# State of Tennessee v. Calvin Sanchez Amos

> Court of Criminal Appeals of Tennessee · November 3, 2022

URL: https://www.frixlaw.com/law-library/cases/8418879

## Case

- **Court:** Court of Criminal Appeals of Tennessee
- **Decided:** November 3, 2022
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge Timothy L. Easter
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8418879

## How later opinions describe it (automated extraction)

- applying abuse of discretion standard when trial court substantially complies with the procedural requirements of Rule 404(b)(1)-(4)
- finding that the absence of drug paraphernalia and the manner of packaging of drugs supported an inference of intent to sell
- finding that testimony concerning the amount and the street value of the drugs was admissible to prove the defendant’s intent

## Opinion text

11/03/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs October 12, 2022

STATE OF TENNESSEE v. CALVIN SANCHEZ AMOS

Appeal from the Circuit Court for Maury County
No. 27629 Stella L. Hargrove, Judge
___________________________________

No. M2021-00986-CCA-R3-CD
___________________________________

Calvin Sanchez Amos, Defendant, was indicted for possession of .5 grams or more of
cocaine with the intent to sell in a drug-free zone, possession of a firearm with the intent
to go armed during the commission of a dangerous felony, and evading arrest. Defendant
pled guilty to evading arrest and proceeded to trial on the remaining charges. A jury found
Defendant guilty of the lesser included offenses of possession of .5 grams or more of
cocaine for resale and attempted possession of a firearm during the commission of a
dangerous felony. At the sentencing hearing, Defendant agreed to an effective sentence of
12 years. On appeal, Defendant challenges the sufficiency of the evidence and the trial
court’s ruling on the admissibility of a video from Defendant’s phone in which he is seen
cooking crack cocaine. After a full review, we affirm the judgments of the trial court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR. and JILL BARTEE AYERS, JJ., joined.

L. Samuel Patterson, Columbia, Tennessee, for the appellant, Calvin Sanchez Amos.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney
General; Brent A. Cooper, District Attorney General; and Jonathan Davis, Assistant
District Attorney General, for the appellee, State of Tennessee.

OPINION

After a traffic stop in the early morning hours of April 20, 2019, Defendant was
indicted for possession of .5 grams or more of cocaine in a drug-free school zone with
intent to sell, possession of a weapon with the intent to go armed during the commission
of or attempt to commit a dangerous felony, and evading arrest. Defendant pled guilty to
one count of evading arrest and not guilty to the remaining charges.

Officer Brandon Pace of the Columbia Police Department was on night shift patrol
on April 20, 2019, at around 3:45 a.m. when he observed a gray Dodge Charger fail to
come to a complete stop at the stop sign at the corner of White Street and Mapleash in
Maury County. Officer Pace followed the vehicle and “initiated a traffic stop for the stop
sign violation.” He explained that “[t]he car pulled over on the side of the road” directly
across the street from Agathos School and a “male g[o]t out of [the rear driver’s] side,
pull[ed] his pants up, and [took] off running in front of the vehicle.” The man ran “through
a field and ended up going out Tom J. towards Freedom Lane.” Officer Pace later identified
Defendant as the man who ran from the vehicle.

Rather than giving chase, Officer Pace approached the vehicle and asked the driver,
Daisha Sparkman, to step out of the vehicle. Ms. Sparkman claimed that she did not know
the identity of the man who ran from the car. The remaining rear seat passenger, Kevin
Wilson, was also asked to get out of the vehicle. Mr. Wilson was sitting behind the
passenger and also claimed ignorance as to the man’s identity. Destiny Skelton, the front
seat passenger, was also asked to exit the vehicle. She admitted that she was the owner of
the vehicle and initially denied knowing the identity of the man who ran from the vehicle.
Ms. Skelton later confirmed that she knew the man as “Sanchez.” She denied that there
was anything illegal in the vehicle and gave consent to search the vehicle.

During the search, Officer Rubert1 recovered a .45 caliber handgun and a bag
containing a “white, rocky substance” that field tested positive for cocaine. Both items
were located in the rear driver’s side floorboard where Defendant exited the vehicle. The
items were also within “reaching distance” of Mr. Wilson. The gun was loaded with a
round in the chamber. The drugs were packaged in one bag, a “corner bag tied up in a
knot.” The cocaine weighed 1.17 grams. Officer Pace testified that a typical user usually
has possession of .2 grams or less of crack along with a pipe and buys “$20 worth or less
at a time.” The amount found in the car had an approximate street value of $120. A cell
phone was found “in the seat on the same side” of the vehicle. Two other cell phones were
found in the car, one belonging to the driver, and one belonging to the front seat passenger.
The car was stopped 36 and a half feet from the school.

Four days later, on April 24, Officer Pace went to the home of Defendant’s
grandmother, Defendant’s last known residence. Officer Pace spoke with Defendant’s
grandmother, who insisted Defendant was not present. As Officer Pace was returning to

1
Officer Rubert is not identified by his first name in the record.
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his patrol car, Defendant came outside. Defendant acknowledged that it was his phone
found in the back seat of the vehicle on the night of the incident.

The State introduced the video from Defendant’s phone. The trial court had already
held a jury out hearing on the admissibility of evidence found on the cell phone. The
hearing took place after the jury was sworn but prior to the introduction of any testimony.
During the hearing, the trial court learned Defendant admitted that it was his cell phone,
that a search warrant was procured, and that the phone was searched. According to the
State, the phone contained “numerous videos and text messages and photographs of drug
activity, gun activity, flashing large amounts of cash, statements by presumably
[Defendant] in regards to the cash” as well as “numerous videos of individuals cooking
crack cocaine as well as packaging individually packaged, cooked crack cocaine for resale
to individuals using drugs.”

The State sought to introduce two separate types of evidence found on the phone: a
video clip showing crack cocaine cooking on a stove accompanied by two still shots from
the video and some text messages sent by Defendant trying to set up a drug sale and
purchase. The video did not actually show Defendant cooking crack cocaine, but the video
showed crack cocaine cooking on a stove and then showed Defendant’s face. No one else
is present in the video. The video was taken two weeks prior to the incident for which
Defendant was arrested and the text messages were dated within two months of the
incident.

After hearing argument from both the State and counsel for Defendant, the trial
court found that the probative value of the video outweighed the prejudicial effect but
excluded the text messages, “unless [Defendant] opens the door.”

The State introduced the video and still images found on Defendant’s phone during
the testimony of Officer Pace. He described the video which depicted “bags of cocaine
sitting tied up on a stove” next to a pot of boiling water. The pot of water contained a jar
sitting in the pot, in the same manner in which crack cocaine is produced. Defendant’s
face is partially visible in the short video clip. The first still image depicts the stove, pot,
jar, and baggies filled with a white substance on the stovetop. The second still image
depicts half of Defendant’s face.

Defendant elected not to testify. Destiny Skelton testified for Defendant that she
was 22 years of age and worked at Adient. She admitted that she was charged with
possession of cocaine for resale in a drug-free zone and possession of a firearm during the
commission of a dangerous felony but that the charges were “dropped.” A charge for
contributing to the delinquency of a minor was “retired.” With respect to all other
questions, Ms. Skelton invoked the Fifth Amendment.
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Daisha Sparkman testified that she was 19 at the time of trial and 17 at the time of
the incident. She admitted to being the driver of the vehicle on the night of the traffic stop
and confirmed that Ms. Skelton, Mr. Wilson, and Defendant were the additional passengers
in the car. She and Defendant were dating at the time. Ms. Sparkman was driving Ms.
Skelton’s car because Ms. Skelton “was drunk.” They picked up Defendant and Mr.
Wilson at “White Street” around 3:00 a.m. Mr. Wilson had a “black” gun. Ms. Sparkman
“told him he shouldn’t bring it” but Mr. Wilson ignored her plea. They drove off and
headed to Ms. Sparkman’s cousin’s home, where the two women had visited earlier that
evening. Ms. Sparkman denied seeing cocaine in the vehicle. Ms. Sparkman did not tell
officers on the night of the incident about the gun because she was “scared.”

At the conclusion of the proof, Defendant was found guilty of attempted possession
of a firearm during the commission of a dangerous felony, a Class E felony, and possession
of .5 grams or more of cocaine for resale, a Class B felony. The trial court approved the
verdicts and set a sentencing hearing. The judgment forms reflect that the trial court
imposed a sentence of 12 years for possession of cocaine with intent to sell, two years for
attempted possession of a firearm during the commission of a dangerous felony, and 11
months and 29 days for evading arrest. The sentences were to run concurrently, for a total
effective sentence of 12 years.

Defendant filed a motion for new trial, which the trial court denied “for the reasons
stated in the record.”2 Defendant appealed, arguing that the evidence was insufficient to
sustain the convictions for possession of .5 grams or more of cocaine for resale and
attempted possession of a firearm during the commission of a dangerous felony and that
the trial court erred by permitting the State to introduce the video and still images found
on Defendant’s phone.

Analysis

Admissibility of Video and Still Images

Defendant argues that the trial court erred by allowing the State to introduce the
video and still images found on Defendant’s phone under Tennessee Rule of Evidence
404(b). Specifically, Defendant claims it was “highly prejudicial” to permit the “improper
character evidence” of him “allegedly cooking crack cocaine [while] being on trial for
possession of crack cocaine” when the State’s case was entirely circumstantial and based
on constructive possession. The State argues that the introduction of the video was relevant
to Defendant’s identity because it showed him “producing the same illegal drug” and

2
The record does not contain a transcript of the hearing on the motion for new trial.
-4-
“several bags of finished product” for which he was charged with possession with intent to
sell. While the State acknowledges that the “prejudicial effect of the video is considerable,”
the State argues that it “does not outweigh the probative value of the evidence as it fairly
establishes that [D]efendant was producing a quantity of crack cocaine far in excess of a
user amount and packaged in several packages indicative of an intent to sell.”

At the outset of our analysis, we point out that Defendant has failed to include the
transcript from the motion for new trial hearing in the record on appeal. Pursuant to the
Tennessee Rules of Appellate Procedure, specifically 24(b), the appellant has to ensure that
the appellate record contains a fair, accurate, and complete account of what has occurred
regarding the issues that are the bases of the appeal. See Tenn. R. App. P. 24(b). Defendant
faces the risk of waiver of issues on appeal if an incomplete record is submitted to this
Court. Here, the State did not argue that Defendant waived his issues on appeal by failing
to include this transcript. The appellate record contains the transcript from the pretrial
discussion on the admissibility of the evidence, the motion for new trial filed by Defendant,
and the trial court’s order denying the motion for new trial. Therefore, waiver
notwithstanding, we will address Defendant’s issue on the merits.

The threshold issue concerning the admissibility of evidence is relevance. Relevant
evidence is evidence “having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would
be without the evidence.” Tenn. R. Evid. 401. “Evidence which is not relevant is not
admissible.” Tenn. R. Evid. 402. Even if evidence is deemed relevant, it may still be
excluded “if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.” Tenn. R. Evid.
403. Additionally, “[e]vidence of a person’s character or trait of character is not admissible
for the purpose of proving action in conformity therewith on a particular occasion.” Tenn.
R. Evid. 404(a). However, “[e]vidence of other crimes, wrongs, or acts” may be admissible
for “other purposes,” such as proving identity, criminal intent, or rebuttal of accident or
mistake. Tenn. R. Evid. 404(b); State v. Thacker, 164 S.W.3d 208, 239-40 (Tenn. 2005).
Under Rule 404(b), the evidence must be excluded “if its probative value is outweighed by
the danger of unfair prejudice.” Tenn. R. Evid. 404(b)(4).

We must first determine whether the admissibility of the evidence should have been
analyzed under Rule 403 or 404(b). “Rule 403 is a rule of admissibility, and it places a
heavy burden on the party seeking to exclude the evidence.” State v. James, 81 S.W.3d
751, 757 (Tenn. 2002). On the other hand, most authorities suggest that trial courts take a
“restrictive approach of 404(b) . . . because ‘other act’ evidence carries a significant
potential for unfairly biasing a jury against the criminal accused.” Neil P. Cohen et al.,
Tennessee Law of Evidence § 4.04[8][e] (6th ed. LexisNexis Matthew Bender).
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Traditionally, courts of this state have viewed any testimony of prior bad acts by a
defendant as inadmissible when used as substantive evidence of guilt of the crime on trial.
State v. Parton, 694 S.W.2d 299, 302-03 (Tenn. 1985). In those instances where the prior
conduct or acts are similar to the crimes on trial, the potential for a prejudicial result
increases. State v. Bordis, 905 S.W.2d 214, 232 (Tenn. Crim. App. 1995).

As set forth above, Rule 404(b) applies only to prior “bad acts,” State v. Clark, 452
S.W.3d 268, 289 (Tenn. 2014), and testimony about behavior that is relevant and which
does not constitute a crime or bad act is not analyzed under the Rule. State v. Reid, 213
S.W.3d 792, 814 (Tenn. 2006) (determining that possession of a gun, standing alone, does
not constitute a crime and therefore evidence of ownership of a gun is not a bad act). If the
behavior is indeed a bad act, we must then determine whether the trial court substantially
complied with Rule 404(b)’s procedural requirements prior to admitting the evidence in
order to determine the appropriate standard of review. State v. DuBose, 953 S.W.2d 649,
652 (Tenn. 1997) (applying abuse of discretion standard when trial court substantially
complies with the procedural requirements of Rule 404(b)(1)-(4)).

Here, Defendant was charged with possession of .5 grams or more of cocaine with
the intent to sell in a drug-free zone. To prove Defendant’s guilt, the State needed to prove
that Defendant knowingly possessed a controlled substance with intent to sell the
controlled substance. T.C.A. § 39-17-417(a)(4). The trial court held a hearing outside of
the jury’s presence. The trial court determined that the video on Defendant’s phone
showing crack cocaine cooking on a stove next to small baggies containing white powder
and then showing Defendant’s face was relevant to prove Defendant’s identity and his
intent to resell the illegal substance. The trial court also determined that the probative value
of the video and still images from the video outweighed the risk of unfair prejudice because
the content of the evidence outweighed the prejudicial effect.

There is no doubt that the proof offered by the State was evidence of a “bad act.”
In our assessment, the trial court herein substantially complied with the procedural
requirements of 404(b), so our review is limited to whether the admission of the evidence
qualified as an abuse of discretion. Our supreme court has stated that the abuse of
discretion standard of review is a “less rigorous review” of a trial court’s decision and does
not permit this Court to substitute its judgment for that of the trial court. State v. McCaleb,
582 S.W.3d 179, 185 (Tenn. 2019) (quoting Lee Med., Inc. v. Beecher, 312 S.W.3d 515,
524 (Tenn. 2010)). On review, courts should determine “(1) whether the factual basis for
the [trial court’s] decision is properly supported by evidence in the record, (2) whether the
[trial] court properly identified and applied the most appropriate legal principles applicable
to the decision, and (3) whether the [trial] court’s decision was within the range of
acceptable alternative dispositions.” Id. (quoting Lee Med., Inc., 312 S.W.3d at) (citations
omitted). Admittedly, the introduction of this evidence is a close call, but we are not
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permitted to substitute our judgment for that of the trial court. The trial court did not abuse
its discretion in admitting the video and still images as evidence. Defendant is not entitled
to relief.

Sufficiency of the Evidence

Defendant also challenges the sufficiency of the evidence to support his convictions.
Specifically, Defendant notes that he was a passenger in a car with four occupants where
cocaine and a firearm were found on the floorboard behind the driver’s seat, within reach
of several passengers. He further argues that the case is circumstantial and the jury likely
convicted him based on the prejudicial video shown to the jury coupled with constructive
possession. The State disagrees.

Well-settled principles guide this Court’s review when a defendant challenges the
sufficiency of the evidence. The relevant question is whether any rational trier of fact could
have found the accused guilty of every element of the offense beyond a reasonable doubt.
See Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319 (1979). The jury’s
verdict replaces the presumption of innocence with one of guilt; therefore, the burden is
shifted onto the defendant to show that the evidence introduced at trial was insufficient to
support such a verdict. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002). The prosecution
is entitled to the “‘strongest legitimate view of the evidence and to all reasonable and
legitimate inferences that may be drawn therefrom.’” State v. Goodwin, 143 S.W.3d 771,
775 (Tenn. 2004) (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Questions
concerning the “‘credibility of the witnesses, the weight to be given their testimony, and
the reconciliation of conflicts in the proof are matters entrusted to the jury as the trier of
fact.’” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012) (quoting State v. Campbell,
245 S.W.3d 331, 335 (Tenn. 2008)). “‘A guilty verdict by the jury, approved by the trial
court, accredits the testimony of the witnesses for the State and resolves all conflicts in
favor of the prosecution’s theory.’” Reid, 91 S.W.3d at 277 (quoting State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997)). It is not the role of this Court to reweigh or reevaluate the
evidence, nor to substitute our own inferences for those drawn from the evidence by the
trier of fact. Id. The standard of review is the same whether the conviction is based upon
direct evidence, circumstantial evidence, or a combination of the two. State v. Dorantes,
331 S.W.3d 370, 379 (Tenn. 2011); State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009).

A. Possession of Cocaine with Intent to Sell

One who knowingly possesses .5 grams or more of cocaine with intent to
manufacture, deliver, or sell is guilty of a Class B felony. T.C.A. § 39-17-417(a)(4), (c)(1).
A person “acts knowingly with respect to the conduct or to circumstances surrounding the
conduct when the person is aware of the nature of the conduct or that the circumstances
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exist.” T.C.A. § 39-11-302(b). Possession can mean either actual or constructive
possession. State v. Robinson, 400 S.W.3d 529, 534 (Tenn. 2013). Before a person can be
found to constructively possess a drug, it must appear that the person has “the power and
intention at a given time to exercise dominion and control over . . . [the drugs] either
directly or through others.” State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001) (quoting State
v. Patterson, 966 S.W.2d 435, 445 (Tenn. Crim. App. 1997)). The mere presence of a
person in an area where drugs are discovered is not, alone, sufficient to support a finding
that the person possessed the drugs. State v. Bigsby, 40 S.W.3d 87, 90 (Tenn. Crim. App.
2000). Likewise, an individual’s mere association with a person who does in fact control
the drugs or property where the drugs are discovered is also insufficient to support a finding
that the person possessed the drugs. State v. Cooper, 736 S.W.2d 125, 129 (Tenn. Crim.
App. 1987); Robinson, 400 S.W.3d at 534. However, constructive possession is
determined on a case-by-case basis by the totality of the circumstances and can be proven
by circumstantial evidence. Robinson, 400 S.W.3d at 534. Moreover, Tennessee Code
Annotated section 39-17-419 provides in pertinent part, “It may be inferred from the
amount of a controlled substance or substances possessed by an offender, along with other
relevant facts surrounding the arrest, that the controlled substance or substances were
possessed with the purpose of selling or otherwise dispensing.” “Other relevant facts” that
may give rise to an inference of intent include the absence of drug paraphernalia, the
presence of a large amount of cash, the manner of packaging of the drugs, and the street
value of the drugs. See State v. Belew, 348 S.W.3d 186, 191 (Tenn. Crim. App. 2005)
(citing State v. Chearis, 995 S.W.2d 641, 645 (Tenn. Crim. App. 1999)); see also State v.
Brown, 915 S.W.2d 3, 8 (Tenn. Crim. App. 1995) (finding that the absence of drug
paraphernalia and the manner of packaging of drugs supported an inference of intent to
sell); State v. Matthews, 805 S.W.2d 776, 782 (Tenn. Crim. App. 1990) (finding that
testimony concerning the amount and the street value of the drugs was admissible to prove
the defendant’s intent).

When viewed in a light most favorable to the State, the proof introduced at trial
showed that Officer Pace stopped a vehicle for running a stop sign. Defendant fled from
the rear driver’s side seat of the car. When the vehicle was searched, officers recovered a
loaded .45 caliber pistol and a bag of cocaine in the rear driver’s side floorboard.
Defendant’s cell phone was found on the rear driver’s side seat. Defendant’s phone
contained a video of someone cooking powder cocaine to make crack cocaine. Defendant’s
face is visible in one portion of the video. Further testimony at trial indicated that the
amount of crack found in the vehicle was worth about $120 and that a typical user usually
purchases around $20 of crack at a time. There is simply nothing in the record to suggest
that the illegal drugs in question were for Defendant’s personal use. The evidence is
sufficient to support this conviction.

B. Attempted Possession of a Firearm During the Commission of a Dangerous Felony
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Defendant was also convicted of attempted possession of a firearm during the
commission of a dangerous felony. See T.C.A. § 39-17-1234(a). Tennessee Code
Annotated section 39-12-101 defines criminal attempt as follows:

(a) A person commits criminal attempt who, acting with the kind of
culpability otherwise required for the offense:

(1) Intentionally engages in action or causes a result that would constitute an
offense, if the circumstances surrounding the conduct were as the person
believes them to be;

(2) Acts with intent to cause a result that is an element of the offense, and
believes the conduct will cause the result without further conduct on the
person’s part; or

(3) Acts with intent to complete a course of action or cause a result that would
constitute the offense, under the circumstances surrounding the conduct as
the person believes them to be, and the conduct constitutes a substantial step
toward the commission of the offense.

(b) Conduct does not constitute a substantial step under subdivision (a)(3),
unless the person’s entire course of action is corroborative of the intent to
commit the offense.

(c) It is no defense to prosecution for criminal attempt that the offense
attempted was actually committed.

A person “acts intentionally with respect to the nature of the conduct or to a result of the
conduct when it is the person’s conscious objective or desire to engage in the conduct or
cause the result” and “acts knowingly with respect to a result of the person’s conduct when
the person is aware that the conduct is reasonably certain to cause the result.” Id. § 39-11-
302(a), (b). Defendant’s possession of the weapon could be either constructive or actual
possession. See State v. Gerald Dewayne Triplett, No. W2015-00163-CCA-R3-CD, 2015
WL 9489506, at *5-6 (Tenn. Crim. App. Dec. 29, 2015) (deeming construction possession
sufficient where a handgun was found in the glove box of the car the defendant was
driving), perm. app. denied (Tenn. Mar. 23, 2016).

Here, the gun was found on the floorboard of the car in the seat in which Defendant
was riding before he jumped out of the car and fled on foot. Though there was testimony
from Ms. Sparkman that Mr. Wilson was in possession of a gun that night, she did not
-9-
specify whether that was the same gun that was found in the car and admitted into evidence
at trial. Regardless, the evidence is sufficient to support Defendant’s conviction for
attempted possession of a firearm with the intent to go armed during the commission of a
dangerous felony. Defendant is not entitled to relief.

Conclusion

For the foregoing reasons, the judgments of the trial court are affirmed.

____________________________________
TIMOTHY L. EASTER, JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8418879. Public record. Not legal advice.