State of Tennessee v. Cindy Mae Nelson

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs February 15, 2011

STATE OF TENNESSEE v. CINDY MAE NELSON

Direct Appeal from the Criminal Court for Sullivan County

No. S56,635 R. Jerry Beck, Judge

No. E2010-01288-CCA-R3-CD - Filed April 29, 2011

The Defendant, Cindy Mae Nelson, pled guilty to two counts of aggravated cruelty to

animals, a Class E felony, and agreed to an eighteen-month sentence, with the trial court to

determine the manner of service of her sentence. After a hearing, the trial court ordered the

Defendant to serve her entire sentence in the Tennessee Department of Correction (“TDOC”)

and ordered her to pay $15,816.76 in restitution. The Defendant now appeals, contending

the trial court erred both when it denied alternative sentencing and when it set the amount of

her restitution. After a thorough review of the record and applicable law, we conclude the

trial court properly denied alternative sentencing but erred in setting the amount of her

restitution. As such, we reverse and remand the case for further proceedings consistent with

this opinion.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

in Part, Reversed in Part, and Remanded

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which D AVID H. W ELLES

and T HOMAS T. W OODALL, JJ., joined.

Steve McEwen (on appeal), Mountain City, Tennessee, and Andrew J. Gibbons (at trial and

on appeal), Blountville, Tennessee, for the Appellant, Cindy Mae Nelson.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant

Attorney General; H. Greeley Wells, District Attorney General; Julie R. Canter, Assistant

District Attorney General, for the Appellee, State of Tennessee.

OPINION

I. Facts

A. Background

This case arises from the Defendant’s severe neglect of her two adult pit bull dogs.

A Sullivan County grand jury indicted the Defendant for two counts of aggravated cruelty

to animals. The Defendant pled guilty to these charges and agreed to an eighteen-month

sentence, with the trial court to determine the manner of service of her sentence. At the

Defendant’s plea submission hearing, the parties stipulated to the following facts underlying

the Defendant’s guilty pleas:

[O]n February 5, 2009, a Kingsport city animal control officer

responded to 615 Gillespie Street after receiving a complaint of animal

neglect. Upon his arrival he observed a black pit bull that was chained to a

truck, having no provision of shelter, food, or water. The dog was lying on

frozen ground underneath the truck, apparently seeking shelter from the cold,

as the temperature was approximately 15 degrees on this particular day. The

dog’s condition could not be assessed as he could not be coaxed from

underneath the truck.

Also at the residence was a second pit bull chained near a house, but

also without food and water. The officer noted that the dog appeared to be

suffering from extreme malnourishment, as its bones were protruding.

The officer spoke with the dogs’ owner, [the Defendant], whose attitude

was one of indifference. He advised Ms. Nelson that he would return the

following day, at which time he would expect the situation to be rectified.

The officer returned the following day, February 6, 2009, and found the

dogs’ conditions . . . unchanged, and the dogs were still without food, shelter,

or water. He was able to get the black dog from underneath the truck, at which

time he noted the severity of his condition.

The dog was so starved and emaciated, and because he was too weak

to walk, had to be carried. The dog’s shoulders, ribs, backbone, and pelvis

protruded profusely, and his abdomen was tucked, and his back bowed over.

He had a listless demeanor, and his eyes had a sunken appearance. He had

untreated abrasions and ulcerations to his face, body, and ears, and he had

incurred severe frostbite. Both dogs had dried fecal matter on their rump area.

The dogs were seized and taken to a veterinarian who advised that both

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were grossly starved and dehydrated. The black dog, the male, had excessive

frostbite trauma to his rump and tail, with several inches of the tail eradicated.

The ulcerated areas to . . . his body had become infected, and upon

examination he was found to have swollen lymph nodes which are a sign of

systematic infection.

The male weighed 38 pounds and, according to medical personnel,

should have weighed at least 60 pounds. The condition of the female dog was

not as poor, but she weighed only 28 pounds, with her ideal weight being

around 50 pounds.

At the conclusion of the plea submission hearing, the trial court sentenced the Defendant to

eighteen months for each of her aggravated cruelty to animals convictions, with the sentences

to be served concurrently. The trial court imposed a $600 fine and, as Tennessee Code

Annotated section 39-14-212 requires for any defendant convicted of aggravated animal

cruelty, entered an order prohibiting the Defendant from owning an animal for ten years.

B. Alternative Sentencing & Restitution Hearing

The trial court subsequently held a hearing to determine the manner of service of the

Defendant’s eighteen-month sentence and the amount of restitution the Defendant would be

ordered to pay the Kingsport Animal Shelter for boarding and rehabilitation of the dogs. At

this hearing, the State entered a presentence report, which set forth the following information

about the Defendant: The Defendant, who was thirty-one at the time of sentencing, dropped

out of high school in North Carolina after completing the eleventh grade. She reported

obtaining her G.E.D., but the officer preparing the presentence report was unable to verify

this fact. The Defendant had completed no further education or vocational training. She had

no documented history of drug use. Her only reported physical impairment was being

“almost” blind in her right eye.

From 2003 to the present, the Defendant had collected at least eight misdemeanor

convictions, including convictions for driving without a license, telephone harassment,

domestic assault, assault, reckless endangerment, and theft up to $500. The Defendant had

been employed sporadically, working at a Wendy’s restaurant from 1997 to 1998, at a Dollar

General Store 1999 to 2001, and at Advanced Call Center Technologies (“ACCT”)from

April 2010 to sentencing. The Defendant reported earning $7.25 per hour at ACCT. She

also reported holding “scattered and brief” employment with temporary employment services.

The Defendant had, at the time of sentencing, two children from her first marriage that

ended in 2002, and two additional children from her second marriage that ended in 2008.

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Each ex-husband had custody of his respective children, and the Defendant was paying child

support for her four children through the wages she received at ACCT.

In a statement given to the officer preparing her presentence report, the Defendant

stated that “the two dogs were not taken care of the way they should have been but other

circumstances were involved.” She explained that a man with whom she had a romantic

relationship and who was living with her wanted to breed pit bulls, so the pair bought the two

pit bulls. The man subsequently left the Defendant for another woman and the dogs

remained at her house. Acknowledging that the dogs were not fed as they should have been,

the Defendant explained that she was worried about paying rent. She concluded: “I’m not

trying to push blame on others because I had a part in it and could have done better.”

The State entered an itemized list of the Kingsport Animal Shelter’s costs for caring

for the adult pit bulls February 6, 2009 through December 14, 2009 and caring for the female

pit bull’s eight puppies from August 6, 2009, to December 14, 2009. The Shelter boarding

expenses totaled $15,100, and its veterinary services expenses totaled $716.76, for a total

expenditure of $15,816.76.

At the hearing, the Defendant testified that, if imprisoned, she would lose her job at

ACCT and that her lengthy criminal record would prevent future employers from offering

her work.

Donna Marie Davidson, the senior supervisor of the Humane Society of Greater

Kingsport, testified that, when the Humane Society received the dogs in this case in February

2009, the dogs were severely under-nourished, and the male dog suffered from frostbite. The

female dog was not pregnant when she arrived at the shelter. While the dogs remained in the

care of the shelter, they were housed in the same pin. Davidson testified that the shelter

housed the dogs together because it had limited space and because the Defendant refused to

relinquish ownership of the dogs to the shelter. During this time, the female dog became

pregnant and gave birth to eight puppies. The dogs were released from the shelter to private

homes in December 2009.

Davidson testified that the total expense of caring for the dogs and their puppies was

$15,816.76. She explained that this expense included the costs of providing boarding,

veterinary services, and vaccinations for a total of ten dogs over a 312-day period. She

testified that the shelter’s daily boarding expense was $20, which accounted for the price of

food and the wages of the shelter’s employees. She testified that originally she calculated

the shelter to have spent $30,000 caring for the dogs, but that she reduced this amount by

half in exchange for the Defendant’s agreement to relinquish custody of the dogs to the

shelter.

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At the conclusion of the hearing, the trial court ordered the Defendant to serve her

eighteen-month sentence in the TDOC and to pay $15,816.76 in restitution to the Humane

Society of Greater Kingsport. The Defendant now appeals these judgments.

II. Analysis

On appeal, the Defendant contends that the trial court erred when it denied her an

alternative sentence and when it set the amount of her restitution

A. Denial of Alternative Sentencing

The Defendant contends the trial court erred when it denied alternative sentencing

because the evidence does not support the trial court’s finding that her criminal record and

her “irresponsible” conduct in this case required her confinement. She argues that, because

she is a “favorable” candidate for alternative sentencing, her criminal record includes only

misdemeanors, and she has maintained steady employment in order to pay child support for

her four children, the trial court should have granted either full probation or split

confinement.The State responds that the record supports the trial court’s finding that the

circumstances of the offense and the Defendant’s criminal record required her confinement

in this case.

When a defendant challenges the length, range or manner of service of a sentence, this

Court must conduct a de novo review on the record with a presumption that “the

determinations made by the court from which the appeal is taken are correct.” T.C.A. § 40-

35-401(d); State v. Mencer, 798 S.W.2d 543, 549 (Tenn. Crim. App. 1990) (finding

community corrections to be a form of alternative sentencing and therefore holding the de

novo standard of review of T.C.A. § 40-35-402(d) to apply to community corrections). As

the Sentencing Commission Comments to this section note, the burden is now on the

appealing party to show that the sentencing is improper. T.C.A. § 40-35-401, Sentencing

Comm’n Cmts. This means that if the trial court followed the statutory sentencing procedure,

made findings of facts which are adequately supported in the record, and gave due

consideration to the factors and principles relevant to sentencing under the 1989 Sentencing

Act, T.C.A. section 40-35-103 (2006), we may not disturb the sentence even if a different

result was preferred. State v. Ross, 49 S.W.3d 833, 847 (Tenn. 2001).

If a defendant seeks probation, then that defendant bears the burden of “establishing

[his] suitability.” T.C.A. § 40-35-303(b) (2006). As the Sentencing Commission points out,

“even though probation must be automatically considered as a sentencing option for eligible

defendants, the defendant is not automatically entitled to probation as a matter of law.”

T.C.A. § 40-35-303 (2006), Sentencing Comm’n Cmts.

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Due to the 2005 sentencing amendments, a defendant is no longer presumed to be a

favorable candidate for alternative sentencing. State v. Carter, 254 S.W.3d 335, 347 (Tenn.

2008) (citing T.C.A. § 40-35-102(6) (2006)). Instead, a defendant not within “the parameters

of subdivision (5) [of T.C.A. § 40-35-102], and who is an especially mitigated or standard

offender convicted of a Class C, D or E felony, should be considered as a favorable candidate

for alternative sentencing options in the absence of evidence to the contrary.” Id. (footnote

omitted). T.C.A. § 40-35-102(6); 2007 Tenn. Pub. Acts 512. Additionally, we note that a

trial court is “not bound” by the advisory sentencing guidelines; rather, it “shall consider ”

them. T.C.A. § 40-35-102(6) (emphasis added).

When sentencing the defendant to confinement, a trial court should consider whether:

(A) Confinement is necessary to protect society by restraining a defendant who

has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness of the

offense or confinement is particularly suited to provide an effective deterrence

to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or recently

been applied unsuccessfully to the defendant.

T.C.A. § 40-35-103(A)-(C) (2006). In choosing among possible sentencing alternatives, the

trial court should also consider “[t]he potential or lack of potential for the rehabilitation or

treatment.” T.C.A. § 40-35-103(5); State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App.

1994). The trial court may consider a defendant’s untruthfulness and lack of candor as they

relate to the potential for rehabilitation. See State v. Nunley, 22 S.W.3d 282, 289 (Tenn.

Crim. App. 1999); see also State v. Bunch, 646 S.W.2d 158, 160-61 (Tenn. 1983); State v.

Zeolia, 928 S.W.2d 457, 463 (Tenn. Crim. App. 1996); State v. Williamson, 919 S.W.2d 69,

84 (Tenn. Crim. App. 1995); Dowdy, 894 S.W.2d at 305-06.

At the conclusion of the sentencing hearing the trial court discussed the factors that,

in its view, indicated confinement was necessary. The trial court first found that the

Defendant had an “extensive prior [misdemeanor] record,” most of which was “directed

toward irresponsibility.” The trial court next found, based upon pictures entered into

evidence of the pit bulls on the day they were seized, that the abuse in this case was

“aggravated.” The court found that the Defendant further “aggravated” the circumstances

because, though she initially denied ownership of the dogs, she refused to surrender custody

of the dogs until the veterinary clinic presented her with a $30,000 bill for services rendered

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in care of the dogs. The trial court found that this behavior demonstrated further

“irresponsibility.” In summary, the trial court based its denial of alternative sentencing on

the “aggravated” circumstances of the case, the Defendant’s criminal record, and the

Defendant’s demonstrated “irresponsibility” in dealing with the Humane Society of Greater

Kingsport after her pit bulls were placed within their care.

The evidence proves that the Defendant is a standard, Range I offender, and her prior

convictions range from Class E misdemeanors to Class E felonies. Therefore, the Defendant

is considered a “favorable candidate” for alternative sentencing. See Carter, 254 S.W.3d at

347. The trial court based its denial of alternative sentencing on the Defendant’s extensive

criminal record, misdemeanor convictions, the specific circumstances of the dogs’ abuse in

this case, and the Defendant’s lack of cooperation with the Humane Society of Greater

Kingsport. Because the presentence report establishes the Defendant had at least eight prior

misdemeanor convictions, the record supports the trial court’s finding that the Defendant had

an extensive criminal record. Similarly, the record shows that the officer who initially

investigated the Defendant for animal neglect gave the Defendant twenty-four hours to obtain

adequate care for the animals on her own. The Defendant, however, chose to leave the

animals as they were, chained up in sub-freezing temperatures, without food and water.

When the officer returned and seized the animals, the male dog was unable to stand on his

own, and frostbite required amputation of his tail. Thus, the record also adequately supports

the trial court’s determination that the facts of this case were egregious. Finally, the record

shows that the Defendant initially denied that she owned the dogs but later refused to

surrender ownership of the dogs until the veterinarian presented her with a $30,000 bill for

their care. Therefore, the record supports the trial court’s finding that the Defendant

demonstrated “irresponsibility,” which detracts from her “potential for rehabilitation.” See

Nunley, 22 S.W.3d at 289. We do not agree with the Defendant that her continued

employment and payment of child support preponderates against the trial court’s finding that

the Defendant demonstrated a lack of potential for rehabilitation. In summary, the record

adequately supports each of the trial court’s factual findings. See Ross, 49 S.W.3d at 847.

The trial court, therefore, based its denial of alternative sentencing on the relevant

sentencing principles of the 1989 Sentencing Act: the Defendant’s criminal record, her lack

of truthfulness, and the circumstances of her offenses. See T.C.A. § 40-35-103(A)-(C). We

conclude that, because the trial court considered the pertinent facts of this case and the

relevant sentencing principles, its denial of alternative sentencing is presumptively correct.

See T.C.A. § 40-35-401(d); Mencer, 798 S.W.2d at 549. Also, we conclude that the concerns

cited by the trial court also constitute “evidence to the contrary” of the Defendant’s being a

“favorable candidate” for alternative sentencing. See T.C.A. § 40-35-102(6). The Defendant

has failed to carry her burden of proving her suitability for probation. T.C.A. § 40-35-303(b)

(2006). See T.C.A. § 40-35-103(1), (5); Kendrick, 10 S.W.3d at 656; Dowdy, 894 S.W.2d

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at 305. She is not entitled to relief on this issue.

B. Imposition of Restitution

The Defendant contends the trial court erred when it ordered her to pay $15,816.76

in restitution. She argues first that she should not be held responsible for the Humane

Society’s costs for caring for the female dog’s puppies, because they were conceived while

in the Humane Society’s care. She further argues that the Humane Society did not “provide

sufficient information or accounting” to justify a per diem daily expenditure of $20 per dog.

Finally, the Defendant argues the trial court failed to properly take into account her ability

to pay when it set the restitution amount. She contends that, for the reasons stated above, the

restitution amount was “unreasonable and inflated,” and this Court should reduce the amount

on appeal.

In response, the State does not address the Defendant’s objections to the amount of

restitution claimed by the Defendant. It acknowledges, however, that the trial court erred

when it failed to take into account the Defendant’s ability to pay when it set the amount of

her restitution. The State concedes that the case should be remanded for the trial court to

impose a restitution award that the Defendant can reasonably pay in light of her ability to

pay.

When the defendant challenges the restitution amount ordered by the trial court, this

Court will utilize a de novo standard of review with a presumption that the trial court’s ruling

was correct. T.C.A. § 40-35-401(d) (2006); State v. Johnson, 968 S.W.2d 883, 884 (Tenn.

Crim. App. 1997). The purpose of ordering restitution is to compensate the victim and to

punish and rehabilitate the defendant. Johnson, 968 S.W.2d at 885. “In determining the

amount and method of payment or other restitution, the court shall consider the financial

resources and future ability of the defendant to pay or perform.” T.C.A. § 40-35-304 (d)

(2006) (emphasis added); State v. Bottoms, 87 S.W.3d 95, 108 (Tenn. Crim. App. 2001).

After all, “[a]n order of restitution which obviously cannot be fulfilled serves no purpose for

the appellant or the victim.” Johnson, 968 S.W.2d at 886. There is “no formula for

determining restitution,” but the amount must be “reasonable” and “must be based upon the

victim’s pecuniary loss and the financial condition and obligations of the defendant; and the

amount ordered to be paid does not have to equal or mirror the victim’s precise pecuniary

loss.” Johnson, 968 S.W.2d at 886; State v. Smith, 898 S.W.2d 742, 747 (Tenn. Crim. App.

1994). Pecuniary loss is defined as “(1) All special damages, but not general damages, as

substantiated by evidence in the record or as agreed to by the defendant; and (2) Reasonable

out-of-pocket expenses incurred by the victim resulting from the filing of charges or

cooperating in the investigation and prosecution of the offense.” T.C.A. § 40-35-304(e).

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A defendant ordered to pay restitution “shall be responsible for the payment of the

restitution until the expiration of the sentence imposed by the court, and any payment or

performance schedule established by the court shall not extend beyond the expiration date.”

T.C.A. § 40-35-304(g)(2); Bottoms, 87 S.W.3d at 108. “Any unpaid portion of the restitution

ordered may be converted into a civil judgment.” T.C.A. § 40-35-304(h)(1).

Individuals or organizations the State has charged with caring for a victim are victims

under the restitution statute. State v. Webb, 130 S.W.3d 799, 836 (Tenn. Crim. App. 2003)

(holding that a humane society that cared for animals seized from a defendant who

committed animal cruelty is a victim because statute obligates state-sponsored shelters to care

for such animals). An individual or organization that voluntarily assumes care of a victim,

however, is not a victim for purposes of restitution. See State v. Stanley A. Gagne, No.

E2007-02071-CCA-R3-CD, 2009 WL 331327, *2-3 (Tenn. Crim. App., at Knoxville , Feb.

11, 2009), no Tenn. R. App. P. 11 application filed. Here, because the Human Society of

Greater Kingsport was charged with caring for the animals abused in this case, it is a proper

victim within the meaning of the Sentencing Act. See id.

When a trial court orders a defendant to serve a sentence of incarceration, as opposed

to probation, it lacks the jurisdiction to order a restitution payment plan, and, thus, may only

order a total amount of restitution. State v. Debbie Dawn Wales, No. M2007-01232-CCA-

R3-CD, 2008 WL 5191312 (Tenn. Crim. App. Dec. 11, 2008). Here the Defendant was

ordered to serve her eighteen-month sentence in the TDOC, so the trial court did not have

authority to order a restitution payment plan.

In summary, the process for determining a restitution amount is a two-step process:

the trial court must first determine the pecuniary loss to the victim, and then it must

determine how much of that amount the defendant can reasonably be expected to pay. See

Jo hn so n , 968 S .W .2d at 886; State v. W endell G ary G ibson, N o.

M2001-01430-CCA-R3-CD, 2002 WL 1358711, at *3 (Tenn. Crim. App., at Nashville, June

24, 2002), no Tenn. R. App. P. 11 application filed.

In this case, after denying alternative sentencing, the trial court addressed the

restitution it would order the Defendant to pay to the Humane Society for Greater Kingsport.

The trial court expressed confusion over how to take into account the Defendant’s ability to

pay in its determination of an appropriate restitution amount:

I don’t know how to handle it. She’s the one that put the [Humane

Society] in the position of having to keep the dogs . . . .

I don’t know.

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. . . .

Well, the only thing I know to fashion a thing on restitution, just make

her pay according to her ability to pay, . . .

I don’t know if I could ever come up with a formula. At the rate of her

income and prior work history, I could keep her from nonpayment of

restitution, keep her on probation for 20 years, probably . . . .

We can’t use court resources for 20 years or 15 years. Well, she

couldn’t pay $1,000 a year. And her prospects don’t look better than what

she’s doing now, far as income’s concerned. She might win the lottery. I

don’t know. But I think it’s . . .

It’s just going to be an impossibility.

The trial court ultimately imposed the full restitution amount requested by the Humane

Society of $15,816.76. The trial court explained, however, that it would specify on the

judgments that, upon the Defendant’s release from the TDOC, she would only be responsible

for paying the restitution amount “according to her ability to pay.”1 The trial court also noted

that it “would be reluctant to issue a probation violation at the end of eighteen months

because she hadn’t paid, because she’s making seven bucks an hour and paying child support

for [four] children.” The trial court noted that, due to the Defendant’s low-earning potential

and her enormous child support obligation, the Humane Society likely would receive “zilch,”

even were the Defendant to obtain employment after being released from the TDOC.

The Defendant first claims that the amount claimed in daily per diem damages by the

humane society was unreasonable and should not have been fully awarded. However, the

Defendant failed to prove at trial that this amount was unreasonable by introducing evidence

to refute the figures advanced in the humane society’s itemized report of its expenditures.

Therefore, her argument that the trial court’s finding that the humane society’s per diem

expenditure was “unreasonable” must fail because the humane society’s per diem

expenditure is “substantiated by evidence in the record.” See T.C.A. § 40-35-304(e). The

trial court did not err in taking into account this figure in its calculation of the shelter’s

pecuniary loss.

The Defendant next argues that the trial court should not have included as part of the

1

The Defendant’s judgments of conviction and sentence indeed include an instruction that the

Defendant pay the imposed restitution amount “based upon [her] ability to pay.”

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shelter’s pecuniary loss the expense of caring for the puppies born because the shelter caged

the adult dogs together. As to this issue, we find instructive Ms. Davidson’s testimony at

sentencing that the shelter was already crowded, that the Defendant initially refused to forfeit

ownership of the dogs to the shelter, and that abuse-case dogs must be kept separate from the

general population. In light of these facts, we agree with the trial court the Defendant was

“the one [who] put the [shelter] in the position of having to keep the dogs . . . .” Having

reviewed the record as a whole, we conclude that cost of caring for the puppies is

“substantiated by evidence in the record,” and the trial court did not err when it included the

cost in its calculation of the shelter’s pecuniary loss. See T.C.A. § 40-35-304(e).

The Defendant’s final claim, however, is meritorious. The Defendant argues the trial

court erred when it failed to take into account her ability to pay in setting the amount of

restitution. Because the trial court did not first determine how much of the shelter’s

pecuniary loss the Defendant could reasonably be expected to pay, this order does not

comport with Tennessee Code Annotated section 40-35-304(e). See Bottoms, 87 S.W.2d at

108. As the trial court noted, because the Defendant had child support obligations for four

children and a very low income-earning potential, she had only meager means of re-paying

the humane society. Though the trial court attempted to take into account the Defendant’s

insolvency by providing that she only pay “according to her ability” upon her release from

prison, this provision was inadequate. See T.C.A. § 40-35-401(d). Because the restitution

order of $15,816.76 takes into account only the shelter’s pecuniary loss and not the

Defendant’s ability to pay, we cannot presume it to be correct. See Johnson, 968 S.W.2d at

884. Accordingly, we remand the case to the trial court to consider the Defendant’s financial

resources and future ability to pay in determining the appropriate restitution in this case.

T.C.A. § 40-35-304(d).

III. Conclusion

After a thorough record of the review and applicable law, we conclude the trial court

properly denied the Defendant alternative sentencing but erred when it set the amount of her

restitution. As such, the judgment of the trial court ordering $15,816.76 in restitution is

reversed, and the case is remanded for further proceedings consistent with this opinion.

__________________________________

ROBERT W. WEDEMEYER, JUDGE

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