945 P.2d 918 (1997)
STATE of Montana, Plaintiff and Respondent,
v.
Paul WOODS, Defendant and Appellant.
No. 95-340.
Supreme Court of Montana.
Heard April 11, 1997.
Submitted April 22, 1997.
Decided October 9, 1997.
Lonnie J. Olson (argued), Allen Smith, Jr. (argued), and Brenda K. Elias, Montana Advocacy Program, Helena, for Defendant and Appellant.
Honorable Joseph P. Mazurek, Attorney General, John Paulson (argued), Assistant Attorney General, Helena, Valerie D. Wilson, County Attorney, Boulder, for Plaintiff and Respondent.
TURNAGE, Chief Justice.
Paul Woods appeals from an order of the Fifth Judicial District Court, Jefferson County, denying his petition for release from the Montana State Hospital. We affirm.
*919 The issue on appeal is whether the District Court properly denied Woods' petition for release from the Montana State Hospital.
In 1974, a criminal information was filed in the District Court against Woods, who was then thirty-five years old. The information charged Woods with felony sexual assault, alleging that he had knowingly subjected several young boys to sexual contact without consent by committing fellatio on one of them and by having others pose nude so that he could photograph them engaging in actual or feigned homosexual activities.
At his counsel's request, Woods was committed to the Montana State Hospital at Warm Springs, Montana, for a psychiatric examination. The examining physicians gave Woods diagnoses of borderline mental retardation and "other sexual deviation," and noted that he had poor judgment and poor impulse control. In their opinion, Woods did not have the capacity to understand the proceedings against him, and he was not able to assist in his own defense.
After the State Hospital filed its report, Woods moved for acquittal on the criminal charge against him on grounds of mental disease or defect, pursuant to §§ 95-507 and -508, R.C.M. (1947). The District Court entered judgment acquitting Woods of the charge against him and committed him to the custody of the superintendent of the Montana State Hospital.
Seven years later, the superintendent of the State Hospital petitioned the District Court for Woods' conditional release. The court ordered that Woods be conditionally released from the State Hospital for up to five years, under a gradual community reentry program. It later ordered that Woods be examined by several professionals, including Dr. William D. Stratford. Stratford's report affirmed Woods' prior diagnoses of mild mental retardation and sexual deviancy. Stratford further commented:
One of the most alarming things about Mr. Woods is that he can justify his pedophilic behavior. He does, with a little coaxing, believe and reiterates that this conduct is fine and that there is nothing wrong with it. Regardless of whether other people catch him or not, that is their concern but he feels perfectly justified in doing what he alleges that their parents also do with them. He believes that their parents also take pictures of them in the nude and that he is doing nothing more than that.
As a result of his clinical evaluation, Stratford concluded that he "definitely would not support any consideration of community placement or a gradual release system for Mr. Woods at this time or in the foreseeable future."
Woods continued to live at the State Hospital after Stratford's report was filed. Several times each year, the court granted motions by members of Woods' family that he be released to their custody for visits of up to a few weeks at a time.
In 1994, Woods filed a petition for unconditional release from the State Hospital. He attached to his petition a 1993 psychiatric evaluation by Dr. Ardean Moore, whose diagnoses of Woods were pedophilia, in remission; borderline intellectual functioning; and passive-aggressive personality. Moore opined that Woods "does not present a substantial risk or a serious threat of serious bodily injury or death to himself or others." Stating that Woods "is not seriously mentally ill and has not shown dangerousness for some time," Moore recommended that he be considered for discharge.
The District Court appointed counsel to represent Woods and ordered Dr. Timothy J. Casey, a Ph.D. psychologist, to conduct a metal examination of him. In his subsequent report, Casey noted that while Woods had enjoyed a rather open environment within the State Hospital, questions had been raised about his capacity to function within the community. Casey stated that Woods is in "enormous" denial and "has consistently denied the presence of any problems and consequently has been resistive to treatment programs designed to address his needs.... Since he denies any problems of a sexual nature, he is unsuitable for a sex offender program." According to Casey, Woods' enormous denial and rationalization for his behavior are exemplified by his statements that his victims' parents asked him to photograph the children in the nude because they *920 were poor and could not afford a camera. Casey opined that Woods was not a suitable candidate for conditional release from the State Hospital.
The District Court next held a hearing on Woods' petition, at which it admitted into evidence the reports of Moore and Casey and heard the arguments and recommendations of counsel. At the hearing, the county attorney drew the court's attention to a letter the court had received and placed in the court file in 1994, from Woods' three sisters. The letter described a 1993 incident in which Woods, on a visit to one of his sisters and her family, told his ten-year-old nephew that "good friends will even take their clothes off, if they are good friends." In the letter, Woods' sisters expressed their opposition to and concern about the consequences of any release of Woods from the State Hospital.
The court entered written findings and conclusions setting forth the history of the case. It concluded that Woods continued to suffer from a mental disorder, disease, or defect which caused him to present a substantial risk of serious bodily injury or imminent threat of physical injury to other persons, particularly young children. The court denied Woods' petition for release.
Woods appealed to this Court. After briefing had been completed, we remanded for further proceedings to obtain expert opinions on whether Woods' condition and behaviors constitute a "mental disease or defect that causes the person to present a substantial risk of serious bodily injury or death to the person or others ... or a substantial risk of substantial property damage," as required for continued commitment under § 46-14-302, MCA.
At a second evidentiary hearing in June 1996, the District Court heard testimony by Casey, who had reexamined Woods in January 1996 following this Court's remand order, and by a clinical psychologist, Dr. Judy Bowman, who was on Woods' treatment team at the State Hospital. Bowman testified that Woods' treatment team concurred in the opinion that he continued to suffer from the same mental disease or defect that had caused him to be committed to the State Hospital in the first place. She opined that it would not be appropriate to place Woods in a less restrictive setting until he has had treatment for pedophiliawhich has been offered but he has refusedand that he presented a substantial risk of reoffense if he were discharged without treatment. Casey testified that his findings as a result of his examinations of Woods were that there was essentially no change in Woods' condition from 1974 to the present time and, in his opinion, Woods presented a risk of reoffense.
Woods presented the testimony of one of his friends, with whom he proposed to live upon his release from the State Hospital. The friend, who had himself been diagnosed as a pedophile, offered to share his home in Billings, Montana, with Woods.
Following the second hearing, the District Court again concluded that Woods continued to suffer from a mental disease or defect and constituted a substantial and imminent risk for further sexual offenses. The court denied the petition for release from the State Hospital. The record was then returned to this Court for the resumption of this appeal.

Discussion
Did the District Court properly deny Woods' petition for release from the Montana State Hospital?
Woods relies upon Foucha v. Louisiana (1992), 504 U.S. 71, 112 S.Ct. 1780, 118 L.Ed.2d 437, in arguing that constitutional due process and equal protection guarantees require the State to prove that he is both mentally ill and dangerous in order for his commitment to stand. He maintains that these requirements were not met.
In Foucha, Terry Foucha challenged the Louisiana statutes under which he was committed to a psychiatric hospital after being found not guilty of criminal offenses by reason of insanity. Foucha was diagnosed as having an antisocial personality, an untreatable condition not classed as a mental disease. He claimed that Louisiana's statutes denied him due process of law and equal protection, because they allowed a person acquitted by reason of insanity to be committed to a mental institution until he is able to demonstrate *921 that he is not dangerous to himself and others, even though he does not suffer from any mental illness.
The State of Louisiana did not claim that Foucha was mentally ill, but instead argued for his continued confinement under a statutory provision permitting confinement based upon dangerousness alone. Additionally, the statutory scheme placed the burden on the defendant to prove that he was not dangerous. In reaching its decision, the Supreme Court upheld the rule that "the acquittee may be held as long as he is both mentally ill and dangerous, but no longer." Foucha, 504 U.S. at 77, 112 S.Ct. at 1784. The Court reversed a lower court order returning Foucha to a mental institution, and held that the burden of proving the grounds of insanity and dangerousness must be upon the State and that proof must be by clear and convincing evidence. Foucha, 504 U.S. at 86, 112 S.Ct. at 1788-89
Montana's statutory procedures for cases involving issues of mental disease or defect of a criminal defendant have been amended since Foucha. Commitment of a person to the custody of the Department of Public Health and Human Services after a finding of not guilty by reason of lack of mental state is subject to an annual treatment review. Section 46-14-301(5), MCA. Such a person may be discharged when
the person no longer suffers from a mental disease or defect that causes the person to present a substantial risk of serious bodily injury or death to the person or others, a substantial risk of an imminent threat of physical injury to the person or others, or a substantial risk of substantial property damage[.]
Section 46-14-302(1), MCA. The term "mental disease or defect" does not include an abnormality manifested only by repeated criminal or other antisocial behavior. Section 46-14-101, MCA.
Application for discharge or release may be made by the director of the institution to which the person was committed, the director of the Department of Public Health and Human Services, or the person committed. Section 46-14-302(1) and (2), MCA. Upon application for release, the court must appoint a psychiatrist or licensed clinical psychologist to examine the person and report as to the person's mental condition. Section 46-14-302(3), MCA. The committed person also has the right to secure a professional person of his choice to examine him and testify on his behalf. Section 46-14-302(4), MCA.
If the court is not satisfied from the report of the appointed psychiatrist or clinical psychologist that the committed person may be released because he no longer suffers from a mental disease or defect causing him to present a substantial risk of serious bodily injury or death to himself or others, the court must order a hearing on the issue. Section 46-14-302(6), MCA. The burden is upon the State to prove by clear and convincing evidence that the person
may not be safely discharged or released because the person continues to suffer from a mental disease or defect that causes the person to present a substantial risk of:
(i) serious bodily injury or death to the person or others;
(ii) an imminent threat of physical injury to the person or others; or
(iii) substantial property damage.
Section 46-14-302(6)(b), MCA.
Woods does not challenge the facial constitutionality of the Montana statutes concerning commitment of persons found not guilty due to lack of mental state. He does contend, initially, that his right to due process was violated by this Court's authorization of a second hearing in this matter. He contends that the State failed in its burden of proof at the first hearing and should not have been given a second opportunity to prove its case.
This argument was considered and rejected when this Court denied Woods' petition for rehearing on this Court's remand order. Under the doctrine of law of the case, a prior decision of this Court resolving a particular issue between the same parties in the same case is binding and cannot be relitigated. State v. Black (1990), 245 Mont. 39, 44, 798 P.2d 530, 533. We hold that this Court's previous resolution of the issue concerning the second hearing remains binding.
*922 The dissent nevertheless insists that the second hearing ordered by this Court represented a denial of Woods' right to due process. This Court has noted that the fundamental requirements for due process are notice and an opportunity for hearing appropriate to the case. Matter of Adoption of K.L.J.K. (1986), 224 Mont. 418, 421, 730 P.2d 1135, 1137. These fundamental requirements were satisfied by the proceedings here, including this Court's remand order. Woods was given adequate notice and opportunity to challenge the State's evidence and present his own evidence concerning his mental condition and dangerousness. The supplemental proceedings herein were an expansion on the hearing on the petition rather than a second or separate hearing. The remand order afforded due process to Woods by requiring the District Court to reconsider its findings, which were adverse to the application for discharge, on the statutory requirement of "mental disease or defect" in the light of expert testimony directed specifically to that issue.
Woods' central argument is that the record supports neither a finding that he is mentally ill nor the finding that he is dangerous, especially by the clear and convincing evidence standard of proof required under Foucha and § 46-14-302, MCA. This Court's standard of review of findings of fact was set forth in Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287: whether substantial evidence supports the findings, whether the district court misapprehended the effect of the evidence, and whether this Court has a definite and firm conviction that the trial court made a mistake.
First, we consider whether the District Court erred in determining that the State had presented clear and convincing evidence that Woods suffered from a mental disease or defect. As Woods points out, the experts agree that he is not and has never been seriously mentally ill. However, the question under § 46-14-302, MCA, is not whether Woods is seriously mentally ill, but whether he suffers from a mental disease or defect that causes him to present a substantial risk of (1) serious bodily injury or death to himself or others, (2) an imminent threat of physical injury to himself or others, or (3) substantial property damage.
The absence of a constitutional requirement that a person confined be found "mentally ill," per se, has recently been clarified by the United States Supreme Court in Kansas v. Hendricks (1997), ___ U.S. ___, 117 S.Ct. 2072, 138 L.Ed.2d 501. In Hendricks, the Court ruled that the Kansas Sexually Violent Predator Act (Kansas Act), Kan. Stat. Ann. § 59-29a01 et seq. (1994), comports with due process requirements and neither runs afoul of double jeopardy principles nor constitutes impermissible ex post facto lawmaking. The Kansas Act establishes a civil commitment procedure for the long-term care and treatment of sexually violent predators, "[a] small but extremely dangerous group" who do not have a mental disease or defect that renders them appropriate for involuntary treatment pursuant to general involuntary civil commitment statutes, but who generally have antisocial personality features which are unamenable to existing mental illness treatment and render them likely to engage in sexually violent behavior. Hendricks, a repeat-offender pedophile, has rejected treatment for his condition on the grounds that "treatment is bull ___." Upon his release from prison, Hendricks was civilly committed to the custody of the Kansas Secretary of Social and Rehabilitation Services as a sexually violent predator.
The Supreme Court noted that the States have always provided, in certain narrow circumstances, for the forcible civil detainment of persons who are unable to control their behavior and who therefore pose a danger to the public health and safety. The Court explained that its earlier cases, including Foucha, have not required States to adopt any particular nomenclature in drafting civil commitment statutes. It noted that legal definitions of words such as "insanity" and "competency" often vary from their psychiatric counterparts. "We have sustained civil commitment statutes when they have coupled proof of dangerousness with the proof of some additional factor, such as a `mental illness' or `mental abnormality.'" Hendricks, ___ U.S. at ___, 117 S.Ct. at 2080. *923 The Court went on to rule that "Hendricks' diagnosis as a pedophile, which qualifies as a `mental abnormality' under the Act, thus plainly suffices for due process purposes." Hendricks, ___ U.S. at ___, 117 S.Ct. at 2081.
Additionally, the fact that a mental condition is in remission does not preclude a finding that the person continues to suffer from the condition and is in need of further detention. In State v. Korell (1986), 222 Mont. 112, 116, 720 P.2d 688, 691, this Court suggested that a mental illness in remission remains a mental illness for purposes of further detention at the State Hospital. That view is in accord with the position taken in other jurisdictions. See Mental Hygiene Legal Services v. Rhodes (1994), 195 A.D.2d 160, 606 N.Y.S.2d 834; Bahrenfus v. PSRB (1993), 124 Or.App. 320, 862 P.2d 553; State v. Ross (Mo.Ct.App.1990), 795 S.W.2d 648. In fact, a finding that a mental condition is in remission supports an inference that it still exists.
The term remission means the abatement of the symptoms and signs of a disorder or disease. The abatement may be partial or complete. Physicians use the expression remission to denote amelioration, which even if complete for the time being, does not necessarily imply permanent cure; in fact, the term carries the idea that the amelioration of the symptoms is temporary.
Doe v. Harris (D.C.N.Y.1980), 495 F.Supp. 1161, 1170 n. 36, quoting L. Hinsie & R.J. Campbell, Psychiatric Dictionary 641 (Oxford Univ. Press, N.Y.1960).
The Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) describes pedophilia as a mental disorder. See Diagnostic Code 302.2, American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Washington, D.C., American Psychiatric Association, 1994. Woods argues that pedophilia is excluded from the definition of mental disease or defect under § 46-14-101, MCA, however, because it is manifested only by criminal acts or behaviors. According to the DSM-IV, though, the diagnostic criteria for pedophilia include recurrent, intense, sexually arousing fantasies, sexual urges, or behaviors over a period of six months involving sexual activity with a prepubescent child or children which cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. These diagnostic criteria do not support a conclusion that pedophilia is solely manifested by criminal acts or behaviors, because the diagnostic criteria include manifestations which are not criminal in nature.
In the present case, all of the expert witnesses agreed on the diagnosis of Woods as a pedophile, whether "in remission" or not. It is uncontested that Woods' pedophilia has not been treated because he has refused to participate in treatment. The District Court found that Woods' condition remained unchanged from the time of his placement at the State Hospital. In its conclusions of law, the court further referred to its "[f]inding the Defendant still suffers from a mental disease or defect within the context of § 46-14-302, MCA...." We hold that these findings are supported by clear and convincing evidence and are not clearly erroneous.
We next consider whether the State presented clear and convincing evidence of Woods' dangerousness, or, in the words of the applicable subsection of the statute, that he presents a substantial risk or serious threat of serious bodily injury to others. Woods cites Moore's opinion that he does not present a substantial risk or a serious threat of serious bodily injury or death to himself or others. He points out that the District Court did not make a finding concerning Moore's opinion. Referring to the letter in the court's file from his sisters, Woods contends that "[a] single reported incident of inappropriate verbal conduct over the years of conditional releases for home visits does not provide the clear and convincing evidence necessary to sustain a finding of dangerousness."
Casey testified at the second hearing that, "In my opinion, that pedophilia is in remission because of the structure and the restrictions that the environment at the State Hospital impose on him." In other words, Woods has had very little opportunity to *924 reoffend within the confines of the State Hospital or under the watchful eyes of his family while on visits with them. Both Casey and Bowman testified that, in the absence of treatment for pedophilia, which Woods has refused, it is probable that he will reoffend against children if the opportunity arises.
The District Court noted that Woods' pedophilia had never been treated because of his continued denial. The court found:
It was the opinion of the professionals at the previous hearing and now, that given the untreated pedophilia, [and] lack of impulse control; an unconditional release would result in an imminent and substantial risk of reoffending.
The court stated that "[t]he Defendant's refusal of treatment for pedophilia renders him a substantial risk for committing other sexual offenses, particularly to children."
Does the risk that Woods will reoffend against children constitute a substantial risk of an imminent threat of physical injury to others? While physical injury is not defined in the statutes, it equates in the common parlance to "bodily injury," which, pursuant to § 45-2-101(5), MCA, includes physical pain and mental illness or impairment.
Casey wrote in his report to the District Court that Woods poses a risk of "psychological injury to young males." In her letter addendum to her report to the court, Bowman stated that, untreated for pedophilia, Woods presents "a substantial risk of imminent threat of physical injury or emotional injury to others." We conclude that the court's finding that unconditional release would result in an imminent and substantial risk of reoffending constitutes a finding that Woods presents a substantial risk of an imminent threat of physical injury to others, that this finding is supported by clear and convincing evidence, and that this finding is not clearly erroneous.
In summary, the District Court's findings that Woods has a mental disorder or defect which causes him to present a substantial risk of imminent threat of bodily injury to other persons, particularly young children, are supported by clear and convincing evidence and are not clearly erroneous. Woods has not established violation of his right to due process. The court's order denying Woods an unconditional release from the State Hospital is therefore affirmed.
NELSON, LEAPHART and GRAY, JJ., concur.
TRIEWEILER, J., dissenting.
I dissent from the majority opinion.
In 1974, Paul Woods was acquitted of the charge against him by reason of mental disease or defect and committed to the Montana State Hospital. Section 46-14-303, MCA, provides that a committed person may apply to the district court for release, and that if he does so, the procedure to be followed is that which is set forth at § 46-14-302, MCA.
Section 46-14-302, MCA, provides that after an application for release is made, the court shall appoint at least one person, who is a psychiatrist or psychologist, to examine the person who applies for release and the committed person has a right to an evaluation by a similarly qualified person of his or her choice. If the court is satisfied from the reports that the applicant no longer suffers from a mental disease or defect that causes that person to present a substantial risk of bodily injury, the court shall order the person's discharge. If it is not so satisfied, it must hold a hearing at which the State has the burden of proving by clear and convincing evidence
whether the person may safely be discharged or released on the grounds that the person no longer suffers from a mental disease or defect that causes the person to present a substantial risk of:
(i) serious bodily injury or death to the person or others;
(ii) an imminent threat of physical injury to the person or others; or
(iii) substantial property damage.
Section 46-14-302(6)(a), MCA.
Woods applied for release on December 22, 1994. In support of his application, he attached the report from Ardean Moore, the staff psychiatrist at Montana State Hospital at Warm Springs. The report is dated December *925 2, 1993. In the report, she observed that:
Although he uses denial regarding his sexual offenses, he has remained in control of his impulses and has not demonstrated any serious behavioral problems or lapses in judgment and has been able to participate adequately in his treatment plan.
Moore diagnosed "Pedophilia, in Remission" and concluded that:
He does not present a substantial risk or serious threat of serious bodily injury or death to himself or others. He does not present a substantial risk of substantial property damage.

Recommendations: Since Mr. Woods is not seriously mentally ill and has not shown dangerousness for some time, he qualifies for consideration for discharge. At the time of his mental status assessment in October, 1993, he appeared stable and appeared to have reached maximum hospital benefits from a lengthy hospitalization.
The District Court appointed Timothy J. Casey, Ph.D., to evaluate Woods. He did so and issued a report to the court dated January 18, 1995. Dr. Casey also diagnosed pedophilia in remission, but concluded that Woods was not a suitable candidate for release from the hospital because he had no support system within the community. Significantly, however, neither did he make any finding that Woods suffered from a mental disease or defect which caused him to present a substantial risk of harm to himself or others.
Remission is defined in the 25th Edition of Dorland's Illustrated Medical Dictionary as "a diminution or abatement of the symptoms of a disease; also the period during which such diminution occurs." Dorland's Illustrated Medical Dictionary 1343 (25th ed.1974).
The District Court held a hearing to consider Woods' application for release on February 17, 1995. The only medical evidence presented was the aforementioned reports from Moore and Casey. In spite of this lack of evidence, the District Court found that:
13. Woods' mental disorder(s), disease(s) or defect(s) cause him to present a substantial risk of serious bodily injury, or an imminent threat of physical injury to other persons, particularly young children.
For that reason, the District Court denied Woods' application for release from the Montana State Hospital.
Woods appealed the District Court's denial of his application to this Court for the reason that the District Court's critical finding was unsupported by substantial evidence and, therefore, was clearly erroneous. This Court, after review of the record, apparently agreed. On December 12, 1995, the majority issued an order in which it retained jurisdiction but remanded to the District Court for further proceedings. In that order, the majority concluded as follows:
We conclude that neither report addresses the fundamental requirement of § 46-14-302, MCA (1993), that the defendant "no longer suffer[s] from a mental disease or defect," and that, accordingly, the District Court was without any factual or legal basis on which to determine whether the requirements of this statute had been met.
....
... [N]either professional person has rendered an opinion on the fundamental requirement of the statute at issuewhether Woods suffers from a mental disease or defect in the context of § 46-14-302, MCA (1993). Under such circumstances, we conclude that the District Court was in no position to determine whether the requirements of § 46-14-302, MCA (1993), were met.
As pointed out by Woods, the statutory framework for consideration of his application for release does not provide for sequential hearings. It provides, in § 46-14-302, MCA, that he is entitled to a hearing at which the State has the burden of proving that he suffers from a mental disease or defect which makes him dangerous to himself or others. If the State does not carry its burden, he is entitled to be released. Section 46-14-302(6)(b), MCA, clearly provides:
A hearing is considered a civil proceeding, and the burden is upon the state to *926 prove by clear and convincing evidence that the person may not be safely discharged or released because the person continues to suffer from a mental disease or defect that causes the person to present a substantial risk of:
(i) serious bodily injury or death to the person or others;
(ii) an imminent threat of physical injury to the person or others; or
(iii) substantial property damage.
(Emphasis added.)
The State had the opportunity to meet its burden on February 17, 1995, but failed to do so. This Court agreed that the State failed to do so and, accordingly, decided the merits of Woods' appeal by its order dated December 12, 1995. There is no precedent in a case where the issue is whether the district court's judgment is supported by substantial evidence for concluding that it is not and then simply remanding to the district court while retaining jurisdiction so that the unsuccessful party can take another shot at it.
I agree with the majority that principles of res judicata and law of the case should apply to our decision. See State v. Smith (1993), 261 Mont. 419, 863 P.2d 1000; State v. Black (1990), 245 Mont. 39, 798 P.2d 530; State v. Van Dyken (1990), 242 Mont. 415, 791 P.2d 1350. However, I disagree with the majority's determination of what the law of the case is. I conclude that the law of the case is the majority's decision on December 12, 1995, that the State had not proven by clear and convincing evidence that Woods suffered from a mental disease or defect which made him a danger to himself or others.
Although there is no precedent for the procedure followed by the majority in this case, the real danger is that this case becomes precedent for any party who similarly needs a second shot at proving his or her case in the future.
Just think about it. Based on this decision, in every appeal where the losing party raises insufficiency of the evidence as the basis for appeal, and where that argument has merit, if this Court does not like the result, the prevailing party should have the opportunity to present additional evidence at a hearing following remand before we make a final decision regarding the merits of the appeal. No one is guaranteed finality following any trial. The rules regarding burden of proof are meaningless and there is no end to the possible mischief a result-oriented supreme court could accomplish by this procedure.
Finally, § 46-14-302(6)(c), MCA, provides that the court discharge or release the committed person "on conditions that the court determine[s] to be necessary or must be recommitted to the custody of the director of the department of public health and human services." In other words, if the District Court determined that the State had not proven by clear and convincing evidence that the committed person presents a substantial risk of serious bodily injury or death to himself or others, but had concerns about his adjustment to society, the District Court could have imposed conditions to the release, requiring that Woods be monitored, treated, or supervised to assure the public that further problems will not occur.
For these reasons, I conclude that the State failed to meet its burden at the original hearing held on February 17, 1995. The District Court was clearly erroneous when it found otherwise. The majority erred by remanding this case to the District Court to give the State a second opportunity to prove what it had not proven at the original hearing, and the majority's prior decision that the State had failed to meet its burden of proof is the law of this case. There is no precedent nor procedural authority for remanding for additional evidence and for entering a contrary decision based on that additional evidence.
I dissent from the majority opinion.
HUNT and REGNIER, JJ., join in the foregoing dissenting opinion.


157 N.J. Super. 231 (1978)
384 A.2d 888
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CURTIS E. TRENT, DEFENDANT-APPELLANT.
Superior Court of New Jersey, Appellate Division.
Argued February 14, 1978.
Decided March 10, 1978.
*233 Before Judges MICHELS, PRESSLER and BILDER.
Mr. Alan Silber, designated counsel, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).
Mr. Kenneth P. Ply, Special Deputy Attorney General, argued the cause for the respondent (Mr. John J. Degnan, Attorney General of New Jersey; Mr. William F. Hyland, former Attorney General of New Jersey and Mr. Leonard D. Ronco, Acting Essex County Prosecutor, of counsel).
The opinion of the court was delivered by PRESSLER, J.A.D.
Defendant was convicted by a jury of nine separate offenses arising out of his participation with two confederates in the armed robbery of a bank during which a bank guard and one of the confederates shot and killed each other. Following the return of the verdict, *234 defendant was sentenced to consecutive life terms for the two felony murders and to concurrent prison terms for the offenses of conspiracy to commit robbery of a bank, possession of revolvers without permit and receiving stolen revolvers. The remaining four convictions were merged with the two murder convictions.
Defendant's attorney predicates this appeal on three assertions of error: first, that the conviction for the murder of the confederate must be set aside as not constituting felony murder pursuant to N.J.S.A. 2A:113-1; second, that the conviction for possession of firearms without a permit merged either with the conviction for receiving firearms or with the merged armed robbery convictions; and third, that the trial court mistakenly exercised his discretion in discharging a juror after deliberations had begun and substituting an alternate juror for the discharged juror. In addition, defendant has filed a pro se brief which argues that he was improperly denied his right to be present at every critical stage of the trial by reason of his absence from the in camera hearing which resulted in the juror's excuse.
Defendant is correct in his first contention and the State so concedes. The pertinent circumstances here are indistinguishable from those which were before the Supreme Court in State v. Canola, 73 N.J. 206 (1977), and State v. Alston, 73 N.J. 228 (1977). Accordingly, defendant is entitled to an acquittal on the second count of the indictment and a vacation of the sentence imposed on the conviction thereof.
We find no merit in the contention that the conviction for possession of firearms merged either with the conviction of receiving stolen property or the conviction of armed robbery. State v. Best, 70 N.J. 56, 66-67 (1976), expressly indicates the nonmerger of the possession charge with the armed robbery charge where firearms are involved. We are, moreover, satisfied that the elements of the crime of possession of a firearm without a permit (N.J.S.A. 2A: *235 151-41(a)) and the elements of the crime of receiving stolen property (N.J.S.A. 2A:139-1) are distinct and hence that proof of one of the crimes is neither coextensive with nor dependent upon proof of the other. See State v. Best, supra, 70 N.J. at 63. And see State v. McGee, 131 N.J. Super. 292, 299 (App. Div. 1974).
The third of defendant's contentions relating to the discharging of a juror during deliberations raises a novel issue since there has been no previous judicial construction of the 1972 amendment of R. 1:8-2(d), pursuant to which the trial court exercised its discretion. That amendment provides that
If the alternate jurors are not discharged and if at any time after submission of the case to a jury, a juror dies or a juror is discharged by the court because he is ill or otherwise unable to continue, the court may direct the clerk to draw the name of an alternate juror to take the place of the juror who is deceased or discharged.
The problem with which the trial judge was here confronted developed when, some six hours after deliberations had begun, one of the jurors sent the judge a note stating that "I am getting sick." The judge called both counsel into chambers and, on the record, advised them of her intention to question the juror in their presence in order to determine the nature of her difficulty and to instruct the jury to suspend their deliberations in the meantime. Both counsel agreeing to this procedure, the juror was brought into chambers and the following colloquy took place:
THE COURT: First of all, I just want to tell you that I received your note. Please don't in any way tell me anything that is going on in the jury room relating to deliberations.
What is wrong?
THE JUROR: I just feel nervous. I have a headache and everything. I'm just   I don't know.
THE COURT: You are just nervous and have a headache?
THE JUROR: I have a headache and feel like I want to spit up, just too emotional.
*236 THE COURT: All right. You feel if you took a break or something you'll feel better?
THE JUROR: When I close my eyes I guess I'm just too easily get emotional, you know, when children is involved because I have children myself and it just hard for me to make a decision. I'm just all upset. I tried, you know, to go through with it but just because every time I see him sitting there I can picture my son sitting there. He's about 17 and it is just too much. I can't take no more.
Subsequent questioning of the juror elicited from her the response that she might feel better in the morning after she had gotten some rest. The trial judge's observations and conclusions as to the juror's condition were couched in such statements as "She certainly is upset and she is obviously disturbed," "She is obviously emotionally and physically disturbed," and finally "She really did indicate that she really has a bias and she really can't render a fair and just decision * * * * she sees the defendant as her son and she can't make a decision."
Responding to these circumstances, defense counsel urged that since it was already five o'clock in the afternoon, the appropriate thing to do would be to disperse the jury for the evening and then determine the following morning before deliberations resumed whether or not the juror could reasonably continue. The prosecutor urged that the juror's evident distressed condition required her immediate discharge; that the substitution of an alternate should be made and that the jury thus reconstituted should forthwith recommence deliberations until the agreed-upon hour of 7 or 8 p.m. The trial court opted for the prosecutor's suggestion, stating these reasons for so doing:
I've thought about this matter and I've just decided that based upon my observations of juror number 13 she is physically and emotionally disturbed and based upon what she has told us here in chambers, that she identifies the defendant as her son and has indicated that she is so emotionally disturbed that she can't render an opinion, based upon my observation of her and what she has said, I don't *237 think that she can properly and adequately carry out her duties as a juror and even though she has indicated she might feel a little better if I excuse the jury and bring her back overnight, I really don't think taking all the factors into consideration she can change her opinion. So, therefore, I hereby find that there is good cause for excusing her and I'm going to excuse her.
The first chosen alternate claiming to be ill also, the deliberations resumed with the second chosen alternate at about 5:30 P.M. Sometime before 8 P.M., the verdict of guilty on all counts was returned.
While defendant makes a passing footnote query as to the constitutionality of the 1972 amendment of R. 1:8-2(d), it is not the validity of the rule which he here challenges[1] but rather the manner in which the trial court exercised its discretion thereunder. His argument is, in essence, that there was insufficient cause shown for the discharge *238 of a juror potentially favorable to him and that the effect of the discharge was to achieve unanimity in a guilty verdict which otherwise might not have been forthcoming.
We note at the outset that the policy debate which preceded the adoption of the amendment was settled by our Supreme Court's evident decision that its practical advantages outweighed its theoretical and speculative disadvantages. The arguments both in support of and in opposition to a mid-deliberation substitution practice were fully stated in the Report of the Supreme Court Committee on Criminal Procedure and in that of its Special Subcommittee on Jury Deliberations, 95 N.J.L.J. Index Page 341, 354-356 (1972), and were, moreover, considered at the 1972 Judicial Conference[2]. Although there was then some concern over a conjectured effect of the substitution on "jury dynamics and the relative effectiveness or ineffectiveness of the substituted juror" and a recognition of the possibility that "the availability of an alternate juror might lead a jury to encourage an intransigent member to be replaced" (95 N.J.L.J. supra, at Index Page 356), nevertheless it was the view of the Committee, evidently concurred in by the Supreme Court by way of its exercise of its rule-making power, that the technique of substitution would provide a significant and constitutionally unobjectionable mechanism for the avoidance of mistrials and was, in effect, nothing more than a logical extension of the "insurance" effected by having alternate jurors empaneled for the trial itself.
The economy motivation of the rule is certainly demonstrated here. This trial was in its tenth day when the jury commenced its deliberations. The question then is whether that economy was achieved within the intention and the spirit of the rule without prejudicing the fundamental right *239 of the defendant to a fair trial by jury. We are satisfied that it was.
The rule permits substitution of an alternate when the deliberating juror dies, becomes ill "or is otherwise unable to continue." These are, of course, precisely the circumstances mandating substitution of a juror during the trial itself. Because they relate exclusively to the personal situation of the juror himself and not to his interaction with the other jurors or with the case itself, they are ordinarily not circumstances having the capacity to affect the substance or the course of the deliberations. Hence the continuation of the trial with a substituted alternate is in these circumstances no way violative of defendant's right to trial by a fair and impartial jury. In this respect the "unable to continue" standard is much narrower than the concept of good cause requiring the discharge of prospective jurors before trial commences. "Good cause" in that context includes potential juror bias which would irremediably taint the entire jury, particularly in its deliberative process. Removal of such a juror after trial has commenced and even more particularly after deliberations have commenced cannot ordinarily repair the harm already done or presumed to have been done. Juror bias discovered during deliberations is clearly, therefore, not a circumstance susceptible to the discharge and substitution technique of the rule. Declaration of a mistrial would be the only available alternative. Since, however, the discharged juror's bias here was not against but rather in favor of defendant, he does not himself claim jury taint by reason thereof. His complaint rather is that the juror's removal deprived him of a hung jury. In short, his attempt here is to characterize this discharge and substitution as a constitutionally impermissible removal of the one intransigent juror whose continued presence might have precluded jury unanimity in the guilty verdict.
If the characterization were correct, there would be considerable merit in defendant's contention. That characterization *240 is not, however, true to the facts. The trial judge here, based on her recorded observations, was satisfied that the juror was under conditions of emotional and physical distress which made it impossible for her to continue. Those observations and the conclusions based thereon are supported by the record, and we accept them as sufficient to have justified the decision to discharge her. That her disabling distress was engendered by her identification of defendant with her own son did not make it any less incapacitating insofar as her ability to function was concerned than if the cause thereof had been totally unrelated to the trial. Nor is it argued that either her distress or its cause tainted or infected the jury as a whole, and we are unable to perceive that it in fact did. In short, it was not the fact of her bias which resulted in her removal from the jury but rather the fact that her bias incapacitated her. In this posture the situation is really no different than one in which a juror, subsequently identified as the single holdout, is discharged during deliberations because he then suffers an unrelated medical emergency. We are satisfied, therefore, that under the circumstances here defendant was not deprived of any constitutional right by the discharge and substitution and that the trial judge did not mistakenly exercise her discretion in proceeding in that manner. We nevertheless emphasize that the "unable to continue" language of the rule must be strictly construed and must ordinarily be limited to compelling circumstances which are exclusively personal to the juror in question, and hence which do not and which by their nature cannot raise the specter of either a jury taint or a substantive interference with the ultimate course of the deliberations beyond that necessarily implicit in the effect of new personalities on group dynamics.
We note, finally, defendant's argument that instead of discharging the juror at 5 P.M. as she did, the judge should have dispersed the jury for the evening and made a determination the next morning as to the juror's capacity to continue. That *241 might indeed have been a prudent course to follow. Nevertheless, the issue before us is not whether the trial judge had a better alternative but rather whether the alternative chosen was a reasonable exercise of discretion. For the reasons we have already stated we are satisfied that it was. We are, moreover, satisfied that in the circumstances the trial judge was clearly correct in denying defendant's alternative request for a mistrial which would have been needlessly wasteful.
Addressing the contention defendant raises in his pro se supplemental brief, we are satisfied that his right to be present at trial was not violated by his absence from the in camera proceeding concerning the discharged juror. The right to be present is not merely one afforded by rule, R. 3:16, but is one of constitutional dimension grounded in the Confrontation Clause of the Sixth Amendment of the Federal Constitution. See State v. Smith, 29 N.J. 561, 578 (1959), cert. den. 361 U.S. 861, 80 S.Ct. 120, 4 L.Ed.2d 103 (1959). It is, however, a right which extends not to every aspect of the proceeding but rather only to critical stages of the trial, heretofore defined by the Supreme Court as "anything * * * new to the proceeding and in conflict with * * * [the] right to be confronted by the witnesses, to be represented by counsel, and to maintain * * * [the] defense upon the merits." State v. Auld, 2 N.J. 426, 433 (1949). And see Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970); Snyder v. Massachusetts, 291 U.S. 97, 106-107, 54 S.Ct. 330, 78 L.Ed. 674 (1934); Stein v. United States, 313 F.2d 518 (9 Cir.1962), cert. den. 373 U.S. 918, 83 S.Ct. 1307, 10 L.Ed.2d 417 (1963). The proceeding here was properly held in camera, no request was made below that defendant be present in chambers during the proceeding, the particular problem before the court was singularly one whose investigation and resolution may well have been impeded by defendant's presence, and there is not the slightest indication that defendant was actually prejudiced by his absence in view of the vigorous and able *242 representation of counsel in respect of the pending issue. We perceive no plain error resultant from his absence. State v. Macon, 57 N.J. 325 (1971).
The judgment of conviction of the second count of the indictment is reversed and the sentence thereon vacated. The convictions of all other counts are affirmed.
NOTES
[1]  The constitutional argument is based on double jeopardy considerations, the contention being that when an alternate is substituted during deliberations defendant is not being tried by a jury of 12 but rather by either a jury of 13 or by two juries of twelve. The argument also urges that the discharge of a single juror during deliberations is in effect a discharge of the whole jury. The technique of substitution of an alternate has, however, survived constitutional challenge in other jurisdictions. See People v. Hohensee, 251 Cal. App.2d 193, 59 Cal. Rptr. 234, 241 (D. Ct. App. 1967); Blevins v. State, 259 Ind. 618, 291 N.E.2d 84, 87 (Sup. Ct. 1973). Note further that although the analogous federal rule, Fed. R. Crim. P. 24(c) appears to mandate discharge of alternates prior to the commencement of deliberatons, thereby precluding a mid-deliberation substitution, nevertheless such substitution has been sustained when stipulated to, see Leser v. United States, 358 F.2d 313 (9 Cir.1966), pet. for cert. dism. 385 U.S. 802, 87 S.Ct. 10, 17 L.Ed. 2d 49 (1966), and prejudicial error was not found simply by reason of the fact that alternates were not so discharged but were rather segregated during deliberations. See United States v. Hayutin, 398 F.2d 944 (2 Cir.1968), cert. den. 393 U.S. 961, 89 S.Ct. 400, 21 L.Ed.2d 374 (1968). Compare United States v. Lamb, 529 F.2d 1153 (9 Cir.1975). And see 8A Moore, Federal Practice (2d ed. 1965) ¶ 24.05 at 24-35 to 24-36, and 1977 supplement at 45. See also, Annotation "Alternate or Additional Jurors," 84 A.L.R.2d 1288 (1962).
[2]  See Transcript, Proceedings of the New Jersey Judicial Conference, April 21, 1972.


131 Ill. App.2d 5 (1971)
268 N.E.2d 202
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
JAMES BROWN, Defendant-Appellant.
No. 53286.
Illinois Appellate Court  First District.
February 5, 1971.
Rehearing denied March 9, 1971.
*6 Gerald W. Getty, Public Defender, of Chicago, (James Nettleton, Shelvin Singer, and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
Edward V. Hanrahan, State's Attorney, of Chicago, (Robert A. Novelle and Martin Moltz, Assistant State's Attorneys, of counsel,) for the People.
Reversed and remanded.
Mr. JUSTICE LORENZ delivered the opinion of the court:
In a jury trial defendant, James Brown, was convicted of armed robbery in violation of Section 18-2 of the Criminal Code (Ill. Rev. Stat. 1965, ch. 38, par. 18-2) and sentenced to a term of 20 to 25 years.
In a previous bench trial defendant was tried with two co-defendants, Roosevelt Willis and Willie Phillips, both of whom pleaded guilty. Roosevelt Willis was admitted to five years probation with nine months to be served in the House of Correction and Willie Phillips received a sentence of one to two years. James Brown was found guilty but was granted a new trial.
On appeal defendant contends that:
1. he was not proved guilty beyond a reasonable doubt;
2. prejudicial error was committed when a certificate of record inaccurately indicating a previous conviction of armed robbery rather than robbery was read to the jury; and
3. the sentence received by defendant is unfair.
The State presented two witnesses in its case in chief. Mrs. Irine Cole testified that she lived in a first floor apartment at 1555 South Trumbull. At approximately 2:00 A.M. on December 16, 1966, she was asleep in her apartment when she was aroused by a knock at her window. She went to the window and saw a man, at that time unknown to her, whose name she later learned to be Willie Roosevelt. He told her that he had a telegram for her from her cousin, Leverther Mitties. When she opened the door, Roosevelt entered accompanied by two other men, one of whom was defendant. Defendant took hold of her sleeve and held her. He took a butcher knife from the top of her television which he kept in his hand. While he held the witness in the washroom the other two men searched through her apartment. The men were in the apartment between one *7 half hour and one hour. Her living room was illuminated by a television light setting on the back of her television. She was able to observe the defendant's face in this light and to notice a large scar on his face, though she could not say on which side it appeared. She said that the scar made it appear that defendant had been cut and a piece of flesh had been left hanging down where it had healed. She was able to describe defendant's coat as a light thin three-quarter coat with black stripes and white dots. The men found and took from the apartment $1500 in cash, a gun and a radio.
On cross-examination the witness stated that she did not know exactly how long or with which hand defendant held her arm. She also was uncertain about various details of defendant's appearance, including his height, the side of his face which bore the scar, and the color of his shirt and trousers. She testified that she was very frightened during the robbery and that the single source of light in her apartment was a small television light.
The second witness for the State was James Adams, the son of Mrs. Cole. He stated that he was absent from his mother's home until approximately 9:30 A.M. on the morning of December 16th. He found the apartment disordered and $1500 in cash, a .32 caliber revolver and a radio missing at that time.
Roosevelt Willis who was indicted with Willie Phillips and defendant for the robbery of Mrs. Cole was the first of four defense witnesses. He was under detention in the House of Correction at the time of his testimony. He testified that he did take part in the robbery with Phillips but that the third man involved was named Bey. On direct examination he stated that he knew defendant, but that he had never known him by the name "Bey" and that defendant had not participated in the robbery of Mrs. Cole. On cross-examination, the witness was asked if defendant had any other nickname and he answered: "Yes. We called him Bey." Later he said that he had taken that name from a piece of paper which he had seen in Court.
Defendant testified in his own behalf. He stated that on the night in question he was at his home at 1414 South Homan in the presence of his brother and his brother's wife and children from 10:30 P.M. on. He stated that he watched television until about 12:30 A.M. when he went to bed. He did not leave his bedroom until 8:00 or 9:00 A.M. He also testified that at his first trial Mrs. Cole had stated that the weapon he had held was a screwdriver rather than the knife she described in the instant trial.
Timothy Brown, defendant's brother, also testified. He corroborated the alibi testimony of defendant in detail.
The final defense witness was Evelyn Reed, defendant's mother. She *8 testified that she spoke with Mrs. Cole in Judge Mejda's courtroom during defendant's first trial. During their conversation, the witness told Mrs. Cole that she was defendant's mother. Mrs. Cole answered, "Yes, I know. That old Brown came in my house. I saw that old Brown. I remember him well." "I remembered James's looks. He was a little short guy with his hair conked." Mrs. Reed testified that "conked" meant "waved." She stated that her son had never had his hair "conked" or waved. The witness stated that she said to Mrs. Cole, "Lady, my son never wore his hair conked in his life." Mrs. Cole answered, "Well, I'm just going to tell you the truth. I was so nervous and scared, I couldn't identify nobody."
Defendant's first argument on appeal is that he was not proved guilty beyond a reasonable doubt due to uncertainty in the identification evidence. Defendant calls attention to Mrs. Cole's statement on direct examination that the robbers were in her house from one half hour to an hour and her statement on cross-examination that she "didn't know exactly how long" defendant was beside her holding her arm. Attention is also called to Mrs. Cole's uncertainty about defendant's height, her inability to describe the color of his shirt, and to determine whether he wore black or blue pants, and her failure to recall which side of defendant's face bore a scar. Defendant places particular significance upon Mrs. Cole's testimony that she was very scared at the time of the robbery and that the only light in her apartment came from "a little, bitty radio light, TV light." It is argued that these factors explain Mrs. Cole's failure to recall certain details and indicate the unreliability of her identification of defendant. This, defendant contends, taken in connection with the alibi evidence, requires reversal of the judgment.
 1 People v. Marshall, 74 Ill. App.2d 483, is cited by defendant in support of his contention. This was a robbery case in which the identifying witness apparently had a quite brief opportunity to observe the defendant and gave the police a description of the robber which differed substantially from the appearance of the defendant. In reversing the conviction the Appellate Court said: "In the case at bar, the witness' uncertainty is evidence that he did not carefully observe the robber's face. He admitted as much by his explanation for not knowing whether the robber had a mustache: `I didn't look that close.'" We believe that People v. Marshall is distinguishable from the present case. Mrs. Cole's testimony indicated that the robber was beside her holding her by the arm for at least a period of several minutes giving her ample time to observe his face. Though her testimony was that the room was illuminated by only one small light. Mrs. Cole was able to describe in some detail the coat worn by the robber and the unusual scar upon his face. *9 The fact of her failure to observe or recall such details as the color of defendant's pants or which hand he used to hold her arm does not, of itself, demonstrate the unreliability of the observations which she did make.
We believe that the controlling principle is stated in People v. Brinkley, 33 Ill.2d 403, 405-406:
"Where the identification of an accused is at issue in a criminal case, we have constantly reiterated the rule that the testimony of one witness is sufficient to convict, even though such testimony is contradicted by the accused, provided the witness is credible and viewed the accused under such circumstances as would permit a positive identification to be made."
The conditions of observation in the instant case are not such as to enable this court to hold that they would not permit a positive identification to be made and thus raise a reasonable doubt as to defendant's guilt.
The credibility of the identifying witness and the alibi witnesses is, of course, a matter for the trier of fact. See, for example, People v. Williams, 84 Ill. App.2d 1. We believe that the evidence was sufficient to prove defendant guilty beyond a reasonable doubt.
Defendant's second argument on appeal is that prejudicial error was committed when the parties stipulated to a court record indicating defendant's plea of guilty to a charge of armed robbery in 1962. It was later determined that that record was inaccurate in that the charge had in fact been robbery rather than armed robbery.
Defendant cites People v. Decker, 310 Ill. 234, and People v. Shook, 35 Ill.2d 597. In People v. Decker a burglary conviction was reversed by the Supreme Court because of the prejudicial misconduct of the prosecution in intimating before the jury that the defendant had previously been charged with a crime similar to that for which he was being tried, where, in fact, there was no evidence indicating this to be true. In People v. Shook the Supreme Court reversed a conviction for burglary for the reason that a prior conviction which was used for impeachment of defendant had been voided by a habeas corpus proceeding.
 2 In the case at bar a certificate evidencing a valid conviction for robbery had been altered so that it inaccurately reflected a conviction for armed robbery. This incorrect certificate was presented to the court and the incorrect conviction was argued to the jury by the assistant State's Attorney in his closing remarks. We believe it reasonable to conclude that this evidence of a more serious conviction may have seriously prejudiced defendant's credibility as a witness and thus fatally weakened his case in the eyes of the jury. We reach this decision particularly because the incorrect record of conviction was identical in character to the *10 crime for which defendant was on trial. Limiting the purpose of its admissibility to the matter of impeachment would not have eliminated from the minds of the jurors the similarity of the prior conviction, which thus was unfairly prejudicial to defendant. Defendant was also prejudiced in the matter of his credibility, because he had testified on cross-examination that, while he had been previously convicted of robbery, the charge had been for purse-snatching and he had not been charged with having been armed. The certificate which the State introduced on rebuttal thus appeared to have established that defendant had lied in his testimony, and might therefore, have been considered unworthy of belief as a witness in other respects.
The judgment of the Circuit Court must therefore be reversed and the cause remanded for a new trial.
Reversal of the judgment makes it unnecessary for us to consider defendant's third argument.
Reversed and remanded.
ENGLISH, P.J., and DRUCKER, J., concur.


838 F.2d 473
Fletcher (Scott Allen)v.Sumner (George), Attorney General State of Nevada
NO. 86-2562
United States Court of Appeals,Ninth Circuit.
FEB 01, 1988

1
Appeal From:  D.Nev.

2
AFFIRMED.


97 F.3d 1454
NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.Thomas E. HALE, Plaintiff-Appellant,v.Marvin T. RUNYON, Postmaster General, Defendant-Appellee.
No. 95-2098.
United States Court of Appeals, Seventh Circuit.
Submitted Aug. 27, 1996.*Decided Sept. 13, 1996.Rehearing and Suggestion for Rehearing En Banc Denied Nov. 26, 1996.

Before CUMMINGS, COFFEY and RIPPLE, Circuit Judges.

ORDER

1
On March 30, 1993, Thomas E. Hale filed the present suit under Title VII, alleging that in 1988 he was terminated wrongfully from his employment by the Postal Service.  The defendant moved to dismiss Hale's suit, claiming that it was barred by res judicata due to a previous suit, Hale v. Runyon, Northern District of Illinois, Eastern Division, Case No. 90 C 4532 ("Hale I "), Hale had filed and lost in the district court.  (The defendant actually mislabelled his argument in his Motion to Dismiss--as he does on appeal--as one of collateral estoppel.)

2
The district court set a hearing for August 10, 1993, to rule on the defendant's motion.  On August 4, this court issued its Order in Hale I, affirming the district court's dismissal of that suit.  See Hale v. Runyon, No. 92-1725 (7th Cir.  Aug 4, 1993) (unpublished order).  On August 5, before the date set for the hearing and before Mr. Hale had an opportunity to respond to the defendant's Motion to Dismiss, the district court issued a Minute Order dismissing the present suit.  After a long and convoluted process, this appeal followed.

3
Although the district court erred by dismissing Mr. Hale's second suit before he had an opportunity to respond to the defendant's motion, that error was harmless.  The sole feature distinguishing Mr. Hale's present suit from Hale I is his claim that the defendant fraudulently withheld from him certain information, thereby negating the preclusive effect of his prior suit.  See Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 597 (1948) (a judgment obtained through fraud cannot act as a bar to a subsequent suit on the same cause of action);  Miller v. United States, 438 F.Supp. 514, 523 (E.D.Pa.1977) (same).  To avoid the application of res judicata, however, the party seeking to avoid its effect must prove that the first judgment was obtained through extrinsic fraud (i.e., a fraud that went to the integrity of the judicial proceeding in the first judgment, Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 421 (1923);  United States v. Throckmorton, 98 U.S. 61, 66 (1878)), rather than through intrinsic fraud (a fraud which is intrinsic to the cause of action itself).  Even construing Mr. Hale's claim of fraud in the strongest possible light in his favor, he does not claim that the defendant engaged in any extrinsic fraud, and thus, he cannot avoid the application of res judicata.

4
At most, Mr. Hale claims that due to the defendant's fraud he was unaware of his cause of action or the time limits pertaining thereto until after the time limit to file an EEOC complaint had expired.  This claim of intrinsic fraud might have been a valid defense in Hale I to the defendant's argument that Mr. Hale's suit there was barred by his failure to file a timely EEOC complaint.  But to take advantage of this argument, Mr. Hale needed to raise a claim of estoppel in the district court while Hale I was still pending there--he did not.  Mr. Hale admits that on April 15, 1991 he got whatever notice he claims the defendant wrongfully withheld;  the district court did not dismiss Hale I until November 27, 1991.  Mr. Hale makes no claim that any fraud by the defendant precluded him from raising a claim of estoppel in the seven months between the time he got that notice and the time the district court dismissed Hale I.   Having waived that argument in Hale I, Mr. Hale cannot avail himself of it in Hale II.1

5
Because Mr. Hale makes no claim of extrinsic fraud which could avoid the application of res judicata to his present suit, the district court's dismissal of this case before he had an opportunity to respond to the defendant's motion was harmless error--Mr. Hale makes no representation that he would have submitted any evidence of extrinsic fraud had he been given an opportunity to respond.  Bohac v. West, 85 F.3d 306, 312 (7th Cir.1996).  Accordingly, the decision of the district court dismissing Hale's second suit is AFFIRMED.

*
 After an examination of the briefs and the record, we have concluded that oral argument is unnecessary in this case;  accordingly, the appeal is submitted on the briefs and the record.  See Fed.R.App.P. 34(a);  Cir.R. 34(f)

1
 Hale apparently did try to raise this argument on appeal in Hale I, but even then, it was too late--having failed to raise it in the district court when he could have, he could not later raise the argument on appeal


                                                  STATE OF WEST VIRGINIA
                                                SUPREME COURT OF APPEALS

                                                                                FILED
    In Re: S.S. & R.S.
                                                                                October 20, 2015
                                                                                RORY L. PERRY II, CLERK
    No. 15-0254 (Webster County 14-JA-23 & 14-JA-124)                               SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA

                                                      MEMORANDUM DECISION
            Petitioner Adoptive Father V.S., by counsel Andrew Chattin, appeals the Circuit Court of
    Webster County’s January 26, 2015, order terminating his custodial rights to sixteen-year-old
    S.S. and three-year-old R.S. The West Virginia Department of Health and Human Resources
    (“DHHR”), by counsel S.L. Evans, filed its response in support of the circuit court’s order. The
    guardian ad litem (“guardian”), Mary Elizabeth Snead, filed a response on behalf of the children
    also in support of the circuit court’s order and a supplemental appendix. On appeal, petitioner
    argues that the circuit court erred in terminating his custodial rights and ordering that he could
    not live with his children.1

            This Court has considered the parties’ briefs and the record on appeal. The facts and legal
    arguments are adequately presented, and the decisional process would not be significantly aided
    by oral argument. Upon consideration of the standard of review, the briefs, and the record
    presented, the Court finds no substantial question of law and no prejudicial error. For these
    reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
    of the Rules of Appellate Procedure.

            Prior to the initiation of the underlying proceedings, the circuit court terminated the
    children’s biological parents’ parental rights on conditions related to controlled substances.
    Thereafter, petitioner and his wife, biological grandparents, legally adopted the children. In April
    of 2014, the West Virginia State Police (“WVSP”) conducted a controlled drug buy, during
    which petitioner sold drugs to a confidential informant in his home while the children were
    present. The DHHR received a referral that petitioner was selling “pain pills” in the presence of
    the children. The DHHR investigated the referral with the assistance of the WVSP during which
    petitioner admitted to selling “pain pills” in his home. Subsequently, petitioner was arrested and
    charged with six counts of delivery of a controlled substance.

            In May of 2014, the DHHR filed a petition for abuse and neglect alleging that petitioner’s
    illegal activity created a risk to the health, safety, and welfare of the children. The circuit court
    held its adjudicatory hearing in June of 2014. Petitioner stipulated that: his illegal activity

           1
             We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
    recodified during the 2015 Regular Session of the West Virginia Legislature. The new
    enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
    became effective ninety days after the February 19, 2015, approval date. In this memorandum
    decision, we apply the statutes as they existed during the pendency of the proceedings below.
                                                                          1

presented a risk to the health, safety, and welfare of the children; he sold “pain pills” in the home
while the children were present; and he was arrested and charged with six counts of delivery of a
controlled substance. In September of 2014, the circuit court granted petitioner a six-month
improvement period. The terms and conditions of the improvement period required petitioner to
abstain from drugs and alcohol, submit to random drug and alcohol screens, and comply with all
other services. The circuit court also granted petitioner supervised visitation.

        On January 15, 2015, petitioner pled guilty to two counts of delivery of a controlled
substance. The circuit court sentenced petitioner to a term of incarceration of two to thirty years,
and denied petitioner’s motion for probation and/or home incarceration. Several days later, the
circuit court held its dispositional hearing in this matter. The circuit court took judicial notice of
all prior proceedings and heard testimony from two individuals.2 After considering the
testimony, the circuit court terminated petitioner’s custodial rights. In doing so, the circuit court
charged petitioner with the knowledge that the “children have been through a lot in their lives
because of controlled substances” because the children’s birth parents’ parental rights were
terminated for issues related to controlled substances. The circuit court also found that “if the
circuit court were only to consider [petitioner’s] conduct the [circuit] [c]ourt would terminate his
parental rights and deny visitation.” However, the circuit court found that the children had a
significant bond with petitioner and that based upon petitioner’s conduct and incarceration, that it
was in their best interest to terminate only his custodial rights. The circuit court granted
petitioner visitation with S.S. while he is incarcerated, but denied visitation with R.S.
Furthermore, despite not terminating petitioner’s parental rights, the circuit court ordered that
petitioner could not reside with the children and that he must petition the court for visitation
upon his release from incarceration. It is from this order that petitioner now appeals.

       The Court has previously established the following standard of review:

               “Although conclusions of law reached by a circuit court are subject to de
       novo review, when an action, such as an abuse and neglect case, is tried upon the
       facts without a jury, the circuit court shall make a determination based upon the
       evidence and shall make findings of fact and conclusions of law as to whether
       such child is abused or neglected. These findings shall not be set aside by a
       reviewing court unless clearly erroneous. A finding is clearly erroneous when,
       although there is evidence to support the finding, the reviewing court on the entire
       evidence is left with the definite and firm conviction that a mistake has been
       committed. However, a reviewing court may not overturn a finding simply
       because it would have decided the case differently, and it must affirm a finding if
       the circuit court’s account of the evidence is plausible in light of the record
       viewed in its entirety.” Syl. Pt. 1, In Interest of Tiffany Marie S., 196 W.Va. 223,
       470 S.E.2d 177 (1996).

Syl. Pt. 1, In re: Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011).

       2
           The dispositional hearing transcript was not made part of the record.
                                                                      2

        On appeal, petitioner argues that the circuit court erred in terminating his custodial rights
because of his incarceration when he substantially complied with the terms and conditions of his
improvement period. As we recently held, “[i]n making the final disposition in a child abuse and
neglect proceeding, the level of a parent’s compliance with the terms and conditions of an
improvement period is just one factor to be considered. The controlling standard that governs
any dispositional decision remains the best interests of the child.” Syl. Pt. 4, In re: B.H. and S.S.,
233 W.Va. 57, 754 S.E.2d 743 (2014). In this case, the circuit court properly considered the best
interests of the children and appropriately considered the evidence of petitioner’s strong bond
with his children. Further, this Court has explained that

               [w]hen no factors and circumstances other than incarceration are raised at
       a disposition hearing in a child abuse and neglect proceeding with regard to a
       parent’s ability to remedy the condition of abuse and neglect in the near future,
       the circuit court shall evaluate whether the best interests of a child are served by
       terminating the rights of the biological parent in light of the evidence before it.
       This would necessarily include but not be limited to consideration of the nature of
       the offense for which the parent is incarcerated, the terms of the confinement, and
       the length of the incarceration in light of the abused or neglected child’s best
       interests and paramount need for permanency, security, stability and continuity.

Syl. Pt. 3, In re: Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). However, despite petitioner’s
argument to the contrary, the record clearly demonstrates that the circuit court relied upon
several factors in addition to his incarceration. The circuit court considered petitioner’s conduct
of selling controlled substances in the presence of the children and the length of his
incarceration. The circuit court also considered that the children’s birth parents’ parental rights
were terminated for similar conduct. As noted above, the circuit court also considered the
children’s strong emotional bond with petitioner. Given the limited circumstances of this case,
we find no error in the circuit court’s order terminating petitioner’s custodial rights.

         Finally, petitioner also argues that the circuit court erred in prohibiting him from residing
with his children upon his release from incarceration. Petitioner fails to cite any authority to
support this assignment of error or indicate in the record where he objected to the same before
the circuit court. We have often stated that “[o]ur general rule is that nonjurisdictional questions .
. . raised for the first time on appeal, will not be considered.” Noble v. W.Va. Dep’t of Motor
Vehicles, 223 W.Va. 818, 821, 679 S.E.2d 650, 653 (2009) (quoting Shaffer v. Acme Limestone
Co., Inc., 206 W.Va. 333, 349 n. 20, 524 S.E.2d 688, 704 n. 20 (1999)). Further, “[g]enerally the
failure to object constitutes a waiver of the right to raise the matter on appeal.” State v. Asbury,
187 W.Va. 87, 91, 415 S.E.2d 891, 895 (1992). See also Rule 10(c)(7) of the Rules of Appellate
Procedure (stating that “[t]he argument must contain appropriate and specific citations to the
record on appeal, including citations that pinpoint when and how the issues in the assignments of
error were presented to the lower tribunal.”). If properly presented below, the circuit court could
have addressed this alleged error. “This Court will not consider an error which is not preserved
in the record nor apparent on the face of the record.” Syl. Pt. 6, State v. Byers, 159 W. Va. 596,
224 S.E.2d 726 (1976). In addition,

       [t]o preserve an issue for appellate review, a party must articulate it with such
       sufficient distinctiveness to alert a circuit court to the nature of the claimed defect.
                                                      3

       The rule in West Virginia is that parties must speak clearly in the circuit court, on
       pain that, if they forget their lines, they will likely be bound forever to hold their
       peace . . . [i]t must be emphasized that the contours for appeal are shaped at the
       circuit court level by setting forth with particularity and at the appropriate time
       the legal ground upon which the parties intend to rely.
State ex rel. Cooper v. Caperton, 196 W.Va. 208, 216, 470 S.E.2d 162, 170 (1996). Therefore,
based upon these considerations, we do not address petitioner’s assignment of error in this
regard.

       For the foregoing reasons, we find no error in the circuit court’s January 26, 2015, order,
and we hereby affirm the same.

                                                                                Affirmed.

ISSUED: October 20, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Allen H. Loughry II

DISSENTING AND WRITING SEPARTELY:

Justice Menis E. Ketchum

        The circuit court clearly ignored the controlling statutory law and terminated only
petitioner’s custodial rights. This creates a conflict in that petitioner still has parental rights but
cannot have custody of his children and has restricted visitation. Therefore, I dissent.

                                                      4


UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                        No. 95-5311

BOYSIE MAHABIR,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Benson E. Legg, District Judge.
(CR-93-22-L)

Argued: April 11, 1997

Decided: June 4, 1997

Before HAMILTON, LUTTIG, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Samuel Aaron Abady, ABADY, LUTTATI, KAISER,
SAURBORN & MAIR, P.C., New York, New York, for Appellant.
John Francis Purcell, Jr., Assistant United States Attorney, Baltimore,
Maryland, for Appellee. ON BRIEF: Michael B. Lumer, Henry L.
Saurborn, ABADY, LUTTATI, KAISER, SAURBORN & MAIR,
P.C., New York, New York, for Appellant. Lynne A. Battaglia,
United States Attorney, Baltimore, Maryland, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Boysie Mahabir appeals his convictions for conspiracy to possess
cocaine with the intent to distribute and to distribute cocaine, see 21
U.S.C. §§ 841(a)(1) and 846, and possession of cocaine with the
intent to distribute, and aiding and abetting the same, see 21 U.S.C.
§ 841(a)(1) and 18 U.S.C. § 2. Mahabir also challenges his sentence.
We affirm.

I

In late December 1992, in Mahabir's presence, Rayford Knight, the
owner of a trucking company located in Brooklyn, New York,
instructed Cary Grace, a truck driver employed by Mahabir, to drive
a tractor-trailer from Brooklyn, New York to Los Angeles, California
to pick up a number of Christmas presents. On his westbound trip, the
trailer Grace was pulling was seized by police in Van Horn, Texas
because it was stolen. Thereafter, Knight instructed Grace to drive the
tractor to Houston to pick up some packages and return them to New
York. On January 8, 1993, five boxes, unmarked and wrapped in
brown paper with tape, were loaded into the tractor.

At 2:48 a.m. on January 11, as he was returning to New York,
Grace was stopped for running a red light in La Plata, Maryland by
Officer Kevin Barrows of the Charles County Police Department. Fol-
lowing the stop, Barrows asked Grace for his driver's license and the
tractor's registration. A check of Grace's New York driver's license
revealed that it was suspended on October 25, 1992. The tractor's reg-
istration revealed that the tractor was registered to Boysie Trucking,
Inc., 32 Van Houten Avenue, Jersey City, New Jersey. The address
on the registration was the same address as Mahabir's residence.

Barrows arrested Grace for driving with a suspended out-of-state

                    2
license and placed Grace in his patrol car. Barrows then decided to
search the tractor. Upon entering the tractor, Barrows discovered the
five boxes directly behind the driver's seat in the sleeper compartment.1
During his subsequent search of the boxes, Barrows discovered 199
kilograms of cocaine.

Later that morning, the Charles County Police Department notified
the Drug Enforcement Administration (DEA) of the cocaine seizure.
A short time later, Grace agreed to cooperate with the DEA in its
investigation. The essence of the DEA's investigative plan was to
have Grace call his conspirators in New York and tell them that he
had been admitted to Physician's Memorial Hospital in La Plata with
chest pains, with the expectation that his conspirators would travel to
Maryland to retrieve the cocaine. Meanwhile, the tractor was placed
in the parking lot of the hospital and put under surveillance.

The phone number provided by Grace for the controlled calls was
that of Cherokee Enterprises, the trucking company Knight owned in
Brooklyn, New York. Mahabir often used Knight's office to book
loads, write up trip logs and general office paperwork. At 3:30 p.m.
on January 11, Grace called Knight and told him that he had devel-
oped chest pains and stopped at a hospital in La Plata, Maryland.
Grace gave Knight the number of the "hospital," which was actually
the number of a DEA undercover phone.

At 5:00 p.m., Mahabir called the number of the DEA undercover
phone and asked for directions to the hospital and to speak to Grace.
Mahabir was given directions to the hospital and informed that Grace
did not have a phone in his room, but that a message could be deliv-
ered to his room. Mahabir left a message for Grace that it was "very
important" that he "call the office." (J.A. 1232).

At 5:30 p.m., Grace called Knight's office. Knight told Grace that
Mahabir was on his "way down there to get it." Id. at 1233. Knight
added: "[T]his way he can get it out of there, you know what I mean?"
Id.
_________________________________________________________________
1 The sleeper compartment was separated from the driver's compart-
ment by a curtain, which apparently was open at the time of the search.

                    3
Mahabir traveled to La Plata that evening in a pickup truck with
Anthony Johnson, an individual who performed odd jobs for Knight
and, on occasion, Mahabir. At approximately 12:40 a.m. on January
12, Mahabir and Johnson arrived at the hospital. Mahabir instructed
Johnson to circle the tractor and park near the entrance of the hospital,
which Johnson did.

A short time later, at Mahabir's direction, Johnson walked to the
tractor to see if the boxes were still in the truck. As Johnson
approached the tractor, Mahabir maintained a concealed vantage point
at the rear of a nearby Dash-In to observe Johnson. Johnson briefly
entered the tractor, saw the boxes and went back to Mahabir and
informed him that the boxes were still in the truck. Following this
conversation, Mahabir directed Johnson to unload the boxes. When
Johnson asked for Mahabir's assistance, he refused.

Johnson went to the pickup truck and proceeded to drive it to the
parked tractor. Johnson then started removing the boxes from the trac-
tor. As Johnson was removing the boxes from the tractor, he was
arrested. Shortly thereafter, Mahabir was arrested as he was walking
in a direction away from the Dash-In and the hospital.

On January 19, 1993, a federal grand jury sitting in the District of
Maryland returned a two-count indictment charging Mahabir and
Knight with conspiracy to possess cocaine with the intent to distribute
and to distribute cocaine, see 21 U.S.C.§§ 841(a)(1) and 846, and
possession of cocaine with the intent to distribute, and aiding and
abetting the same, see 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Fol-
lowing a jury trial, Mahabir was convicted on both counts. The dis-
trict court sentenced Mahabir to 188 months' imprisonment. Mahabir
noted a timely appeal.

II

Mahabir argues that the district court erred when it concluded that
Barrows' search of the five boxes was lawfully conducted incident to
Grace's arrest.2 This argument has no merit.
_________________________________________________________________
2 The government apparently concedes that Mahabir had standing to
contest the validity of the search by virtue of his ownership interest in
the tractor. Also of note, Mahabir does not challenge the validity of
Grace's arrest.

                    4
In New York v. Belton, 453 U.S. 454 (1981), the Supreme Court
created a bright-line rule that incident to a lawful arrest of an occu-
pant of an automobile a police officer may conduct a contemporane-
ous search of the passenger compartment of the automobile and any
containers therein. Id. at 460-61. The applicability of this exception
to the Fourth Amendment's warrant requirement does not turn on the
defendant's presence in the passenger compartment or actual ability
to grab items therein. See, e.g., United States v. Moorehead, 57 F.3d
875, 877-78 (9th Cir. 1995) (Belton search conducted while defendant
was seated in patrol car).

Applying Belton and its progeny to the facts of this case leads to
the conclusion that the district court correctly denied Mahabir's
motion to suppress. Grace's arrest was lawful, thereby permitting a
search of the passenger compartment incident to that arrest. The
cocaine was discovered in the passenger compartment during that
search;3 therefore, the cocaine was not the product of an unlawful
search and was properly admitted at trial. See Belton, 453 U.S. at 460-
61.

Mahabir contends that, under Belton, Barrows was not entitled to
open the boxes because they were wrapped in brown paper and taped.
However, the Court in Belton rejected this argument in favor of a
bright-line rule permitting the search of all containers in the passenger
compartment. In Belton, the Court stated that "the police may . . .
examine the contents of any containers found within the passenger
compartment." Id. at 460; see also United States v. McCraw, 920 F.2d
224, 228 (4th Cir. 1990) ("Incident to an automobile occupant's law-
ful arrest, police may search the passenger compartment of the vehi-
cle and examine the contents of any containers found within the
passenger compartment."). Indeed, the boxes at issue here fall within
the Court's definition of "container" set forth in Belton:

            "Container" here denotes any object capable of holding
            another object. It thus includes closed or open glove com-
            partments, consoles, or other receptacles located anywhere
_________________________________________________________________
3 Mahabir does not dispute that the sleeper compartment of the tractor
is part of the passenger compartment of the tractor.

                     5
          within the passenger compartment, as well as luggage,
          boxes, bags, clothing and the like.

Belton, 453 U.S. at 460 n.4. Because Belton applies to any container
found in the passenger compartment of an automobile, the manner in
which the five boxes were wrapped is irrelevant.

III

Mahabir also contends that the district court's instruction on the
definition of reasonable doubt following the jury's request for a defi-
nition of the term constitutes reversible error. This argument also has
no merit.

In instructing the jury on the definition of reasonable doubt, the
district court stated:

          Ladies and Gentlemen, you have asked for an instruction on
          the term reasonable doubt. And I will give you some clarify-
          ing language, although the term reasonable doubt, and the
          phrase beyond a reasonable doubt, really means what it
          says, and it is, in my view, its own best description.

          If you think that the government has proved guilt beyond a
          reasonable doubt then you should convict. If you think that
          a reasonable doubt exists, as to the defendant's innocence,
          then you should find him not guilty. But having said that I
          will give you some language which may help you under-
          stand this principle. But the problem is that if you try to
          define beyond a reasonable doubt there is always the fear
          that you may make the concept cloudier rather than clearer,
          and I think the phrase itself is clear.

          The government has the burden of proving the defendant
          guilty beyond a reasonable doubt. Some of you may have
          served as jurors in civil cases where you were told that it is
          only necessary to prove that a fact is more likely true than
          not true. In criminal cases the government's proof must be
          more powerful than that, it must be beyond a reasonable

                    6
          doubt. Proof beyond a reasonable doubt is proof that leaves
          you firmly convinced of the defendant's guilt. There are
          very few things in this world that we know with absolute
          certainty, and in criminal cases the law does not require
          proof that overcomes every possible doubt. If, based on your
          consideration of the evidence, you are firmly convinced that
          the defendant is guilty of the crime charged you must find
          him guilty. If, on the other hand, you think there is a real
          possibility that he is not guilty, you must give him the bene-
          fit of the doubt and find him not guilty.

(J.A. 1207-08).

Mahabir challenges the "firmly convinced" language that appears
in the district court's instruction. According to Mahabir, "[t]elling the
jurors who want reasonable doubt defined that they should be `firmly
convinced' of Mahabir's guilt tells them nothing about how to ana-
lyze the evidence to insure Mahabir would not be wrongfully con-
victed." Appellant's Brief at 45.

We have consistently instructed district courts not to define reason-
able doubt. See, e.g., United States v. Reives, 15 F.3d 42, 45 (1994);
United States v. Moss, 756 F.2d 329, 333 (4th Cir. 1985). We have
adopted this approach because "the term reasonable doubt has a `self-
evident meaning comprehensible to the lay juror,' which judicial
efforts to define generally do more to obscure than to illuminate."
United States v. Headspeth, 852 F.2d 753, 755 (4th Cir. 1988) (quot-
ing Murphy v. Holland, 776 F.2d 470, 475 (4th Cir. 1985), vacated
on other grounds, 475 U.S. 1138 (1986)). In Reives, we acknowl-
edged that a number of our circuit decisions suggested that a defini-
tion of reasonable doubt could be given when the jury specifically
requested one, but declined the defendant's "invitation to breathe pre-
cedential life into this long line of dicta." 15 F.3d at 46 & n.3 (collect-
ing cases). We went on to hold that even when the jury requests a
definition of reasonable doubt, the district court should refrain from
giving an instruction. Id. at 46. However, the district court's decision
to give a reasonable doubt instruction is not necessarily reversible
error. In such a case, we must examine whether the instruction "taken
as a whole . . . correctly convey[s] the concept of reasonable doubt

                     7
to the jury." Victor v. Nebraska, 114 S. Ct. 1239, 1243 (1994) (cita-
tion and internal quotes omitted).

In this case, the district court gave an instruction defining reason-
able doubt only after the jury requested such an instruction. The defi-
nition of reasonable doubt that the district court gave the jury was
almost identical to the definition of reasonable doubt endorsed by the
Federal Judicial Center. See Federal Judicial Center, Pattern Criminal
Jury Instructions 17-18 (1987) (instruction 21). Our inquiry, then, is
whether this instruction correctly conveys the reasonable doubt stan-
dard.

Several circuit courts have endorsed the reasonable doubt instruc-
tion of the Federal Judicial Center. See United States v. Conway, 73
F.3d 975, 980 (10th Cir. 1995); United States v. Williams, 20 F.3d
125, 128-32 (5th Cir. 1994). In addition, in her concurring opinion in
Victor, Justice Ginsburg specifically cited this instruction with
approval as a "clear, straightforward, and accurate" explication of rea-
sonable doubt. 114 S. Ct. at 1253 (Ginsburg, J., concurring in part and
concurring in the judgment). After setting out the Federal Judicial
Center's proposed jury instruction on reasonable doubt, Justice Gins-
burg explained that the Federal Judicial Center's instruction "plainly
informs the jurors that the prosecution must prove its case by more
than a mere preponderance of the evidence, yet not necessarily to an
absolute certainty." Id. Justice Ginsburg further opined that "[t]he
`firmly convinced' standard for conviction, repeated for emphasis, is
. . . enhanced by the juxtaposed prescription that the jury must acquit
if there is a `real possibility' that the defendant is innocent." Id.

We are persuaded by Justice Ginsburg's concurring opinion in
Victor, the Fifth Circuit's decision in Williams and the Tenth Circuit's
decision in Conway. We agree that the "firmly convinced" phrase jux-
taposed with the insistence that the defendant must be acquitted if
there is a "real possibility" that he is innocent conveys a cogent state-
ment of the reasonable doubt standard. Accordingly, we reject Maha-
bir's challenge to the district court's instruction on reasonable doubt.

IV

At sentencing, Mahabir argued that his crimes represented a single
act of aberrant behavior justifying a downward departure from his

                     8
guideline range. See United States Sentencing Commission,
Guidelines Manual, Ch. 1, Pt. A, 4(d), p.s. Following our decision in
United States v. Glick, 946 F.2d 338 (4th Cir. 1991), the district court
declined to depart, concluding: "[T]he facts presented are not of suffi-
cient magnitude to warrant a departure under the aberrant behavior
test because there was not, as stated in Glick , sufficient evidence of
a spontaneous and seemingly thoughtless act rather than one which
was the result of substantial planning." (J.A. 1396).

On appeal, Mahabir urges us to abandon the "spontaneity" require-
ment adopted in Glick in favor of the more expansive view of "aber-
rant behavior" adopted by the First, Ninth, and Tenth Circuits. See
United States v. Grandmaison, 77 F.3d 555, 561-64 (1st Cir. 1996)
(eschewing focus on spontaneity in favor of totality of circumstances
approach); United States v. Takai, 941 F.2d 738, 741-44 (9th Cir.
1991) (same); United States v. Pena, 930 F.2d 1486, 1494-96 (10th
Cir. 1991) (same). As a panel of this court, we are in no position to
overrule Glick. See Brubaker v. Richmond , 943 F.2d 1363, 1381-82
(4th Cir. 1991). Glick settled the issue of what constitutes aberrant
behavior, and we cannot disturb it. Accordingly, Mahabir's argument
on this score must be rejected.

V

Mahabir raises an additional argument which he contends should
be resolved in his favor. He contends that there is insufficient evi-
dence in the record to support his convictions. We have reviewed this
assignment of error and find it to be without merit. Accordingly, for
the reasons stated herein, the judgment of the district court is
affirmed.

AFFIRMED

                    9