181 F.Supp.2d 904 (2002)
UNITED STATES of America
v.
James SMITH.
No. 00 CR 71.
United States District Court, N.D. Illinois, Eastern Division.
January 3, 2002.
*905 *906 Eugene Steingold, Chicago, IL, for James Smith.
Eric J. Wilson, United States Attorney's Office, Chicago, IL, for U.S.

MEMORANDUM OPINION AND ORDER
KENNELLY, District Judge.
James Smith is charged with a single count of making counterfeit currency. According to the government, Smith was arrested in a Niles, Illinois store on November 26, 1999 for suspected shoplifting. He allegedly paid for some items with genuine currency but then took other items for which he had not paid to the customer service desk to request a refund. He was detained by store security and was later arrested by a Niles police officer. A search of Smith turned up a plastic bag with 0.11 grams of cocaine and $888 of suspected counterfeit currency. Smith was then interviewed by United States Secret Service agents; he told them that he had made the counterfeit money at home using a computer scanner and that he had more counterfeit money there. When searching Smith's home, the agents discovered $1,545 in counterfeit currency in a cigar box which also held drug paraphernalia. After Smith was indicted, the government obtained via subpoena bank records which the government claims show that Smith was living on a shoestring at the time of his arrest.
Smith has a number of prior criminal convictions, including a 1990 conviction for robbery, a 1992 conviction for burglary, a 1993 conviction for theft, two 1994 convictions for drug possession, a 1995 conviction for forgery, a 1997 conviction for retail theft, and a 2000 conviction for drug possession.
The government wants to introduce in its case in chief the cocaine, the drug paraphernalia, the prior drug convictions, and the bank records to prove Smith's motive to manufacture the counterfeit currency and his intent to defraud, and if Smith testifies, it wants to use all of his prior convictions for purposes of impeachment. Smith has asked the Court to exclude this evidence.

1. Motive evidence
Smith is charged under 18 U.S.C. § 471, which provides that "[w]hoever, with intent to defraud, falsely makes, forges, counterfeits, or alters any obligation or other security of the United States, shall be fined under this title or imprisoned not more than fifteen years, or both." To act "with intent to defraud" means "to act with the specific intent to deceive or cheat, ordinarily for the purpose of causing some financial loss to another or bringing about some financial gain to oneself." Eleventh Circuit Pattern Criminal Jury Instructions 125 (1997). In other words, mere possession of counterfeit currency is not a crime. United States v. Olson, 697 F.2d 273, 275 (8th Cir.1983); United States v. Allison, 616 F.2d 779, 782 (5th Cir.1980). To convict Smith, the government will be required to prove that he knew the counterfeit currency was bogus and intended to pass it as genuine currency. See, e.g., United States v. Grady, 665 F.2d 831, 835 (8th Cir.1981); United States v. Lorenzo, 570 F.2d 294, 299 (9th Cir.1978). The former is part and parcel of the government's evidence that Smith manufactured the counterfeit currency himself; the latter is what the government's motion in limine concerns.
Evidence of acts other than those with which the defendant is charged is inadmissible to prove the defendant's propensity to commit crimes but is admissible *907 to prove other relevant matters, such as motive and intent. Fed.R.Evid. 404(b). To be admissible under Rule 404(b), the evidence must be directed to establishing a matter in issue other than the defendant's propensity to commit the crime, it must be similar enough and close enough in time to be relevant to the matter in issue, it must be sufficient to support a jury finding that the defendant committed the act, and its probative value must not be substantially outweighed by the danger of unfair prejudice. See, e.g., United States v. Vaughn, 267 F.3d 653, 657 (7th Cir.2001); United States v. Gibson, 170 F.3d 673, 678 (7th Cir.1999).
There is no question that Smith committed the "acts" that the government wants to admit: the drugs were found on his person, the paraphernalia was found in his house, and he was convicted of the drug charges. But these acts by themselves prove nothing other than that Smith committed drug offenses on two occasions separated by five years and that he had the tools for using drugs. What the government is aiming for in offering the other act evidence is an inference: that Smith had a drug habit significant enough to give him a need for money that he could not satisfy legitimately. But though it is conceivable that Smith actually may be a drug addict or at least a habitual user, the evidence that the government offers does not add up to anything of the kind. The fact that Smith had a small amount of cocaine on him and had paraphernalia at home is equally consistent with casual or infrequent use. The drug convictions by themselves do not alter this analysis (we have been told nothing about the circumstances of the convictions or the quantities involved). If this evidence were admissible, it would suggest that whenever a person accused of a non-drug crime is found to be in possession of drugs, the drugs should be admitted to prove motive. But that is not the law. A casual user does not experience the same financial pressures as an addict, and thus without evidence sufficient to support a jury finding of addiction or habitual use, evidence of drug possession or prior drug crimes is not admissible to prove motive.
The government relies on two Seventh Circuit cases that approved a trial court's admission of evidence of drug-related activity to prove motive. In United States v. Cunningham, 103 F.3d 553 (7th Cir.1996), the defendant, a registered nurse, was charged with tampering with syringes that contained Demerol, a painkiller; the Demerol had been replaced with a saline solution. When interviewed by the police she acknowledged that she had been a Demerol addict, and a urine test proved positive for Demerol. At trial the judge allowed evidence of the defendant's admission of her prior addiction; the fact that four years earlier, her nursing license (held under another name) had been suspended due to a theft of Demerol; and evidence that she had falsified drug test results to get her license back. He excluded as unfairly prejudicial evidence of the criminal conviction that had resulted from the earlier theft. Id. at 556. The Seventh Circuit upheld the admission of the addiction evidence, saying that being a Demerol addict gave the defendant a motive to tamper with the Demerol-filled syringes; it held that the trial judge had not abused his discretion in concluding that the prejudicial effect of the evidence did not outweigh its probative value. Id. at 557-58. It likewise affirmed the admission of the evidence of the suspension and drug test falsification, saying that this evidence "furnished the basis for an inference that [the defendant] had falsified the test results in order to enable her to continue to feed her addiction without detection and without losing access to a `free' supply of the addictive *908 substance," and thus tended to establish a motive. Id. at 558.
In the other Seventh Circuit case upon which the government relies, United States v. Brooks, 125 F.3d 484 (7th Cir. 1997), the defendant was charged with bank robbery. The Seventh Circuit's decision reports that the trial court "admitted evidence that the defendants used crack cocaine and that their desire to obtain more cocaine motivated this bank robbery." Id. at 499. Though the court's opinion does not specify what the evidence consisted of, it appears that it included evidence that "buying more cocaine was part of the plan at the time the defendants committed the bank robbery." Id. at 500.[1] The court held that the drug use evidence was sufficiently related to the bank robbery to meet the relevance test in that it provided the motive for the robbery.
The evidence that the government proposes to use in this case is nothing like the evidence approved in Cunningham and Brooks. In the former case, the defendant had admitted her addiction, and it was an addiction for the particular substance that she was charged with taking. In the latter case, there was apparently evidence that directly connected the bank robbery to the desire to obtain money to purchase cocaine. Thus in both cases, there was evidence that actually tended to show a motive. Here there is not. As we have stated, two convictions for drug possession separated by five years and possession of a small quantity of cocaine and the tools for using it does not add up to evidence from which a jury reasonably could find that Smith had an addiction or a regular habit, which is what it would take to suggest a motive or intent to defraud.
The government also offers bank records which it claims show that Smith was living on a shoestring, which if so might be enough to tip the scales in favor of admissibility of the drug use evidence (aside from the convictions, which we would exclude as unfairly prejudicial in any event). But in fact the bank records do not show this. Rather, they show only that Smith had a bank account in which his monthly Veteran's Administration disability benefits checks were deposited and that the account tended to be drawn down to zero by the date that the following month's check was deposited. The fact that an individual has a particular bank account that is drawn down every month is not evidence of poverty or a desperate need for cash; the monthly deposits might be sufficient to satisfy his needs, or he might have another bank account or other resources. In sum, the bank records do not tip the scales, and like the drug evidence they are not admissible in the government's case in chief.[2]

2. Evidence of prior convictions
As indicated earlier, Smith has a 1990 conviction for robbery, a 1992 conviction for burglary, a 1993 conviction for theft, two 1994 convictions for drug possession, a 1995 conviction for forgery, a 1997 conviction for retail theft, and a 2000 conviction for drug possession. All of these are felony *909 convictions. The government proposes to use them to impeach Smith if he testifies; Smith has moved in limine to exclude the convictions.
Federal Rule of Evidence 609(a) provides that evidence that an accused person has been convicted of a felony shall be admitted for the purpose of impeachment if the court determines that the probative value of admitting the evidence outweighs its prejudicial effect to the accused. Fed.R.Evid. 609(a)(1). In addition, evidence that any witness has been convicted of a crime involving dishonesty or false statement is admissible without regard to its prejudicial effect. Fed.R.Evid. 609(a)(2). Smith's forgery conviction is admissible under Rule 609(a)(2). See United States v. Byrd, 771 F.2d 215, 219 (7th Cir.1985). However, his convictions for robbery, burglary, theft, and drug possession convictions are not, as the government has not shown that any of them involved false statements or acts of deceit beyond the basic crime itself, and as to the theft convictions has not shown that it involved items of significant value. See United States v. Galati, 230 F.3d 254, 261 (7th Cir.2000) (petty theft conviction); United States v. Rodriguez-Andrade, 62 F.3d 948, 952 (7th Cir.1995) (burglary conviction); United States v. Mejia-Alarcon, 995 F.2d 982, 989 (10th Cir.1993) (robbery and burglary convictions); United States v. Brackeen, 969 F.2d 827, 830 (9th Cir.1992) (en banc) (per curiam) (robbery conviction).
The Seventh Circuit has established a five-part test to guide a district court in determining whether the probative value of evidence concerning a prior conviction outweighs its prejudicial effect pursuant to Rule 609(a)(1). We are to consider: (1) the impeachment value of the prior crime; (2) the point in time of the conviction and the defendant's subsequent history; (3) the similarity between the past crime and the charged crime; (4) the importance of the defendant's testimony; and (5) the centrality of the credibility issue. See, e.g., United States v. Smith, 131 F.3d 685, 687 (7th Cir.1997); United States v. Rein, 848 F.2d 777, 782 (7th Cir.1988).
Impeachment Value. Though Smith's convictions for robbery, burglary, and theft are not crimes involving deceit or false statement within the meaning of Rule 609(a)(2), there is an aspect of dishonesty inherent in each of these offenses. These convictions are thus somewhat probative of Smith's credibility. See, e.g., United States v. Smith, 80 F.3d 1188, 1193 (7th Cir.1996); United States v. Halbert, 668 F.2d 489, 495 (10th Cir.1982). The same cannot be said of Smith's convictions for drug possession. Though there is authority indicating that convictions for drug smuggling and drug dealing are probative of credibility (an issue we need not address here), see, e.g., United States v. Hayes, 553 F.2d 824, 828 (2d Cir.1977); United States v. Ortiz, 553 F.2d 782, 784 (2d Cir.1977); United States v. Alexander, 48 F.3d 1477, 1488 (9th Cir.1995) (conviction for drug possession "for sale"); United States v. Cordoba, 104 F.3d 225, 229 (9th Cir.1997) (possession with intent to distribute), the same cannot be said of convictions for drug possession. See, e.g., Gust v. Jones, 162 F.3d 587, 595-96 (10th Cir.1998); Wilson v. Union Pacific RR Co., 56 F.3d 1226, 1231 (10th Cir.1995); United States v. Puco, 453 F.2d 539, 543 (2d Cir.1971).
Age of conviction and subsequent history. Smith's 1990 and 1992 convictions for robbery and burglary are fairly old, and if he had no subsequent criminal history this would weigh against admitting them in evidence. However, Smith's history of recidivism tends to eliminate any unfairly prejudicial effect from admission of these convictions.
*910 Similarity of offenses. None of Smith's prior offenses are in any way similar to the present charges.
Importance of defendant's testimony. As stated earlier, the government is required to prove Smith's intent to defraud. Based on what the government has told the Court about its evidence, there is no direct evidence of this, and thus the government will have to prove it inferentially. If intent to defraud is a disputed issue (as it is likely to be), the importance of Smith's testimony is enhanced. This factor cuts against admission of Smith's prior convictions. Knowledge that one's prior convictions will be admitted tends to deter a defendant from testifying; there is an understandable fear that jurors will disregard any limiting instructions that the Court gives and will assume that because the defendant has committed crimes in the past, he likely committed the charged crime.
Centrality of credibility issue. If Smith testifies, his testimony will undoubtedly focus on the issue of intent to defraud  whether he planned to use the counterfeit currency. For this reason, his credibility will be critical. This factor tilts significantly in favor of admitting the prior convictions.
In sum, all but one of the factors that we are required to analyze weigh in favor of admitting Smith's prior convictions for robbery, burglary, and theft. The Court believes that the factors favoring admission  particularly the importance of the credibility issue and the fact that these offenses include an aspect of dishonesty  outweigh the possibility that admitting the convictions might deter Smith from testifying. The Court will permit the government to use these convictions to impeach Smith if he testifies. The impeachment will be limited to the date and nature of the conviction; evidence of the sentence imposed has no bearing on credibility and will be excluded.

Conclusion
The government's motion in limine regarding defendant's drug use is denied. Defendant's motion in limine to preclude introduction or mention of prior convictions is granted in part and denied in part; defendant's prior convictions for forgery, robbery, burglary, and theft are admissible for impeachment purposes, but his convictions for drug possession are not.
NOTES
[1]  Brooks had testified at a suppression hearing that he was under the influence of crack cocaine at the time of his FBI interview about two and one-half weeks after the robbery and that he "had been smoking a steady supply of crack cocaine for about two months." Id. at 490. Though we do not know whether the evidence admitted at trial followed this same line, this may provide some insight into the nature of the evidence admitted by the trial court.
[2]  Even if the Court found this evidence relevant under Rule 404(b), we would exclude it because its unfairly prejudicial effect far outweighs any limited probative value it may be said to have.


Affirmed and Opinion Filed August 21, 1997

                                          In The

                                (£a\xrt of Appeals
                     JTtftlj Itsirtri at Qfrxas at Dallas
                                   No. 05-95-00951-CR

                            JESSIE DON LEWIS, Appellant

                                            V.

                           THE STATE OF TEXAS, Appellee

                   On Appeal from the Criminal District Court No. 1
                                  Dallas County, Texas
                          Trial Court Cause No. F95-73644-LH

                                     OPINION

                     Before Justices Kinkeade, Ovard, and Chapman
                                 Opinion By Justice Ovard

       The trial court convicted Jessie Don Lewis of aggravated robbery and assessed a

sentence of thirty years imprisonment. In three points of error, Lewis asserts the evidence
is legally and factually insufficient to support the trial court's judgment and he was denied
effective assistance of counsel. We affirm the trial court's judgment.
                                      BACKGROUND

       Angela Jones, the complaining witness, reported that Lewis held a gun to her head

and took her jewelry. The incident occurred at the Crest A Apartments, a location noted

for drug-related crimes. Lewis denied robbing Jones. Instead, he speculated Jones falsely

accused him of aggravated robbery in retaliation for his selling her fake crack cocaine.

                              SUFFICIENCY OF EVIDENCE

       In his first point of error, Lewis contends the evidence is legally insufficient to prove

he committed aggravated robbery because the complaining witness's testimony was not

credible or reliable. The State responds that Lewis's challenge is directed at credibility

instead of sufficiency, and that credibility of a complainant is solely within the province of

the factfinder.

       In his second point of error, Lewis asserts the evidence is factually insufficient to

support his conviction because credible and reliable testimony was presented that the
complaining witness purchased fake crack cocaine from him. The State replies that, because
credibility of witnesses is an issue for the factfinder to determine, the evidence is factually
sufficient to support Lewis's conviction.

                                    1. Standard of Review

       In reviewing a challenge to the legal sufficiency of the evidence, we view the evidence
in the light most favorable to the prosecution to determine whether any rational trier of fact
could have found the essential elements of the offense beyond a reasonable doubt. See

Jackson v. Virginia, 443 U.S. 307, 319 (1979); Green v. State, 761 S.W.2d 824, 825 (Tex.

                                               -2-
App.-Dallas 1988, no pet.). The factfinder resolves conflicts in the testimony, weighs the

evidence, and draws reasonable inferences from basic to ultimate facts. Dumas v. State, 812

S.W.2d 611, 615 (Tex. App.-Dallas 1991, pet. ref'd). The factfinder is the exclusive judge

of the witnesses' credibility and the testimony's weight. Tex. Code Crim. Proc. Ann. art.

38.04 (Vernon 1979); Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984), cert,

denied, 474 U.S. 865 (1985); Dumas, 812 S.W.2d at 615. The factfinder may accept or

reject any orall evidence. See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).

That the appellant presents a different factual version does not render the evidence

insufficient. Anderson v. State, 701 S.W.2d 868, 872-73 (Tex. Crim. App. 1985),cert, denied,

479 U.S. 870 (1986).

       When an appellant challenges the factual sufficiency of the evidence, we review all

the evidence without the prism of "in the light most favorable to the prosecution." Clewis

v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). In analyzing the factfinder's

determination of a vital fact, we do not decide the existence or nonexistence of a vital fact

nor do we decide the truth or falsity of proffered evidence nor do we judge the credibility
of witnesses. Scott v. State, 934 S.W.2d 396, 399 (Tex. App.-Dallas 1996, no pet.). Our

evaluation ofthe factual sufficiency ofthe evidence should not substantially intrude upon the
factfinder's role as the sole judge of the weight and credibility of witness testimony. See

Santellan v. State, 939 S.W.2d 155, 165 (Tex. Crim. App. 1997). As a reviewing court, we

may not reweigh the evidence and set aside the factfinder's determination merely because
we feel that a different result is more reasonable. Clewis, 922 S.W.2d at 135. If we

                                             -3-
determine the factfinder's determination is against the great weight of the evidence

presented at trial so that it is clearly wrong and unjust, we must reverse and remand for a

new trial. Id. A verdict is "clearly wrong and unjust" if it shocks the conscience or clearly

demonstrates bias. Id.; Scott, 934 S.W.2d at 399.

                                     2. Applicable Law

       A person commits robbery if, in the course ofcommitting theft, with intent to obtain

or maintain control of the property, he intentionally or knowingly threatens or places

another in fear of imminent bodily injury or death. Tex. Penal Code Ann. § 29.02(a)(2)

(Vernon 1994). Robbery becomes aggravated if a person, in the course of committing a

robbery, uses or exhibits a deadly weapon during the robbery commission. Tex. Penal Code

Ann. § 29.03(a)(2) (Vernon 1994). A handgun is a deadly weapon per se. Anderson v.

State, 813 S.W.2d 177, 179 (Tex. App.-Dallas 1991, no pet.).

       In a challenge tothe sufficiency ofthe evidence, positive identification ofa defendant

as the perpetrator of a crime is sufficient to support a conviction. Everett v. State, 707
S.W.2d 638, 639 (Tex. Crim. App. 1986); Hester v. State, 909 S.W.2d 174, 178 (Tex.
App.-Dallas 1995, no pet.);/owes v. State, 687 S.W.2d 430, 432 (Tex. App.-Houston [14th
Dist.] 1985, no pet.).

                                        3. Testimony

                                     a. State Witnesses

       The complaining witness, Angela Jones, testified that, on the day of the robbery, her
sister Ella Campbell paged her. Campbell asked Jones to pick her up at the Crest A

                                              -4-
Apartments, where she was visiting. When Jones arrived at the apartment complex, she

parked her car and waited for her sister. When Campbell did not come to the car, Jones

began to look for her.

       A number of people were standing outside. Jones saw Lewis looking at her. He

asked her for a cigarette. She told him she did not have one. Suddenly, Lewis pulled a

small, black, .25 caliber automatic gun and stuck it in her face. He pulled back the clip, and

Jones heard it click. Then he demanded: "Bitch, give me your jewelry." Jones hesitated.

Lewis moved the gun to her temple and roughly pulled at a ring. Because she feared that

Lewis would shoot her, Jones removed her rings.

       Next, Lewis began looking at and pulling on her black leather coat. She told him he

would have to fight her for her coat. Then, Lewis asked her ifshe had any money, and she

replied no. He took her rings and turned around to show the bystanders what he had
stolen. The bystanders reacted by laughing.

       Meanwhile, Jones's sister arrived. Jones ran to a nearby telephone booth to call for

help. Lewis fled. While Jones talked to the 911 operator, bystanders told her the gunman's
name was "Red Devil". When the police arrived, Jones gave them Lewis's description.

Lewis's sister came out of her apartment and also talked with Jones and with the police.
Jones testified that Lewis' sister told her that, ifJones would return the next day, she would

try to get her jewelry back.

        On cross examination, Jones testified that she does not buy, sell, or use drugs. She

 denied frequenting the Crest AApartments and stated that, except for the day she was

                                              -5-
robbed, she had not been to that apartment complex in seven years. Jones denied ever

having purchased drugs, or phoney drugs, from Lewis. She also denied that she was angry

at Lewis for selling her "phoney dope."

      Ella Campbell testified that she paged Jones for a ride. While waiting for her sister

outside the Crest A Apartments, Campbell noticed two men in front of the complex "kind

of fussing about something." She asked one of the men to notify her when her sister

arrived, and she returned to an apartment upstairs. A short time later, the man found her

and told her that her sister was being robbed.

       When Campbell came down the stairs she observed Lewis, who she knew as "Red

Devil", standing in front of Jones. Jones appeared to be terrified and almost in tears.

Campbell asked what was wrong, and Jones said that Lewis had robbed her. Campbell
yelled at Lewis and asked him "What you doing . . . with my sister?" He laughed and held
a gun in the air. Lewis left when Jones phoned the police. Before the police arrived, the
bystanders told Campbell that Lewis "robbed [Jones]."
       Approximately two weeks later, Campbell was walking down the street when Lewis
approached her in a car with his mother. Lewis got out of the car and told Campbell he
and his mother wanted to talk to Jones about dropping the charges. His mother was

wearing Jones's rings. Campbell refused to disclose her sister's address.
       Charlie Law testified that, as a police officer with the Dallas Police Department, he
had patrolled the area around the Crest AApartments for approximately five years. The
 Crest AApartments are located in a high crime area. On the day of the robbery, he was
driving through the Crest A complex when Jones flagged him down and told him a man had

just taken her jewelry. He parked his car and walked into the complex. People were

gathered outside near the laundry room. Law asked two bystanders what had happened,

and they told him they had seen a robbery. Through his investigation, Law determined

Lewis was the man who robbed Jones and that his street name is "Red Devil". Law also

testified Jones lived in his patrol area and that he knew her because of her involvement in

various disturbance calls he had worked over the years. He had never previously seen Jones

at the Crest A apartments, and he had also never seen her buy, sell, or use narcotics.

                                   b. Defense Witnesses

       Lewis testified that, although he sold Jones fake crack cocaine, he did not rob her.

He stated he had a previous conviction for selling drugs and that he stays with his sister at

the Crest AApartments, where he smokes crack cocaine. He knew Campbell tobe a "crack

head" from previous occasions ofsmoking crack cocaine with her. He had never met Jones

before. On the day of the robbery, Jones and Campbell approached him at the Crest A

Apartments. Campbell asked him, "Red Devil, would you show me where some good dope
is?" Lewis gave the sisters ten rocks of fake crack cocaine, and Jones paid him one hundred
dollars. The sisters left the complex.

       Jones returned approximately five minutes later. From the window of a friend's

nearby house, Lewis observed Jones talking with police. He was afraid to come out and talk
to the officers because he believed they would arrest him for selling fake crack cocaine.

Lewis stated Jones falsely accused him of robbing her because he had "scammed" her by

                                             -7-
selling her fake cocaine.   He denied carrying a gun, which would be a violation of a

condition of his parole.

       Linda Brown, Lewis' cousin, testified she was visiting the Crest A Apartments on the

day of the robbery. She was aware that drugs were frequently bought, sold, and used there.

Brown observed Lewis, Jones and several other people standing outside the washateria.

Lewis and Jones were talking; Jones did not appear to be frightened. Lewiswas not holding

a gun. Brown saw Lewis hold out his closed fist and put something in Jones's hand in a

manner commonly used for passing rock cocaine. She did not see Jones give him anything

in return. Brown also testified that she had seen Lewis and Jones together before.

                               3. Application of Law to Facts

       In reviewing a challenge to the legal sufficiency ofevidence, we view the evidence in

the light most favorable to the prosecution. Here, Jones positively identified Lewis as the

man who placed a handgun to her head and demanded her jewelry. She was afraid Lewis

would physically hurt or kill her if she did not comply. Lewis then took her five rings.
Viewing this evidence in the light most favorable to the prosecution, any rational trier offact
could have found beyond a reasonable doubt that Lewis used a deadly weapon to place
Jones in fear of imminent bodily injury or death if she did not give him her jewelry. The

evidence is legally sufficient to sustain Lewis's conviction.

       We overrule Lewis's first point of error.

       In reviewing Lewis's challenge to the factual sufficiency of evidence, we will set aside
the fact finding only if it is so contrary to the overwhelming evidence as to be clearly wrong

                                              -8-
and unjust.   Lewis testified that Jones falsely accused him of aggravated robbery in

retaliation for his selling her fake crack cocaine. For corroboration of this evidence, he

points to Brown's testimony that she observed Lewis and Jones engaged in a drug

transaction. Both Lewis and Brown testified he did not have a gun.

      The testimony of Jones, Campbell, and Law contradicts the testimony of Lewis and

Brown. Jones testified she does not use drugs and that she has never bought drugs from

Lewis. She testified Lewis placed a gun to her head and forced her to give him five rings.

Campbell testified she found Jones as the robbery was ending. Jones appeared terrified.

When Campbell yelled at Lewis for robbing her sister, Lewis held a gun in the air. Officer

Law testified that he had never seen Jones buying, selling, or using narcotics.

       Lewis's argument attacks Jones's credibility by placing at issue her purported use of

drugs. Although we are authorized to disagree with the factfinder's finding of a vital fact,

we are not authorized to judge the credibility of witnesses. Scott, 934 S.W.2d at 399. The

trial court, as factfinder, was free to find Jones's testimony that she did not use drugs more

credible than Lewis's testimony that Jones was a vindictive "crack head" who purchased fake

crack cocaine from him. We have reviewed all the evidence. Based on its great weight and

preponderance, we cannot conclude that the factfinder's determination that Lewis robbed
Jones is clearly wrong and unjust. The trial court's judgment does not shock the conscience

or demonstrate bias.

       We overrule Lewis' second point oferror that the evidence was factually insufficient

to support his conviction.
                      INEFFECTIVE ASSISTANCE OF COUNSEL

       In his third point of error, Lewis asserts he received ineffective assistance of counsel

when his trial attorney failed to object to hearsay testimony used by the State to prove he

robbed Jones. The State responds the complained-of testimony was properly admissible

under either the excited utterance or present sense impression exceptions to the hearsay

rule. The State also responds the record as a whole shows Lewis was afforded reasonably

effective assistance of counsel.

                                   1. Standard of Review

       We examine ineffective assistance of counsel by the standard enunciatedin Strickland

v. Washington, 466 U.S. 668 (1984), and adopted by the Texas Court of Criminal Appeals

in Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986). To prevail on an ineffective

assistance of counsel claim, appellant must first establish that his counsel's representation

fell below an objective standard of reasonableness. Jackson v. State, 877 S.W.2d 768, 771
(Tex. Crim. App. 1994); Hernandez, 726 S.W.2d at 55. Appellant must then show a
reasonable probability exists that a different outcome would have resulted but for his trial
counsel's professional errors. Jackson, 877 S.W.2d at 771; Hernandez, 726 S.W.2d at 55.
Appellant must prove ineffective assistance of counsel by apreponderance of the evidence.
Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985). The record must support a

claim ofineffective assistance. See Johnson v. State, 691 S.W.2d 619, 627 (Tex. Crim. App.

1984), cert, denied, 474 U.S. 865 (1985).

                                              •10-
       We do not judge counsel's trial decisions in hindsight. SeeMiniel v. State, 831 S.W.2d

310, 323 (Tex. Crim. App.), cert, denied, 506 U.S. 885 (1992). We strongly presume

counsel's competence.     Id.; Jackson, 877 S.W.2d at 771.        Appellant can rebut this

presumption by showing his attorney's representation was unreasonable under prevailing

professional norms and that the challenged action was not sound trial strategy. Jackson, 877

S.W.2d at 771; see Miniel, 831 S.W.2d at 323.

       We do not inquire into trial strategy unless no possible basis exists in strategy or

tactics for trial counsel's actions. Johnson v. State, 614 S.W.2d 148, 152 (Tex. Crim. App.

[Panel Op.] 1981). An appellant must establish that his trial counsel's acts or omissions

were outside the range of professional competence. Jackson, 877 S.W.2d at 771; Ross v.

State, 802 S.W.2d 308, 312 (Tex. App.-Dallas 1990, no pet.). That another attorney,

including appellant's appellate counsel, might have pursued a different course ofaction does

not necessarily indicate ineffective assistance. See Hawkins v. State, 660 S.W.2d 65, 75 (Tex.

Crim. App. 1983).

       The fundamental focus of an effective assistance inquiry must be on the fundamental

fairness of the proceeding whose result is being challenged. Strickland, 466 S.W.2d 668.
Failure of either of the two prongs of the Strickland analysis results in failure of the claim

of ineffective assistance of counsel. See id.

                                     2. Applicable Law

       Evidence is hearsay if it is an out-of-court statement offered to prove the truth of the
matter asserted. Tex. R. Crim. Evid. 801(d). Hearsay is not admissible unless it meets an

                                                -11-
exception to the hearsay rule. Tex. R. Crim. Evid. 802; see Tex. R. Crim. Evid. 803 & 804.

However, most evidentiary and procedural rules are optional with each defendant. Marin

v. State, 851 S.W.2d 275, 278 (Tex. Crim. App. 1993). A trial court need only exclude

hearsay on a party's request. Id. A party must make a timely and specific objection to

hearsay to preserve a complaint for appellate review. Tex. R. App. P. 52(a); Butler v. State,

872 S.W.2d 227, 237 (Tex. Crim. App. 1994), cert, denied, 513 U.S. 1157 (1995); Rezac v.

State, 782S.W.2d 869, 870 (Tex. Crim. App. 1990). Inadmissible hearsay admitted without

objection is not denied probative value merely because it is hearsay. Tex. R. Crim. Evid.

802.

       Under the present sense impression exception to the hearsay rule, a statement

describing or explaining an event or condition made while the declarant was perceiving the

event or condition, or immediately thereafter, is not excluded as hearsay. Tex. R. Crim

Evid. 803(1); Rabbani v. State, 847 S.W.2d 555, 560 (Tex. Crim. App. 1992), cert, denied,
509 U.S. 926 (1993). The contemporaneous nature of the statement makes it reliable

because there is little time for the declarant to calculate misstatements or suffer memory

defects. Chambers v. State, 905 S.W.2d 328, 330 (Tex. App.-Fort Worth 1995, no pet.)

(citing Rabbani, 847 S.W.2d at 560 and Kubin v. State, 868 S.W.2d 394, 396-97 (Tex.
App.-Houston [1st Dist.] 1993, pet. ref'd)). When adeclarant has had time to reflect upon
the event and the facts learned after the event, the reliability of his statement is diminished.

Chambers, 905 S.W.2d at 330.

                                              •12-
       Failure to object to admissible evidence does not constitute ineffective assistance of

counsel. McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992), cert, denied, 508

U.S. 963 (1993). Failure to object to cumulative evidence is harmless and also will not

support a claim of ineffective assistance of counsel. Darby v. State, 922 S.W.2d 614, 624

(Tex. App.-Fort Worth 1996, pet. ref'd); Marlow v. State, 886 S.W.2d 314, 318 (Tex.

App.-Houston [1st Dist.] 1994, pet. ref'd).

                              4. Application of Law to Facts

      At trial, the parties did not dispute that Lewis and Jones encountered one another

outside the laundry room of the Crest A Apartments. They disagree, however, about the

type of "event" that occurred. The State attempted to prove that Lewis used a gun to

deprive Jones of herjewelry. Lewis attempted to establish that, instead ofa robbery, a drug

transaction occurred. His trial attorney advanced the hypothesis that Jones falsely accused

Lewis of aggravated robbery in retaliation for Lewis selling her "bad dope." Although both

parties agree, and the record indicates, that Brown and several bystanders observed the

encounter between Lewis and Jones, Jones and Lewis were the only two witnesses who

testified about what they said to each other.

       Because their testimony was contradictory, Jones's credibility was the major issue for

the factfinder to resolve at trial. Evidence that tended to make her story more probable

than not would assist the factfinder in weighing the evidence and drawing reasonable

inferences from basic to ultimate facts.

                                              -13-
       On appeal, Lewis contends his attorney was negligent in allowing the State to

introduce into evidence hearsay testimony that corroborated Jones's version of the event.

Specifically, he argues his attorney should have objected the following testimony:

       Testimony of Angela Jones:

       State:         Was the defendant anywhere in sight when the police showed up?

       Jones:         No. His -- well, some people ran and got his sister
                      after he robbed me. And his sister came out there and
                      talked to me and asked me if I come back the next day
                      she'll try to get my jewelry back.1

       Testimony of Ella Campbell:

       State:         While you were waiting for her to come pick you up,
                      what happened?

       Campbell: There were two dudes right there in front, kind of
                 fussing about something. So I went back upstairs. So
                       I told this dude to tell me when my sister drive up. So
                      he come and told me my sister drove up. But he told
                      me that the dude that pulled the gun on my sister, he
                       was robbing her.

       State:          But at this point, you didn't know who this dude was-

       Campbell: No. I didn't know right then until I got there.

       Testimony of Ella Campbell:

       State:          There were still people standing around there?

        Unless otherwise noted, the italicized portions of the quoted testimony represent the author's added emphasis.

                                                          •14-
                                 •,&^:.^?!&/iri^^*&J#^pfa^W-

Campbell: Yeah. Even though people said that he -- said go call
           the police. Everybody else started telling me after he
           disappeared.

State:     What did they start saying?

Campbell: Said that he robbed your sister and robbing ever body
           else. I said I know it. I said because he messed with
           the wrong person when he robbed my sister. He can
           rob anybody else, but not my sister.

State:     Were they using the name Jessie Lewis?

Campbell: No. They said "Red Devil."

Testimony of Charlie Law:

State:     Did any of these people come up and talk to you
           about what they saw or what happened?

Law:       Yeah, two people did. And the rest, they just
           continued to watch. And I approached them and I
           asked them what had happened. And they had seen
           it also.

State:     They saw the actual robbery?

Law:       Yes.

State:     Were you able to apprehend the man who did the
           robbery?

Law:       No, we didn't.

State:     Through your investigation, Officer Law, and in that
           area, were you able to determine who this person was?

Law:       Yes, I did.

                                        •15-
      State:      And that was a man that you came to know as Jessie
                  Don Lewis?

      Law:        Yes.

      All four statements are assertions of an out-of court declarant that the "event"

occurring between Lewis and Jones was a robbery. The State does not contest that they are

hearsay. Lewis argues the harm in not objecting to the statements is demonstrated by the

following excerpt from the State's argument:

      State:      You've got Ella Campbell's testimony about the way
                  her sister looked afterward. She knows this man. She
                  knows what he's capable of. You've got the testimony
                  of the complaining witness in this case. But also you
                  have unobjected to testimony from the officer from
                  people who stood there in the crowd who came
                  forward and told the officer they saw the robbery.

       Defense:   Your Honor, I am going to object. / should have
                  objected to hearsay at that time. It's not in the police
                  report. There are not eyewitnesses other than the sister.

       State:     Judge, that officer related to you that testimony. And
                  that is not hearsay. That's deemed fullprobative value.

       Court:     Overruled. Go ahead.

       State:     When those people came forward, they were as close in
                  time as the complaining witness was. And they
                  corroboroated [sic] that the robbery did, in fact,go down
                  there at the apartment complex.

       To prevail on a claim of ineffective assistance of counsel, Lewis must first establish
that his counsel's failure to object to the complained-of hearsay statements resulted in

representation below an objective standard of reasonableness. See Jackson, 877 S.W.2d at

                                             •16-
                             tmrf s^V-^^h^m^M.i^^^i^;^

768. Because Lewis's attorney conceded during argument that he should have objected to

at least one of the four objectionable hearsay statements and because the State does not

argue on appeal that the attorney's failure to object was reasonable under prevailing

professional norms, we will assume, without deciding, that counsel's failure to object resulted

in representation below an objective standard of reasonableness. However, Lewis must still

show that a reasonable probability exists that a different outcome would have resulted if the

hearsay statements had been excluded. See id. at 771.

          Failure to object to admissible evidence does not constitute ineffective assistance of

counsel. McFarland, 845 S.W.2d at 846. The four hearsay statements all assert the same

thing: a robbery occurred. If even one of these hearsay statements was properly admitted,

evidence corroboratingJones's testimony would have been before the factfinder. Therefore,

Lewis would not have been prejudiced by counsel's failure to object to the damaging

testimony to any substantial degree because the unobjected-to hearsay statements would

have been cumulative corroboration. See Darby, 922 S.W.2d at 624; Marlow, 886 S.W.2d

at 318.

          We determine the following testimony of Ella Campbell qualifies as a present sense

impression exception to the hearsay rule: "So I told this dude to tell me when my sister
drive up. So he come and told me my sister drove up. But he told me that the dude that

pulled the gun on my sister, he was robbing her." See Rabbani, 847 S.W.2d at 560-61. This
is a contemporaneous description of an event made while the declarant was perceiving the

event, or immediately thereafter. Indeed, it is a description of a robbery in progress.

                                                         -17-
                            V!Jj^si^.t*fw^S^;^'jcj(W9^)i!ja»^ &ji«W;.vj;m.;*: -,«,

Lewis's counsel was not ineffective in failing to object to hearsay which was properly
admissible under the present sense impression exception to the hearsay rule.
       Because evidence corroborating Jones's testimony that Lewis robbed her was properly
before the factfinder, Lewis has not shown that a reasonable probability exists that a
different outcome would have resulted if his trial attorney had objected to the complained-of
hearsay statements. We overrule his third point of error.

       We affirm the trial court's judgment.

                                                                             I       JOHN OVARD
                                                                             v/      JUSTICE

Do Not Publish
Tex. R. App. P. 90
950951F.U05

                                                                            -18-
                               ,    :   ,/,   • ::•.•:•   • .•   • •••"•   ••:••••'•    • • •<    • ••"'••'•

                             (Gxmri of Appeals
                     mttl? Etstrtrt of Qkxas ai lallas
                                        JUDGMENT

JESSIE DON LEWIS, Appellant                                                            Appeal from the Criminal District Court
                                                                                No. 1 of Dallas County, Texas. (Tr.Ct.No.
No. 05-95-00951-CR                 V.                                                   F95-73644-LH).
                                                                                Opinion delivered by Justice Ovard,
THE STATE OF TEXAS, Appellee                                                             Justices Kinkeade and Chapman
                                                                                participating.

      Based on the Court's opinion of this date, the judgment of the trial court is
AFFIRMED.

Judgment entered August 21, 1997.

                                                                                /Idhn ovard
                                                                           /                     JUSTICE


133 F.Supp.2d 530 (2001)
Todd GRAY, Plaintiff,
v.
GENERAL MOTORS CORPORATION and State Farm Mutual Automobile Insurance Company, Defendants.
Civil Action No. 97-394.
United States District Court, E.D. Kentucky, London Division.
January 22, 2001.
*531 John C. Carter, Harlan, KY, Phyllis Robinson, Manchester, KY, for Todd Gray.
Linsey W. West, Christopher Rennie Cashen, Woodward, Hobson & Fulton, L.L.P., Lexington, KY, Peter M. Kellett, Thomas J. Manganello, Michael A. Tesner, Feeney, Kellett, Wienner & Bush, Bloomfield Hills, MI, for General Motors Corporation.
Bridget L. Dunaway, Taylor, Keller & Dunaway, London, KY, for State Farm Mutual Automobile Insurance Company, Inc.

MEMORANDUM OPINION AND ORDER
COFFMAN, District Judge.
This matter is before the court upon the defendant's motion for judgment as a matter of law or for a new trial (No. 241), the plaintiff's motion for a new trial on damages (No. 243), and the counterclaimant's motion to amend this court's October 26, 2000 order and judgment (No. 245). For the reasons stated below, the defendant's motion will be granted and the plaintiff's and the counterclaimant's motions will be denied as moot.
The plaintiff's complaint alleges that he sustained injuries in an August 12, 1995 vehicle accident due to the defendant's defectively designed seat belt restraint system. Todd Gray, a passenger in a 1995 Chevrolet S-10 pickup truck, was partially ejected from the vehicle after it left the roadway and rolled over. At the bifurcated trial, the plaintiff presented a theory of defective design through expert witness Billy Peterson. The jury concluded that Todd Gray was wearing his seat belt and that the truck's restraint system was defectively *532 designed. After the damages phase of the trial, the jury awarded Gray $30,288.20, a sum which included $10,000 for mental and physical suffering and $30,288.20 for hospital, medical, and rehabilitation expenses. The jury did not award Gray lost wages, damages for permanent impairment of the power to earn money in the future, or future hospital, medical, and rehabilitation expenses.
A motion for a judgment after trial under Fed.R.Civ.P. 50(b) may be granted only if "there is a complete absence of proof on a material issue in the action or if no disputed issue of fact exists upon which reasonable minds could differ." Morales v. American Honda Motor Co., Inc., 151 F.3d 500, 506 (6th Cir.1998). "Every favorable inference which may reasonably be drawn from the evidence should be accorded the party against whom the motion is made." Id. Here, General Motors bases its motion for a judgment as a matter of law upon the following grounds: (1) Peterson's testimony should have been excluded under Fed.R.Evid. 702, Fed.R.Evid. 104, and Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); (2) Peterson's testimony was insufficient to justify submission of the case to the jury; (3) Peterson offered no proof of a safer, alternative, feasible design; and (4) the jury deliberated under confusing and improper instructions.
As explained in this court's prior orders, Peterson's testimony was admissible under the standards set forth by the Federal Rules of Evidence and Daubert. The plaintiff's contention of confusing and improper instructions must be rejected because the court corrected and cured the error in the interrogatories originally tendered to the jury. However, the plaintiff's proof did not justify submission of the case to the jury.
The only evidence of a design defect in the restraint system was offered by Peterson, who stated that skip lock occurred within the system during the plaintiff's accident. This conclusion was based only on the fact that Gray was wearing the seatbelt and that he was partially ejected:[1]
Q: Okay, so ... what you are saying is, based upon your view of some teeth and the witness of Mr. Gray who says he had his seat belt on, ... the retractor didn't lock up, because (1) he was wearing it; and (2) he was partially ejected.
A: Absolutely.
Moreover, Peterson could not identify any defect which may have caused the alleged skip lock:
Q: ... And [your opinions] first dealt with the teeth. Correct?
A: And the lock bar.
Q: Okay. We'll get to that. Teeth plus lock bar. And that's the retractor teeth, correct?
A: Correct.
Q: Are they too sharp? And if so, how sharp? If they are not sharp enough, how sharp should they be?
A: Sir, without running a series of sled tests, there are about four possible problems with this retractor.
Q: Sir, do you know the answer to how sharp they should be? Yes or no.
A: No, sir.
Q: As you sit here
A: Not without running tests.
Q: Okay.
A: Because they may not be the teeth that's the problem.
...
Q: Okay. Teeth and the look bar. What was the second issue?
A: Sir?
Q: The pendulum? Is there a problem with the pendulum?
A: There may be.
....

*533 Q: ... Okay. What's the problem with the pendulum?
A: It could be in the stem, as I told you in the deposition. It could be in the weight of the pendulum.
Q: Uh huh (affirmative response).
A: Or it may be any combination of any of these things.
Q: Did you  did you think that the pendulum was too big, too big a mass?
A: It may be, but I can't say without running a test, sir.
Q: And then the other issue was the stem.
A: Yes.
Q: All right. I'll go the next page for that. Oh, I forgot. What was  what was the opinion about the look bar? What about the lock bar? What was defective about the lock bar?
A: I was talking about in connection with the teeth. And of course the lock bar moving into could have to do with the pendulum, the stem and a number of other things.
Q: Did you identify the lock bar as a defect when I took your deposition?
A: I don't recall that we specifically called it a defect or not.
Q: Did you even mention the lock bar as  as being out of size, out of shape, not hard enough, too hard? Did you make any statement about the lock bar?
A: I don't think that the lock bar itself is the problem.
Q: Okay. That's all I wanted to hear. What else did we talk about? The pendulum, the stem. What about the stem? Too flexible or not flexible enough?
A: It could be either.
Q: Okay. And then the tooth spacing.
A: Sir?
Q: The tooth spacing? Is that something else you mentioned?
A: That could be a part of the problem.
Q: And that's the  those are the jagged teeth that go around the outside of the spool?
A: How many teeth are on the sprocket?
Q: Well, how many teeth are on the sprocket?
A: Eighteen.
Q: Is that a defect?
A: Sir?
Q: Is that a defect? Is 18 teeth on the sprocket a defect?
A: I couldn't say, sir, without running a test.
Q: So tooth spacing may be a problem, but you don't know if it is or not.
A: That is correct.
Although he stated that problems "may" exist with the retractor's teeth, the lock bar and the pendulum, Peterson could not identify which part of the restraint system allegedly caused skip lock. More importantly, he could not identify a defect in any of the parts in the restraint system. Peterson testified that the retractor may not include a sufficient number of teeth, or that those teeth may not be sufficiently sharp, but he also stated that the teeth may not have caused skip lock. Peterson identified the pendulum as a possible cause of skip lock but did not know whether the pendulum had too much mass. He also stated that a problem may exist with the pendulum's stem, but he did not know whether the stem was too flexible or too inflexible. He could reach no definitive conclusions, in short, without testing, which he did not perform.
In products liability cases, the plaintiff must demonstrate that an identifiable defect probably caused the accident. Midwestern V.W. Corp. v. Ringley, 503 S.W.2d 745 (Ky.1973). In Ringley, a plaintiff injured in an automobile accident alleged that when she applied brakes on a wet road, the vehicle pulled to the right and then spun out of control. The plaintiff's expert witnesses testified that the vehicle's right front brake drum was "out of round." The experts stated that this manufacturing defect would cause the vehicle *534 to pull to the right. Id. at 747. The plaintiff failed to show, however, that this alleged defect was the "probable cause of the accident." Id. The plaintiff's experts identified dirt or water in the brake lining, improper tire pressure, improper adjustment of the brake, and improper alignment as other possible causes of pulling. The court reversed a jury award in favor of the plaintiff:
None of [the plaintiff's] expert witnesses testified that the "out of round" brake drum "probably" caused the automobile to pull to one side at the time of the accident. The testimony was that an "out of round" brake drum was dangerous and would cause the automobile to pull when the brakes were applied, also that other conditions asked about would cause the automobile to pull when the brakes were applied.... Although the jury may draw reasonable inferences from the evidence of a defect in manufacturing, it is incumbent on the plaintiff to introduce evidence that will support a reasonable inference that the defect was the "probable" cause of the accident as distinguished from a "possible" cause among other possibilities; otherwise, the jury verdict is based upon speculation or surmise.
Id.
Similarly, in Briner v. General Motors Corp., 461 S.W.2d 99 (Ky.1970), the court affirmed a directed verdict in favor of the defendant manufacturer. The plaintiff alleged that her automobile had vibrated prior to a collision. The plaintiff's expert witnesses stated that this vibration resulted in freezing of the steering mechanism, a loose wheel bearing, or a breakdown in the linkage of the steering system. Id. at 101. Although the plaintiff's experts identified the vibration as the cause of the accident, they could not identify any defect which probably caused the vibration. The experts stated that the vibration could have been caused by "incorrect tire balancing, an improperly mounted air conditioner compressor, misalignment, or a loose or broken bearing...." Id. The court stated that testimony of numerous possible defects was "insufficient to establish a reasonable probability that there was a ... defect in the plaintiff's automobile ... which caused the accident. Such a possibility exist, but the law requires more than that." Id.
The plaintiff offered circumstantial evidence to show that a defect caused skip lock, which caused Gray's enhanced injuries. Beverly Hills Fire Litig., 695 F.2d 207, 219 (6th Cir.1982). However,
[w]hile reasonable inferences are permissible, a jury verdict must be based on something other than speculation, supposition, or surmise. The type of evidence that will support a reasonable inference must indicate the probable as distinguished from a possible cause. There must be sufficient proof to tilt the balance from possibility to probability. ... Thus, defendants invariably receive a judgment in their favor as a matter of law in Kentucky where plaintiffs are unable to isolate one cause, either by direct evidence, or, more relevant to the present case, by eliminating other possible causes.
Id. Like the experts in Ringley and Briner, Peterson identified a phenomenon  skip lock  as the cause of the plaintiff's injuries. He outlined numerous possible problems with the restraint system which may have caused skip lock. However, he refused to isolate any of those potential defects as a probable cause of skip lock. The plaintiff's proof was simply insufficient to tilt the balance from possibility to probability. Id.
Even if Peterson's testimony had identified a defect as the probable cause of skip lock, the plaintiff failed to present any proof supporting two crucial elements of his prima facie case. As acknowledged in his response to the defendant's motion, Gray argues not that a defect caused the accident but that a defect caused enhanced injuries. Such an argument constitutes a *535 crashworthiness claim. O'Bryan v. Volkswagen of America, 39 F.3d 1182, 1994 WL 599450 (6th Cir.1994) (unpublished).[2] "In crashworthiness caves, courts deny recovery unless the plaintiff establishes, by competent expert testimony, that the defect was responsible to some degree for enhancement of injury to the plaintiff. The plaintiff's proof in such cases must include competent evidence of some practicable, feasible, safer, alternative design." Id. at *4. Thus, Gray was required to submit to the jury evidence that he would have suffered a lesser injury had skip lock not occurred and that a practicable, feasible, safer, alternative design existed which would have prevented skip lock. Gray presented no proof of either element.
The plaintiff presented no testimony suggesting that Gray's injuries would have been less severe had the seat belt held him within the vehicle during the collision. Moreover, no evidence was presented regarding an alternative design for the restraint system. In fact, the court expressly precluded such testimony because Peterson had not previously identified any safer alternative designs despite interrogatories requesting such information.[3]
The plaintiff claims that because the restraint system did not operate as he reasonably expected, he need not submit proof of an alternative design or of the level of injuries he would have incurred had he been restrained. Relying on Worldwide Equip., Inc. v. Mullins, 11 S.W.3d 50, 55 (Ky.App.1999), Gray claims that he need only prove that the restraint system did "not meet the reasonable expectations of the ordinary consumer as to its safety." In Kentucky, the consumer expectations test does not apply to design defect cases. Hill v. R.J. Reynolds Tobacco Co., 44 F.Supp.2d 837, 842 (W.D.Ky. 1999); Nichols v. Union Underwear Co., Inc., 602 S.W.2d 429, 432 (Ky.1980). Even if the test were applicable, the reasonableness *536 of a defect presupposes the identification of a defect. Here, the plaintiff failed to identify any aspect of the restraint system as a probable cause of skip lock. The consumer expectations test does not relieve the plaintiff of the obligation to identify a "provable defect" as the probable cause of his injuries. Ulrich v. Kasco Abrasives Co., 532 S.W.2d 197, 199 (Ky. 1976).
Because there exists a complete absence of proof on several material issues, the defendant's motion for judgment as a matter of law must be granted under Fed. R.Civ.P. 50(b). A new trial of this case is inappropriate because no evidence suggests "that the defect in the proof might be remedied on a second trial." Network Publications, Inc. v. Ellis Graphics Corp., 959 F.2d 212, 214 (11th Cir.1992). Furthermore, the evidence lacking in this case was not excluded by any error of the court. Id.

ORDER
For the reasons stated above, IT IS ORDERED that the defendant's motion for judgment as a matter of law is GRANTED.
IT IS FURTHER ORDERED that the plaintiff's motion for a new trial on damages is DENIED AS MOOT.
IT IS FURTHER ORDERED that the counterclaimant's motion to amend this court's judgment and order is DENIED AS MOOT.
NOTES
[1]  The defendant states that the jury's liability verdict conflicted with evidence that Gray was not wearing a seatbelt at the time of the accident. However, the jury apparently concluded, in the fact of conflicting evidence, that he was wearing the seatbelt.
[2]  The plaintiff contends that O'Bryan is inapplicable because it is an unpublished decision. However, citation to an unpublished authority is "allowed where the facts of an unpublished case are similar to those of the case at bar and the reasoning of the unpublished opinion is sound." Frilling v. Honda of America Mfg., Inc., 101 F.Supp.2d 841, 847 (S.D.Ohio 1998). The court also notes that the O'Bryan court's holding relied heavily upon previously published Kentucky cases.
[3]  COURT: All right. All right. Now, what's your objection then to his testifying about it?
MR. MANGANELLO: Because now he's going to start proffering testimony about features that he has never discussed before, pretensioners, web grabbers, substantive designs. I have asked six times what features he was talking about in the alternative designed.
THE COURT: And this is
MR. MANGANELLO: And he never identified it.
THE COURT: This is what you have just given me?
MR. MANGANELLO: Yes ma'am. And if you look  if you look at the interrogatory number 33.
THE COURT: All right. I have that right here.
....
MR. MANGANELLO: Set forth with particularity the alternative designs of the parts that, da-da-da-da. This will be furnished shortly. Never got a supplement.
THE COURT: Okay.
....
THE COURT: All right. Ms. Robinson, any response to that? I will say generally your expert is limited to what he has already said. The supplementation deadline has come and gone and he's limited to what he's already said.
....
THE COURT: Well, have you any indication  The objection is, he's way outside the scope of his opinion under Rule 26. And have you any indication that Mr. Peterson before today has ever talked about the alternative designs in Europe?
MS. ROBINSON: The only thing I can say, Your Honor, is in this affidavit that was furnished to them on January 18th of 1999, he stated: GM offered belt systems on their vehicles produced in Europe and Australia before this vehicle was manufactured that would have properly restrained Mr. Gray.
THE COURT: Then that's  is that all he says there?
MS. ROBINSON: That's all he says. He does not describe the alternative design.
THE COURT: Then that's all he can do here.


427 So.2d 1069 (1983)
Andre Michael WILDING, Appellant,
v.
STATE of Florida, Appellee.
No. 81-1717.
District Court of Appeal of Florida, Second District.
March 11, 1983.
Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for appellee.
SCHOONOVER, Judge.
The appellant, Andre Michael Wilding, has appealed his conviction for obtaining property in return for a worthless check. We find that the trial court committed error during the jury selection process and accordingly reverse and remand for a new trial.
During the voir dire examination of prospective jurors, one juror stated that he would try to listen to the testimony presented during the trial and be fair and impartial, but he had some knowledge of previous charges against the appellant. The appellant's attorney immediately challenged the entire jury panel by moving for mistrial. The motion was denied.
The trial court's failure to grant the appellant's motion resulted in the appellant being tried by a jury which had improperly obtained knowledge of other charges against him. Both the Florida Constitution and the Florida Rules of Criminal Procedure provide that an accused has the right to an impartial jury. Fla. Const. art. I, § 16; Fla.R.Crim.P. 3.251. The appellant was deprived of this right because the jury panel was bound to be unfairly prejudiced by virtue of their knowledge of his arrest for another crime. Marrero v. State, 343 So.2d 883 (Fla. 2d DCA 1977).
Subject to certain exceptions which are not applicable in the case sub judice, it is error for a witness to testify concerning a defendant's arrest for unrelated crimes. Clark v. State, 337 So.2d 858 (Fla. 2d DCA 1976); Whitehead v. State, 279 So.2d 99 (Fla. 2d DCA 1973); § 90.404(2)(a), Fla. *1070 Stat. (1981). Additionally, we have held that even in the absence of direct testimony by a witness, it was error to allow the admission of "mug shots" into evidence because they constituted an impermissible reference to the defendant's prior arrest record. Whitehead v. State.
It is true that the information imparted to the jury by the prospective juror was received by them prior to the commencement of the state's case. However, the prejudice to the appellant is almost as certain to be as great, if not greater, when the information is received in this manner rather than when it is a part of the prosecution's evidence and subject to protective procedures. We accordingly hold that an accused's right to a fair and impartial jury is violated when a jury is improperly made aware of a defendant's arrest for unrelated crimes either during the jury selection process or during the trial proper.
Reversed and remanded for a new trial.
HOBSON, Acting C.J., and LEHAN, J., concur.


                               Fourth Court of Appeals
                                       San Antonio, Texas
                                               July 18, 2017

                                           No. 04-17-00315-CV

                                        IN RE John J. ROCKEY

                                    Original Mandamus Proceeding1

                                                  ORDER

Sitting:         Sandee Bryan Marion, Chief Justice
                 Rebeca C. Martinez, Justice
                 Marialyn Barnard, Justice

       On May 15, 2017, Relator filed a petition for writ of mandamus. This court is of the
opinion that a serious question concerning the mandamus relief sought requires further
consideration. See TEX. R. APP. P. 52.8(b). The respondent and the real parties in interest
may file a response to the petition in this court no later than August 2, 2017. Any such
response must conform to Texas Rule of Appellate Procedure 52.4.

           It is so ORDERED on July 18, 2017.

                                                       PER CURIAM

           ATTESTED TO: _____________________________
                        Luz Estrada, Chief Deputy Clerk

1
 This proceeding arises out of Cause No. 2016-CI-19967, styled John J. Rockey v. Mubeena Rockey, pending in the
37th Judicial District Court, Bexar County, Texas, the Honorable Martha B. Tanner presiding.


115 Ga. App. 256 (1967)
154 S.E.2d 653
BERRY
v.
DINSMORE.
42230.
Court of Appeals of Georgia.
Argued September 6, 1966.
Decided February 17, 1967.
Wilson, Branch, Barwick & Wilcox, Thomas S. Bentley, John E. Talmadge, for appellant.
*259 Powell, Goldstein, Frazer & Murphy, Eugene G. Partain, Spearman, Bynum & Goodwin, W. L. Spearman, for appellee.
JORDAN, Judge.
1. Plaintiff brought this suit to recover for personal injuries sustained when the defendant's vehicle allegedly struck her as she walked along a sidewalk at the entrance to a parking lot. Plaintiff sought damages in the amount of $42,500 and after verdict in her favor in the amount of $1,761 she moved for a new trial which was denied. Ground 2 of the amended motion complains that the trial court erred *257 in admitting the testimony of a witness that "maybe ten minutes" after the accident the defendant told him that "he said he did not feel her. He didn't think he had hit her."
The self-serving declaration of a party is not admissible in evidence unless it is a part of the res gestae or comes within some other exception to this general rule. Denton v. Etheridge, 73 Ga. App. 221 (3) (36 SE2d 365). Under the circumstances surrounding this statement, we do not think it was a part of the res gestae. While the mere question of lapse of time is not controlling, the real test is: Was the declaration a part of the occurrence to which it related, or a mere narrative concerning something which had fully taken place and had therefore become a thing of the past? Western & A. R. Co. v. Beason, 112 Ga. 553, 557 (37 SE 863). In the absence of injury or shock to the party making the statement and with it coming some 10 minutes after the incident, this statement does not meet the test of an "excited utterance" so as to bring it within the res gestae but was a mere narrative explaining his version of what had fully taken place and become a "thing of the past."
Counsel for defendant further contends the statement was admissible for the purpose of impeaching the testimony of a witness for the plaintiff who said the defendant told him soon after the accident that "I hit her, I didn't see her, the sun was in my eyes." An examination of the testimony of this witness in the transcript reveals that he did not quote the defendant as having said that he hit the plaintiff but only "he was sorry that it happened, he said he didn't see her because the sun was in his eyes." Since there was no contradiction in the testimony of the two witnesses, the statement under consideration was not admissible for the purpose of impeachment.
Counsel for defendant further contends that even if such self-serving declaration was improperly admitted, it was harmless error since the jury rendered a verdict in favor of the plaintiff. It is true that an error of law relating solely to the defendant's liability is rendered harmless by a verdict for the plaintiff, unless it was such as might have influenced the jury to reduce the amount that the plaintiff was entitled to recover. Brown v. Service Coach Lines, 71 Ga. App. 437 (8) (31 SE2d 236), citing O'Quinn v. Douglas, A. & G. R. Co., 7 Ga. App. 309 (66 SE 810). We think the self-serving *258 declaration here under consideration relates not only to the defendant's liability but if believed by the jury would tend to mitigate the amount of damages she was entitled to recover. In view of the court's charge on contributory negligence and comparative negligence, the jury might well have concluded that the plaintiff was merely frightened and that her injuries were partially her fault in attempting to avoid the defendant's negligence, thereby reducing her damages under the comparative negligence rule.
We conclude that the testimony did not come within any exception to the rule against its admissibility and that the trial court erred in admitting this testimony.
2. The trial court did not err in admitting certain evidence over plaintiff's objection that the evidence was "irrelevant and immaterial"; this objection was too general to present anything for consideration. Greyhound Bus Corp. v. Clough, 211 Ga. 574 (2) (87 SE2d 387); Lanier v. Lee, 111 Ga. App. 876 (1) (143 SE2d 487).
3. There are two reasons why this court cannot consider the enumeration of error in the admission of certain documentary evidence over plaintiff's objections: (a) No documentary evidence or description of documentary evidence is included in the transcript of proceedings transmitted with the record to this court. The clerk of the trial court has certified that the record transmitted "all together constitutes the entire record on appeal, as appears from the files and records in this office." In view of this certificate the presumption is that no documentary evidence was admitted. (b) If, however, as a matter of fact documentary evidence of this nature was admitted the plaintiff has failed to furnish a transcript including the evidence. See Davis v. Davis, 222 Ga. 579 (151 SE2d 123); Avera v. G. A. C. Finance Corp., 113 Ga. App. 509 (148 SE2d 662); Adams v. Chapman, 115 Ga. App. 7.
Judgment reversed. Eberhardt, J., concurs. Hall, J., concurs in Divisions 1 and 2 and in the judgment.


MEMORANDUM DECISION                                                         FILED
                                                                       May 24 2018, 7:05 am
Pursuant to Ind. Appellate Rule 65(D),                                      CLERK
this Memorandum Decision shall not be                                   Indiana Supreme Court
                                                                           Court of Appeals
regarded as precedent or cited before any                                    and Tax Court

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Rory Gallagher                                          Curtis T. Hill, Jr.
Marion County Public Defender                           Attorney General of Indiana
Indianapolis, Indiana
                                                        Matthew B. Mackenzie
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana

                                          IN THE
    COURT OF APPEALS OF INDIANA

John Lee Couch,                                         May 24, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1711-CR-2655
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable David Hooper,
Appellee-Plaintiff.                                     Magistrate
                                                        Trial Court Cause No.
                                                        49G12-1706-CM-23110

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2655 | May 24, 2018             Page 1 of 8
                                        Statement of the Case
[1]   John Lee Couch (“Couch”) appeals the trial court’s restitution order entered

      following his conviction for Class B misdemeanor criminal mischief1 and Class

      B misdemeanor disorderly conduct.2 Couch argues that the trial court erred by

      ordering him to pay $144.00 in restitution to the victim, contending that the

      amount of restitution was based on insufficient evidence. Because Couch

      specifically agreed that $144.00 was the amount of restitution, he invited any

      alleged error with the restitution order and has waived his appellate challenge to

      restitution.

[2]   We affirm.

                                                      Issue
                 Whether the trial court erred by ordering Couch to pay $144.00 in
                 restitution to the victim.

                                                      Facts
[3]   On June 21, 2017, Couch was injured in a car accident and taken by ambulance

      to the emergency room (“ER”) at Eskenazi Hospital (“Eskenazi”). When

      Couch arrived at Eskenazi, he was strapped to a backboard and had a C-collar

      around his neck. An ER nurse, Rachel Thomas (“Nurse Thomas”), took

      Couch from the EMTs, put him into an ER room, and performed an initial

      1
       IND. CODE § 35-43-1-2(a). This statute was subsequently amended after the commission of Couch’s offense,
      and an amended version of the statute will become effective on July 1, 2018.
      2
          I.C. § 35-45-1-3(a)(2).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2655 | May 24, 2018           Page 2 of 8
assessment. Nurse Thomas noted that Couch was “a little anxious” and that he

seemed “ready to . . . get off that board and out of that C-collar.” (Tr. Vol. 2 at

9). Nurse Thomas told Couch that a doctor would come to see him, and she

then left the room. Shortly thereafter, Nurse Thomas heard a “loud bang”

coming from Couch’s room. (Tr. Vol. 2 at 9). Nurse Thomas went back into

the room, where she saw that the call light had been ripped from the wall and

that a suction unit had been broken off the wall. Couch was “very agitated,

cussing, yelling, [and] calling names.” (Tr. Vol. 2 at 10). Couch demanded

“treatment right away” and stated that he was going to leave and find another

hospital. (Tr. Vol. 2 at 10). Nurse Thomas assured Couch that a doctor would

soon see him and called for security. The security officer told Couch that he

could not destroy hospital property and that he needed to calm down and

remain quiet. The security officer also informed Couch that a doctor would

soon see him. After Nurse Thomas and the security officer left the room,

Couch loudly and “continually” yelled and cussed. (Tr. Vol. 2 at 17). After

Couch was treated and discharged, the security officer went to talk to Couch,

who tried to walk away. Couch yelled and made “a loud scene” and was

eventually arrested. (Tr. Vol. 2 at 28). Couch admitted to the security officer

that he had “broke the stuff off the wall[.]” (Tr. Vol. 2 at 28).

Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2655 | May 24, 2018   Page 3 of 8
[4]   The State charged Couch with Class B misdemeanor criminal mischief and two

      counts of Class B misdemeanor disorderly conduct.3 In October 2017, the trial

      court held a bench trial, during which Couch testified and denied that he had

      told the security officer that he had broken anything. The trial court found

      Couch guilty of Class B misdemeanor criminal mischief and one count of Class

      B misdemeanor disorderly conduct, and it found him not guilty of the other

      Class B misdemeanor disorderly conduct charge. 4 Per the State’s request, the

      trial court set the sentencing hearing out one week so that the State could obtain

      “the exact cost of the suction unit . . . to include . . . as part of the restitution.”

      (Tr. Vol. 2 at 41).

[5]   During the subsequent sentencing hearing, the following exchange occurred

      regarding restitution:

                 THE COURT: Remind me why we kicked [the sentencing
                 hearing] out. Was it restitution?

                 [THE STATE]: The restitution. We were trying to get the exact
                 amount of the suction device that was broken.

                 THE COURT: Oh, yes. Any witnesses here, or any agreements?

                 [THE STATE]: We have a receipt for $144.

                 THE COURT: Do you agree with that?

      3
        One count alleged that Couch had made an unreasonable noise and continued to do so after being asked to
      stop, see INDIANA CODE § 35-45-1-3(a)(2), and the other count alleged that he had engaged in fighting or
      tumultuous conduct. See I.C. § 35-45-1-3(a)(1).
      4
          The trial court found him guilty of the disorderly conduct charge relating to making an unreasonable noise.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2655 | May 24, 2018                 Page 4 of 8
        [COUCH’S ATTORNEY]: Judge, I don’t have any reason to
        dispute the receipt, no.

        THE COURT: Okay. Because I’ve been reversed on this stuff. I
        need you to either continue it, or you agree to it, we have a
        hearing, I mean. You don’t dispute it, which means what? I
        know he can’t agree because he thinks he – he wants to maintain
        his innocence.

        [COUCH’S ATTORNEY]: Right. Can I speak to my client just
        briefly?

        THE COURT: Yeah. I guess, “we’re not disputing restitution”
        type of saying might cover you?

        [COUCH’S ATTORNEY]: I think that’s accurate. We are not
        disputing the amount of restitution.

(Tr. Vol. 2 at 42-43). Thereafter, the trial court moved to sentencing

recommendations. The State argued that the trial court should order Couch to

do forty hours of community service and asked the court to enter a restitution

order for $144.00. Couch’s counsel responded, “Judge, we agreed upon the

restitution in the amount of $144” and then stated that “[f]or that reason, . . . I

think fewer hours of community service would be appropriate.” (Tr. Vol. 2 at

44). For each of Couch’s convictions, the trial court imposed a one hundred

and eighty (180) day suspended sentence, and it ordered that these sentences be

served concurrently. The trial court also ordered Couch to pay $144.00 in

restitution to Eskenazi and to do twenty-four hours of community service.

Couch now appeals.

Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2655 | May 24, 2018   Page 5 of 8
                                                     Decision
[6]   Couch argues that the trial court erred by ordering him to pay $144.00 in

      restitution.5 “[A] trial court has the authority to order a defendant convicted of

      a crime to make restitution to the victim[] of the crime.” Henderson v. State, 848

      N.E.2d 341, 345 (Ind. Ct. App. 2006) (citing IND. CODE § 35-50-5-3). “The

      principal purpose of restitution is to vindicate the rights of society and to

      impress upon the defendant the magnitude of the loss the crime has caused.”

      Pearson v. State, 883 N.E.2d 770, 772 (Ind. 2008), reh’g denied. “Restitution also

      serves to compensate the offender’s victim.” Id. When a victim has incurred

      property damage as a result of a defendant’s crime, the trial court’s restitution

      order will be “based on the actual cost of repair (or replacement if repair is

      inappropriate)[.]” I.C. § 35-50-5-3(a)(1). “The amount of a victim’s loss is

      a factual matter that can be determined only on presentation of evidence.”

      Smith v. State, 990 N.E.2d 517, 520 (Ind. Ct. App. 2013), trans. denied. An order

      of restitution lies within the trial court’s discretion and will be reversed only

      where there has been an abuse of discretion. Kays v. State, 963 N.E.2d 507, 509

      (Ind. 2012). A trial court abuses its discretion when its decision is clearly

      against the logic and effect of the facts and circumstances or when the trial

      5
        Couch, acknowledging that he did not object to restitution during sentencing, argues that the trial court
      committed fundamental error by ordering him to pay $144.00 in restitution. The State contends that Couch’s
      lack of objection results in waiver of his argument on appeal. Generally, the failure to object to an award of
      restitution will result in waiver of an appellate challenge to the award; however, we note that our Court has
      “emphasized this Court’s preference for reviewing a trial court’s restitution order even absent an objection by
      the defendant.” See C.H. v. State, 15 N.E.3d 1086, 1095-97 (Ind. Ct. App. 2014).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2655 | May 24, 2018                Page 6 of 8
      court has misinterpreted the law. Gil v. State, 988 N.E.2d 1231, 1234 (Ind. Ct.

      App. 2013).

[7]   Couch contends that the amount of restitution was based on insufficient

      evidence because the State did not offer the receipt for the requested restitution

      of $144.00 as an exhibit during the sentencing hearing. The State responds that

      Couch’s “argument that the State failed to present sufficient evidence proving

      the loss sustained ignores the fact that [Couch] agreed to the accuracy of the

      amount, thereby relieving the State of any need to prove it.” (State’s Br. 9).

      The State further asserts that Couch “cannot tell the State [that] he does not

      dispute the amount and then turn around on appeal and complain that the State

      did not present the evidence he said was unnecessary.” (State’s Br. 9). We

      agree with the State.

[8]   Here, during the sentencing hearing, the State sought restitution for the suction

      device that Couch had broken at Eskenazi. The State indicated that it had a

      receipt for $144.00, and Couch stated that he was “not disputing the amount of

      restitution.” (Tr. Vol. 2 at 43). When making a sentencing argument, Couch

      referred to his stipulation as a means to argue for lesser hours of community

      service. Specifically, his counsel stated, “Judge, we agreed upon the restitution

      in the amount of $144” and “[f]or that reason, . . . I think fewer hours of

      community service would be appropriate.” (Tr. Vol. 2 at 44).

[9]   Despite his agreement regarding the amount of restitution, Couch now attempts

      to argue on appeal that there is insufficient evidence to support the restitution

      Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2655 | May 24, 2018   Page 7 of 8
       amount ordered by the trial court. We reject his argument because of invited

       error. A defendant “cannot invite error and then request relief on appeal based

       upon that ground[.]” Mitchell v. State, 730 N.E.2d 197, 201 (Ind. Ct. App.

       2000), trans. denied. Invited error is not reversible error. C.H. v. State, 15 N.E.3d

       1086, 1097 (Ind. Ct. App. 2014), trans. denied. Because Couch agreed to the

       amount of restitution, he invited any alleged error and waived his argument

       that there is insufficient evidence to support the restitution amount. See, e.g.,

       C.H., 15 N.E.3d at 1097 (holding that the appellant’s restitution argument was

       waived where he had invited any error regarding restitution); Mitchell, 730

       N.E.2d at 201 (providing that the defendant had waived his appellate challenge

       to the trial court’s restitution order because he had invited the error alleged).

[10]   Affirmed.

       Vaidik, C.J., and Barnes, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2655 | May 24, 2018   Page 8 of 8


451 F.2d 992
71-2 USTC  P 9756
Lloyd F. NOONAN et al., Appellants,v.COMMISSIONER OF INTERNAL REVENUE, Appellee.SANTA FE HOMES, INC., Cross-Appellee,v.COMMISSIONER OF INTERNAL REVENUE, Cross-Appellant.
Nos. 25730-25732 and 25784.
United States Court of Appeals,Ninth Circuit.
Nov. 15, 1971.Rehearing Denied Dec. 23, 1971.

Robert H. Walker (argued), Oakland, Cal., for Lloyd F. Noonan, Santa Fe Homes, Inc., and others.
William Hogan (argued), K. Martin Worthy, Chief Counsel, Internal Revenue, Johnnie Walters, Asst. Atty. Gen., Washington, D. C., for the C. I. R.
Before ELY and TRASK, Circuit Judges, and McNICHOLS, District Judge.*
PER CURIAM:

1
The taxpayers challenge a decision of the Tax Court, reported at 52 T.C. 907 (1969).  The Commissioner has taken a cross-appeal "solely to protect the Government's right to collect additional taxes from the corporation should this Court reverse the Tax Court's decisions * * *."

2
Four corporations were limited partners in a partnership of which Lloyd Noonan and Wilfred Winkenbach were general partners.  Noonan was the sole shareholder in two of the corporations and Winkenbach owned all of the shares of the other two.1  The Tax Court concluded that the partnership income attributed to the four corporations was properly taxable to the individual taxpayers.  This conclusion rested upon the determination that the corporations served no real business purpose, earned no income, and, for federal income tax purposes, should be disregarded.

3
Our court has held that the critical issue in a case such as this is a factual issue.  Shaw Construction Company v. C. I. R., 323 F.2d 316 (9th Cir. 1963).

4
"The issues in this case-whether the multiple corporations were unreal shams, serving no real business purpose and earning no income, and whether the income in question was in reality produced and earned, not by the multiple corporate holders of legal title, but by petitioner, Shaw Construction Company-are issues of fact."

5
323 F.2d at 321.

6
In the case at hand, there was evidence that the four corporations paid no dividends, had no employees, maintained no telephones, telephone listings, or separate business addresses, and engaged in no substantive business activities.  In the light of these facts, we cannot say that the critical factual determination of the Tax Court was without substantial evidentiary support.

7
Affirmed.

*
 Honorable Ray McNichols, United States District Judge, Boise, Idaho, sitting by designation

1
 The wives of Noonan and Winkenbach are parties litigant only because of their having joined their respective husbands in the filing of the tax returns in question