State v. Robbins

2009 UT 23
210 P.3d 288
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, 	No. 20060885
Plaintiff and Respondent,
v.
F I L E D
Ryan Brett Robbins,
Defendant and Petitioner. 	April 17, 2009
---
Third District, Salt Lake
The Honorable Timothy Hanson
No. 041900547
Attorneys: 	Mark L. Shurtleff, Att’y Gen., Jeffrey S. Gray, Asst.
Att’y Gen., William K. Kendall, Patricia Parkinson,
Salt Lake City, for respondent
John Pace, Salt Lake City, for petitioner
---
On Certiorari to the Utah Court of Appeals
PARRISH, Justice:
INTRODUCTION
¶1 	In December 2003, when she was ten years old, Taylor M.
first accused her stepfather, Ryan Brett Robbins, of “touch[ing]
her in an area where nobody has tried to touch her.” 	The only
evidence of the alleged incident was Taylor’s testimony, and many
factors suggested that the allegations of abuse were motivated by
animus between Taylor’s father and Robbins. 	See Utah Code Ann.
§ 76-5-404.1 (2003). 	Robbins was charged with one count of
aggravated sexual abuse of Taylor. 	He was also charged with
three counts of aggravated sexual abuse of Taylor’s older sister,
Whitney, who came forward with her own allegations against
Robbins after hearing Taylor’s. 	The jury convicted Robbins of
abusing Taylor but acquitted him of three counts of abusing

No. 20060885 	2
Whitney. 	The trial judge later expressed that he was “rather
surprised with the verdict” and that there was “more to [the
allegations] than just he said/she said.” 	He queried “what do I
do in a situation where . . . all kinds of collateral issues
. . . suggest that [Taylor’s] testimony may not be credible?”
Nonetheless, he denied Robbins’ Motion to Arrest Judgment.
¶2 	Robbins appealed his conviction to the court of
appeals, which affirmed. 	It held that Taylor’s testimony
provided sufficient evidence for the jury to find beyond a
reasonable doubt that Robbins intended to gratify his sexual
desires and that the trial court could not disregard her
testimony as inherently improbable. 	State v. Robbins, 2006 UT
App 324, ¶¶ 11, 19, 142 P.3d 589. 	We granted certiorari to
review whether the court of appeals misconstrued the scope of the
inherent improbability doctrine. 	We hold that it did and
accordingly reverse.
BACKGROUND AND PROCEDURAL HISTORY
¶3 	Taylor’s mother (“Mother”) and father (“Father”)
divorced in 1996, in part because of a brief affair between
Mother and Robbins in 1992. 	At the time of the divorce, the
court awarded Mother primary custody of Taylor and her older
sister Whitney, with Father receiving standard every-other-
weekend and mid-week visitation. 	Two years later, when Taylor
was five years old, Mother married Robbins. 	At some point the
following year, Whitney moved in with Father, who then moved for
primary custody of both girls. 	That petition was still pending
at the time of Robbins’ trial in 2004.
¶4 	In 2001, Father made a complaint to DCFS, alleging that
Robbins was verbally and physically abusing Taylor. 	Before
contacting Robbins or Mother, a DCFS investigator interviewed
Taylor at her school where Taylor told the investigator that she
had never been spanked or hit by Robbins, was never told she was
not loved, and was never told anything that made her feel
uncomfortable or sad. 	Indeed, Taylor reported that she felt
comfortable and safe at home. 	DCFS closed the investigation,
concluding that the allegations lacked merit.
¶5 	Just four weeks later, Father sought an ex parte
protective order from the juvenile court prohibiting any contact
between Robbins and Taylor. 	Father alleged that Robbins
physically abused Taylor daily while berating her. 	The petition
did not mention the recent DCFS investigation, nor did it allege

3 	No. 20060885
that any bruising had occurred as a result of the physical abuse.
Though the juvenile court granted the order, which required
Robbins to leave his home and immediately transferred custody of
Taylor from Mother to Father, Mother’s legal counsel obtained
judicial dissolution of the order the next day.
¶6 	As a result of the petition for protective order, DCFS
again investigated Father’s allegations of abuse, this time in
more detail. 	As evidence of the alleged abuse, Father provided
the investigator with a log that he had kept of incidents of
abuse, a tape recording made by his older daughter Whitney
recounting what she believed was abuse of Taylor, and a recording
of a telephone call Taylor made to him. 	A different investigator
from DCFS interviewed Taylor, who again said she felt safe at
home. 	Taylor told the investigator that Robbins had spanked her
once lightly with a book. 	She also told the investigator that
the only person she was afraid of was her step brother, Father’s
stepson, who would come up behind her and hit her unexpectedly.
The investigator found that Father’s abuse log contained third-
hand allegations not proven by the evidence and that Whitney’s
tape-recorded allegations had no supporting evidence. 	Taylor’s
distress in the recorded phone call appeared to be caused by the
earlier DCFS investigation. 	The investigator noted that “[i]t
appears that there has been some coaching take place” with
regards to the abuse allegations. 	Although the investigator
found that the abuse allegations were without merit, he
recommended that Taylor begin counseling due to the discord
between her parents.
¶7 	Taylor began attending regular counseling sessions in
2001, at first weekly and then monthly. 	In September 2003,
Robbins and Mother separated as a result of Robbins’ alcoholism.
Prior to their separation, Taylor witnessed a loud argument
between them, which “really freaked her out.” 	Taylor told her
counselor about the alleged incident of sexual abuse on December
11, 2003, over three years after the incident allegedly occurred.
Shortly thereafter, Whitney came forward alleging that she too
had been abused in a remarkably similar manner. 	Robbins was
charged with four counts of aggravated sexual abuse of a child
under Utah Code section 76-5-404.1(3)(h) (2003).
¶8 	Taylor’s recollection of the alleged sexual abuse
incident suffered from multiple inconsistencies. 	Taylor changed
the age at which the abuse occurred from nine to seven. 	At the
preliminary hearing, when attorneys asked why Taylor said the
abuse first occurred when she was nine and then changed her story

No. 20060885 	4
to seven, she replied that she had a hearing problem like her
grandfather, a fact objectively not true. 	Taylor also changed
the description of what she was wearing at the time of the
alleged incident from fleece pants and a long sweater, to a
nightgown, and then to a long nightgown that came to her ankles.
The initial vague allegation Taylor reported to her counselor
became much more specific after she discussed it with Whitney,
who then came forward with her own similar abuse allegations.
Taylor also gave more specific details of the alleged incident,
elaborating that the touching lasted twenty seconds, that Robbins
held his hand still for the duration, that he touched her over
the top of her pajamas, and that when she slapped his hand, he
left.
¶9 	At trial, when asked if Robbins ever spoke to her about
the incident, she replied, “Not that I remember. 	I think that
maybe once he might have said that if I ever told anyone he would
do it again or he would hit me more.” 	(Emphasis added). 	But
later in her testimony, Taylor reported that she did not tell
anyone about the abuse when it happened “[b]ecause I had always
been told that if I told anyone about him abusing me he would
abuse me more, or he would threaten to kill my dog, or something
like that.” 	When asked why she did not report this abuse to
either of the DCFS investigators, she claimed that she was afraid
“because somebody told me there was going to be someone hiding in
the closet and listening to everything that I said.” 	Taylor did
not identify who told her that someone would be hiding in the
closet. 	Further, the first DCFS interview took place in a room
without a closet and was conducted before Robbins and Mother were
informed of the allegations, so neither would have had the
opportunity to tell her that someone would record her
conversation.
¶10 	In addition to the inconsistencies in Taylor’s
testimony surrounding the alleged incident of sexual abuse, other
inconsistencies arose with regard to her allegations of routine
physical abuse. 	In 2001, Taylor told the first investigator that
Robbins never hit her. 	She told the second investigator that he
once tapped her lightly with a book. 	But by January 2003, she
told the detective that Robbins had hit her “a couple of times,”
and several days later she told the DCFS investigator that once a
week or so, when Robbins was drunk, he would hit her on the back
with his hand or a book, leaving marks at least once. At trial,
Taylor changed her story yet again, alleging that about once a
week for four years Robbins would, without talking to her and
without apparent provocation, come into Taylor’s room, pull a

5 	No. 20060885
book from the shelf, and hit her with it for a few minutes. 	She
testified that she did not think Robbins was ever drunk when he
hit her because “when he was drinking he didn’t act like that.
He would just fall asleep.” 	Though these allegations of physical
abuse do not bear directly on the alleged incident of sexual
abuse, they reflect the pattern of inconsistency pervading
Taylor’s testimony.
¶11 	At the three-day trial, defense attorneys highlighted
the inconsistencies in Taylor’s testimony and established their
theory that the accusations were a result of the discord between
Father and Robbins. 	The jury convicted Robbins of one count of
aggravated sexual abuse of Taylor, but acquitted on the three
counts relating to Whitney. 	The court denied Robbins’ Motion to
Arrest Judgment, stating that “it could not say that [Taylor’s]
testimony was inconclusive or inherently improbable to the extent
that reasonable minds [the jurors] must have had to entertain a
reasonable doubt . . . . 	The fact that the Court might have
reached another result is not relevant to the inquiry on
defendant’s Motions.” 	Robbins was sentenced to five years to
life in prison.
¶12 	The court of appeals upheld Robbins’ conviction,
holding that there was sufficient evidence to support his guilt
beyond a reasonable doubt and that it did not have the discretion
to reassess Taylor’s testimony because it was not inherently
improbable and because the suspect portions of her testimony did
not go to the core of the offense. 	State v. Robbins, 2006 UT App
324, ¶¶ 19-20, 142 P.3d 589.
ISSUES AND STANDARD OF REVIEW
¶13 	We granted certiorari to address the scope of the
inherent improbability doctrine, particularly in what instances a
court may find witness testimony sufficiently improbable to
disregard it when determining if sufficient evidence exists to
sustain a conviction. 	We review the court of appeals’
interpretation of the inherent improbability criteria for
correctness. 	See Pohl, Inc. of Am. v. Webelhuth, 2008 UT 89, ¶ 8
201 P.3d 944. 	We hold that Taylor’s testimony was so inherently
improbable that the trial court had discretion to disregard it
when considering whether sufficient evidence supported Robbins’
conviction.

No. 20060885 	6
ANALYSIS
I. 	THE COURT OF APPEALS COULD DISREGARD TAYLOR’S INHERENTLY
IMPROBABLE TESTIMONY WHEN CONSIDERING WHETHER THERE WAS ENOUGH
EVIDENCE TO SUPPORT THE JURY VERDICT
¶14 	“A conviction not based on substantial reliable
evidence cannot stand.” 	State v. Ramsey, 782 P.2d 480, 483 (Utah
1989) (finding insufficient evidence to sustain a jury verdict
convicting the defendant of sexual abuse of a child). 	On a
motion to arrest judgment, the court may only reverse a jury
verdict when “the evidence is sufficiently inconclusive or
inherently improbable such that reasonable minds must have
entertained a reasonable doubt that the defendant committed the
crime for which he or she was convicted.” 	State v. Bluff, 2002
UT 66, ¶ 63, 52 P.3d 1210 (internal quotation marks omitted); see
also State v. Workman, 852 P.2d 981, 983 (Utah 1993). 	“When
reviewing any challenge to a trial court’s denial of [a motion
to] arrest . . . judgment, we review the evidence and all
reasonable inferences that may fairly be drawn therefrom in the
light most favorable to the jury verdict.” 	State v. Colwell,
2000 UT 8, ¶ 11, 994 P.2d 177; see also State v. Fedorowicz, 2002
UT 67, ¶ 40, 52 P.3d 1194 (stating that court must “assume that
the jury believed the evidence that supports the verdict”). 	A
jury can convict on the basis of the “uncorroborated testimony of
the victim.” 	State v. Sisneros, 581 P.2d 1339, 1343 (Utah 1978);
see also Bowles v. Indiana, 737 N.E.2d 1150, 1152 (Ind. 2000) (“A
victim’s testimony, even if uncorroborated, is ordinarily
sufficient to sustain a conviction for child molesting.”).
¶15 	“The standard for determining whether an order
arresting judgment is erroneous is the same as that applied by an
appellate court in determining whether a jury verdict should be
set aside for insufficient evidence.” 	Workman, 852 P.2d at 984.
Normally, a trial court’s denial of a defendant’s sufficiency of
the evidence challenge lends further support to the jury’s
verdict. 	Bluff, 2002 UT 66, ¶ 63.
¶16 	“[N]otwithstanding the presumptions in favor of the
jury’s decision this Court still has the right to review the
sufficiency of the evidence to support the verdict.” 	State v.
Petree, 659 P.2d 443, 444 (Utah 1983). 	Though the court must
ordinarily accept the jury’s determination of witness
credibility, when the witness’s testimony is inherently
improbable, the court may choose to disregard it. 	Workman, 852

7 	No. 20060885
P.2d at 984. 	Importantly, when reviewing the sufficiency of the
evidence, the “burden of proof . . . may under appropriate
circumstances affect the degree of deference extended by an
appellate court to findings of fact.” 	State ex rel. Z.D. v.
State, 2006 UT 54, ¶ 27, 147 P.3d 401. 	It is “more difficult to
demonstrate that the evidence supporting a ‘preponderance’ based
outcome is so wanting . . . than it is to demonstrate the
required dearth of evidence under a more exacting evidentiary
standard.” 	Id. ¶ 40. 	In a criminal case, where the burden of
proof is beyond a reasonable doubt, the trial court may afford
less deference to inherently improbable, inconsistent,
uncorroborated witness testimony than in a civil case where the
plaintiff must only establish its claim by a preponderance of the
evidence. 	“The evidence, stretched to its utmost limits, must be
sufficient to prove the defendant guilty beyond a reasonable
doubt.” 	Petree, 659 P.2d at 445. 	We noted in Workman dicta that
witness testimony is inherently improbable and may likewise be
disregarded if it is (1) physically impossible or (2) apparently
false. 	852 P.2d at 984.
¶17 	Testimony is physically impossible when what the
witness claims happened could not have possibly occurred. 	If
Taylor had testified that the molestation occurred on the moon,
her testimony would have been inherently improbable because it is
physically impossible for that to have occurred. 	On the other
hand, testimony is apparently false if its falsity is “apparent,
without any resort to inferences or deductions.” 	Id. (internal
quotations marks omitted). 	The court of appeals applied a narrow
definition of “apparently false,” holding that it required the
testimony to be “improbable by its very nature.” 	State v.
Robbins, 2006 UT App 324, ¶ 17, 142 P.3d 589. 	It also held that
“the inherently improbable testimony must . . . go to the very
core of the offense.” 	Id. ¶ 18. 	Under this interpretation,
unless the witness’s testimony is impossible, not just
incredible, and concerns the core elements of the crime, not just
the circumstances surrounding it, the judge must uphold the
jury’s verdict. 	Such a standard is narrow to the point of being
meaningless. 	Substantial inconsistencies in a sole witness’s
testimony, though not directed at the core offense, can create a
situation where the prosecution cannot be said to have proven the
defendant’s guilt beyond a reasonable doubt, particularly as here
where other significant factors in the case suggest a lack of
credibility.
¶18 	To prevent unappealable injustice, we hold that the
definition of inherently improbable must include circumstances

No. 20060885 	8
where a witness’s testimony is incredibly dubious and, as such,
apparently false. 	Accordingly, when considering a motion to
arrest judgment, a trial judge may reevaluate the jury’s
determination of testimony credibility in cases “where a sole
witness presents inherently contradictory testimony that is
equivocal or the result of coercion, and there is a complete lack
of circumstantial evidence of guilt.” 	Bowles, 737 N.E.2d at
1152; see also Iowa v. Smith, 508 N.W.2d 101, 103 (Iowa Ct. App.
1993) (“‘The testimony of a witness may be so impossible and
absurd and self-contradictory that it should be deemed a nullity
by the court.’” (quoting Graham v. Chi. & Nw. Ry. Co., 119 N.W.
708, 711 (Iowa 1909))). 	We stress, however, that the court may
choose to exercise its discretion to disregard inconsistent
witness testimony only when the court is convinced that the
credibility of the witness is so weak that no reasonable jury
could find the defendant guilty beyond a reasonable doubt.
¶19 	Contrary to the court of appeals’ view, such a rule
would not allow defendants to challenge witness testimony for
“generalized concerns about a witness’s credibility.” 	Robbins,
2006 UT App 324, ¶ 17. 	Rather, the trial court could reevaluate
the jury’s credibility determinations only in those instances
where (1) there are material inconsistencies in the testimony and
(2) there is no other circumstantial or direct evidence of the
defendant’s guilt. 	The existence of any additional evidence
supporting the verdict prevents the judge from reconsidering the
witness’s credibility. 	See White v. Indiana, 706 N.E.2d 1078,
1080 (Ind. 1999) (refusing to reconsider witness testimony when
other witness testimony and circumstantial evidence supported the
conviction).
¶20 	This “inherent improbability” standard has been adopted
by other jurisdictions, including by the court in Iowa v. Smith,
where an Iowa court used it to overturn a jury verdict based only
on the incredible testimony of child witnesses who had motive to
lie. 	508 N.W.2d 101. 	In Smith, the court found the child’s
testimony of sexual abuse to be “inconsistent, self-
contradictory, lacking in experiential detail, and, at times,
border[ing] on the absurd.” 	Id. at 103. 	Smith was convicted of
molesting his two stepdaughters. 	Id. at 102. 	The girls
maintained that their stepfather had molested them at a lake
retreat and during a birthday party. 	Id. at 103-04. 	When asked
about details of the abuse, such as whether the defendant touched
her clothes or her skin and the length of the time of the abuse,
one stepdaughter responded “I don’t know” to each question. 	Id.
at 104. 	Her reports of the location, time, and frequency of the

1At first glance, it would appear that a magistrate’s
decision whether to bind a defendant over for trial is inapposite
to a motion to arrest judgment after a jury has rendered a
verdict. 	However, “the quantum of evidence necessary to support
a bindover is less than that necessary to survive a directed
verdict motion.” 	State v. Clark, 2001 UT 9, ¶ 16, 20 P.3d 300.
In other words, a magistrate needs less evidence to bind a
defendant over for trial than a trial judge needs to deny a
motion to arrest judgment. 	On bindover, the prosecution must
only produce “believable evidence of all the elements of the
crime charged.” 	Id. ¶ 15 (internal quotation marks omitted). 	If
we allow a magistrate to refuse to bind over a defendant for
trial because he finds testimony to be too incredible to
constitute believable evidence, we cannot logically deny a trial
judge the ability to disregard such incredible evidence in a
context requiring more conclusive evidence of guilt, such as a
motion to arrest judgment.
9 	No. 20060885
abuse varied considerably. 	Id. 	When confronted with
inconsistencies in her story, she responded “I’m not sure about
any of them. 	I think I guessed . . . .” 	Id. 	The other
stepdaughter began responses about what the defendant did “with
‘probably’ or ‘might have been’ as if she were trying to fill in
details she never experienced.” 	Id. 	Because of the
inconsistencies in the stepdaughters’ testimonies, the court
considered other undisputed circumstantial factors to find that
the evidence did not support the jury verdict. 	Id. at 104-05.
The court considered that there was significant conflict between
the stepdaughters’ mother and father to the extent that the
father had threatened to file abuse and neglect charges, that
witnesses testified that the stepdaughters enjoyed being with the
defendant, and that nobody besides the girls ever witnessed any
inappropriate behavior--even those who were supposedly in or near
the room where the abuse occurred. 	Id. at 105. 	Because there
was “insufficient credible evidence for a rational jury to find
appellant guilty beyond a reasonable doubt,” the court reversed
Smith’s conviction and remanded for acquittal. 	Id.
¶21 	This court has previously established that a judge may
“disregard or discount as incredible evidence that is not capable
of supporting a reasonable belief” of a defendant’s guilt in the
context of making a decision whether to bind over a defendant.
State v. Virgin, 2006 UT 29, ¶ 25, 137 P.3d 787. 1 	In Virgin, the
prosecution appealed a magistrate judge’s decision not to bind
the defendant over to face charges of aggravated sexual abuse of

No. 20060885 	10
a child. 	2006 UT 29, ¶ 1. 	The alleged victim, a four-year-old
girl, claimed that while Virgin was babysitting her, he “touched
her between her legs and showed her his penis.” 	Id. ¶ 8. 	Though
the child consistently maintained that a touching occurred in the
upstairs bathroom, she changed other details of the story between
2000, when the abuse allegedly occurred, and 2002, when
detectives reactivated the case. 	Id. ¶¶ 5-9. 	When asked about
the bathroom, she described a different bathroom than the one
where the molestation allegedly occurred. 	Id. ¶ 9. 	In
describing the events of the evening of the molestation, she told
the investigator that she went rollerblading on pink and white
mermaid skates, when she did not actually own any rollerblades at
all. 	Id. ¶ 4. 	Further, a person present in the house the
evening of the alleged abuse testified that the girl did not
appear to be distressed. 	Id. ¶ 11. 	The magistrate found the
child’s testimony incapable of supporting a reasonable belief a
crime was committed and refused to bind the defendant over for
trial. 	We affirmed that decision, reasoning that “when evidence
becomes so contradictory, inconsistent, or unbelievable that it
is unreasonable to base belief of an element of the prosecutor’s
claim on that evidence,” the judge need not credit it. 	Id. ¶ 25.
A judge considering a motion to arrest judgment has the same
leeway to determine whether a witness’s testimony is so
incredible that it could not have supported an essential element
of the charge.
¶22 	In this case, the court of appeals affirmed the trial
judge’s holding that he could not disregard Taylor’s incredibly
dubious testimony in considering Robbins’ motion to arrest the
judgment. 	But the trial judge’s assumption that he must credit
Taylor’s testimony was erroneous. 	Taylor’s testimony, which was
the sole evidence supporting Robbins’ guilt, contained many
inconsistencies. 	Taylor’s denial of any abuse to two
investigators, her inconsistent accounts regarding the extent of
the physical abuse she suffered, her age when the abuse occurred,
and what she was wearing at the time of abuse may alone be
insufficient to invoke the inherent improbability exception.
State v. Robbins, 709 P.2d 771, 773 (Utah 1985) (“We recognize
that children are often not able to identify with a high degree
of reliability, and sometimes not at all, when an event in the
past took place.”). 	But certainly the patently false statements
that Taylor made to cover up these inconsistencies are sufficient
to allow the court to reassess her credibility on a motion to
arrest judgment.

11 	No. 20060885
¶23 	Taylor made up a story about a hearing problem to
account for the discrepancy in the age when the abuse occurred.
She also reported fearing that someone in a closet eavesdropped
during her conversations with the first DCFS investigator, even
though the conversation took place in a room without a closet
before Mother or Robbins could have told her about a potential
eavesdropper. 	In addition, Taylor never conclusively stated who
told her not to tell about the physical and sexual abuse or what
the consequences would be for telling. 	Further, Taylor went from
reporting absolutely no physical abuse in 2001 to reporting at
trial that Robbins beat her with a book once a week. 	At one
point, she claimed Robbins was drunk when he beat her, but at
trial she claimed that he was not drunk because he would usually
sleep when he was drunk. 	Because Taylor’s testimony is the sole
evidence that a crime was even committed, and because no other
evidence points to Robbins’ guilt, these inconsistencies are
sufficient to have allowed the trial judge to reevaluate Taylor’s
credibility when considering the motion to arrest judgment.
¶24 	On sufficiency of the evidence review, we normally
afford weight to the trial court’s denial of a motion to arrest
judgment. 	But in this case, the trial judge, though constrained
by an unduly narrow construction of the inherent improbability
doctrine, was clearly troubled by the jury verdict. 	In the
hearing on the motion to arrest judgment, the trial judge
expressed his concern:
[I]f someone said, he touched me, he said I
did not, then okay, the jury believes
somebody. 	But there’s a lot more to this
case than that . . . . 	There [were] former
denials of any of that kind of stuff, there
was all this business going on about custody
. . . . 	I know from the fact from sitting
here for 22 plus years, that there is nothing
more emotionally driven than divorce
proceedings involving children and custody
. . . . 	[T]here’s nothing like fury that a
husband has when somebody . . . [has] an
affair with [his] wife. 	Those things are
serious business here . . . . 	[W]hat do I do
in a situation where there [are] all kinds of
collateral issues that would suggest that
[Taylor’s] testimony might not be credible?

No. 20060885 	12
Thus, the trial court’s denial of Robbins’ motion to arrest
judgment does not lend support to upholding the conviction.
CONCLUSION
¶25 	Based on the trial judge’s stated concerns and the
clear record of inconsistencies in Taylor’s testimony, and in
light of the clarification of our inherent improbability standard
that we announce today, we reverse the court of appeals and
remand with instructions for the trial court to enter an
acquittal.
---
¶26 	Chief Justice Durham, Associate Chief Justice Durrant,
and Justice Nehring concur with Justice Parrish’s opinion.
¶27 	Justice Wilkins dissents.