, are violations nonetheless.
So I think that there can and, in certain
instances, should be a punitive part of a
sentence. And that is where I’m at here. . . .

So I do believe a punitive sentence is
appropriate. I think a [thirty]-day jail sentence
is appropriate.

2. Standard of Review

¶ 34 The decision to revoke a defendant’s probation after a violation

has been found is within the trial court’s discretion. People v. Fair,

2013 COA 41, ¶ 12. After determining that a probationer has

violated a condition of their probation, if the trial court revokes

probation, it may impose any sentence or grant any probation

which “might originally have been imposed or granted.” § 16-11-

206(5), C.R.S. 2025.

20
¶ 35 The trial court must “state on the record the basic reasons for

imposing the sentence.” People v. Fuller, 791 P.2d 702, 708 (Colo.

1990) (quoting People v. Watkins, 613 P.2d 633, 637 (Colo. 1980)).

3. Analysis

¶ 36 Westerfield argues that the trial court abused its discretion in

revoking and reinstating his probation because it didn’t make any

findings of fact for the sentence it imposed. See Fuller, 791 P.2d at

708. The record demonstrates otherwise.

¶ 37 First, the trial court found that Westerfield hadn’t fully

disclosed his sexual history to the OSE evaluator. Then the trial

court sentenced Westerfield to eight years of SOISP so that the

probation department could decide through treatment how to deal

with Westerfield’s lack of transparency as it related to the OSE.

¶ 38 But the trial court was clear that the jail sentence was

imposed to punish Westerfield for the probation violation — not the

lack of disclosure to the OSE evaluator. When imposing sentence,

the court explicitly said it was doing so “based upon the findings

that I made related to his violations here” and discussed the “two

separate days of testimony related to these violations” it had heard.

The “two separate days of testimony” the court referenced were

21
focused on Westerfield’s probation violation. During the revocation

hearing, the prosecution never alleged or offered evidence that

Westerfield hadn’t disclosed all his sexual history to the OSE

evaluator. That didn’t happen until the sentencing hearing. Thus,

it’s clear that the trial court extended Westerfield’s probation

because it found a lack of disclosure to the OSE evaluator but

sentenced him to thirty days in jail for the probation violation.

¶ 39 Because the court’s sentencing decisions were supported by

adequate factual findings, we discern no abuse of discretion.

C. SOMB Guidelines

¶ 40 Last, Westerfield argues that probation failed to follow the

SOMB guidelines because they didn’t (1) consult with the treatment

provider — Westerfield’s therapist Sumida — about the potential

violation; (2) conduct a full assessment before filing a revocation

complaint; or (3) work with the treatment provider to determine the

appropriate response to Westerfield’s probation violation.4

4 Westerfield also argues that the probation department violated his

due process rights by alleging in the complaint that a photo of an
actress found on his computer was also grounds for revocation.
But because the court ultimately revoked his probation solely based
on the images in the “Boys” folder, his argument is irrelevant, and
we decline to address it.

22
1. Standard of Review

¶ 41 We review whether a defendant’s due process rights were

violated de novo. Calderon, ¶ 23. When a sex offender is sentenced

to SOISP, their probation officer and their treatment provider must

make recommendations to the court that are based on “criteria

established by the [SOMB].” § 18-1.3-1010(2)(a), C.R.S. 2025.

2. Analysis

¶ 42 Westerfield argues that the probation department arbitrarily

chose which SOMB guidelines it applied to Westerfield’s probation

and revocation and that section 18-1.3-1010(2)(a) requires the

probation officer to make their recommendation on whether to

revoke probation based on the SOMB guidelines. We disagree for

three reasons.

¶ 43 First, section 18-1.3-1010(2)(a)’s applicability is predicated on

the probationer being sentenced to SOISP. While Westerfield was

initially sentenced to SOISP, he had been moved to regular

probation months earlier. Thus, any requirements for revoking

SOISP weren’t applicable to Westerfield at the time that probation

filed the probation revocation complaint.

23
¶ 44 Second, Westerfield was no longer required to attend

treatment as a condition of regular probation. His continued

involvement with his therapist, while laudable, was voluntary.

Thus, Sumida wasn’t his SOMB treatment provider at the time

probation filed the revocation complaint.

¶ 45 Finally, Westerfield argues that section 16-11.7-106(8), C.R.S.

2025, requires probation to abide by the SOMB guidelines.

However, section 16-11.7-106(8) requires “supervising officers” to

follow the “guidelines and standards developed pursuant to this

section when working with sex offenders.” Section 16-11.7-106 is

concerned almost entirely with the statutory and educational

qualifications for treatment providers and doesn’t contemplate the

SOMB procedures that Westerfield claims the probation department

applied arbitrarily.

¶ 46 Since the SOMB guidelines in question aren’t mandatory for

probation generally, or for sex offenders not in SOISP specifically,

we discern no due process violations.

III. Disposition

¶ 47 The order and sentence are affirmed.

JUDGE KUHN and JUDGE SCHUTZ concur.

24