Peyton Cole Smith v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-24-00198-CR
__________________

PEYTON COLE SMITH, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause No. F20-34631
__________________________________________________________________

MEMORANDUM OPINION

Peyton Cole Smith (“Smith”) was indicted for aggravated sexual assault of

A.K. (“Amy”), 1 a child under six years of age, and the indictment included an

enhancement paragraph alleging that Smith had a prior felony conviction. See Tex.

Penal Code Ann. § 22.021. At trial, Smith pleaded “not guilty,” and a jury found him

1
We use pseudonyms to refer to the alleged victim, family members, and
others. See Tex. Const. art. I, § 30(a)(1) (granting crime victims “the right to be
treated with fairness and with respect for the victim’s dignity and privacy throughout
the criminal justice process”).
1
guilty as charged in the indictment. At the punishment phase, Smith pleaded “true”

to the indictment’s enhancement paragraph, and the trial court sentenced Smith to

ninety-nine years in prison in accordance with the jury’s assessment of punishment.

Smith timely appealed. In two appellate issues, Smith argues (1) the trial court erred

in denying his motion to suppress and admitting the evidence obtained from Smith’s

phone by his girlfriend M.H. (“Mandy”) that she provided to law enforcement and

resulted in Smith’s arrest, and (2) that his counsel “erred” in failing to request a jury

instruction under article 38.23. Finding no error, we affirm the trial court’s judgment.

Background and Evidence at Trial2

Prior to trial, Smith’s previous counsel filed a motion to suppress all the

information recovered from Smith’s cell phone and argued that the State and Mandy

unlawfully obtained the evidence in violation of the Fourth, Fifth, Sixth and

Fourteenth Amendments to the United States Constitution; article I, section 9 of the

Texas Constitution; and article 38.23 of the Texas Code of Criminal Procedure. After

a hearing, the trial court signed an Order on Defendant’s Motion to Suppress

(“Order”) and denied the motion. The trial court’s Order noted that Mandy testified

at the hearing that she and Smith lived together for three years with her two children,

one of which was the alleged victim in this case. According to the Order, Mandy

2
We limit our discussion of the facts and evidence to what is necessary for
the disposition of this appeal.
2
testified that she and Smith each had their own cell phones, they allowed each other

access to their cell phones, and they shared passwords to each other’s phones and

other electronic devices. Mandy testified that they shared each other’s cell phones,

vehicles, and social media accounts.

According to the Order, Mandy testified at the suppression hearing that in

May of 2020 she asked if she could use Smith’s cell phone, and he agreed. She

recalled that she used the passcode given to her by Smith to access the phone and

that is when she discovered the video of Smith and Mandy’s child, Amy, involved

in sexual acts with each other, and she explained how she recognized who was in the

video and where the video was taken. The Order states that Mandy testified that to

access the video she used the password “cookies23[,]” that she and Smith shared

that password, that she had previously created it, and that Smith began using that

password “jointly” after she began using the password. The Order states that Mandy

testified that she reported the offense to law enforcement.

The Order also states:

This Court concludes that upon the weight and credibility of the
evidence of the facts presented in this case, there was no constitutional
or statutory violation by any State actor, or one acting under color of
State authority. In addition, under these facts, defendant had no
reasonable expectation of privacy in his cell phone in relation to
[Mandy]. Under the credible facts presented herein, [Mandy] had
express consent and authority to access defendant’s cellular phone.
In sum, the search warrants and the affidavits are proper and
support probable cause, and the evidence derived therefrom was not
obtained in violation of a) the Fourth, Fifth, Sixth, and Fourteenth
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Amendments to the United States Constitution, b) Article I, Sections 9,
10 and 19 of the Texas Constitution, or c) Article 38.23 of the Texas
Code of [C]riminal Procedure.

At trial and prior to the presentation of evidence, defense counsel re-urged the

motion to suppress during the following exchange:

[Defense counsel]: . . . [M]y purpose right now, your Honor, is to reurge
that motion to suppress in the sense that the video was obtained
illegally, turned over to the police, and then they used that video to then
issue warrants and get the data from the cell phone.
If not for taking that phone illegally without a search warrant,
then they would not have the evidence. So all the evidence today I’m
going to object to, and I don’t know if the Court wants me to do a
running objection to that or object each time, whatever the Court
determines is best. But we would - -

THE COURT: Whatever you decide.

[Defense counsel]: - - object to anything related to the video or his cell
phone. It’s our intention it was seized improperly; and anything they
got, evidence, is fruit of the forbidden tree[.] . . .

THE COURT: You’ve seen - - you have a copy of this [Order on
Defendant’s Moton to Suppress]?

[Defense counsel]: Yes, sir.

THE COURT: But I ruled otherwise.

...

[Defense counsel]: And so I’m just preserving for error, your Honor,
for the appeal court. Now, I understand that you’re ruling that it’s all
admissible and I understand that, but I wanted to make sure on the
record that we are objecting to that and that I preserve my objection,
preserve the error for a possible appeal, your Honor.

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THE COURT: Okay. And the Court can always take up new or
additional or other evidence that wasn’t submitted beforehand in my
consideration on the ruling. So you’re free to relitigate that in a trial.

[Defense counsel]: Yes. And I may be objecting during the trial to other
things that come up, but I just want to reurge that original motion and
make sure it’s part of this.

...

THE COURT: . . . So, the order exists on the motion to suppress that
the Court signed which denied the defendant’s request. But he can raise
it, and it must be resupplied with evidence in front of a jury for a jury’s
determination as well.

Officer Brant Halfin with the Nederland Police Department testified at trial

that he was dispatched in May of 2020 to an address in regard to a sexual assault.

Officer Halfin recalled that he met with Mandy at that location and that Smith was

Mandy’s boyfriend. A video recorded from the body camera Officer Halfin was

wearing that day when he responded to the scene was admitted into evidence without

objection and published to the jury.

According to Officer Halfin, Mandy told him that she had discovered an

explicit video on Smith’s phone that portrayed him sexually assaulting her daughter

at a different location than the one to which he responded. Officer Halfin recalled

that Mandy showed him the video, and that after viewing the video, it was clear to

Officer Halfin that an offense had occurred. Officer Halfin testified that he gave

Mandy his department email address to send a copy of the video to him directly from

her, and she voluntarily emailed him a copy of the video. Officer Halfin testified that
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the video he received from Mandy was an exact copy of the video that he had

reviewed at the scene. State’s Exhibit 2, a copy of the video from Smith’s phone,

was admitted into evidence over Smith’s objection on the same grounds as the pre-

trial motion to suppress in that Mandy improperly obtained the video from Smith’s

phone and the police should have requested a warrant for the video. In overruling

the objection, the trial court noted that generally family members can get access to

their own family’s items without a warrant and that Mandy voluntarily turned over

the video to law enforcement. The trial court also stated that its prior Order on

defendant’s motion to suppress “will be made a part of the record for the purposes

of this trial.”

Mandy testified that she began dating Smith in 2017. According to Mandy,

she moved in with Smith in 2017, they got engaged around 2018, and she lived with

him until 2020. Mandy testified that during the time they lived together they shared

a lot of things like their cars and the desktop computer, passwords for online

accounts, passcodes for each other’s phones and other electronic devices, and

passwords for each other’s social media accounts.

Mandy testified that in May of 2020, she was inside their house, and Smith

was outside pressure washing. Mandy recalled that her phone was not working, he

told her where his phone was, she got it from where it was charging in Smith’s

computer room in the house, and she “started to go through” his phone to see if he

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had been unfaithful to her. According to Mandy, she did not ask to use his phone

that day, but she had permission to use it because “[h]e made it known that I could

use it, if I needed to.” She testified that she knew his passcode for his phone because

he had given it to her previously. She testified that she discovered a video on his

phone of him “sexually abusing” her daughter. At the time she discovered the video,

her daughter was under six years of age. She recalled that she was able to access the

video through the Verizon Cloud application using the password “cookies23[,]”

which was a password Mandy had created and used for accounts and that Smith

began also using as his password for his accounts. Mandy testified as to how she

identified Smith as the perpetrator and Amy as the victim in the video and how she

identified the location of the sexual assault as Amy’s bedroom.

According to Mandy, she voluntarily provided a copy of the video to law

enforcement and provided them with the passcode to Smith’s phone when law

enforcement was conducting an investigation. Detective Corey Mendoza testified

that a search warrant was obtained to search Smith’s home to search for certain

physical evidence depicted in the video as well as electronic devices capable of

storing data. Detective Mendoza testified that he assisted in executing the warrant at

the home and seized items including Smith’s phone. Video from one of the

detective’s body cameras depicting the execution of the search warrant was admitted

7
into evidence over the defense’s objection that the video was not properly

authenticated, and the video was published to the jury.

Denial of Smith’s Motion to Suppress

In issue one, Smith argues that during Mandy’s possession of the phone, her

search of his private files on the phone led to the discovery of photographs and

videos that showed sexual acts between Smith and Mandy’s five-year-old daughter,

Amy. According to Smith, Mandy did not have consent to search Smith’s private

information on his phone, and Mandy provided “[t]he illegally obtained items” to

law enforcement, which then was the basis for law enforcement’s search warrant

that led to his arrest. On appeal, Smith contends that the trial court erred in denying

Smith’s motion to suppress because the evidence from Smith’s phone was obtained

in violation of article 38.23. The State responds on appeal that Smith did not preserve

error because his argument on appeal does not comport with his argument at trial

and that he failed to object each time evidence obtained from his phone was offered

at trial. The State argues that, even if Smith preserved error, the trial court did not

err in denying the motion to suppress because Smith (1) did not assert that Mandy

violated any law or statute; (2) did not demonstrate that he had a legitimate

expectation of privacy in the phone; and (3) did not demonstrate any violation of his

constitutional or statutory rights by the police or Mandy. Finally, according to the

8
State, even if the trial court did err in denying the motion to suppress, the error was

harmless.

We review a trial court’s ruling on a motion to suppress evidence for an abuse

of discretion. State v. Espinosa, 666 S.W.3d 659, 667 (Tex. Crim. App. 2023). A

trial court abuses its discretion when its decision lies outside the zone of reasonable

disagreement, is arbitrary or unreasonable, or is without reference to any guiding

rules or principles. State v. Thomas, 428 S.W.3d 99, 103 (Tex. Crim. App. 2014);

State v. Mechler, 153 S.W.3d 435, 439-40 (Tex. Crim. App. 2005) (citing

Montgomery v. State, 810 S.W.2d 372, 378-79 (Tex. Crim. App. 1990)). Suppression

issues may raise mixed question of law and fact. See Loserth v. State, 963 S.W.2d

770, 772 (Tex. Crim. App. 1998) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.

Crim. App. 1997)). We review de novo issues of pure law and the application of the

law to the facts of the case, while deferring to the trial court’s factual determinations.

Id.; see also State v. Ruiz, 577 S.W.3d 543, 545 (Tex. Crim. App. 2019). In a motion

to suppress hearing, the trial court is the sole trier of fact and judge of the witnesses’

credibility and weight to be afforded testimony. See Valtierra v. State, 310 S.W.3d

442, 447 (Tex. Crim. App. 2010). When the issues raised in suppression hearings

are consensually relitigated before the jury, we consider the evidence from both the

motion to suppress and the trial in our review. Rachal v. State, 917 S.W.2d 799, 809

(Tex. Crim. App. 1996), cert. denied, 519 U.S. 1043 (1996).

9
The purpose of both the Fourth Amendment and article I, section 9 of the

Texas Constitution is to safeguard an individual’s legitimate expectation of privacy

from unreasonable governmental intrusions. Villarreal v. State, 935 S.W.2d 134, 138

(Tex. Crim. App. 1996). A party must establish standing to challenge a search and

seizure. See Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004) (addressing

standing under Fourth Amendment); Villarreal, 935 S.W.2d at 138 (same under

United States and Texas Constitutions). The defendant carries the burden of proof

to provide facts that establish standing. See Villarreal, 935 S.W.2d at 138.

A person has “standing” to contend that a search or seizure was
unreasonable if (1) he has a subjective expectation of privacy in the
place or object searched, and (2) society is prepared to recognize that
expectation as “reasonable” or “legitimate.” . . . .
Courts have held that (1) a person has a subjective expectation of
privacy in the contents of his cell phone, and (2) this expectation of
privacy is one that society recognizes as reasonable and legitimate.
A person’s subjective expectation of privacy in a cell phone that
he owns and possesses is supported by decades of cases on “standing.”
A defendant normally has “standing” to challenge a search of places
and objects that he owns.
....
The factors that courts use in deciding whether a person has a
reasonable expectation of privacy in the place or object searched
include the following:
(1) whether the defendant had a proprietary or possessory interest
in the place or object searched;
(2) whether the defendant’s presence in or on the place searched
was legitimate;
(3) whether the defendant had a right to exclude others from the
place or object;
(4) whether the defendant took normal precautions, prior to the
search, which are customarily taken to protect privacy in the
place or object;
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(5) whether the place or object searched was put to a private use;
(6) whether the defendant’s claim of privacy is consistent with
historical notion of privacy.
Ownership or legal possession of the property searched is not the
“be-all-end-all” in deciding whether a person has a legitimate
expectation of privacy in it. But courts commonly find that a person has
a legitimate expectation of privacy in the contents of his cell phone
because of its “ability to store large amounts of private data” both in the
cell phone itself and by accessing remote services. This data may
involve the most intimate details of a person’s individual life, including
text messages, emails, banking, medical, or credit card information,
pictures, and videos. A cell phone is unlike other containers as it can
receive, store, and transmit an almost unlimited amount of private
information. The potential for invasion of privacy, identity theft, or, at
a minimum, public embarrassment is enormous.
....
Although a person may have a reasonable and legitimate
expectation of privacy in the contents of his cell phone, he may lose
that expectation under some circumstances, such as if he abandons his
cell phone, lends it to others to use, or gives his consent to its search.

State v. Granville, 423 S.W.3d 399, 405-09 (Tex. Crim. App. 2014) (citations

omitted). Generally, “[p]asscodes effectively exclude others from access and

demonstrate a clear expectation of privacy.” Gonzalez v. State, 608 S.W.3d 98, 104

(Tex. App.—San Antonio 2020, pet. ref’d) (citing Grant v. State, 531 S.W.3d 898,

901 (Tex. App.—Houston [14th Dist]. 2017, pet. ref’d); see also Oseguera-Viera v.

State, 592 S.W.3d 960, 965 (Tex. App.—Houston [1st Dist.] 2019, pet. ref’d). “But

when an individual shares access, he may inadvertently confer authority to consent

on someone besides himself.” Gonzalez, 608 S.W.3d at 104 (citing Thomas v. State,

586 S.W.3d 413, 422 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d)); see also

Baird v. State, 398 S.W.3d 220, 230 (Tex. Crim. App. 2013). He may unwittingly
11
vitiate his expectation of privacy. Gonzalez, 608 S.W.3d at 104 (citing United States

v. Barth, 26 F. Supp. 2d 929, 937 (W.D. Tex. 1998); State v. Rodriguez, 521 S.W.3d

1, 11 (Tex. Crim. App. 2017); Brackens v. State, 312 S.W.3d 831, 837 (Tex. App.—

Houston [1st Dist.] 2009, pet. ref’d)).

When a private party discovers contraband in another’s private effects and

turns it over to the police, the Fourth Amendment is not implicated because the

police have not entered any protected area or violated the individual’s expectation

of privacy. Rodriguez, 521 S.W.3d at 11 (citing Cobb v. State, 85 S.W.3d 258, 270-

71 (Tex. Crim. App. 2002)). When a private party discovers digital contraband files

in another individual’s electronic device and shows those files to police, the Fourth

Amendment is not implicated. See Brackens, 312 S.W.3d at 837 (computer);

Gonzalez, 608 S.W.3d at 104 (iPad); Rogers v. State, 113 S.W.3d 452, 458 (Tex.

App.—San Antonio 2003, no pet.) (computer).

That said, if a private party has unlawfully accessed digital files, article 38.23

(the “Texas Exclusionary Rule”) may apply. See Gonzalez, 608 S.W.3d at 105

(citing Tex. Code Crim. Proc. Ann. art. 38.23; Thomas, 586 S.W.3d at 419;

Brackens, 312 S.W.3d at 839). Under the Texas Exclusionary Rule, “[n]o evidence

obtained by an officer or other person in violation of any provisions of the

Constitution or laws of the State of Texas, or of the Constitution or laws of the United

States of America, shall be admitted in evidence against the accused on the trial of

12
any criminal case.” Tex. Code Crim. Proc. Ann. art. 38.23(a). Unlike the Fourth

Amendment, which does not extend to private citizens acting in a private capacity,

article 38.23’s “other person” provision allows for suppression of evidence obtained

by private individuals if that information was obtained in violation of the state or

federal law. Ruiz, 577 S.W.3d at 546-47. Article 38.23 applies to illegal searches or

seizures conducted by law enforcement officers or “other persons,” even when those

private individuals are not acting in conjunction with, or at the request of,

government officials. Miles v. State, 241 S.W.3d 28, 32, 36 (Tex. Crim. App. 2007).

But if the private party lawfully accessed the files, then article 38.23 does not apply.

Ruiz, 577 S.W.3d at 546; Thomas, 586 S.W.3d at 419; Brackens, 312 S.W.3d at 839.

Article 38.23(a) does not apply if no violation of law occurred in obtaining

the evidence at issue. See Halili v. State, 430 S.W.3d 549, 554-55 (Tex. App.—

Houston [14th Dist.] 2014, no pet.). A defendant challenging the admission of

evidence under article 38.23(a) on the ground it was wrongfully obtained by a private

person in a private capacity must establish initially that the private person obtained

that evidence in violation of law. See Ruiz, 577 S.W.3d at 547-48; Pham v. State,

175 S.W.3d 767, 772 (Tex. Crim. App. 2005). If the defendant produces evidence

of a statutory violation, the burden shifts to the State to prove compliance. See Pham,

175 S.W.3d at 772; see also State v. Robinson, 334 S.W.3d 776, 778-79 (Tex. Crim.

App. 2011). “‘[T]he burden of persuasion is properly and permanently placed upon

13
the shoulders of the moving party.’” Pham, 175 S.W.3d at 773 (quoting Mattei v.

State, 455 S.W.2d 761, 766 (Tex. Crim. App. 1970)).

Assuming without deciding that Smith preserved error, we conclude that the

trial court did not abuse its discretion in denying the motion to suppress and in

admitting into evidence the evidence sought to be suppressed by the motion. First,

the Fourth Amendment was not implicated in this case. See Rodriguez, 521 S.W.3d

at 11. According to the record, Mandy acted as a private party when she accessed

Smith’s phone and discovered the video of Smith sexually assaulting her daughter.

See Gonzalez, 608 S.W.3d at 106 (citing Brackens, 312 S.W.3d at 837; Rogers, 113

S.W.3d at 458). On appeal, Smith did not challenge any of the trial court’s findings

in the Order. At trial, the State presented undisputed evidence at the hearing and at

trial that Smith permitted Mandy to access his phone on the day she discovered the

video, and that he shared his passcode and passwords for his phone and applications

and accounts with her. The evidence at trial demonstrated that Mandy used Smith’s

phone with his knowledge and permission, and she used his passcode to unlock his

phone and used their shared password to access the video. The record supports the

trial court’s denial of the motion to suppress, and it supports the admission of the

evidence. Smith failed to take reasonable precautions to protect his privacy in the

contents of his phone by allowing Mandy access to his phone and by sharing his

passcode and passwords. Accordingly, Smith had no objectively reasonable

14
expectation of privacy in the contents of his phone which he challenged in his motion

to suppress. See Granville, 423 S.W.3d at 409 (“Although a person may have a

reasonable and legitimate expectation of privacy in the contents of his cell phone, he

may lose that expectation under some circumstances, such as if he . . . lends it to

others to use, or gives his consent to its search.”); see also Oseguera-Viera, 592

S.W.3d at 964-65 (trial court did not abuse its discretion in finding defendant’s

subjective privacy interest was objectively unreasonable because he left his mislaid

phone in a store for anyone to pick up and he did not password protect it to limit

another person’s search); Lown v. State, 172 S.W.3d 753, 761 (Tex. App.—Houston

[14th Dist.] 2005, pet. ref’d) (appellant failed to show that his expectation of privacy

was objectively reasonable because, among other reasons, “there is no evidence

demonstrating that appellant took any precautions . . . to protect his privacy in the

information contained on the computer system[]”); Rogers, 113 S.W.3d at 458

(person has no legitimate expectation of privacy in information that is voluntarily

turned over to third parties and normal precautions to protect the person’s privacy

are not taken). Smith does not allege that Mandy violated any other law in obtaining

the video, and his article 38.23 complaint fails. See Ruiz, 577 S.W.3d at 547-48;

Pham, 175 S.W.3d at 772. Mandy voluntarily provided a copy of the video to the

police, who legally obtained a search warrant to seize the phone and to extract its

data.

15
We conclude the trial court did not abuse its discretion in denying Smith’s

motion to suppress or in admitting the evidence at trial. We overrule issue one.

Smith’s Claim that his Trial Attorney Erred

In his second issue, Smith argues his trial attorney “erred” in failing to request

a jury instruction under article 38.23 of the Texas Code of Criminal Procedure.

According to Smith, his counsel failed to request the instruction even though Smith

met the requirements for the submission of the instruction under Madden v. State,

242 S.W.3d 504, 510 (Tex. Crim. App. 2007), and he argues he should have been

afforded the right to the instruction even if the trial court denied his motion to

suppress. We interpret this issue as a challenge for ineffective assistance of counsel.

Both the United States Constitution and the Texas Constitution guarantee an

accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I,

§ 10; Tex. Code Crim. Proc. Ann. art. 1.051. This right necessarily includes the right

to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S.

668, 686 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997).

With respect to an ineffective assistance claim, our review of counsel’s performance

is highly deferential, and there is a strong presumption that counsel’s performance

fell within the wide range of reasonably professional assistance. Strickland, 446 U.S.

at 689; Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011) (citing

Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006)). To overcome that

16
presumption, Appellant must satisfy the two prongs established by Strickland v.

Washington by demonstrating that (1) counsel’s representations fell below an

objective standard of reasonableness, and (2) the deficient performance prejudiced

the defense. Lopez, 343 S.W.3d at 142 (citing Strickland, 466 U.S. at 687); see also

Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex. Crim. App. 1986) (adopting and

applying the Strickland test).

An article 38.23 jury instruction is mandatory only when there is a factual

dispute regarding the legality of how the evidence was obtained. Chambers v. State,

663 S.W.3d 1, 4 (Tex. Crim. App. 2022) (citing Garza v. State, 126 S.W.3d 79, 85

(Tex. Crim. App. 2004)); Pickens v. State, 165 S.W.3d 675, 680 (Tex. Crim. App.

2005); Brooks v. State, 642 S.W.2d 791, 799 (Tex. Crim. App. [Panel Op.] 1982).

We find no factual dispute in the record that would have entitled Smith to an

instruction under article 38.23. Accordingly, Smith’s trial counsel’s failure to

request an instruction to which Smith was not entitled is not ineffective assistance.

See Cardenas v. State, 30 S.W.3d 384, 392 (Tex. Crim. App. 2000); Young v. State,

991 S.W.2d 835, 839 (Tex. Crim. App. 1999); Cummings v. State, 401 S.W.3d 127,

132 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) (rejecting claim of

ineffective assistance when trial counsel failed to request article 38.23 instruction

because appellant was not entitled to such instruction) (citing Hardin v. State, 951

S.W.2d 208, 211 (Tex. App.—Houston [14th Dist.] 1997, no pet.)); Ford v. State,

17
282 S.W.3d 256, 267 (Tex. App.—Austin 2009, no pet.) (same). We overrule issue

two. We affirm the trial court’s judgment.

AFFIRMED.

LEANNE JOHNSON
Justice

Submitted on December 31, 2024
Opinion Delivered February 5, 2025
Do Not Publish

Before Golemon, C.J., Johnson and Wright, JJ.

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