126 F.2d 251 (1942)
TEMPLETON'S JEWELERS, Inc.,
v.
UNITED STATES.
No. 8713.
Circuit Court of Appeals, Sixth Circuit.
March 4, 1942.
Fred M. Williams, of Chattanooga, Tenn., for appellant.
Samuel H. Levy, of Washington, D. C. (Samuel O. Clark, Jr., Asst. Atty. Gen., J. Louis Monarch and Maurice J. Mahoney, Sp. Assts. to Atty. Gen., and J. B. Frazier, Jr., of Chattanooga, Tenn., on the brief), for appellee.
Before SIMONS, MARTIN, and McALLISTER, Circuit Judges.
*252 SIMONS, Circuit Judge.
The appellant sought to recover income and excess profits taxes paid by it for the fiscal years ending July 31, 1933 and July 31, 1934, on the ground that its acquisition of the assets of a predecessor corporation from an assignee for the benefit of creditors, was in pursuance of a plan of reorganization, by reason of which the basis for computing gains was the cost of the property to its predecessor rather than the price paid to the assignee. The District Court rejected this view and gave judgment for the defendant, D.C.Tenn., 32 F.Supp. 445.
The appellant acquired all of the assets formerly belonging to Templeton's, Inc., of which Ira F. Templeton was the president and the majority stockholder. Templeton's, Inc., was engaged in the retail jewelry business in Chattanooga, Tennessee, and beginning in 1930 suffered a severe business decline with the result that its affairs reached a situation where it was unable to meet its obligations. In order to avoid involuntary bankruptcy, and to protect its creditors, it made an assignment in 1932 of all of its property, to a trustee for the benefit of creditors. Templeton continued to operate the business for six weeks under the supervision of the assignee, at the end of which time the assignee made an agreement with 90% of the creditors, to settle their claims for 25 cents on the dollar. Ten % of the creditors refusing to accept, an abortive effort was made to sell the business and properties under the Bulk Sales Law of Tennessee, Code Tenn.1932, § 7283 et seq. Templeton later borrowed sufficient money to complete the settlement with creditors; acquired from the assignee through a trustee, the assets of the corporation, and transferred them to a new corporation. An agreement was made with the non-consenting creditors, that the new corporation, Templeton's Jewelers, Inc., should assume the debts of the old corporation to them, and the appellant likewise satisfied employee claimants of the old company by the issue to them of 13¾ shares of its capital stock.
The Revenue Act of 1932, § 112(i) (1), 26 U.S.C.A. Int.Rev.Acts, page 513, defines the term "reorganization" to mean: "(A) a merger or consolidation (including the acquisition by one corporation of at least a majority of the voting stock and at least a majority of the total number of shares of all other classes of stock of another corporation, or substantially all the properties of another corporation), or (B) a transfer by a corporation of all or a part of its assets to another corporation if immediately after the transfer the transferor or its stockholders or both are in control of the corporation to which the assets are transferred, or (C) a recapitalization, or (D) a mere change in identity, form, or place of organization, however effected."
The appellant contends that Templeton planned to reorganize the business of the old company and acquire its assets for the purpose of organizing a new corporation and continuing the business of the old; that this was done through the mechanics of assignment rather than bankruptcy; that immediately after the transfer of the properties, more than 50% of the stock of the new company was issued to him, and that the transaction fell within the "A" portion of the statutory definition of reorganization, being the acquisition by one corporation of substantially all the properties of another; that it likewise fell within the "B" portion, being a transfer by a corporation of all its assets to another corporation, with the stockholders of the transferor immediately thereafter in control of the transferee; and also that there was a recapitalization within part "C" of the definition.
In Mascot Stove Co. v. Com'r of Int. Rev., 6 Cir., 120 F.2d 153, we held that where an insolvent corporation had been adjudicated in bankruptcy and its assets sold to satisfy creditors, and the avails of the sale were not sufficient to pay the corporation's debts, neither the corporation nor its stockholders had anything of value to transfer to a new corporation, and that such transaction, even though contemplated in advance as a means of reorganization, failed to qualify as such under the terms of the statute. The Mascot Stove Company case being before the Supreme Court on a petition by the unsuccessful taxpayer, for a writ of certiorari, decision here was withheld pending action upon the petition. The writ has now been denied, 62 S.Ct. 630, 86 L.Ed. ___.
We pointed out in our opinion that based upon the interpretation of § 112(i) (1) in Pinellas Ice & Cold Storage Co. v. Com'r, 287 U.S. 462, 53 S.Ct. 257, 77 L.Ed. 428, and Helvering v. Minnesota Tea Co., 296 U.S. 378, 56 S.Ct. 269, 80 L.Ed. 284, the mere transfer of all of its *253 assets by one corporation to another did not effect a reorganization unless the interest of the transferor, or its stockholders, represented a substantial part of the value of the thing transferred; that either the corporation or its stockholders must have something of value to exchange for the stock of the new company; and that a plan to exchange for shares in a new company relieved of old debts, the stock of an insolvent bankrupt corporation, stripped of its assets by a sale yielding less than its debts, was not a tax free reorganization. The principles there applied are applicable here.
While in the present case there was no adjudication in bankruptcy and no sale under the supervision of the Bankruptcy Court, the result is identical. The appellant itself accurately characterizes the plan: "By reason of this condition on June 17, 1932, in order to save the cost of administration incident to bankruptcy, and at the same time afford it (the corporation) the same relief that bankruptcy affords, to-wit: the getting a full discharge from its obligations by way of an assignment of its assets to a trustee for the purpose of liquidation and disposition among its creditors in lieu of bankruptcy  execute an agreement, etc." The old corporation was liquidated. This is clear not only from the concession, but from the circumstances as developed below, and as we said in the Mascot case [120 F.2d 156], "liquidation is the antithesis of reorganization."
The appellant leans heavily upon our decision in Com'r of Int. Rev. v. Newberry Lumber & Chemical Co., 6 Cir., 94 F.2d 447, but in that case it was the proprietary interest of the security holders of the old company as such, that was perpetuated in the new company. Here 90% of the creditors were eliminated by the settlement made with new capital, and the remaining 10%, except for labor claimants in negligible amount, acquired no proprietary interest in the new corporation. That the distinction is vital appears from the recent decisions of the Supreme Court. In Helvering v. Alabama Asphaltic Limestone Co., 62 S.Ct. 540, 543, 86 L.Ed. ___, decided February 2, 1942, the court, after pointing out that from the Pinellas case, supra, to the LeTulle case, LeTulle v. Scofield, 308 U.S. 415, 60 S.Ct. 313, 84 L.Ed. 355, it has been recognized that a transaction may not qualify as a reorganization even though the literal language of the statute is satisfied because the "continuity of interest" theory introduced in the Pinellas case eliminates transactions which have no real semblance to mergers or consolidations, holds that there is no reorganization when the old stockholders are eliminated and no portion, whatever, of their proprietary interest in the old corporation is preserved for them in the new. This is a situation differing from that disclosed in Palm Springs Holding Corp. v. Com'r, 62 S.Ct. 544, 86 L.Ed. ___, decided the same day. There the new corporation acquired the assets at the trustee's and the foreclosure sales, but the critical facts were that the creditors took command over the property and accordingly the continuity of interest test was satisfied. There were no such critical circumstances here.
In passing, it is well to observe that it is wholly beside the point that the general assignment for benefit of creditors made by the old company, failed to conform to the provisions of Tennessee law. Only its creditors could complain, and they are not here. Certainly, the appellant neither may, nor does, assail its own title to the assets of the old corporation. The latter assigned its property to a trustee for creditors, and it was beyond its power to exchange it for stock in the new company.
In the Mascot case we conceded that our decision might be thought to be in conflict with that in Rex Mfg. Co. v. Com'r, 7 Cir., 102 F.2d 325, although we did not so regard it. It must now be observed that the Court of Appeals of the Seventh Circuit perceives the same distinguishing features noted by us. D. W. Klein Co. v. Com'r, 123 F.2d 871. In its later decision it was pointed out that in the Rex case all creditors received bonds in the new corporation, secured by assets delivered to it by the old, pursuant to plan, but that in the case at bar there was no carrying over of claims of creditors or stockholders,  the assets were sold to the highest bidder. That, substantially, is the Mascot case, and that, in principle, is the present case.
The decree below is affirmed.


186 F.2d 886
TOBIN, Secretary of Labor,v.PIELET et al.
No. 10201.
United States Court of Appeals, Seventh Circuit.
Heard Jan. 9, 1951.Decided Jan. 23, 1951.

Edward R. Litsinger, Andrew W. Gatenbey, John D. Clancy, Jr., Chicago, Ill., for appellants.
William S. Tyson, Solicitor, Bessie Margolin, Asst. Solicitor, U.S. Department of Labor, Washington, D.C., Herman Grant, Regional atty., U.S. Department of Labor, Chicago, Ill., William A. Lowe, Helen Grundstein, Washington, D.C., of counsel, for appellee.
Before MAJOR, Chief Judge, and DUFFY and LINDLEY, Circuit Judges.
MAJOR, Chief Judge.

1
This is an appeal from a judgment, entered May 10, 1950, adjudging respondents guilty of criminal contempt for wilful violations of an injunction restraining them from violating the overtime, record-keeping and shipment provisions of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq.  The judgment was predicated upon the court's findings of fact and conclusions of law.  By the judgment each of the respondents was sentenced to pay a fine in the amount of $5,000.00, and the costs of prosecution.  In addition, the respondents were directed to pay to certain employees wage reparations in the amounts as shown in petitioner's Exhibit No. 26, for the period between October, 1946, and May, 1949, inclusive.  The judgment further provided that respondents pay such fines, costs and reparations within ten days, otherwise to stand committed.

2
The two main questions raised on this appeal are (1) that the proof was not sufficient to justify the judgment of criminal contempt and that the court was without authority to assess costs against respondents in such a proceeding, and (2) that the court was without authority to order the payment of reparations by respondents, this being a remedy available only in civil contempt.

3
Respondents' first contention may be disposed of in brief fashion.  We have examined the record, including the many exhibits, and read the oral testimony, and have no doubt but that it supports the court's findings and judgment that respondents were guilty of the criminal contempt alleged.  This is so notwithstanding the record reveals some rather serious inconsistencies which might be profitably enumerated if we were the triers of the facts, which we are not.  That was peculiarly the function of the district judge, and the only question here is whether his findings and conclusions are substantially supported.  We think that they are.

4
Notwithstanding our conclusion in this respect, we shall briefly refer to the proof offered by the petitioner because it has a bearing not only upon the issue to which we have just referred but also upon the issue which we shall subsequently discuss.  Respondents had twice previously been before the district court in similar proceedings.  On March 15, 1941, the Administrator of the Wage and Hour Division (afterward the Secretary of Labor was substituted as the party-plaintiff) sought an injunction to restrain violations of the minimum wage, overtime, shipment and record-keeping requirements of the Act.  The court found against respondents and enjoined each type of violation.  No appeal was taken from this order.  On May 24, 1944, a criminal prosecution was instituted for violation of the injunction.  A judgment was entered against respondents on the ground, among other things, that they had failed to pay certain employees at the rate of time and one-half of their regular pay for hours worked in excess of forty per week, and respondents therein were directed to pay such overtime wages in compliance with the court's injunction.  Again no appeal was taken, and presumably this judgment was satisfied.

5
The instant action, instituted on October 31, 1949, is the second prosecution for criminal contempt of the injunction.  Respondents were engaged in the demolition of buildings and the handling of scrap iron and other similar junk material.  At different times they employed several hundred men, part of whom worked in respondents' yard, but it appears that the majority were on jobs away from the yard demolishing buildings.  Respondents' books were offered in evidence by petitioner, which disclosed that the employees were paid on an hourly basis, with time and one-half for hours worked over forty per week.  However, twenty-three employees testified in the proceeding that they were employed on a daily rather than an hourly basis.  Respondents admit that twenty-one of such witnesses so testified.  The court expressed the opinion that these witnesses testified truthfully, and found accordingly.  It follows that respondents' records were inaccurate in that they did not properly reflect the hourly rate and, consequently, the amount of overtime to which the testifying employees were entitled.

6
There were also numerous instances shown where the number of hours worked by employees was not recorded on the books, and particularly is this so as to the hours worked on Sundays.  There were other instances where the number of hours recorded was fewer than those actually worked, and other facts and circumstances were shown which seriously reflect upon the accuracy of the records and for which respondents offer no adequate explanation.  In fact, the errors shown are far too numerous to be ascribed to innocent mistakes or oversights.  Especially is this so when it is taken into consideration, as the district judge had a right to do, that respondents by reason of the previous proceedings had been warned as to their duty to keep accurate records in compliance with the Act.  The judgment as it relates to criminal contempt is affirmed.

7
Respondents argue that in criminal contempt, the court was without authority to award costs.  While we find no case where this question has been decided, it has been held that the court may properly award costs in a proceeding for civil contempt.  Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 447, 31 S.Ct. 492, 55 L.Ed. 797; McComb v. Norris, 4 Cir., 177 F.2d 357, 360.  That the charging of costs to a defendant found guilty in a criminal case is proper is not open to doubt.  And we perceive no reason why it may not be properly done in a proceeding for criminal contempt.  The judgment against the respondents for costs is also affirmed.

8
Respondents' contention that the court was without authority to include in its judgment a direction that they pay to certain employees wage reparations presents a more serious problem.  That this was a judgment proper only in civil contempt is hardly open to question.  In fact, the two forms of contempt depend upon the character of the judgment.  As the court stated in Gompers v. Buck's Stove & Range Co., supra, 221 U.S.AT page 448, 31 S.Ct.at page 501, 55 L.Ed. 797, 'The classification, then, depends upon the question as to whether the punishment is punitive, in vindication of the court's authority, or whether it is remedial, by way of a coercive imprisonment, or a compensatory fine, payable to the complainant.  Bearing these distinctions in mind, the prayer of the petition is significant and determinative.'  As the award of reparations was a 'compensatory fine' payable to the employees, it was a judgment for civil contempt.

9
That the proceeding was one solely for criminal contempt is certain.  Civil contempt was neither alleged, found nor even mentioned in the proceedings prior to the entry of the judgment.  The petition instituting the proceeding was entitled, 'Petition for Prosecution of Robert A. Pielet and David Pielet for Criminal Contempt of Court.'  The prayer of the petition was as follows:

10
'Wherefore, petitioner respectfully requests this Court to'(1) Prosecute Robert A. Pielet and David Pielet for criminal contempt of the Court and to issue an order to Robert A. Pielet and David Pielet, requiring them to show cause whey they should not be adjudged in criminal contempt of the Court for their failure and refusal to comply with the said judgment of the Court; and

11
'(2) Appoint Herman Grant and Ruth Provus, attorneys employed by the United States Department of Labor, and representing the said Administrator, as counsel to represent the Court, and to prosecute on behalf of the Court, Robert A. Pielet and David Pielet, for criminal contempt of the Court; and

12
'(3) Adjudge Robert A. Pielet and David Pielet in criminal contempt of this Court for their failure and refusal to comply with the said judgment of the Court and to punish them for such contempt in such manner as the Court may deem just and proper.'

13
Thus, the prayer of the petition, as stated in the Gompers case (heretofore quoted), is 'significant and determinative' as to the form of the contempt involved.  But that is not all.  On the same day that the petition was filed, the court entered an order appointing counsel to represent the court and to prosecute the respondents for criminal contempt.  And on the same date an 'Order to Show Cause' was entered, directing the respondents to show cause 'why they should not be found guilty of criminal contempt of this Court by reason of their failure and refusal to obey, and disobedience of, the judgment of this Court aforesaid, and punished for said criminal contempt.'  The court both in its findings and conclusions of law recognized the proceeding as one for criminal contempt.  In its conclusions the court stated that the respondents 'have wilfully, deliberately, and contumaciously disobeyed and violated the terms of the judgment order entered by this Court on July 3, 1942,' and that the respondents 'have beyond a reasonable doubt been guilty of a criminal contempt of this Court as charged.'  That the proceeding was treated strictly as criminal is further evidenced by the fact that the court at the conclusion of the proceeding stated, 'The defendants will arise and come to the bar.  Is there anything the defendants or their counsel care to say before imposition of sentence9' And in the decree appealed from it was 'Adjudged and Decreed that the respondents and each of them are found guilty of criminal contempt as charged * * * and each of them are sentenced to pay a fine in the amount of Five Thousand Dollars ($5,000.00) and the costs of this prosecution.'  This part of the judgment based on criminal contempt we have heretofore discussed.

14
In Gompers v. Buck's Stove & Range Co., supra, it was decided that a proceeding for civil contempt would not support a judgment for criminal contempt.  Here we have the converse of that problem, that is, will a proceeding strictly criminal in its nature support a judgment appropriate only in a civil action?  A rather plausible argument can be made that the respondents were not prejudiced for the reason that a higher degree of proof was required for criminal contempt, and that respondents having been found guilty of the criminal charge, they necessarily must have been guilty of civil contempt.  That same argument could be made if B was charged in a criminal prosecution with an assault and battery upon A, with a judgment against him appropriate in a criminal prosecution, that is, a fine or imprisonment, and also a judgment that he compensate A for the injuries sustained by him.  The point is, so we think, that a defendant in any action, whatever form it takes, is entitled to be advised of the charge against him, to be tried on the charge made and, if found guilty, to have a judgment against him appropriate thereto and not one common to some other character of proceeding.

15
Petitioner relies heavily upon United States v. United Mine Workers of America, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884, in support of his contention that a court may punish for both criminal and civil contempt in the same proceeding.  The court in that case stated, 330 U.S.AT page 298, 67 S.Ct.at page 698, 91 L.Ed. 884, 'Common sense would recognize that conduct can amount to both civil and criminal contempt.  The same acts may justify a court in resorting to coercive and to punitive measures.  Disposing of both aspects of the contempt in a single proceeding would seem at lease a convenient practice.'  But that pronouncement is readily distinguishable because it was based upon the court's view that both forms of contempt were appropriately before the court; in fact, it was held that the trial court had properly found the defendants guilty both of criminal and civil contempt.  The fact, however, that the two forms of contempt may be joined in the same proceeding and a judgment rendered appropriate to each form furnishes no support for the proposition that a judgment for civil contempt can be supported by a proceeding which was initiated and carried through solely as a criminal contempt.

16
Finally, petitioner argues that in any event respondents were aware that reparations were sought on behalf of their employees because petitioner in a bill of particulars furnished respondents with the specific details regarding the alleged violations, including the amount of wages claimed to be due and owing.  But this information, like the testimony of the employees who were witnesses, was consistent with the charge of criminal contempt.  In fact, as already shown, the testimony of these witnesses was offered in support of the allegation that respondents' books were false, and there is nothing in the record to indicate that such testimony was offered for any other purpose.  Petitioner in his brief states, 'If respondents entertained any doubt that coercive sanctions in the way of back wages might be imposed, they were deliberately closing their eyes to the facts of which they had been placed on notice.'  This is a novel theory.  Followed to its logical conclusion, it means that a defendant could be found guilty of a violation not charged if by keeping his eyes open he could have made discovery that he might be judged on such other charge.

17
Petitioner cites certain other cases in support of that portion of the judgment under discussion.  McComb v. Jacksonville Paper Co., 336 U.S. 187, 194, 69 S.Ct. 497, 93 L.Ed. 599; McComb v. Norris, 4 Cir., 177 F.2d 357, and McComb v. Crane, 5 Cir., 174 F.2d 646.  True, the court in those cases held that a court might properly award reparations to employees in an action by the Administrator, but all of these cases involved a proceeding for civil contempt.  They are beside the issue and throw no light on the question here presented.

18
In our view, the court was without authority to include in its judgment a directive that respondents pay wages to their employees.  The court awarded wage reparations 'in the amounts as shown in Petitioner's Exhibit No. 26 herein.'  This exhibit lists the names of 119 employees, with the sum due each as calculated by a witness for petitioner.  The total amount of said sums was $5,829.57.  None of these 119 employees listed on this exhibit other than the twenty-one heretofore referred to were called as witnesses.  Respondents contend in any event that there is no competent proof as to the amounts due the various employees listed.  However, in view of our conclusion that the portion of the judgment predicated upon civil contempt was unauthorized, we see no reason to discuss petitioner's theory as to how he arrived at the amounts shown on this exhibit.

19
For the reasons stated, that portion of the judgment based upon criminal contempt, together with costs, is affirmed, and that portion based upon civil contempt is reversed.


358 A.2d 687 (1976)
Robert H. FRAZIER, Jr.
v.
James W. MULLEN, Warden.
No. 76-199-M. P.
Supreme Court of Rhode Island.
June 3, 1976.
Robert H. Frazier, Jr., pro se.

ORDER
Petition for writ of habeas corpus is granted for hearing on right of petitioner to be admitted to bail, and the writ shall issue forthwith.
The Public Defender is directed to represent the petitioner in the further prosecution of his writ of habeas corpus.


        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs July 13, 2010

                 STATE OF TENNESSEE v. MICHAEL CLARK

              Direct Appeal from the Criminal Court for Shelby County
                        No. 07-04686     Chris Craft, Judge

               No. W2009-01649-CCA-R3-CD - Filed January 21, 2011

The defendant, Michael Clark, was convicted of attempted second degree murder, a Class
B felony. He was sentenced to twenty years in the Tennessee Department of Correction as
a multiple offender. On appeal, he argues that the evidence was insufficient to support his
conviction and that the trial court erred in allowing evidence to be presented concerning his
prior conviction for aggravated assault. After careful review, we affirm the judgment from
the trial court.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the court, in which T HOMAS T.
W OODALL and C AMILLE R. M CM ULLEN, JJ., joined.

Joseph A. McClusky and Massey McClusky (on appeal) and Jeff Woods (at trial), Memphis,
Tennessee, for the appellant, Michael Clark.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Alanda Dwyer, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

        The defendant was initially charged on June 28, 2007, with second degree murder and
attempted second degree murder in a two-count indictment. The first count charged the
defendant with the killing of a victim named Antonio Redmond. The second count alleged
that the defendant attempted to kill a second victim named Marcus Hall.

       At trial, the second victim testified that he was riding with the decedent when they
went to the defendant’s mother’s home to retrieve some of his clothes. The second victim
and the defendant’s sister were ending a dating relationship. This victim went to the door
while the decedent remained in the car. The defendant’s mother refused to give the clothes
to this victim, and the two argued. The second victim testified that he abandoned the
argument and that he and the decedent began to leave. The defendant approached the car and
fired four or five shots into the vehicle. The defendant shot the second victim in the back.
They sped away only to crash when the decedent lost control of the vehicle. The second
victim identified the defendant as the shooter. A ten-year-old neighbor also testified that he
saw the defendant shoot at two men in the car after the men had argued for approximately
three minutes.

        The defendant’s mother, who testified on the defendant’s behalf, said that she heard
shots fired but did not know who shot. She did not know her son had a gun and did not see
anyone else with a gun. The defendant also testified on his own behalf. He testified that he
saw two men arguing with his mother in front of his house. He argued with the men in the
car and saw what he believed to be a flash of light from the car’s passenger side. He did not
see a gun but pulled his own gun and fired two times as the car pulled away. He said he was
frightened and that he ran. He testified that he began carrying a gun after he ended his
affiliation with the Gangster Disciples, and he admitted shooting the two victims.

       Following a multiple day trial, the jury deliberated for two hours before asking for
guidance in deliberations. Ultimately, the trial court declared a mistrial as to Count One, the
killing of Antonio Redmond, because the jury could not agree on a verdict adn was
hopelessly deadlocked. The jury convicted the defendant of the attempted second degree
murder of Marcus Hall in Count Two. On April 8, 2009, the defendant was sentenced to
twenty years of confinement as a multiple offender. On April 14, 2009, the defendant filed
a motion for new trial, which was denied on July 1, 2009. This timely appeal followed.

                                           Analysis

       On appeal, the defendant argues that the evidence was insufficient to support his
conviction for attempted second degree murder. When an accused challenges the sufficiency
of the evidence, this court must review the record to determine if the evidence adduced
during the trial was sufficient “to support the finding by the trier of fact of guilt beyond a
reasonable doubt.” Tenn. R. App. P. 13(e). This rule is applicable to findings of guilt
predicated upon direct evidence, circumstantial evidence, or a combination of direct and
circumstantial evidence. State v. Brewer, 932 S.W.2d 1, 18 (Tenn. Crim. App. 1996).

       In determining the sufficiency of the evidence, this court does not reweigh or
reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Nor may
this court substitute its inferences for those drawn by the trier of fact from circumstantial

                                              -2-
evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the contrary,
this court is required to afford the State the strongest legitimate view of the evidence
contained in the record as well as all reasonable and legitimate inferences which may be
drawn from the evidence. State v. Elkins, 102 S.W.3d 578, 581 (Tenn. 2003).

       The trier of fact, not this court, resolves questions concerning the credibility of the
witnesses, the weight and value to be given the evidence, as well as all factual issues raised
by the evidence. Id. In State v. Grace, the Tennessee Supreme Court stated that “[a] guilty
verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses for
the State and resolves all conflicts in favor of the theory of the State.” 493 S.W.2d 474, 476
(Tenn. 1973).

       Because a verdict of guilt removes the presumption of innocence and replaces it with
a presumption of guilt, the accused has the burden in this court of illustrating why the
evidence is insufficient to support the verdict returned by the trier of fact. State v. Tuggle,
639 S.W.2d 913, 914 (Tenn. 1982); Grace, 493 S.W.2d at 476.

      The defendant was charged with attempted second degree murder. Tennessee Code
Annotated section 39-13-210 defines second degree murder as the knowing killing of
another. A person commits criminal attempt who, acting with the kind of culpability
otherwise required for the offense:

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

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

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

T.C.A. § 39-12-101.

        Tennessee Code Annotated section 39-11-611(b)(2) allows for an affirmative defense
of self-defense when a person in engaged in a situation where he reasonably believes there
is a danger of death or serious bodily injury.

                                              -3-
       A person who is not engaged in unlawful activity and is in a place where the
       person has a right to be has no duty to retreat before threatening or using force
       intended or likely to cause death or serious bodily injury, if:

       (A)    The person has a reasonable belief that there is an imminent danger of
              death or serious bodily injury;

       (B)    The danger creating the belief of imminent death or serious bodily
              injury is real, or honestly believed to be real at the time; and

       (C)    The belief of danger is founded upon reasonable grounds.

T.C.A. § 39-11-611.

         Whether a defendant acted in self-defense is for the jury to decide. State v. Ivy, 868
S.W.2d 724, 727 (Tenn. Crim. App. 1993). When the defendant’s proof raises the defense,
it does not render the State’s evidence insufficient but presents a question of fact rightfully
left in the hands of the jury. State v. McCray, 512 S.W.2d 263, 265 (Tenn. 1974). The jury
is free to reject the self-defense claim. State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim.
App. 1997).

        The record reflects that the defendant admitted shooting both victims at close range.
The victim who survived testified that the defendant fired the weapon that injured him and
killed his friend. He testified that neither he nor the decedent was armed and that the
defendant said nothing before pulling a pistol and firing four or five times. The only weapon
at the scene was the defendant’s handgun, and the only projectiles recovered from the scene
were consistent with the defendant’s handgun. The bullet that entered the deceased victim’s
chest was consistent with the defendant’s handgun. The defendant contends that he fired in
self-defense, but the jury determined that he had no reason to fear imminent serious bodily
injury or death. The jury also determined that the victim was more credible than the
defendant. The evidence was sufficient to support the defendant’s convictions. The
defendant drew his weapon and fired multiple shots into a car carrying two people. Second
degree murder is the knowing killing of another. The defendant’s actions were sufficient to
support a finding that he committed the offense of attempted second degree murder.

       Next, the defendant argues that, during cross-examination, the State improperly
introduced evidence of his prior conviction. The State may use a prior adult conviction to
impeach the testimony of an accused in a criminal prosecution if: (a) the conviction was for
a crime that is punishable by death or imprisonment in excess of one year or a misdemeanor
involving dishonesty or false statement; (b) less than ten years has elapsed between the date

                                              -4-
the accused was released from confinement and the commencement of the prosecution; (c)
the State gives reasonable written notice of the particular conviction or convictions it intends
to use to impeach the accused prior to trial; and (d) the trial court finds that the probative
value of the felony or misdemeanor on the issue of credibility outweighs its unfair prejudicial
effect on the substantive issues. Tenn. R. Evid. 609; see State v. Mixon, 983 S.W.2d 661,
674 (Tenn. 1999). On appellate review, the trial court’s rulings on the admissibility of prior
convictions for impeachment purposes are subject to reversal only for abuse of discretion.
State v. Thompson, 36 S.W.3d 102, 110 (Tenn. Crim. App. 2000). An accused may place his
character at issue by his testimony, thereby allowing the State to cross-examine using specific
instances of conduct. Tenn. R. Evid. 404(a)(1); State v. West, 844 S.W.2d 144, 149 (Tenn.
1992). The trial court is charged to exercise its discretion by weighing the probative effect
of the prior convictions against any danger of unfair prejudice. State v. Blevins, 968 S.W.2d
888, 892 (Tenn. Crim. App. 1997).

        The defendant testified that he carried a gun because of his prior gang history but
denied that he had personally participated in violence. The State argues, and we agree, that
this testimony placed his allegedly nonviolent character as an issue before the jury.
Therefore, the State was free to introduce his prior conviction for aggravated assault. The
trial court conducted a bench conference and determined that the prior conviction was
probative of credibility and not outweighed by any prejudice that it caused the defendant.
The trial court also provided the jury with a curative instruction to refrain from using the
prior conviction as evidence of guilt. We conclude that no reversible error occurred.

                                         Conclusion

        Based on the foregoing and the record as a whole, we affirm the judgment from the
trial court.

                                                    _________________________________
                                                    JOHN EVERETT WILLIAMS, JUDGE

                                              -5-


56 F.3d 1075
40 ERC 2009, Util. L. Rep. P 14,050
ALUMINUM COMPANY OF AMERICA;  Columbia Falls AluminumCompany;  Elf Atochem North America;  Intalco AluminumCorporation;  Kaiser Aluminum & Chemical Corporation;Northwest Aluminum Company;  Oregon MetallurgicalCorporation;  Reynolds Metals Company;  Vanalco, Inc., Petitioners,Pacific Northwest Generating Cooperative;  Public PowerCouncil, Petitioners-Intervenors,v.BONNEVILLE POWER ADMINISTRATION, Respondent.
No. 93-70857.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted March 6, 1995.Decided June 1, 1995.

James Buchal, Ball, Janik & Novack, Portland, OR, for petitioners.
Ellen J. Durkee, Dept. of Justice, Washington, DC, for respondent.
Petition to Review a Decision of the Bonneville Power Administration.
Before HALL, O'SCANNLAIN, and RYMER, Circuit Judges.
O'SCANNLAIN, Circuit Judge:

1
In this third of three related cases,1 we must decide whether a federal agency, the Bonneville Power Administration, acted arbitrarily and capriciously in augmenting river flows as a means of benefitting the salmon.2

2
* The factual background is largely set forth in the second of these related cases, Idaho Department of Fish & Game v. National Marine Fisheries Service, 56 F.3d 1071 (9th Cir.1995), and we discuss here only the facts that are particular to this petition for review.  As we discussed there, the U.S. Army Corps of Engineers (the "Corps"), the Bureau of Reclamation ("BuRec"), and the Bonneville Power Administration ("BPA") consulted with the National Marine Fisheries Service ("NMFS") pursuant to the Endangered Species Act on the 1993 Operations Plan.  Initially, in preparing its Biological Opinion, NMFS drafted a jeopardy opinion which included measures for augmented river flow as part of a reasonable and prudent alternative that would not jeopardize the salmon.  NMFS did not ultimately issue the jeopardy opinion, however, because the federal agencies agreed by letter to modify their 1993 Operations Plan to incorporate NMFS's recommended flow augmentation measures.  On May 26, 1993, NMFS issued a final Biological Opinion ("1993 BO"), finding that the revised 1993 Operations Plan was not likely to jeopardize the continued existence of the salmon.

3
On July 26, 1993, BPA published its Record of Decision on Water Management Actions in the Columbia River System to be Taken by the Bonneville Power Administration in 1993 for the Benefit of Snake River Salmon ("1993 ROD").  The 1993 ROD identified various actions that BPA and the other action agencies planned to take in 1993 to benefit listed Snake River Salmon.  These actions included the flow augmentation measures, spill-related measures and nonflow measures, such as predator control programs, a law enforcement program, fish passage and transportation improvements, and monitoring and research.  The 1993 ROD was based on a number of sources, including NMFS' 1993 BO.

4
The flow augmentation measures, which are the primary subject of this appeal, were designed to assist juvenile salmon in their downstream migrations.  Some scientific evidence suggests that increasing the flow of water reduces the time that the juvenile salmon will take to travel the distances between dams on their voyage downstream.  It is thought that the faster the salmon travel, the less likely they will be killed by predators or the physiological stresses caused by the hydropower operations.  Although increased flows still permit electric power generation, in order to benefit the juvenile salmon the flows must be increased in the spring and summer when demand for power is at its lowest.  Thus, increasing flows to benefit salmon usually results in shifting power generation from the higher demand seasons to the lower demand seasons, thereby reducing the amount of power available to BPA for marketing and reducing BPA's revenues.  Although the funds to cover the loss in revenues will initially be paid from BPA's financial reserves, BPA expects ultimately to recover its costs through rate increases.

5
BPA, in its 1993 ROD acceded to NMFS' recommendations regarding augmented flows, as it had promised to do to avoid a jeopardy opinion.  The 1993 ROD stated that although the region still lacked information about the relationship between flow and salmon survival, the evidence available justified the use of flow augmentation.  It is this conclusion that the Aluminum Company of America and other direct service industries (collectively the "DSIs") challenge.  At the crux of the DSIs' various legal claims is their basic argument that scientific studies have failed to establish a sufficient link between increased flows and increased salmon survival so as to justify the costs that result from flow augmentation.  Original jurisdiction over claims arising from BPA's administrative decisionmaking lies in the Ninth Circuit.  N.W. Resource Info.  Ctr. v. National Marine Fisheries Serv., 25 F.3d 872, 874 (9th Cir.1994).  Accordingly, on October 22, 1993, the DSIs brought suit against BPA in this court.3  The DSIs challenge BPA's decision in the 1993 ROD to augment river flows as violative of the ESA, the National Environmental Policy Act ("NEPA"), 42 U.S.C. Sec. 4321 et seq., and the Pacific Northwest Electric Power Planning and Conservation Act, 16 U.S.C. Sec. 837 et seq.4

II

6
Before swimming into the merits of this controversy, we must determine if we have jurisdiction over it.  BPA contends that the DSIs' challenge to the 1993 ROD is moot because the flow augmentation measures that the DSIs challenge have already been taken and the 1993 ROD has expired.

7
We are guided in this determination by Idaho Department of Fish & Game, supra.   There, the district court held that NMFS' 1993 BO was arbitrary and capricious.  The district court remanded the BO to NMFS and ordered NMFS to reinitiate consultation with the federal agencies.  The federal defendants requested permission to reinitiate consultation on the 1994-1998 BO which was then in progress, and the district court agreed.  Pursuant to these consultations, on March 2, 1995, NMFS issued its Biological Opinion:  Reinitiation of Consultation on 1994-1998 Operation of the Federal Columbia River Power System and Juvenile Transportation Program in 1995 and Future Years ("1994-1998 BO").  Eight days later, BPA issued its Endangered Species Act Record of Decision regarding Biological Opinions by the National Marine Fisheries Service and U.S. Fish and Wildlife Service on Operation of the Federal Columbia River Power System in 1995 and Future Years ("1994-1998 ROD").  In that ROD, BPA sets forth its "decision to participate with the [Corps] and [BuRec] to operate ... [FCRPS] for 1995 and future years consistent with" NMFS' 1994-1998 BO.

8
On appeal in Idaho Department of Fish & Game, we concluded that, in light of NMFS' newly-issued 1994-1998 BO, challenges to NMFS' 1993 BO were moot.  Slip op. at 6045.  We noted that although the mootness doctrine ordinarily bars a challenge to an action that has already taken place, the challenge is not barred if the challenged action is capable of repetition yet is likely to evade review.  Id. at 1074.   However, we held that the challenges to the 1993 BO did not fall under this exception because they did not evade review.  We stated:  "[T]he 1993 BO was not followed by a BO of similarly short duration;  it was followed by the 1994-98 BO.  The life-span of the 1994-98 BO, even considering the year that has already passed, is more than enough time for litigants to obtain judicial review."  Id. at 1075.

9
The same analysis is applicable here.  The 1993 flow augmentation measures that the DSIs challenge have already occurred.  BPA's 1993 ROD has expired, and BPA's current actions are being taken pursuant to the 1994-1998 ROD.  If the DSIs object to the actions contemplated by the 1994-1998 ROD, they will have ample time to obtain judicial review.  Moreover, review of the 1993 ROD would be especially inappropriate because that document was based on NMFS' 1993 BO.  The 1993 BO has been superseded by the 1994-1998 BO, the document upon which BPA's 1994-1998 ROD is based.  Thus, not only has the 1993 ROD expired, its factual underpinning, NMFS' 1993 BO, has also been superseded.  We therefore hold that the DSIs' challenges to the 1993 ROD, like the challenges to the 1993 BO addressed in Idaho Department of Fish & Game, are moot.

10
PETITION DISMISSED.

1
 By separate published opinions filed today, we decide the related case of Idaho Department of Fish & Game v. National Marine Fisheries Service, 56 F.3d 1071 (9th Cir.1995) and the contemporaneous appeal in Northwest Resource Information Center v. National Marine Fisheries Service, 56 F.3d 1060 (9th Cir.1995).  Both of these cases are direct appeals from the United States District Court for the District of Oregon.  By contrast, the instant case is a petition for review of a decision made by the Bonneville Power Administration and filed directly in this court

2
 Petitioners' motions to supplement the record are denied

3
 The Pacific Northwest Generating Cooperative ("PNGC") and the Public Power Council ("PPC") also filed a petition for review of BPA's ROD in this court.  PNGC and PPC's case was consolidated with the DSIs' case, and pursuant to Circuit Rule 15-3.2(c), PNGC and PPC were deemed to have intervened in the DSIs' case

4
 The DSIs' suit against BPA is related to Idaho Department of Fish & Game, supra.   In that case, on September 10, 1993, the Idaho Department of Fish & Game brought suit against NMFS, the Corps and BuRec, claiming that NMFS' 1993 BO was arbitrary and capricious.  The DSIs, PNGC, and PPC intervened as defendants and appealed the district court's decision that the 1993 BO was arbitrary and capricious.  BPA's 1993 ROD, at issue here, relied on NMFS' 1993 BO


859 F.2d 241
273 U.S.App.D.C. 265
Unpublished DispositionNOTICE: D.C. Circuit Local Rule 11(c) states that unpublished orders, judgments, and explanatory memoranda may not be cited as precedents, but counsel may refer to unpublished dispositions when the binding or preclusive effect of the disposition, rather than its quality as precedent, is relevant.Edward HANLON and Ruth Sanders, Appellants,v.AMERICAN FEDERATION OF GOVERNMENT EMPLOYEESAnd consolidated case.
No. 87-7156.
United States Court of Appeals, District of Columbia Circuit.
Sept. 29, 1988.

Before BUCKLEY, STEPHEN F. WILLIAMS and SENTELLE, Circuit Judges.
JUDGMENT
PER CURIAM.

1
This case was considered on the record on appeal from orders of the United States District Court for the District of Columbia.  The court has determined that the issues presented occasion no need for a published opinion.  See D.C.Cir.Rule 14(c).  For the reasons stated by the district court in the order filed June 23, 1987, it is

2
ORDERED and ADJUDGED that the district court's order dismissing the claims of appellants Hanlon and Sanders be affirmed.  It is

3
FURTHER ORDERED on the court's own motion that this case be remanded to the district court to reconsider its September 11, 1987 order dismissing appellee AFGE's counterclaims of malicious and vexatious litigation.

4
The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing.  See D.C.Cir.Rule 15.


201 F.Supp. 287 (1962)
PRESTIGE FLORAL, SOCIETE ANONYME, A. E. DeCamp and A. J. Fristot, Plaintiffs,
v.
CALIFORNIA ARTIFICIAL FLOWER COMPANY, (Inc.) and Calart (Inc.), Defendants.
United States District Court S. D. New York.
January 5, 1962.
Kane, Dalsimer & Kane, New York City, for plaintiffs, Philip Dalsimer, and John Kurucz, New York City, of counsel.
Barlow & Barlow, Providence, R. I., Herbert B. Barlow, Jr., Providence, R. I., of counsel, and Keith, Bolger, Isner & Byrne, New York City, for defendants, Thomas J. Byrne, Jr., New York City, of counsel.
FEINBERG, District Judge.
This is a motion for a preliminary injunction. Plaintiff Prestige Floral, Societe Anonyme, ("Prestige") filed its complaint on June 22, 1961, alleging *288 copyright infringement under 17 U.S.C. § 101 and seeking a permanent injunction, damages, and other relief. Jurisdiction is vested in this Court by 17 U.S.C. § 112 and 28 U.S.C. § 1338. The article allegedly infringed is a molded polyethylene flower in the form of a Charles lilac.[1]
Defendant California Artificial Flower Company (Inc.) ("California") is a Rhode Island corporation and defendant Calart (Inc.) is a New York corporation. Both defendants have an office and a place of business at 225 Fifth Avenue, New York City. Defendants filed their answer on July 10, 1961. Beginning early in August 1961, settlement discussions were held intermittently. These proved abortive and on October 30, 1961, plaintiff noticed its motion for a preliminary injunction returnable on November 14, 1961. Thereafter, affidavits were submitted to the Court by plaintiff Prestige and by defendants. In addition, a hearing was held on December 11, 1961,[2] at which various exhibits were introduced and three witnesses testified: Donald A. Paulsen, an officer of D. Arnold Associates, exclusive distributor in this country for Prestige's artificial flowers; Edward R. Hughes, an expert on thermoplastic materials and molding; and Michele D'Agnillo, the principal of defendant corporations. From the affidavits, the exhibits, and the testimony of witnesses, and giving effect to my judgment as to the credibility of the witnesses where appropriate, I find the facts as hereinafter set forth.
Prestige is a French corporation engaged in designing, creating and manufacturing molded polyethylene flowers. Prestige has pioneered in the artificial flower field and enjoys a reputation for products of high quality and as a leader in the creation of new styles. Prestige created as an original work of art a sculptured lilac, made out of polyethylene, and first published this work on or about September 19, 1959. On or about September 22, 1960, a replica of the lilac was deposited by Prestige with the Copyright Office together with its application for copyright registration of the article as a sculpture, Class G. Thereafter, copyright registration No. Gp 25925 was issued.
Prestige's copyright lilac has at all times since publication had the copyright notice "© PRESTIGE FLORAL" molded on the long stem of the lilac near its base and on the underside of one of its leaves. A new version of the lilac was introduced into this country in the spring of 1961. This flower had similar copyright notices on the stem and leaf. The later version of the lilac differed from the original only by the inclusion of additional foliage on the main stem and is sufficiently similar to the earlier model to be covered by copyright registration No. Gp 25925.
Defendant California is well known in the artificial flower market offering a line of over seven hundred flowers and fruits. Some of its items are made in Rhode Island and others are imported. Defendants have offered for sale and sold artificial lilacs which Prestige claims infringe its copyright. The allegedly infringing lilacs were imported by defendant from a company in Hong Kong which admits making a copy of another artificial flower of French origin. Prior to ordering the lilacs from Hong Kong, defendants had knowledge of Prestige's lilac and, in fact, had tried to order a small supply of them early in *289 January 1961 from Prestige's distributor in New York. Copying of artificial flowers in Hong Kong is well known in the trade.
Artificial lilacs are a seasonable item in greatest demand during the early spring. The season for lilacs begins in January and lasts through Easter. In November and December most wholesalers will decide which items they will carry during the spring season. Prestige's exclusive distributor in this country has conditioned its acceptance of Prestige's lilacs on Prestige's success in stopping the importation of "pirated duplicates * * * from Hong Kong." If this is not stopped, the distributor reserves the right to cancel its order. The lilac sold by defendants is offered at a price substantially lower than that of the Prestige lilac.

I
It is settled in copyright infringement cases that a preliminary injunction should issue when the plaintiff makes a prima facie showing that his copyright is valid and that the defendant has infringed. H. M. Kolbe Co. v. Armgus Textile Co., 279 F.2d 555 (2 Cir. 1960); Houghton Mifflin Co. v. Stackpole Sons, Inc., 104 F.2d 306, 307 (2 Cir.) cert. denied 308 U.S. 597, 60 S.Ct. 131, 84 L.Ed. 499 (1939); Trifari, Krussman & Fishel, Inc. v. Charel Co., 134 F.Supp. 551, 554 (S.D.N.Y.1955).
Initially, defendants have raised several questions as to the validity of plaintiff's copyright. First, they attack the copyright generally, claiming that there is not sufficient artistry in the creation of artificial flowers to justify copyright protection. Second, they raise various narrower objections to the copyright, including claims that the copyright notice on plaintiff's flowers was defective and that plaintiff has not produced a specimen of the alleged copyrighted lilac.
In connection with the broad attack on the copyright, 17 U.S.C. § 4 provides:
"The works for which copyright may be secured under this title shall include all the writings of an author."
17 U.S.C. § 5 provides that the application for registration shall specify to which of various enumerated classes the work in which copyright is claimed belongs. Plaintiff's application specified Class G, covering works of art, as the applicable class.[3] The basic question, therefore, is whether plaintiff's artificial flower is copyrightable as a work of art.
A recent comprehensive report of the Register of Copyrights[4] summarized pertinent court decisions on copyrightability as follows:
"It is well estabished, by a long line of court decisions, that in order to be copyrightable under the statute a work must meet the following requirements:
"(a) The work must be in the form of a `writing,' i. e., it must be fixed in some tangible form from which the work can be reproduced.
"(b) The work must be a product of original creative authorship. Two interrelated elements are involved here: originality and creativity.
"(1) The work must be original in the sense that the author produced it by his own intellectual effort, as distinguished from merely copying a preexisting work. It need not be novel (as a patentable invention must be); in theory at least, it could be precisely the same as a preexisting work as long as it *290 was created by the author independently.
"(2) The work must represent an appreciable amount of creative authorship."[5]
The parties have not cited any cases involving artificial flowers. However, there are closely analogous situations which indicate that plaintiff's artificial flower may properly be the subject of a copyright. In Peter Pan Fabrics, Inc. v. Candy Frocks, Inc., 187 F.Supp. 334 (S.D.N.Y.1960), this Court granted a preliminary injunction in an infringement action where the copyrighted work of art was a floral design for a dress fabric. The Court pointed out (at 187 F.Supp. 336) that "Obviously, floral patterns are in the public domain, but plaintiff has contributed enough originality in the designs to qualify them as distinguishable variations."[6] Similarly, in F. W. Woolworth Co. v. Contemporary Arts, Inc., 193 F.2d 162 (1 Cir.1951), aff'd 344 U.S. 228, 73 S.Ct. 222, 97 L.Ed. 276 (1952), copyright protection was afforded to statutes of a "Cocker Spaniel in Show Position" sold commercially. In its opinion, the Court of Appeals for the First Circuit said (193 F.2d at 164):
"It is the well established rule that a copyright on a work of art does not protect a subject, but only the treatment of a subject. * * * The proposition was elaborated by Mr. Justice Holmes in Bleistein v. Donaldson Lithographing Co. * * * wherein with respect to cromolithographs of a circus scene prepared for advertising purposes he said: `But even if they had been drawn from the life, that fact would not deprive them of protection. The opposite proposition would mean that a portrait by Velasquez or Whistler was common property because others might try their hand on the same face. Others are free to copy the original. They are not free to copy the copy. * * * The copy is the personal reaction of an individual upon nature. Personality always contains something unique. It expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible, which is one man's alone. That something he may copyright * * *.' Here the `something irreducible' * * * was shape. * * * It means the proportion, form, contour, configuration, and conformation, perhaps the latter in details too subtle for appreciation by anyone but a fancier, of the dog represented by the sculptured work of art."
In Mazer v. Stein, 347 U.S. 201, 74 S.Ct. 460, 98 L.Ed. 630 (1954), the question raised was whether statuettes used as bases for electric lamps were protected by the copyright of the original models. The statuettes were of Balinese dancers. The Supreme Court held that use in industry would not bar or invalidate the copyrights.
One of the studies upon which the Report of the Register of Copyrights, supra, was based pointed out the following on the recent trend in copyrighting three-dimensional objects:
"The courts in recent years, particularly since Mazer v. Stein, are beginning to realize the validity of the copyright approach and are gradually overcoming their hesitation to hold, expressly or impliedly, that a three-dimensional object is a `writing.' Perhaps the Copyright Office anticipated this development by changing its regulation with regard to the definition of the term `work of art.' Prior to 1949 three-dimensional objects, intended primarily for commercial use, were not ordinarily granted registration. On *291 the contrary, applicants were advised that `protection of productions of the industrial arts, utilitarian in purpose and character, even if artistically made or ornamented, depends upon action under the patent law.' However, in 1949 section 202.8 of the Regulations was changed so as to make registrable the artistic features of jewelry, enamel, glassware, tapestries, and other similar materials. Such registration was to cover only the artistic aspects, as distinguished from `the mechanical or utilitarian' aspects. When the validity of this regulation was challenged in Mazer v. Stein, the Register of Copyrights, as amicus curiae, took the position that the new regulation actually reflected the previous practice of the Office. The brief said in this regard
that the Copyright Office has consistently since 1909  and even before then  registered works like the one in this case following the clearly stated mandate of Congress.
"In August, 1956, the Copyright Office issued regulations which, in greater detail than ever before, explicitly describe what can be registered. These regulations do not talk in terms of `writings' but do require that any object offered for registration meet at least minimal standards of originality and creativity, as well as fall within one of the classes enumerated in section 5 of the copyright statute."[7]
Applying these principles and analogous decisions to the instant case, it would seem that though a flower, like a dog, is a creation of nature, a likeness of it may be copyrighted. This conclusion seems particularly justified when the creation of the likeness involves, in the words of the Woolworth case, supra, numerous and detailed decisions as to "proportion, form, contour, configuration, and conformation." Plaintiff's expert testified at length as to the "series of determinations" that had to be made by the creator of plaintiff's artificial flowers. Since plaintiff's lilac reflects originality and a substantial degree of skill and independent judgment, it is a proper subject for copyright. Mazer v. Stein, supra; Alfred Bell & Co. v. Catalda Fine Arts, 191 F.2d 99 (2 Cir.1951).

II
Defendants also press narrower objections to the copyright notice. Defendants first contend that the notices are insufficient because they cannot be seen by the naked eye. The notice on the stem though is clearly visible to the naked eye. The notice on the leaf, however, is considerably more difficult to make out. That it is on the underside of a leaf would not of itself seem objectionable. Coventry Ware, Inc. v. Reliance Picture Frame Co., 288 F.2d 193, 195 (2 Cir.) cert. denied 368 U.S. 818, 82 S.Ct. 34, 7 L.Ed.2d 24 (1961); Scarves by Vera, Inc. v. United Merchants & Mfgrs., Inc., supra. The notice can be seen by the naked eye although "close examination is required to locate it." Trifari, Krussman & Fishel, Inc. v. Charel Co., supra. Even if this were not so, I find from the affidavits and evidence before me that plaintiff has made a prima facie case that, before engaging in the sale of their lilacs, defendants had actual notice of plaintiff's copyright. Under these circumstances, I do not believe that difficulty in discerning the notice on the leaf should of itself prevent the granting of a preliminary injunction if plaintiff is otherwise entitled to it. Trifari, Krussman & Fishel, Inc. v. B. Steinberg-Kaslo Co., 144 F.Supp. 577, 581 (S.D.N.Y.1956); accord, Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 490 (2 Cir. 1960).
*292 Second, defendants urge that "* * * there is a strong possibility that the copyright here in suit is invalid because of a postdated notice thereby claiming a date a year too late, and thereby claiming a year more for monopoly. * * *" It should be noted that although apparently no date was necessary on plaintiff's flower, Fleischer Studios v. Ralph A. Freundlich, Inc., 73 F.2d 276, 278 (2 Cir.1934) the legend "MOD. DEPOSE 1961" did appear on the stem of plaintiff's later lilac,[8] although the publication date was 1959.[9] Defendants cite in support of their position Baker v. Taylor, 2 Fed.Cas. 478, No. 782 (C.C.S.D.N.Y.1848) and American Code Co. v. Bensinger, 282 Fed. 829, 836 (2 Cir.1922). While it may be possible to limit the effect of these cases,[10] it would seem that they are inapplicable on the facts of the instant case. Defendants do not contend that the notice on the leaf was inaccurate although, as noted, they claim it is not sufficiently legible. Since the notice on the leaf and the notice on the steam differ as to date, this may be confusing. But I do not believe that plaintiff's copyright notice is thereby rendered so affirmatively misleading as to justify invalidating the copyright. The decisions upon which defendants rely require at least this likelihood. National Comics Publications v. Fawcett Publications, 191 F. 2d 594, 602 (2 Cir.1951). Further, I do not find on the record now before the Court that defendants were in fact misled.
Defendants also argue that plaintiff did not produce a specimen of the lilac filed in the Copyright Office, and that plaintiff has failed to prove exactly what is covered by its copyright. On the affidavits and evidence before me, however, I feel this contention is incorrect and that plaintiff has made a prima facie showing. The affidavits submitted include one by plaintiff's trial counsel that he personally supervised the application for the copyright registration and submitted a three-dimensional replica of the copyrighted work. While it is true that the Copyright Office has been unable *293 to locate the deposited work in its files, the affidavit of plaintiff's counsel, the colloquy in Court between respective counsel and the stipulation thereon,[11] and the testimony of Mr. Paulsen[12] all support the conclusion that the lilacs produced in Court by plaintiff are specimens of what was copyrighted.

III
In addition to validity of the copyright, it is, of course, essential for plaintiff to make a prima facie case of infringement. I find from the affidavits and evidence that defendants had access to the copyrighted lilac. Arc Music Corp. v. Lee, 296 F.2d 186 (2 Cir.1961). Also, plaintiff's expert testified at length about the similarity between plaintiff's and defendants' lilacs and the extreme unlikelihood that such similarity was brought about by chance. It is true that the test for copying cannot be stated with precision. Thus, in Peter Pan Fabrics, Inc. v. Martin Weiner Corp., supra, 274 F.2d at 489, Judge Learned Hand stated:
"The test for infringement of a copyright is of necessity vague. In the case of verbal `works' it is well settled that although the `proprietor's' monopoly extends beyond an exact reproduction of the words, there can be no copyright in the `ideas' disclosed but only in their `expression.' Obviously, no principle can be stated as to when an imitator has gone beyond copying the `ideas,' and has borrowed its `expression.' Decisions must therefore inevitably be ad hoc. In the case of designs, which are addressed to the aesthetic sensibilities of an observer, the test is, if possible, even more intangible. No one disputes that the copyright extends beyond a photographic reproduction of the design, but one cannot say how far an imitator must depart from an undeviating reproduction to escape infringement. In deciding that question one should consider the uses for which the design is intended, especially the scrutiny that observers will give to it as used. * * * However, the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same."
Applying the test which rests on the intended use of the copyrighted article, and basing my conclusion upon the affidavits and evidence before me and on my own comparison of the flowers, I find that the allegedly infringing lilacs are copies of plaintiff's lilac and that the claimed variations between them do not sufficiently differentiate them.
Defendants have also contended that plaintiff has not shown sufficient likelihood of immediate irreparable injury to justify the granting of a preliminary injunction. While no detailed proof of such harm is required on this motion, Rushton v. Vitale, 218 F.2d 434, 436 (2 Cir.1955), plaintiff has made out a prima facie case  and I do so find  that unless afforded preliminary relief, it will suffer immediate substantial and irreparable injury.[13]
Therefore, for the reasons set forth above, I conclude that plaintiff has made a prima facie case that it has validly copyrighted the artificial flower in issue, that defendants have been selling or offering for sale lilacs copied from plaintiff's lilac, that this infringes plaintiff's copyright, that defendants' various contentions are lacking in merit, and that plaintiff will suffer immediate irreparable injury unless granted preliminary relief. Consequently, plaintiff's motion for a preliminary injunction should be and hereby is granted as to both defendants.
Settle order on notice on the first cause of action. The findings and conclusions *294 required by Rule 52(a), Fed. Rules Civ.Proc., 28 U.S.C., are contained in this opinion. Plaintiff must furnish security in the amount of $10,000 to defendants.
NOTES
[1]  The complaint also included a second count for infringement of a copyrighted artificial geranium. Plaintiffs on this second cause of action are A. E. DeCamp and A. J. Fristot. At the hearing on the preliminary injunction, defendants stipulated to entry of a preliminary injunction with regard to the geranium, reserving their rights for trial on the suit for a permanent injunction.
[2]  In the few weeks prior to the hearing there were conferences between the Court and counsel regarding procedural matters and the practicality of getting testimony from a witness in France. Proposed findings of fact and conclusions of law were to be submitted by December 18, 1961; the date was later advanced to December 21, 1961.
[3]  The statutory description of the class in 17 U.S.C. § 5(g) is "Works of art; models or designs for works of art." See 37 C.F.R. § 202.10.
[4]  Copyright Law Revision, House Comm. on the Judiciary, 87th Cong., 1st Sess. (Comm.Print 1961). This report is the culmination of a program of scholarly studies by the Copyright Office preparatory to a general revision of the copyright law.
[5]  Ibid, p. 9.
[6]  In Scarves by Vera, Inc. v. United Merchants & Mfgrs., Inc., 173 F.Supp. 625, 627 (S.D.N.Y.1959), this Court noted that "Obviously, fish, sailor suits and ice cream parlor trappings are in the public domain," but silk screen paintings of these subjects used in the manufacture of blouse materials were protected.
[7]  Study No. 3, The Meaning of "Writings" in the Copyright Clause of the Constitution, pp. 100-101, Subcommittee on Patents, Trademarks, and Copyrights, Senate Committee on the Judiciary, 86th Cong., 1st Sess. (Comm.Print 1960); also published as Note, 31 N.Y.U.L.Rev. 1263, 1303 (1956).
[8]  On plaintiff's Exhibit D (the earlier model) the notice appears on the stem in the following form:

© PRESTIGE FLORAL 1959 MOD. DEPOSE and on the underside of a leaf in the following form:
© PRESTIGE FLORAL 1959 MODELE DEPOSE
On Plaintiff's Exhibit C (the later model), the notice appears on the stem in the following form:
© PRESTIGE FLORAL MOD. DEPOSE 1961
and on the underside of a leaf in the following form:
© PRESTIGE FLORAL 1959 MODELE DEPOSE
[9]  Defendants also contend in submitting proposed finding of fact No. 4 that plaintiff admitted that its earlier lilac was on sale in 1958, one year prior to the date of publication stated in the Certificate of Registration (plaintiff's Exhibit A at the hearing). This is apparently based upon a statement by Mr. Paulsen on December 11, 1961, that plaintiff's earlier lilac was introduced into this country "approximately 3 years ago." (Tr., p. 13) However, on cross-examination, Mr. Paulsen indicated that the first items received from Prestige Floral were "extremely close to the date of the copyright." (Tr., p. 35), by which I assume he meant September 1959, and I find that plaintiff has made a prima facie case that the date of publication was actually 1959, not 1958. Cf. also 17 U.S.C. §§ 209, 210 to the effect that the statement in plaintiff's Certificate of Registration is "prima facie evidence of the facts stated therein."
[10]  In Baker v. Taylor, there was more than a mistake, because plaintiffs there knew of the error before publication and did not trouble to correct it; the statement in Bensinger is a dictum. See Heim v. Universal Pictures Co., 154 F.2d 480, 490 (2 Cir. 1946), indicating that these cases still represent the law; but cf. Peter Pan Fabrics, Inc. v. Martin Weiner Corp., supra, 274 F.2d 490; Ziegelheim v. Flohr, 119 F.Supp. 324, 328 (S.D.N.Y.1954); Trifari, Krussman & Fishel, Inc. v. B. Steinberg-Kaslo Co., supra, 144 F.Supp. 581.
[11]  Tr., pp. 11-12.
[12]  Tr., pp. 13-15, 35.
[13]  See Peter Pan Fabrics, Inc. v. Brenda Fabrics, Inc., 169 F.Supp. 142 (S.D. N.Y.1959).


694 S.E.2d 201 (2010)
In re Search Warrants Issued in Connection with the Investigation into the Death of Nancy COOPER.
No. 462P09.
Supreme Court of North Carolina.
March 11, 2010.
Hugh Stevens, Raleigh, for Capitol Broadcasting, et al.
Colon Willoughby, District Attorney, for Cary Police Department.
Mark A. Davis, Special Deputy Attorney General, for State.
Prior report: ___ N.C.App. ___, 683 S.E.2d 418.

*202 ORDER

Upon consideration of the petition filed on the 10th of November 2009 by Plaintiffs (Capitol Broadcasting Co. d/b/a WRAL-TV and the News and Observer Publishing Company d/b/a The News & Observer) in this matter for discretionary review of the decision of the North Carolina Court of Appeals pursuant to G.S. 7A-31, the following order was entered and is hereby certified to the North Carolina Court of Appeals:
"Denied by order of the Court in conference, this the 11th of March 2010."


671 A.2d 1245 (1995)
Earl W. and Pauline L. RICHARDSON
v.
CITY OF RUTLAND, McDonald's Corp. and John Kollmer.
No. 95-094.
Supreme Court of Vermont.
November 3, 1995.
Motion for Reargument Denied December 11, 1995.
*1246 William E. Roper of Neuse, Smith, Roper & Venman, P.C., Middlebury, for plaintiffs-appellants.
Henry C. Brislin, Assistant City Attorney, Rutland, for defendants-appellees City of Rutland and Kollmer.
Allan R. Keyes of Ryan Smith & Carbine, Ltd., Rutland, for defendant-appellee McDonald's Corp.
Before ALLEN, C.J., GIBSON, DOOLEY and JOHNSON, JJ., and MALONEY, Superior Judge, Specially Assigned.
DOOLEY, Justice.
Plaintiffs Earl and Pauline Richardson appeal the Rutland Superior Court's dismissal of their mandamus action against the City of Rutland and its zoning administrator, and further appeal the terms of an injunction granted against McDonald's Corporation. The dispute centers around a McDonald's Restaurant parking lot, part of which is located in a residential zone, and the denial of a variance for the lot construction in the residential zone. Plaintiffs, who are neighbors, sought to have the offending portion of the parking lot returned to its original condition and were only partially successful below. We affirm the mandamus dismissal and the scope of the injunction as reasonable and within the court's discretion.
On December 11, 1981, McDonald's sought a zoning permit from the City of Rutland to build a restaurant in a commercial zone. It also applied for a variance of twenty-five feet to use the part of its lot that fell in a residential zone for parking. This litigation deals with the twenty-five-foot residential strip. Prior to any construction, the strip was a swampy wetland lying approximately five feet below the surrounding grade.
On February 17, 1982, the zoning permit was approved and the variance granted by the Rutland Board of Zoning Adjustment. Plaintiffs, owners of land 450 feet from the McDonald's Restaurant, appealed to superior court. Meanwhile, McDonald's sought and obtained a building permit and built the restaurant and the parking lot as proposed. It added earth fill to the variance area to bring *1247 it up to the elevation of the surrounding grade and poured concrete over it. It installed lights, dry well pipes for a stormwater drainage system, and trees and dense hedges for landscaping.
On April 15, 1987, the superior court denied the variance, and we affirmed in In re McDonald's Corp., 151 Vt. 346, 560 A.2d 362 (1989). McDonald's did not, however, discontinue use of the residential strip for parking. On April 23, 1989, plaintiffs wrote to the Rutland Zoning Administrator requesting the take action to require that McDonald's restore the strip to its original condition. On March 12, 1990, the zoning administrator sent a letter to McDonald's regarding the twenty-five-foot strip. Thereafter, the local manager of the Rutland McDonald's Restaurant met with the zoning administrator at the site, measured the zoning boundary, and erected a barrier to block any further use of the parking area in the residential strip. The zoning administrator approved the barrier as complying with Residence A zoning, although this decision was not communicated to plaintiffs.
On June 8, 1990, plaintiffs filed this action seeking a writ of mandamus requiring the City of Rutland and the zoning administrator to bring suit against McDonald's for removal of the parking lot from the twenty-five-foot variance area. The City filed a motion to dismiss. On May 24, 1991, the court granted the motion and dismissed the mandamus action.
Plaintiffs also sought an injunction requiring McDonald's to restore the variance area to its original condition. Although the court ordered injunctive relief, the scope was less than plaintiffs requested. The court ordered McDonald's to remove the concrete and lights from the variance area, to remove or fill the drainage pipes, and to place topsoil or other fill over the pavement. McDonald's complied with the injunction.
Plaintiffs first argue they properly sought enforcement of a ministerial duty of the zoning administrator, and therefore, the dismissal of the mandamus action was in error. In contrast, the City maintains that plaintiffs do not have a right to issuance of a writ of mandamus because the administrator's actions were discretionary, not ministerial.
Mandamus is a remedial tool which mandates the performance of a nondiscretionary duty. See State v. Forte, 159 Vt. 550, 555, 624 A.2d 352, 356 (1993). Mandamus will not lie for the review of acts that involve the exercise of judgment or discretion. See Bargman v. Brewer, 142 Vt. 367, 369, 454 A.2d 1253, 1255 (1983); Dobbs, Remedies § 2.10, at 112 (1973) ("[It] is used only to compel a specific kind of behaviorcompliance with a ministerial duty of an office. It does not issue to compel action that is discretionary."). There is, however, an exception: "Where there appears, in some form, an arbitrary abuse of the power vested by law in an administrative officer . . . which amounts to a virtual refusal to act or to perform a duty imposed by law, mandamus may be resorted to in the absence of other adequate legal remedy." Couture v. Selectmen of Berkshire, 121 Vt. 359, 361, 159 A.2d 78, 80 (1960); see also Roy v. Farr, 128 Vt. 30, 34-36, 258 A.2d 799, 802-03 (1969) (applying Couture standard to refusal to act by local health board and health officer).
Recently, we applied the Couture rule to affirm the grant of a writ of mandamus against a zoning administrator in In re Fairchild, 159 Vt. 125, 131, 616 A.2d 228, 231 (1992). Plaintiffs argue that Fairchild governs this case and demonstrates that dismissal of the mandamus action was error. Like this case, Fairchild involved a petition for mandamus to require a municipality to enforce its zoning ordinance against a property owner who the plaintiffs alleged was in violation of the zoning ordinance.
There is, however, a significant difference between this case and Fairchild. Here, although the zoning administrator was dilatory, he did act. He required McDonald's to comply with the ordinance and approved a remedy for the past noncompliance. The remedy, albeit unsatisfactory to plaintiffs, ended use of the residential strip for commercial purposes.
In contrast, the zoning administrator in Fairchild failed to respond directly to plaintiffs, despite their demand for enforcement, *1248 and stated to others that he thought the property owners were in compliance with the zoning ordinance. He was, therefore, permitting noncompliance with the zoning ordinance, which he had no power to do. See 24 V.S.A. § 4442(a); In re Fairchild, 159 Vt. at 130, 616 A.2d at 231 (holding that administrative officer has no discretion as to whether to enforce zoning regulations). In the words of Couture, there was "a virtual refusal to act or to perform a duty imposed by law." 121 Vt. at 361, 159 A.2d at 80.
We find the difference to be determinative. A zoning administrator is statutorily bound to enforce a municipality's zoning bylaws, 24 V.S.A. § 4445, but the nature of the remedy sought is discretionary. Thus, an administrator has the discretion to initiate "any appropriate action, injunction or other proceeding to prevent, restrain, correct or abate" a violation. See id. Here, the zoning administrator pursued a remedy within his discretion, and it cannot be said that he failed to act or perform a duty imposed by law. The court acted properly in dismissing the mandamus claim.[*]
Plaintiffs' remaining claims relate to the scope of the injunction issued by the court. Plaintiffs assert that they are entitled to an injunction that requires the variance area to be returned to its original state, without the fill and the drainage pipes. The trial court declined to go that far because removal of the fill would necessitate construction of a seven-foot retaining wall to provide support for the structures that properly lie within the commercial zone. The court found the cost of the wall to be unreasonable and that "it would be far more unsightly and undesirable than the continuation of the slope created by the added fill."
We first address which of the two alternatives presented by the parties is the standard applicable to the injunction request. The first alternative, advocated by McDonald's and employed by the trial court, gives discretion to the court to determine whether to issue an injunction based on a balancing of the equities. Under this standard, "[i]t is the duty of the court of chancery to consider and weigh the relative convenience or inconvenience, the relative injury sought to be cured as compared with the hardship of injunctive relief." Thompson v. Smith, 119 Vt. 488, 509, 129 A.2d 638, 651-52 (1957). The second alternative, advocated by plaintiffs, requires the court to issue an injunction to remove noncomplying development unless the violation of the zoning ordinance is insubstantial or was done without conscious wrongdoing. Town of Sherburne v. Carpenter, 155 Vt. 126, 131-32, 582 A.2d 145, 149 (1990).
We explained in Carpenter that the second alternative applies in the zoning context only to proceedings brought by a municipality. Id. at 131, 582 A.2d at 149. This is a case between private landowners. Plaintiffs, not the City of Rutland, sought an injunction requiring McDonald's to remove all earth fill from the residential strip. As a result, the Thompson standard applies to the trial court's actions.
Plaintiffs make various arguments to avoid this conclusion. They argue that they are acting from public motives to ensure enforcement of the zoning ordinance. They further argue that McDonald's acted illegally in extending the parking lot into the residential zone while their variance was on appeal. These factors may be relevant to how the court exercises its discretion, but are not determinative of the applicable standard faced by the trial court. The court's discretion is not narrowed by plaintiffs' motives. *1249 The illegality of the use establishes the zoning violation, but is not determinative of the remedy.
Although we have addressed the standard issue in the way presented by plaintiffs, we also stress that the alternative standards go primarily to whether an injunction should be used as a remedy and not necessarily to the terms of the injunction, at least where the injunction corrects the illegality. Courts have "a wide range of discretion" to mold equitable decrees to the circumstances of the case before them. United States v. Crescent Amusement Co., 323 U.S. 173, 185, 65 S.Ct. 254, 260, 89 L.Ed. 160 (1944); see also George Basch Co. v. Blue Coral, Inc., 968 F.2d 1532, 1542 (2d Cir.1992) ("contours of an injunction are shaped by the sound discretion of the trial judge and, barring an abuse of that discretion, they will not be altered on appeal"). Moreover, "`injunctive relief should be no more burdensome to the defendants than necessary to provide complete relief to the plaintiffs.'" Madsen v. Women's Health Center, Inc., ___ U.S. ___, ___, 114 S.Ct. 2516, 2525, 129 L.Ed.2d 593 (1994) (quoting Califano v. Yamasaki, 442 U.S. 682, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979)). These principles apply in the zoning context whether or not relief is sought by a public enforcement agency, and they clearly apply here.
Finally, we conclude that the court exercised its discretion reasonably in fashioning the injunction in this case. It clearly prohibited any use of the residential strip that was in conflict with zoning requirements. It required the removal or concealment of all "commercial structures" in the variance area. In doing so, the existing landscape was preserved, and a buffer was created between the commercial and residential zones. It balanced the equitable considerations before it and concluded that the remedy plaintiffs sought was unnecessarily expensive and went beyond what was required to afford complete relief.
We are sympathetic to plaintiffs' concerns. For many years, they have been seeking compliance with the zoning ordinance, and when they finally prevailed in our courts, they were faced with defiance by McDonald's and only begrudging action by the city. We note part of this action involved a claim for damages and that part has now been settled. The damages remedy is more appropriate for the kind of claim plaintiffs now raise than issuance of an injunction which would render the condition of the land "unsightly and undesirable," as the trial court found.
Affirmed.
NOTES
[*]  Defendants urge us to reach the same result on jurisdictional grounds. They argue that the superior court did not have jurisdiction because plaintiffs did not appeal the zoning administrator's decision to the zoning board as required by 24 V.S.A. § 4472. See Town of Charlotte v. Richmond, 158 Vt. 354, 357, 609 A.2d 638, 639-40 (1992) (holding that defendant landowners, having failed to appeal determination of zoning administrator, were bound by that decision). We have not decided whether an interested party, rather than the landowner, ever has a duty to appeal from a zoning administrator's inaction. See In re Fairchild, 159 Vt. at 131, 616 A.2d at 232 (assuming, but not deciding, that interested persons have duty to appeal pursuant to § 4472). It would be inappropriate to dismiss this case for failure to pursue an administrative appeal, because the administrator never made a formal ascertainable decision and never conveyed a decision to plaintiffs, despite their requests for action.


19 So.3d 272 (2007)
LAKEITH DESHANE WILLIAMS
v.
STATE.
No. CR-07-0344.
Court of Criminal Appeals of Alabama.
December 18, 2007.
Decision of the alabama court of criminal appeal without published opinion. Dismissed.