Peo v. Howell

23CA1594 Peo v Howell 08-07-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1594
Adams County District Court No. 87CR504
Honorable Roberto Ramirez, Judge
Honorable Kyle Seedorf, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Thomas J. Howell,

Defendant-Appellant.

ORDERS AFFIRMED

Division VI
Opinion by JUDGE YUN
Tow and Graham*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 7, 2025

Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan Bishop, Alternate Defense Counsel, Denver, Colorado, for Defendant-
Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 Thomas J. Howell appeals the postconviction court’s orders

denying his Crim. P. 35(c) motion arising from the discovery of a

serology report. The court denied his motion primarily because of a

stipulation by the parties at trial that contained “concessions

beyond what the serology report asserted.” We affirm.

I. Background

¶2 In March 1987, Howell kidnapped, at gunpoint, three children

and one adult and later held hostage and sexually assaulted one of

the children — his nine-year-old stepdaughter. Howell’s

stepdaughter was taken to the hospital, where a doctor examined

her and collected samples for laboratory analysis. The doctor told

the investigating officer that he saw no signs of sperm, trauma, or

blood, but the victim’s hymen was not intact.

¶3 Howell was later told by his attorney that “the rape kit was

lost” but the prosecution was willing to stipulate to the doctor’s

findings. At the start of Howell’s two-day bench trial, the parties

stipulated that

as a result of a medical examination performed
by [the doctor] there was no sperm found and
no semen found on the victim . . . . There were
no vaginal tears, vaginal abrasions or bleeding
and there was no hymen intact.

1
¶4 The victim testified that Howell licked her vagina, laid on top of

her, and put his penis in her vagina. She did not testify that he

ejaculated. (When asked if Howell had “messed on” her, she

responded by referring to her scraped knee.)

¶5 After hearing the evidence, the court found Howell guilty of

(1) three counts of second degree kidnapping; (2) second degree

kidnapping — sexual assault; (3) attempted second degree

kidnapping; (4) first degree sexual assault; (5) sexual assault on a

child; (6) aggravated motor vehicle theft; (7) failure to leave

premises; (8) four counts of menacing; and (9) first degree criminal

trespass. Regarding the sexual assault charges, the court explained

that it was

convinced beyond a reasonable doubt that the
sexual assault testified to by [the victim]
occurred. The Court is convinced by the
details submitted by [the victim] as to the act
and the fact that she did make outcry to the
very first person she could identify as being a
friend as to what occurred.

The Court . . . further is convinced by [the
victim’s] steadfast story from the date of the
offense to the date of trial. True, details
changed in minor aspects but the Court would
expect that from a child of [the victim’s] tender
years.

2
True, there’s no medical evidence to support
[the victim’s] allegation but the Court can
utilize its life experiences in arriving at the
decision that it can be easily explained by a
child’s intolerance to pain and believes that
Mr. Howell did not intend to hurt the child and
would withdraw in sexual conduct when the
child cried out.

¶6 The court sentenced Howell to an aggregate term of 112 years

in prison. A division of this court affirmed the judgment of

conviction but vacated the sentence and remanded the case for

resentencing. See People v. Howell, (Colo. App. Nos. 88CA0752 &

88CA1106, Nov. 23, 1990) (not published pursuant to C.A.R. 35(f)).

On remand, the trial court again sentenced Howell to an aggregate

term of 112 years in prison, and a division of this court affirmed the

sentence. See People v. Howell, (Colo. App. No. 92CA0247, Dec. 31,

1992) (not published pursuant to C.A.R. 35(f)). Thereafter, Howell

filed numerous unsuccessful postconviction motions and appeals.

¶7 In 2018, Howell filed a request under the Colorado Criminal

Justice Records Act for materials related to his case. In response,

he received a document that neither he nor his lawyers had seen

before: a serology report from the Colorado Bureau of Investigation

with the laboratory results from the victim’s rape kit. The report

3
stated only that the “examinations conducted . . . did not indicate

the presence of semen.”

¶8 In 2021, Howell filed a Rule 35(c) motion claiming that he was

entitled to a new trial based on newly discovered evidence and that

his trial and postconviction counsel were ineffective for failing to

discover the serology report. He also made conclusory allegations

that the prosecution had withheld the report from the defense in

violation of Brady v. Maryland, 373 U.S. 83 (1963).

¶9 The postconviction court denied Howell’s ineffective assistance

of counsel claim without a hearing, finding that trial and

postconviction counsel acted reasonably by not further investigating

the missing rape kit when the prosecution said it was lost.

However, the court determined that Howell was entitled to a hearing

on his newly discovered evidence claim and ordered that a copy of

his motion be sent to the Public Defender’s Office. It did not

address his Brady claim.

¶ 10 Although Howell was appointed a public defender, he

disagreed with her about what arguments to raise, told the court

that he did not want her to represent him, and asked the court to

appoint alternate defense counsel to take over the case until private

4
counsel could enter an appearance. The court held a hearing and

determined there was no good cause for substituting counsel, only

a disagreement about strategy. At Howell’s request, the court

allowed the public defender to withdraw and granted additional

time for private counsel to enter an appearance; when private

counsel did not do so, the court allowed Howell to proceed pro se.

¶ 11 Following the hearing on the newly discovered evidence claim,

the postconviction court ruled that Howell was not entitled to a new

trial. The court found that the serology report was not newly

discovered evidence because “the parties stipulated to the serology

report results” at trial. It further found that, even if it constituted

newly discovered evidence, the serology report was not likely to lead

to an acquittal on retrial because (1) the stipulation at trial

contained “concessions beyond what the serology report asserted —

all of which operate[d] in [Howell’s] favor”; (2) the trial court “clearly

accepted the fact that the medical exam rendered no physical

evidence of the sexual assault” and found that “the lack of physical

evidence was entirely consistent with guilt”; and (3) “even if the

serology report had been introduced at trial, it would not have given

5
the [c]ourt any facts it did not already have when it decided the

case.”

¶ 12 Howell now appeals.

II. Analysis

¶ 13 Howell contends that (1) the postconviction court erred by

denying his newly discovered evidence claim; (2) the prosecution

violated Brady by withholding the serology report; (3) the

postconviction court erred by denying his ineffective assistance of

counsel claim; and (4) the postconviction court erred by denying his

request for alternate defense counsel.

¶ 14 The People argue that Howell’s claims were both untimely and

successive; however, we decline to address the People’s argument

because we agree with the postconviction court that the claims fail

on the merits.

A. Newly Discovered Evidence

¶ 15 Howell contends that the postconviction court erred by

denying his motion for a new trial based on newly discovered

evidence. We disagree.

1. Governing Law and Standard of Review

¶ 16 A defendant may challenge a conviction on the basis

6
[t]hat there exists evidence of material facts,
not theretofore presented and heard, which, by
the exercise of reasonable diligence, could not
have been known to or learned by the
defendant or his attorney prior to the
submission of the issues to the court or jury,
and which requires vacation of the conviction
or sentence in the interest of justice.

Crim. P. 35(c)(2)(V).

¶ 17 To succeed on a motion for a new trial based on newly

discovered evidence, the defendant must show that (1) the evidence

was discovered after trial; (2) he and his counsel were diligent in

attempting to discover it before trial; (3) the evidence is material and

not merely cumulative or impeaching; and (4) the evidence would

probably result in an acquittal if presented at another trial.

People v. Muniz, 928 P.2d 1352, 1357 (Colo. App. 1996).

¶ 18 A postconviction court’s ruling on a Rule 35(c) motion after a

hearing presents a mixed question of fact and law. People v. Sharp,

2019 COA 133, ¶ 12. “We defer to the court’s findings of fact if they

have record support, but we review any legal conclusions de novo.”

Id.

7
2. Discussion

¶ 19 Howell argues that the postconviction court erred by finding

that the serology report was not newly discovered evidence and was

not likely to lead to an acquittal on retrial. Specifically, he argues

that the doctor’s conclusion, based on a physical examination, that

there was no semen on the victim is not as reliable as the result of a

laboratory analysis that “did not indicate the presence of semen.”

While “[t]he lack of . . . semen through the physical examination is

not enough to create a reasonable doubt,” he argues, the “lack

of . . . semen through a lab examination is.”

¶ 20 But even assuming Howell is correct that the serology report is

newly discovered evidence and more reliable evidence of the

absence of semen than the doctor’s examination, he does not

address the fact that the absence of semen is consistent with the

victim’s testimony regarding the sexual assault. Indeed, as the

postconviction court noted, the trial court expressly found that “the

lack of physical evidence was entirely consistent with guilt.” Howell

does not explain how the serology report would undermine or call

into doubt any part of the victim’s testimony.

8
¶ 21 Further, although the stipulation at trial was based on the

“result of a medical examination performed by [the doctor]” and not

on a laboratory analysis, it was considerably broader and more

favorable to Howell than the serology report indicating only the

absence of semen. Specifically, the stipulation provided that the

doctor’s examination had revealed “no vaginal tears, vaginal

abrasions or bleeding.” Yet despite the absence not only of semen

but also of any physical evidence of sexual assault, the trial court

was convinced of Howell’s guilt beyond a reasonable doubt based on

the victim’s testimony, steadfast story, and immediate outcry. We

thus cannot agree with Howell that, “had [he] been allowed to

present evidence that the serology results excluded semen . . . , the

result of the trial likely would have been different.”

¶ 22 We are not persuaded otherwise by Howell’s reliance on

Commonwealth v. Hawk, 709 A.2d 373 (Pa. 1998), and State v.

Fitzpatrick, 118 So. 3d 737 (Fla. 2013). In Hawk, 709 A.2d at 374,

377, the Pennsylvania Supreme Court held that the trial court erred

by not allowing the defense “to present the testimony of a forensic

scientist concerning the negative test results of a rape kit

administered to the alleged victim” because “scientific evidence

9
corroborative of [the defendant’s] denial of sexual intercourse would

have been highly probative of his credibility.” In Fitzpatrick, 118 So.

3d at 760, the Florida Supreme Court held that the defendant’s trial

counsel was ineffective for (among other things) failing to challenge

the qualifications of a forensic nurse examiner because counsel

“was ‘under the impression’ that she was qualified to testify.” In

reaching this conclusion, the court referenced testimony elicited

during a postconviction evidentiary hearing that “forensic nurse

examiners . . . have little to no involvement in the interpretation of

the evidence.” Id. But here, in contrast to both Hawk and

Fitzpatrick, the parties stipulated to the lack of physical evidence of

sexual assault. The doctor who examined the victim did not testify,

and his qualifications were not at issue.

¶ 23 We thus agree with the postconviction court that the serology

report would not likely result in an acquittal on retrial and,

accordingly, that Howell is not entitled to a new trial based on

newly discovered evidence. See Muniz, 928 P.2d at 1357.

B. Brady

¶ 24 Howell contends that the prosecution violated Brady by

withholding the serology report. We are not persuaded.

10
¶ 25 Although the postconviction court denied Howell’s Rule 35(c)

motion without expressly addressing this issue, we may affirm on

any ground supported by the record. People v. Cooper, 2023 COA

113, ¶ 7.

¶ 26 It is a violation of a defendant’s constitutional right to due

process if the prosecution suppresses evidence that is “favorable to

an accused” and “material either to guilt or to punishment.” Brady,

373 U.S. at 87; see also People v. Bueno, 2018 CO 4, ¶ 27. A Brady

claim requires the defendant to show that “(1) the prosecution

suppressed evidence (2) that is exculpatory or favorable to the

defendant and (3) that is material to the case.” Bueno, ¶ 29.

¶ 27 Suppression occurs where a prosecutor fails to disclose

evidence, regardless of whether the prosecutor acts in good or bad

faith. Kyles v. Whitley, 514 U.S. 419, 432 (1995). Evidence is

exculpatory “if it tends to mitigate the likelihood of guilt or the

severity of the sentence.” Bueno, ¶ 31. And evidence is material “if

there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have

been different.” Id. at ¶ 32 (quoting United States v. Bagley,

473 U.S. 667, 682 (1985)). A “reasonable probability” is “a

11
probability sufficient to undermine confidence in the outcome.” Id.

(quoting Bagley, 473 U.S. at 682).

¶ 28 Here, even assuming that the prosecution suppressed

exculpatory evidence when it did not disclose the serology report to

the defense, we conclude that the report was not “material” for

Brady purposes — that is, there is no reasonable probability that,

had the report been disclosed, the result of the proceeding would

have been different. Id. As discussed above, the stipulation at trial

was significantly broader and more favorable to Howell than the

single result contained in the serology report, as the stipulation

stated not only that no semen was found on the victim but also that

she suffered no “vaginal tears, vaginal abrasions or bleeding.” But

the trier of fact nonetheless found the victim’s testimony more

persuasive than the lack of corroborating medical evidence.

Accordingly, the serology report confirming part of the stipulation

would not have changed the outcome.

C. Ineffective Assistance of Counsel

¶ 29 Howell contends that the postconviction court erred by

denying his ineffective assistance of counsel claim. We disagree.

12
1. Governing Law and Standard of Review

¶ 30 “A criminal defendant is constitutionally entitled to effective

assistance from his counsel.” Ardolino v. People, 69 P.3d 73, 76

(Colo. 2003). “[T]o prevail on an ineffective assistance of counsel

claim, a defendant must prove that 1) counsel’s performance was

deficient and 2) the deficient performance prejudiced the defense.”

Dunlap v. People, 173 P.3d 1054, 1062 (Colo. 2007). The failure to

prove either of these two prongs defeats an ineffective assistance

claim. People v. Thompson, 2020 COA 117, ¶ 50.

¶ 31 To establish deficient performance, a defendant must prove

that counsel’s representation “fell below an objective standard of

reasonableness.” Strickland v. Washington, 466 U.S. 668, 687-88

(1984). “[J]udicial scrutiny of counsel’s performance must be highly

deferential, evaluate particular acts and omissions from counsel’s

perspective at the time, and indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable

professional assistance.” Ardolino, 69 P.3d at 76.

¶ 32 To establish prejudice, a defendant must show that “there is a

reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Strickland,

13
466 U.S. at 694. A reasonable probability is “a probability sufficient

to undermine confidence in the outcome.” Id.

¶ 33 We review the summary denial of a Rule 35(c) motion de novo.

People v. Joslin, 2018 COA 24, ¶ 5. A postconviction court may

deny a Rule 35(c) motion without an evidentiary hearing if the

allegations are bare and conclusory; the allegations, even if true, do

not warrant relief; or the record directly refutes the allegations. Id.

at ¶ 4.

2. Discussion

¶ 34 Howell argues that the postconviction court erred by finding

that trial and postconviction counsel acted reasonably by not

further investigating the missing rape kit after the prosecution said

it was lost. But he overlooks the stipulation that his trial counsel

obtained. “[C]ounsel has a duty to make reasonable investigations

or to make a reasonable decision that makes particular

investigations unnecessary,” and “a particular decision not to

investigate must be directly assessed for reasonableness in all the

circumstances, applying a heavy measure of deference to counsel’s

judgments.” Strickland, 466 U.S. at 691. Here, considering that

counsel did not know what the results of the laboratory test would

14
be, counsel’s decision not to independently investigate the missing

rape kit was reasonable in light of the stipulation that there was no

physical evidence of sexual assault.

¶ 35 Further, even if counsel performed deficiently, Howell’s claim

nevertheless fails the prejudice prong of Strickland. Because

counsel obtained a stipulation broader and more favorable than the

results of the rape kit and, as the trial court explained, the lack of

physical evidence was consistent with the victim’s testimony

regarding the sexual assault, Howell cannot show a reasonable

probability that, had counsel further investigated the missing rape

kit, the result of the proceeding would have been different. See id.

at 694; People v. Phipps, 2016 COA 190M, ¶ 39 (holding that, even

if counsel “was deficient in failing to investigate,” the defendant’s

ineffective assistance claim failed because he could not show

prejudice).

¶ 36 We thus conclude that the postconviction court did not err by

denying Howell’s ineffective assistance of counsel claim without a

hearing.

15
D. Substitute Counsel

¶ 37 Howell contends that the postconviction court erred by

denying his request for substitute counsel. We again disagree.

1. Additional Background

¶ 38 After the postconviction court determined that Howell was

entitled to a hearing on his newly discovered evidence claim, a

public defender was appointed to represent him. When the People

responded to Howell’s Rule 35(c) motion, the public defender filed a

reply acknowledging that “[t]he [c]ourt has granted a hearing on a

limited issue related to the issue of newly discovered evidence” and

stating that, although she did not intend to file a supplement,

“Mr[.] Howell maintains his initial claims in the petition he filed.”

¶ 39 One month later, Howell sent a letter to the postconviction

court, saying that he disagreed with the public defender about what

arguments to raise. Howell wrote that

I have drafted the arguments in this Reply
hoping that my lawyer would adopt them, and
file them with the Court. I was advised by my
lawyer that if I broached certain issues or
arguments she would not file the Reply.

16
Two months later, the public defender filed a motion to continue the

hearing on Howell’s newly discovered evidence claim, explaining

that

Mr. Howell has continued to communicate
with defense counsel in preparation for the
hearing. Mr. Howell has stated both that he
intends to have [private counsel] enter on his
case and that he will be filing a motion to
dismiss undersigned counsel due to a
conflict. . . . Defense counsel does ask that
the Court leave the case set on that date so
Mr. Howell can address the Court on his
conflict claims.

Howell also drafted a pro se motion requesting a conflict hearing, in

which he asserted that the public defender had not “taken the time

to read and understand” his postconviction motion; had suggested

to him that the postconviction court did not “have the acumen to

understand” his motion; had failed to timely contact him after her

entry of appearance; had not requested sanctions against the

prosecution; and “would not utter the words ‘new evidence’ or

‘DNA.’”1

1 Howell was not able to file this motion with the postconviction

court before the conflict hearing, and the court accordingly did not
consider it, but it is included in the record on appeal.

17
¶ 40 On the date of the scheduled hearing regarding Howell’s newly

discovered evidence claim, Howell informed the court that he no

longer wanted the public defender to represent him and that he was

in touch with private counsel who was considering taking the case

pro bono. In the meantime, Howell asked the court to appoint

“attorney defense counsel,” which we understand to mean alternate

defense counsel. The postconviction court agreed to hold a conflict

hearing and explained that

if I find that there is a conflict which is
preventing you, at no-fault of your own, from
having adequate representation, then I pay for
another lawyer to step in. If I don’t, then your
choices are [the public defender] with her legal
education and training or you doing this by
yourself or you having private counsel to do it.

¶ 41 In describing the alleged conflict, Howell said he believed that

“the prosecution has committed nine false statements” but that the

public defender disagreed and was “holding the prosecution’s

position.” He mentioned that he and the public defender “went over

the evidence and over it” but could not agree on the scope of the

stipulation at trial and its relationship to the contents of the

serology report.

18
¶ 42 After hearing Howell’s explanation, the court found that there

was no conflict but rather “a disagreement on the strategy of

attacking [sic] the post-conviction relief.” At Howell’s request, the

court then excused the public defender and granted a thirty-day

continuance to allow private counsel to enter an appearance.

Ultimately, Howell appeared at the hearing on his newly discovered

evidence claim pro se.

2. Governing Law and Standard of Review

¶ 43 “[T]here is no constitutional right to post-conviction counsel

under either the United States Constitution or the Colorado

Constitution.” Silva v. People, 156 P.3d 1164, 1167 (Colo. 2007).

But “there exists a limited statutory right to post-conviction counsel

in Colorado if a defendant’s Crim. P. 35(c) motion has arguable

merit” arising from section 21-1-103, C.R.S. 2024 (providing for the

representation of indigent persons by the state public defender),

and section 21-1-104, C.R.S. 2024 (describing the duties of the

state public defender). Id. at 1167-68.

¶ 44 A defendant’s waiver of the constitutional right to counsel is

effective only if “the waiver is made voluntarily, knowingly, and

intelligently.” People v. Lavadie, 2021 CO 42, ¶ 26. But because a

19
defendant’s right to counsel in a Rule 35(c) proceeding “is statutory

and not constitutional, [the defendant’s] waiver must be voluntary

but need not be knowing and intelligent.” People v. Duran, 757 P.2d

1096, 1097 (Colo. App. 1988). A defendant’s waiver is voluntary

when the defendant refuses to proceed with appointed counsel

without good cause. People v. Arguello, 772 P.2d 87, 94 (Colo.

1989).

¶ 45 Good cause for the substitution of counsel includes “a conflict

of interest, a complete breakdown of communication or an

irreconcilable conflict which leads to an apparently unjust verdict.”

Id. (quoting McKee v. Harris, 649 F.2d 927, 931 (2d Cir. 1981)).

“However, before the substitution of counsel is warranted, the court

must confirm that the defendant has ‘some well[-]founded reason

for believing that the appointed attorney cannot or will not

competently represent him.’” People v. Faussett, 2016 COA 94M,

¶ 20 (alteration in original) (quoting People v. Kelling, 151 P.3d 650,

653 (Colo. App. 2006)).

¶ 46 “A conflict of interest exists when an attorney’s ability to

represent a client is materially limited by the attorney’s own

interests” or responsibility to another client. People v. Stroud, 2014

20
COA 58, ¶ 38; Colo. RPC 1.7(a). A complete breakdown in

communication warranting substitution of counsel “must be

evidenced by proof ‘of a severe and pervasive conflict with [the

defendant’s] attorney or evidence that [the defendant] had such

minimal contact with the attorney that meaningful communication

was not possible.’” Faussett, ¶ 24 (alteration in original) (quoting

United States v. Lott, 310 F.3d 1231, 1249 (10th Cir. 2002)).

“Disagreements pertaining to matters of trial preparation, strategy,

and tactics do not establish good cause for substitution of counsel.”

Kelling, 151 P.3d at 653.

¶ 47 “We review the trial court’s denial of an indigent defendant’s

request for substitute counsel for an abuse of discretion.” People v.

Johnson, 2016 COA 15, ¶ 29. “A trial court abuses its discretion

when its decision is manifestly arbitrary, unreasonable, or unfair,

or is based on an erroneous understanding or application of the

law.” Id.

3. Discussion

¶ 48 Howell argues that the postconviction court erred by finding

that no good cause existed for substituting counsel. Specifically, he

argues that the record supports a finding that the public defender

21
“would not file the Reply” and “refused to advocate for him,”

indicating a conflict so severe and pervasive as to constitute a

complete breakdown in communication. See Faussett, ¶ 24.

¶ 49 But what Howell actually told the postconviction court was

that the public defender “would not file the Reply . . . if I broached

certain issues or arguments.” (Emphasis added.) As he explained to

the court, he had “drafted the arguments” he wanted to make, but

the public defender refused to adopt them. Howell’s explanation of

the alleged conflict thus supports the postconviction court’s finding

of “a disagreement on . . . strategy,” which would not constitute

good cause for substitution of counsel. See Kelling, 151 P.3d at

653.

¶ 50 Moreover, the record does not reflect that the public defender

refused to represent Howell at the hearing. Although she elected

not to file a supplement to his postconviction motion, she

acknowledged the issue set for hearing and told the court that

Howell maintained his claims. She also indicated that she and

Howell had “continued to communicate . . . in preparation for the

hearing,” and Howell similarly acknowledged their ongoing

communication when he told the court that he and the public

22
defender had been “over the evidence and over it.” Although “[a]

court-appointed public defender does not have a duty to prosecute

a claim for post-conviction relief after determining that there is no

arguable merit to the defendant’s claim,” People v. Breaman,

939 P.2d 1348, 1351 (Colo. 1997), the public defender here never

indicated that she thought there was no arguable merit to Howell’s

claim or that she would not prosecute the claim for postconviction

relief on his behalf. Rather, she would not adopt the strategy

Howell proposed and make the arguments he wanted her to make.

¶ 51 Because the record supports the postconviction court’s

determination that no good cause existed for substitution of

counsel, we conclude that the court did not abuse its discretion by

declining to appoint alternate defense counsel. See

§ 21-2-103(1)(a), C.R.S. 2024 (“The office of alternate defense

counsel shall provide legal representation . . . [i]n cases involving

conflicts of interest for the state public defender . . . .”).

III. Disposition

¶ 52 The postconviction court’s orders are affirmed.

JUDGE TOW and JUDGE GRAHAM concur.

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