          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION ONE

 THE STATE OF WASHINGTON                          No. 77639-8-I

                              Respondent,

               v.                                 UNPUBLISHED OPINION

 KRISTOPHER KEITH GREENING,

                             Appellant.           FILED: June 3, 2019

       SCHINDLER,   J.   —   A jury convicted Kristopher Keith Greening of one count of rape

of a child in the first degree. Greening seeks reversal, arguing insufficient evidence

supports the conviction and the court erred in denying his motion to exclude his

admission and testimony that he engaged in anal sex. We affirm.

                                             FACTS

       Beginning in August 2010, Kristopher Keith Greening lived with J.F. and her four

minor children in Mount Vernon. They moved from Mount Vernon to Sedro Woolley, to

the “Chinook house” in Birch Bay, and then to Blame. Greening, J.F., and the children

lived in the Chinook house between July 2014 and December 2014 and in the Blame

house between January 2015 and October 2015.
 No. 77639-8-1/2

       Greening and J.F. worked long hours with unpredictable schedules. J.F. worked

three jobs, leaving home early in the morning and not returning until late at night.

Greening worked on a rotating schedule and spent time alone with the children.

       In early October 2015, 11-year-old A.C. spent the night at her friend R.F.’s

house. A.C. told R.F. that Greening raped her “in the back area” but not “in the front.”

A.C. asked R.F. not to tell anyone about the rape because she was “scared.”

       On Monday, October 5, R.F. told A.C.’s best friend J.B. that A.C. said Greening

raped her. When J.B. asked A.C. if “it was true,” A.C. started crying. That day after

school, J.B. told her father. J.B.’s father immediately called J.F.

       J.F. took A.C. to PeaceHealth St. Joseph Medical Center that day. A sexual

assault nurse examined A.C. During the approximately 90-minute examination, A.C.

told the nurse that “within the last week some time,” Greening “touched her under” her

clothes in her “butt.” A.C. told the nurse “this had been going on” for “years” and

sometimes “it hurts.” Because there was no physical evidence, the nurse referred A.C.

to a forensic interviewer at Brigid Collins Family Support Center.

       Brigid Collins child forensic interviewer Gayle Tierney met with A.C. and

Whatcom County Sheriff’s Detective Julie Baker. Tierney videotaped the interview.

Using open-ended and nonsuggestive questions, Tierney interviewed A.C. for

approximately 45 minutes. A.C. had “a very difficult time” during the interview and did

not want to talk in detail about the sexual assault. Nonetheless, Tierney concluded A.C.

had been raped on multiple occasions.

      On October 11,2015, Blame Police Detective John Landis spoke with J.B. by

telephone and interviewed J.F. and A.C.’s other friend R.F.

                                             2
No. 77639-8-113

       Detective Landis arrested Greening. During a 40- to 45-minute interview,

Greening was “very talkative, very open.” Greening told Detective Landis about his

relationship with J.F. and that “things weren’t going as well” in the last year. Greening

admitted he “had anal sex with” J.F. Greening told Detective Landis he felt “closest

with” A.C. and he often “cuddled” with her. When Detective Landis told Greening that

A.C. said he raped her, Greening “got quiet” and “closed down.”

       On October 19, 2015, the State charged Greening with rape of a child in the first

degree that occurred between January 1, 2015 and October 6, 2015, count 1; and rape

of a child in the first degree that occurred between June 1,2014 and January 1, 2015,

count 2. Greening pleaded not guilty.

       Pretrial, Greening moved to exclude any testimony that he engaged in anal sex.

The court denied the motion.

       During the five-day jury trial, the State called a number of witnesses to testify,

including A.C., her mother J.F., her friends J.B. and R.F., the St. Joseph sexual assault

nurse examiner, Brigid Collins forensic interviewer Tierney, and Detective Landis.

      Thirteen-year-old A.C. testified that Greening anally raped her one to three times

a week for multiple years. However, A.C. testified about two specific times Greening

anally raped her.

      A.C. testified that the “last time” Greening anally raped her was during the 2015

school year. A.C. testified that the rape occurred while she and her two younger

siblings were watching the movie Madagascar at the Blame house with Greening. A.C.

                                             3
No. 77639-8-114

said the living room was dark except for the light from the television and she and

Greening were together on a couch under a blanket.

          Q.    Were you cuddling at this time?
          A.    Yeah.
          Q.    And when you are in that position on the couch, were you facing
                 [Greening] or facing away from [Greening]?
       A.       Away.
       Q.       Was [Greening] facing away from you or toward you?
       A.       Towards.
       Q.       Tell us what happened.
       A.       [Greening], um, what do you mean exactly?
       Q.       Well, you told us that he raped you.
       A.       Yes.
       Q.       And you told us that he     — and you are drawing us a picture and
                telling us how it happened. Could you tell us how the rape
                happened?
      A.        He pulled down my pants a little bit and yeah.
      Q.        And what?
                        Is this hard for you?
      A.        (Witness nods).
      Q.        It’s okay. We can take some time. Pulled down your pants and
                what happened?
      A.        He touched me in inappropriate places.

      Q.        .   Can you tell me where he touched you?
                    .   .

      A.        My butt.
      Q.        What did he touch you with?
      A.        His privates.
      Q.        Okay. When you say “privates”, what do you mean?
      A.        Um, his penis.
      Q.        Okay. Did he touch you on the inside or outside of your butt?
      A.        On the inside.

      A.C. testified she was “too scared” to move. A.C. said the rape did not last “for

very long” and neither one of them “ma[d]e any noise.” A.C. testified her younger

brother was watching the movie while sitting on a different section of the couch and her

younger sister was watching the movie while sitting in a chair.1 A.C. drew a diagram for

      1   In October 2015, AC’s younger sister and brother were six and seven years old.

                                                   4
No. 77639-8-1/5

the jury of the living room and marked the location of the furniture and where each

individual was sitting.

       AC. testified that during a weekend sleepover with R.F., they “were sharing a

bunch of secrets” and she told R.F. that Greening “was physically abusing me.” A.C.

told R.F. that Greening “raped me” and “[i]t was all in the back area.” A.C. said R.F.

“started crying” and “I cried with her.” A.C. told R.F. not to tell anyone because she was

“scared” Greening “would come after me or something.”

       During cross-examination, A.C. testified about additional details of the rape at the

Blame house.

       Q.     Okay. So the way I see t here, and I guess first of all I ask, were
              you sitting or were you laying down?
      A.      I was laying down.
      Q.      You were laying down?
      A.      Uh-huh.
      Q.      And on your side, on your back, on your front?
      A.      On my side.
      Q.      On your side. And you were fully clothed?
      A.      Yes.
      Q.      What does that mean?
      A.      It means shirt, underwear, pants.
      Q.      Jeans?
      A.      Um, normally or probably something comfortable because I didn’t
              like jeans at the time.
      Q.      Sweats?
      A.      Yeah, sweats or yoga pants, something like that.
      Q.      Or what?
      A.      Yoga pants.
      Q.      Okay. Were you wearing underwear?
      A.      Yes.
      Q.      Okay. And, um, in that picture there that you have marked, you
              have [Greening] right next to you or behind you, I’m trying to
              understand, where was he sitting?
      A.      He was laying down and he was right behind me.
      Q.      So he was laying down behind you?
      A.      Yes.
      Q.      And you were laying down in front of him?
      A.      Yes.

                                            5
No. 77639-8-1/6

        Q.     Was his head where your head would be?
        A.     Yes.
        Q.     It wasn’t like the opposite where his head was at your feet?
        A.     His head was next to mine.

        A.C. testified she could not remember as much about the rape at the Chinook

house because it happened “many, many months earlier.”

        Q.    Do you recall another time that this did happen that you can
              describe for us?
        A.    Um, I can’t describe very well but I sort of remember another time.

        A.C. said Greening asked her to sit on the couch and “read with him.”

       Q.     Okay. Can you tell us what happened?
       A.     Urn, so he asked me to read with him so we sat on the couch and I
              read to him.
       Q.     Was it the same couch?
       A.     No. It was a different house and different couch.
       Q.     Okay. All right. So, you are reading with him on the couch. Were
              you getting close with him?
       A.     Yes.
       Q.     Cuddling?
       A.     Yes.
       Q.     Okay. And could you tell us about the position with you and him?
       A.     We were laying down.
       Q.     Laying down?
       A.     Uh-huh.
       Q.     Were you facing toward him or away from him?
       A.     Away.
       Q.     Was he facing toward you or away from you?
       A.     Towards.
       Q.     Can you tell us what happened?
       A.     He did the exact same thing as the last story.

A.C. testified that when Greening raped her, “[i]t was scary” and she felt physical pain in

her “butt.”

       R.F. testified that during the weekend sleepover, A.C. told her “a lot of details”

about Greening raping her. R.F. testified that A.C. told her Greening raped her “in the

back area.” R.F. testified that when A.C. first talked about the rape, A.C.’s “face was

                                             6
No. 77639-8-1/7

sad” but her voice was “very angry.” R.F. said that when “we started discussing it

more,” they both were crying. R.F. testified that after the sleepover, they did not discuss

the rape “because she didn’t want to because it was not     —   she didn’t feel very good

about it.” RE. testified she told their friend J.B. about the rape at school on Monday.

        Detective Landis testified that Greening said he and J.F. engaged in anal sex.

Greening told Detective Landis he had a very “close” relationship with AC.

        Q.       Okay. And did you ever ask [Greening] about any sexual
                 relationships that he had with [J.F.]?
       A.        Yes.
       Q.        And what did he indicate to you?
       A.        He indicated that he had anal sex with [J.F.].
       Q.        And did you ask about any of the relationships with the children?
       A.        I did.
       Q.        And what was his response?
       A.        He talked about he was close with the kids, ah, and taking care of
                 them, ah, urn, but the closest one he was with was with [AC.].

       Greening testified. Greening adamantly denied ever having sexual intercourse

with AC. or being sexually aroused by her. Greening testified that while watching “a

cartoon” at the Blame house, he sat on the couch “cuddling with [AC.] and [her younger

sister], one on each side” of him. Greening testified he did not “recall a blanket” but

admitted, “That was one thing we did on movie nights is, like, when we’re watching a

movie you’re allowed to go grab your own blanket, your own pillow.”

       Greening testified he was “shocked” when he “heard about these allegations.”

According to Greening, A.C. “was very angry with me” and “[a] lot of it had to do with

ground in gs.”

                                              7
No. 77639-8-1/8

       Greening said J.F. consented to having anal sex with him during their

relationship.

                Q   Okay. You were in a romantic relationship      —

                A   Yes, sir.
                Q   —withJ.F.?
                A   Uh-huh.
                Q   Did you have sexual relations with her?
                A   Yes, sir.
                Q   [J.F.J?
                A   Idid.
                Q   And could you describe that to the jury, please?
                A   We were very intimate. Both actually very sexually active
       people.
              Q There’s been testimony by [Detective] Landis that you said
       that you had had anal sex with her?
              A That has happened.
              Q With [J.F.]?
              A Yes, sir.
              Q And was that consensual?
              A Yes, it was. It was one of those things that had been agreed
       by both parties.

Greening denied preferring only anal intercourse.

       Two defense witnesses testified that during the interviews with A.C., she did not

say that Greening raped her multiple times per week.

       In rebuttal, J.F. testified that during the last five months of her relationship with

Greening, they engaged in only anal intercourse. J.F. said that although she

consented, Greening was the person who “asked for or desired” that type of intercourse.

J.F. testified that she never talked to A.C. or any of her children about sex with

Greening.

       The jury convicted Greening of rape of a child in the first degree between

January 1 and October 6, 2015, count 1. The jury found Greening not guilty of rape of a

child in the first degree between June 1,2014 and January 1,2015, count 2.

                                              8
No. 77639-8-1/9

                                         ANALYSIS

       Greening seeks reversal, arguing (1) insufficient evidence supports his conviction

of rape of child in the first degree and (2) the court erred in denying his motion in limine

to exclude testimony that he engaged in anal sex.

1. Sufficiency of the Evidence
       Greening asserts sufficient evidence does not support his conviction of rape of a

child in the first degree.

       Evidence is sufficient to support a conviction if any rational trier of fact could have

found the essential elements of the crime charged beyond a reasonable doubt. State v.

Johnson, 188 Wn.2d 742, 750-51, 399 P.3d 507 (2017). A challenge to the sufficiency

of the evidence admits the truth of the State’s evidence. State v. Witherspoon, 180

Wn.2d 875, 883, 329 P.3d 888 (2014). “[AJIl reasonable inferences from the evidence

must be drawn in favor of the State and interpreted most strongly against the

defendant.” Statev. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992); Jacksonv.

Virginia, 443 U.S. 307, 319, 99S. Ct. 2781, 61 L. Ed. 2d 560 (1979). In determining

sufficiency, circumstantial evidence is no less reliable than direct evidence. State v.

Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the trier of fact on

“issues of witness credibility.” Witherspoon, 180 Wn.2d at 883.

       The State has the burden to prove every element of the crime charged beyond a

reasonable doubt. U.S. CONST. amend. XIV; WASH. CONST. art. I,        § 3; In re Winship,
397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). “[T]he Due Process Clause

protects the accused against conviction except upon proof beyond a reasonable doubt

of every fact necessary to constitute the crime with which he is charged.” Winship, 397

U.S. at 364; Statev. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016). Sufficiency of the

                                             9
No. 77639-8-1/10

evidence is a question of constitutional law that we review de novo. Rich, 184 Wn.2d at

903.

       The State charged Greening in count 1 with rape of a child in the first degree in

violation of RCW 9A.44.073(2). The to-convict jury instruction states, in pertinent part:

             To convict the defendant of the crime of Rape of a Child in the First
       Degree, as charged in Count I, each of the following elements of the crime
       must be proved beyond a reasonable doubt:
             (1) Between the 1st day of January, 2015 and the 6th day of
             October, 2015, the defendant had sexual intercourse with A.C.
             dob[2] 6/22/04;
             (2) That A.C. dob 6/22/04 was less than twelve years old at the
             time of the sexual intercourse and was not married to the
             defendant;
             (3) That A.C. dob 6/22/04 was at least twenty-four months younger
             than the defendant; and
             (4) That this act occurred in the State of Washington.

       Greening cites State v. Jensen, 125 Wn. App. 319, 104 P.3d 717 (2005), to

argue sufficient evidence does not support his conviction. Greening asserts A.C.’s

“generic” testimony “about being anally raped up to three times per week for some

unspecified period of time is so vague and uncertain that it cannot support a conviction.”

In Jensen, we reversed a conviction for child molestation. Jensen, 125 Wn. App. at

328. We held that “[i]n cases involving a resident child molester, the alleged victim’s

generic testimony can be used to support multiple counts.” Jensen, 125 Wn. App. at

327. However,

       [alt a minimum, the alleged victim must be able to describe (1) the kind of
       act or acts with sufficient specificity for the jury to determine which
       offense, if any, has been committed; (2) the number of acts committed

       2   Date of birth.

                                            10
No. 77639-8-Ill 1

       with sufficient certainty to support each count alleged by the prosecution;
       and (3) the general time period in which the acts occurred.

Jensen, 125 Wn. App. at 327. Because the child did ‘not describe the acts with

sufficient specificity for the jury to determine which offenses, if any, [the defendant]

committed,” we reversed. Jensen, 125 Wn. App. at 328.

       In contrast to Jensen, A.C. provided details and described with specificity the

anal rape. Greening anally raped her while they were watching the movie Madagascar

in a dimly lit room at the Blame house. A.C. testified they were under a blanket on the

couch, facing “toward” the television, Greening was directly behind her, and “[h]is head

was next to mine.” A.C. described what she was wearing and how Greening pulled

down her pants and placed “his penis    .   .   .   [o]n the inside” of “[m]y butt.” A.C. drew a

diagram and described exactly where her younger siblings were sitting while Greening

raped her.

       Greening claims sufficient evidence does not support the verdict because his

testimony is more credible than the testimony of A.C. We do not reweigh the evidence

on appeal. State v. Ramos, 187 Wn.2d 420, 453, 387 P.3d 650 (2017). We give

deference to the finder of fact in resolving conflicting testimony and weighing the

evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004). The

credibility of witnesses and the weight the jury gives to the evidence are within the sole

province of the jury. Witherspoon, 180 Wn.2d at 883.

      Viewing the evidence in the light most favorable to the State, sufficient evidence

supports the conviction of rape of a child in the first degree between January 1 and

October 6, 2015.

                                                    11
No. 77639-8-1/12

2. Denial of Motion in Limine

       Greening contends the court abused its discretion by denying his motion to

exclude testimony that he engaged in anal sex with J.F. Greening asserts the evidence

was unfairly prejudicial.

       We will not disturb the trial courts rulings on a motion in limine absent an abuse

of discretion. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995). A court

abuses its discretion when its decision is manifestly unreasonable or based on

untenable grounds or reasons. Powell, 126 Wn.2d at 258. Evidence is relevant if it has

“any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the

evidence.” ER 401. The trial court must balance the danger of prejudice against the

probative value of the evidence. ER 403. We will overturn the court’s determination

“only if no reasonable person could take the view adopted by the trial court.” State v.

Posey, 161 Wn.2d 638, 648, 167 P.3d 560 (2007). The trial judge is in the best position

to evaluate the prejudicial effect and relevancy of evidence. Posey, 161 Wn.2d at 648.

       Greening argued that equating the “conduct between consenting adults with rape

of a child was inflammatory and prejudicial.” The State argued that because Greening

“exclusively had anal intercourse with AC.,” the testimony that he was interested in

having only consensual anal sex with J.F. was relevant and outweighed the prejudice.

The court denied Greening’s motion to exclude the testimony. The court ruled the

testimony was “highly probative” and was not “unfairly prejudicial” as long as the State

used the testimony for the limited purpose of establishing Greening’s interest in anal

sex.

                                            12
No. 77639-8-1/13

      The court did not abuse its discretion or deprive Greening of his right to a fair trial

by admitting the testimony. The record shows Greening had               a meaningful opportunity

to present a complete defense.’” Holmes v. South Carolina, 547 U.S. 319, 324, 126 5.

Ct. 1727, 164 L. Ed. 2d 503 (20O6)~ (quoting Crane v. Kentucky, 476 U.S. 683, 690, 106

S. Ct. 2142, 90 L. Ed. 2d 636 (1986)).

      We affirm the jury conviction of one count of rape of a child in the first degree.

WE CONCUR:
                                               s(~ ~
                                                 ‘_,   —.-.—   —   .   —__..~_~.;

                                                  ~
                     F

       Internal quotation marks omitted.


841 F.2d 837
UNITED STATES of America, Appellee,v.Wayne A. MATRA, TN Warren Anthony Hutchinson, Appellant.
No. 87-1489.
United States Court of Appeals,Eighth Circuit.
Submitted Nov. 9, 1987.Decided March 9, 1988.

Christopher Harlan, Kansas City, Mo., for appellant.
Peter M. Ossorro, Kansas City, Mo., for appellee.
Before McMILLIAN, ARNOLD, and BOWMAN, Circuit Judges.
BOWMAN, Circuit Judge.

1
Appellant Wayne A. Matra was convicted in the District Court1 of possession of cocaine with intent to distribute, a violation of 21 U.S.C. Sec. 841(a)(1);  use of a machine gun during and in relation to a drug trafficking offense, a violation of 18 U.S.C. Sec. 924(c);2  and possession of an unregistered machine gun, a violation of 26 U.S.C. Sec. 5861(d).  We affirm his convictions.

I.

2
As part of an ongoing investigation of Jamaican nationals involved in the distribution of cocaine, law enforcement officers kept watch over a house at 3100 East Peery, Kansas City, Missouri.3   They observed Matra at the house, beginning the first or second day of December 1986.

3
On December 5, 1986, the officers, armed with a federal search warrant, gained entry to the house at 3100 East Peery.  After knocking loudly and announcing themselves as police officers, the entry team forced the locked back door with a battering ram.  During the initial sweep of the house, officers discovered defendant Matra at the top of the stairs leading to the second floor.  The officers placed him under guard and the search continued.

4
Two search teams combed through the house and seized various pieces of evidence.  The team searching the first floor area alone found some sixty to seventy items, including a triple-beam scale, a number of small plastic bags, razor blades, a knife with a broken blade, and twenty-two rounds of 9 mm ammunition.  The particular items just mentioned were found in the kitchen and the dining room.

5
The evidence collected from one of the house's two living rooms included several boxes of .223 caliber ammunition found on the fireplace mantel and on the top of a television set, six rounds of .357 magnum hollow point ammunition found on the mantel, and a box containing thirty-seven rounds of 9 mm ammunition on the top shelf of a built-in bookcase.  Hidden under the seat cushions of a sofa was a .25 caliber pistol.

6
The officers also discovered a loaded .38 caliber pistol under the seat cushions of a couch in the other living room and another loaded .38 caliber pistol sticking out of the zipper bag of an upright vacuum cleaner in the foyer.

7
On the second floor, a .357 caliber semi-automatic pistol was found under the bedcovers in the south bedroom.  The center bedroom, the locked door to which had been kicked open by the entry team, yielded a number of important items.  Beneath the waterbed frame, officers discovered a loaded .223 caliber assault rifle, a loaded submachine gun, an unspecified quantity of cash, and a second set of triple-beam scales.  A loaded 12-gauge shotgun was standing upright in a corner.  In an unlocked dresser drawer, searchers found $5,155 in cash.  A small packet of cocaine was found behind a dresser drawer.  In a hole in the closet floor of the center bedroom, officers recovered 565.20 grams of 92% pure cocaine,4 $9,000 in cash, some .45 caliber ammunition, and a box containing twenty-five 12-gauge shotgun shells.

8
Twelve photographs of Matra were found in the center bedroom.  Several of the pictures had been taken in that bedroom.  Matra appears in different clothing in different pictures and is shown posing with alleged narcotics violators and with the acknowledged purchaser of the house.  Handguns can be seen in some of these photographs.

9
In the north bedroom,5 a loaded .45 caliber semi-automatic rifle was found on top of a waterbed.6   A burgundy gym bag also was recovered in this room.  It contained immigration documents, prescription bottles, and an envelope, all bearing the name of Wayne A. Matra.

10
Matra was detained outside the house during the search and was arrested following the discovery of the cocaine and the machine gun in the center bedroom.7   Incident to the arrest, defendant was searched and his personal effects were seized for safekeeping.  Among the items found on his person was a key to the door of the center bedroom.

11
Indicted by a federal grand jury on the charges mentioned at the beginning of this opinion, Matra waived his right to a jury trial.  After a bench trial, the District Court found that Matra had complete control of the house, that he knew that the cocaine and the machine gun were in the center bedroom, and that he was a trusted member of the group that was using the house for the purpose of selling cocaine.  After denying Matra's motion for judgment of acquittal, the Court found him guilty as charged and sentenced him to a total of thirty-five years in prison, thirty years of which must be served without parole.

12
For reversal, Matra argues that the District Court erred in denying his motion for judgment of acquittal because:  (1) the evidence was insufficient to convict him of possession of cocaine with intent to distribute;  (2) the evidence was insufficient to convict him of illegal possession of an unregistered machine gun;  (3) defendant did not "use" the machine gun during and in relation to a drug trafficking offense as required by 18 U.S.C. Sec. 924(c);  and (4) the crime of possession of cocaine with intent to distribute is not a "drug trafficking" offense within the meaning of 18 U.S.C. Sec. 924(c).  For the reasons set forth below, we affirm.

II.

13
We first address Matra's claims regarding the sufficiency of the evidence.  Our standard of review is well established.  We must examine the evidence in the light most favorable to the government, giving it the benefit of all reasonable inferences, and can reverse only if we conclude that a reasonable fact-finder could not have found guilt beyond a reasonable doubt.   See, e.g., United States v. Parrino, 816 F.2d 414, 417 (8th Cir.1987);  United States v. Davis, 785 F.2d 610, 619 (8th Cir.1986).   See also United States v. Barletta, 565 F.2d 985, 991 (8th Cir.1977).

A.

14
In order to convict Matra of a violation of 21 U.S.C. Sec. 841(a)(1), the government had to prove that he knowingly possessed cocaine with the intent to distribute it.   See United States v. Cardenas, 748 F.2d 1015, 1019 (5th Cir.1984).  Matra argues that the evidence was insufficient to show that he:  (1) knowingly possessed cocaine;  and (2) had the intent to distribute it.

15
Proof of constructive possession is sufficient to satisfy the element of knowing possession under Sec. 841(a)(1).   See United States v. Wajda, 810 F.2d 754, 761 (8th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 1981, 95 L.Ed.2d 821 (1987).  We have defined constructive possession as knowledge of presence plus control.  Id.  A person has constructive possession of contraband if he has "ownership, dominion or control over the contraband itself, or dominion over the premises in which the contraband is concealed."   Cardenas, 748 F.2d at 1019 (citation omitted).

16
Having carefully reviewed the record, we conclude that the evidence is sufficient to establish that Matra had constructive possession of the cocaine.  Matra had been seen at the house prior to December 5, 1986, the day of the search.  He was the only person found in the house.  He did not make his presence known to the officers during their search.  To the contrary, they found him when they began their sweep of the second floor.

17
The house was, as the District Court noted, a "fortress."    Its only unbarricaded entrance was locked from the inside.  Matra's personal belongings were found in the bedroom that overlooked this sole entrance.  His admissions also connected him to this bedroom.  In this room, the officers found a semi-automatic, paramilitary weapon--a weapon capable of providing deadly fire to keep intruders out of the house.

18
The officers found numerous other weapons, as well as ammunition and drug paraphernalia, much of it in plain view.  Some of the ammunition would fit only weapons found in the locked center bedroom, to which Matra had the key.  The District Court likened this room to a "vault."    Inside the room, the officers found between $140,000 and $200,000 worth of cocaine, a number of weapons, substantial quantities of ammunition, cash totalling at least $14,155, and photographs of Matra showing him posing with alleged narcotics dealers and with the owner of the house.  In the various photographs Matra wears different outfits, which suggests that he was at the house with some frequency.  Some of the photographs were taken in the "vault" room, and several show Matra with guns.

19
The evidence thus gives rise to a compelling inference that Matra, far from being a casual visitor to the house who had the bad luck of being there when the police arrived, in fact controlled the house and the cocaine it harbored.  Based on the record as a whole, we are satisfied there is ample evidence of constructive possession to support Matra's conviction.

20
The record also contains sufficient evidence with respect to the second element of the Sec. 841(a)(1) offense, intent to distribute, to support Matra's conviction.  The intent to distribute may be proved by either direct or circumstantial evidence and may be inferred from such things as the possession of a large quantity of a controlled substance, its high purity level, the presence of paraphernalia used to aid in its distribution, large sums of unexplained currency, and the presence of firearms.   See, e.g., United States v. LaGuardia, 774 F.2d 317, 320 (8th Cir.1985).  Here, Matra was caught red-handed in charge of a crack house in which were stashed 565.20 grams of 92% pure cocaine, paraphernalia used in the distribution of cocaine, at least $14,155 in cash, and a small arsenal of firearms and ammunition.  This evidence amply demonstrates Matra's intent to distribute the cocaine.

21
There being sufficient evidence of Matra's constructive possession of cocaine and of his intent to distribute it, we hold that the District Court did not err in denying Matra's motion for acquittal as to the 21 U.S.C. Sec. 841(a)(1) charge.

B.

22
Defendant also claims that the evidence was insufficient to convict him of possession of an unregistered machine gun in violation of 26 U.S.C. Sec. 5861(d).  The charge of possession of an unregistered firearm requires only that the defendant be shown to have possessed an unregistered weapon that he knew to be a firearm.   United States v. Runyon, 621 F.2d 317, 318 (8th Cir.1980) (citing Morgan v. United States, 564 F.2d 803, 805 (8th Cir.1977)).

23
"Possession" for purposes of Sec. 5861(d) may be either actual or constructive.   See, e.g., United States v. Taylor, 728 F.2d 864, 868 (7th Cir.1984).  "Constructive possession exists when a person does not have actual possession but instead knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others....  Both actual and constructive possession may be proved by direct or circumstantial evidence."    Id. (citation omitted).

24
In this case, there is ample evidence in the record to establish that Matra constructively possessed the machine gun.  He was found in possession of the key to the center bedroom, where the machine gun was concealed, and extra ammunition for the machine gun was found in plain view on the ground floor of the house.  Matra was the only person in the house and obviously had complete control of the premises on the day of his arrest.  He does not dispute that he knew the machine gun was a firearm, or that it was unregistered.  There is no question about its appearance or function, and the photographs of Matra with firearms on or about his person suggest his familiarity with such weapons.  We conclude that the District Court did not err in denying Matra's motion for a judgment of acquittal on the 26 U.S.C. Sec. 5861(d) charge.

III.

25
Matra attacks his conviction under 18 U.S.C. Sec. 924(c) by contending that:  (1) he did not "use" the machine gun during and in relation to a drug trafficking offense as required by Sec. 924(c);  and (2) possession of cocaine with intent to distribute is not a "drug trafficking" offense within the meaning of Sec. 924(c).  We disagree.

A.

26
Matra urges that we interpret Sec. 924(c)'s "use" language to preclude conviction unless the government shows the defendant's actual possession of either the weapon or the drugs.  We reject such a narrow interpretation.

27
In the case of United States v. LaGuardia, 774 F.2d 317 (8th Cir.1985), this Court stated that "[t]he presence and availability in light of the evident need demonstrates [sic] the use of the firearm to commit the felony."   Id. at 321.8   In LaGuardia, police found a loaded pistol inside a purse on a bed, another loaded pistol on a shelf in a closet among numerous items of clothing, and a rifle inside the trunk of LaGuardia's car parked outside the apartment.  Approximately eighteen ounces of cocaine, at least $9,800 in cash, and various drug-related items also were discovered on the premises.  Recognizing the utility of firearms to those who traffic in illegal drugs, this Court held that the evidence of the weapons, found in connection with the cocaine and cash, was sufficient to support the submission of the Sec. 924(c) firearms charge to the jury.  Id.  See also United States v. Randle, 815 F.2d 505, 508 (8th Cir.1987) (firearms are frequently possessed by drug dealers to protect themselves and their inventory of illegal drugs).

28
The facts of this case are similar to those of LaGuardia.    Here, police found weapons and ammunition, a large quantity of cocaine and cash, and drug paraphernalia.  As in LaGuardia, none of these items was in the actual possession of the defendant, but all were under his control.  The machine gun was present and was available to Matra as he had possession of a key to the room in which the gun was concealed.  This weapon "had undoubted utility in the protection of the valuable [cocaine] supply and of the cash on hand."   LaGuardia, 774 F.2d at 321.

29
As the District Court observed, the house at 3100 East Peery was a veritable fortress, having only one usable entrance, which easily could be guarded from a second-story window.  Inside the "fortress" were a number of loaded firearms, with ammunition readily available, a large quantity of cocaine of high purity, and a large amount of cash.  Just as weapons are kept at the ready to protect military installations against potential enemy attack, so too may weapons be kept at the ready to protect a drug house, thereby safeguarding and facilitating illegal transactions.  See id.  See also United States v. Mason, 658 F.2d 1263, 1271 (9th Cir.1981).

30
The fortress analogy was relied upon by the Second Circuit in United States v. Grant, 545 F.2d 1309, 1312 (2d Cir.1976), cert. denied, 429 U.S. 1103, 97 S.Ct. 1130, 51 L.Ed.2d 554 (1977).  The "fortress" in Grant was the Piggy Back Social Club, which had television monitors located throughout, special reinforced doors, and heavy locks.  Guns were found in the Club, along with large quantities of cocaine and marijuana, and material used to "cut" these substances.  Grant, who managed the Club and apparently lived there, argued that the evidence failed to establish that he used a firearm to commit a felony.  At most, he contended, it showed that he merely possessed the guns.

31
In rejecting this contention, the Second Circuit reasoned that "the evidence established that Grant used the guns as part of a tight security operation to protect large quantities of cocaine and hence to commit the felony of possessing cocaine with intent to distribute it."   Id. at 1312.9   We can discern no material difference between the facts found sufficient in Grant to support conviction under Sec. 924(c) and the facts of the present case.

32
Similarly, in United States v. Moore, 580 F.2d 360 (9th Cir.), cert. denied, 439 U.S. 970, 99 S.Ct. 463, 58 L.Ed.2d 430 (1978), the defendant was arrested while walking toward a bank.10   He was wearing gloves and a ski mask, was carrying two pillow cases, and had a loaded pistol concealed in the waistband of his trousers.  The Ninth Circuit rejected Moore's argument that he did not "use" the pistol.  "The fact that Moore never had an opportunity to brandish or discharge his gun does not mean that he did not 'use' it.  Moore attempted to rob a bank and possession of a loaded gun was an integral part of the attempt.  Moore 'used' his gun....  [It] increased the likelihood of success;  without [it] he probably would not have sallied forth."    Id. at 362.   See also United States v. Chase, 692 F.2d 69, 71 (9th Cir.1982) (court concludes without discussion that the evidence was sufficient to show that Chase used a gun to commit the felony of possession of cocaine with intent to distribute where the search of his residence yielded 1,120 grams of cocaine and a .38 caliber pistol).

33
Although Matra, unlike the defendant in Moore, did not have a firearm on his person, he did have ready access to the machine gun.  Like the defendant in Moore, Matra did not brandish or discharge his weapon, but it was an integral part of his criminal undertaking and its availability increased the likelihood that the criminal undertaking would succeed.  In these circumstances, it would defy both logic and common sense to conclude that Matra did not "use" the machine gun within the meaning of Sec. 924(c).  To the contrary, we are satisfied that the record in this case sufficiently supports the District Court's determination that Matra "used" the machine gun during and in relation to his possession of cocaine with intent to distribute as required by Sec. 924(c).

B.

34
Matra argues that possession of cocaine with intent to distribute is not a drug trafficking offense within the meaning of Sec. 924(c).  He claims that possession of cocaine with intent to distribute is a mere possessory offense and is not the type of serious drug trafficking crime that Congress intended the statute to encompass.  We disagree.

35
Section 924(c)(2) defines a "drug trafficking crime" as "any felony violation of Federal law involving the distribution, manufacture, or importation of any controlled substance."    18 U.S.C.A. Sec. 924(c)(2) (Supp.1987).  "When we find the terms of a statute unambiguous, judicial inquiry is complete...."  Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 701, 66 L.Ed.2d 633 (1981).11   Giving effect to the plain language of this statute, we conclude that violations "involving" the distribution, manufacture, or importation of controlled substances must be read as including more than the crimes of distribution, manufacture, or importation.  The crime of possession of cocaine with intent to distribute, of which Matra stands convicted, requires proof of the defendant's specific intent to distribute.  It is clearly a crime "involving" the distribution of cocaine.

36
Our decision is consonant with a recent decision from the Fourth Circuit that "Sec. 924(c) by its terms unambiguously applies to crimes of possession with intent to distribute."   United States v. James, 834 F.2d 92, 92-93 (4th Cir.1987).   See also United States v. Cruz, 805 F.2d 1464, 1475 n. 12 (11th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1631, 95 L.Ed.2d 204 (1987) ("Our decision ... does not preclude the conviction of drug traffickers for the crime[ ] of possessing narcotics with intent to distribute....").

37
Matra's convictions are AFFIRMED.

1
 The Honorable D. Brook Bartlett, United States District Judge for the Western District of Missouri

2
 This statute's 1986 amendments do not yet appear in the official United States Code or a supplement thereto.  They do appear in the supplement to Volume 18 of the United States Code Annotated.  This opinion will refer to the statute as 18 U.S.C. Sec. 924(c), except when quoting from the 1986 amendments

3
 This surveillance was part of a highly publicized investigation of crack houses in the Kansas City area.  "Crack" is a highly addictive form of cocaine

4
 The estimated street value of the cocaine was between $140,000 and $200,000

5
 This bedroom overlooks the back entrance to the house.  This back entrance was the only entrance to the residence that was not barricaded from the inside.  It was locked from the inside with a deadbolt lock, in which the key was found

6
 This weapon is a Thompson machine gun "look-alike."    While not subject to controls, it is a paramilitary rather than a sporting or target weapon.  The only .45 caliber ammunition found during the search was in the hole in the closet floor of the center west bedroom

7
 Following his arrest, defendant declared that he was a Jamaican citizen and a legal resident of the United States.  He directed the officers to his immigration documents, those discovered in the gym bag found in the north bedroom.  A subsequent check of the records of the Immigration and Naturalization Service showed that Wayne A. Matra was a citizen of India, not Jamaica.  At his sentencing hearing on April 7, 1987, defendant stated that his true name is Warren Anthony Hutchinson.  For convenience, we refer to him throughout this opinion as Matra

8
 The statute under which LaGuardia was convicted was the original version of 18 U.S.C. Sec. 924(c), which provided enhanced penalties for anyone who "uses a firearm to commit any felony."    The purpose of the original Sec. 924(c) was to impose more severe sanctions where firearms facilitated, or had the potential to facilitate, the commission of a felony.   See United States v. Stewart, 779 F.2d 538, 540 (9th Cir.1985).  In 1984, as part of the Comprehensive Crime Control Act, Congress revised Sec. 924(c) to make it apply only to those engaging in crimes of violence
The current version of Sec. 924(c), which governs Matra's case, resulted from the passage in 1986 of the Firearms Owners' Protection Act.  As amended by that Act, the statute extends punishment to anyone who "during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm."    18 U.S.C.A. Sec. 924(c)(1) (Supp.1987).  As the "use" language was not changed in either of the amendments, the LaGuardia case retains its precedential value.

9
 Grant was convicted under the original version of Sec. 924(c).  While the statute has been revised, the "use" language has not been altered.  See supra note 8

10
 The arrest was based upon information provided by an informant

11
 While Matra urges this Court to apply the "rule of lenity" to this statute, that rule is to be applied only when there is uncertainty about the statute's meaning.   See United States v. Eklund, 733 F.2d 1287, 1297 (8th Cir.1984), cert. denied, 471 U.S. 1003, 105 S.Ct. 1864, 85 L.Ed.2d 158 (1985)


722 F.2d 727
Harris (Robert C.)v.Quinlan (J. Michael)
NO. 82-2282
United States Court of Appeals,second Circuit.
FEB 17, 1983

1
Appeal From:  S.D.N.Y.

2
AFFIRMED.


                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            NOV 17 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS

                            FOR THE NINTH CIRCUIT

PATRICK WHITE and NELDA WHITE,                   No.   16-15549

              Plaintiffs-Appellants,             DC No. CV 15-17775 MCE

 v.

JPMORGAN CHASE & CO. and                         MEMORANDUM*
SELECT PORTFOLIO SERVICING,
INC.,

              Defendants-Appellees.

                   Appeal from the United States District Court
                       for the Eastern District of California
                 Morrison C. England, Jr., District Judge, Presiding

                      Argued and Submitted October 13, 2017
                            San Francisco, California

Before:      TASHIMA and BYBEE, Circuit Judges, and LEITMAN,** District
             Judge.

      Patrick and Nelda White (the “Whites”) appeal the dismissal without leave

to amend of their first amended complaint (“FAC”), which alleges that JPMorgan

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Matthew Frederick Leitman, United States District
Judge for the Eastern District of Michigan, sitting by designation.
Chase Bank, N.A. (“Chase”) and Select Portfolio Servicing, Inc. (“SPS”) were

liable for fraud and promissory estoppel based on their representations about the

status of the Whites’ home loan modification application.

      The FAC alleges that Chase employees twice called the Whites and said

that, based on information Mr. White provided over the phone, the Whites were

“eligible” and “qualified” for a loan modification – subject to verification of the

information Mr. White provided. Each time, the Whites completed Chase loan

modification applications and sent additional documents. Each time, Chase denied

the applications. The Whites also allege that an SPS representative said the Whites

were “eligible” and “qualified” for a loan modification, subject to verification of

the information Mr. White provided over the phone. SPS then denied the Whites’

loan modification application.

      The district court dismissed the Whites’ claims without leave to amend

because the Whites allege only that Chase and SPS made conditional statements

and fail to allege the fraudulent circumstances with requisite particularity. See Fed.

R. Civ. P. 9(b). The court also concluded that the Whites’ conditional allegations

render amendment futile.

      We review the dismissal of a complaint de novo. Levitt v. Yelp! Inc., 765

F.3d 1123, 1126 (9th Cir. 2014). We review the district court’s denial of leave to

                                           2
amend for abuse of discretion. Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d

522, 532 (9th Cir. 2008).

      1.     The district court properly dismissed the FAC because the Whites do

not show justifiable reliance. A claim of fraud arises from a misrepresentation

made with knowledge of its falsity – or without reasonable grounds for its truth, if

the claim is for negligent misrepresentation, Ragland v. U.S. Bank N.A., 147 Cal.

Rptr. 3d 41, 54 (Ct. App. 2012) – that is intended to and actually induces justifiable

reliance, causing damages. Kearns v. Ford Motor Co., 567 F.3d 1120, 1126 (9th

Cir. 2009). The Whites allege that they justifiably relied on Chase’s and SPS’

statements that they were “eligible” and “qualified” for a modification. But that is

not what they relied on. Rather, the Whites relied on their own optimistic

assumption that they would unconditionally receive a loan modification simply

because they were told by phone that they were “eligible” and “qualified.” But that

assumption was unsupported by Chase’s and SPS’ statements, which never

guaranteed a modification, which did not specify the material terms of a

modification, and which expressly conditioned a modification on verification of

the Whites’ orally provided information.

                                           3
      Nor were Chase’s and SPS’ alleged statements “clear and unambiguous”

promises sufficient to state claims for promissory estoppel. U.S. Ecology, Inc. v.

State, 28 Cal. Rptr. 3d 894, 905 ( Ct. App. 2005).

      2.     Lastly, the district court did not abuse its discretion in denying the

Whites further leave to amend. Although the district court should ordinarily grant

a plaintiff “at least one chance to amend a deficient complaint,” Nat’l Council of

La Raza v. Cegavske, 800 F.3d 1032, 1041 (9th Cir. 2015), leave to amend is

unnecessary if amendment would be futile. Eminence Capital, LLC v. Aspeon,

Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (citing Foman v. Davis, 371 U.S. 178,

182 (1962)). The Whites did not even request leave to amend in district court. At

oral argument before this court, the Whites did not argue they could allege that

Chase or SPS represented, unconditionally, that the Whites had in fact received a

loan modification. The Whites also cannot amend the FAC to allege that the Home

Affordable Modification Program (“HAMP”) applies to their loan because they

were facially ineligible for HAMP, as being over HAMP’s upper loan limit. Majd

v. Bank of Am., N.A., 197 Cal. Rptr. 3d 151, 157 (Ct. App. 2015). Therefore,

amendment would be futile.

      The judgment of the district court is AFFIRMED.

                                           4


                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 22 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS

                             FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 10-50107

               Plaintiff - Appellee,             D.C. No. 3:06-cr-00810-WQH

  v.
                                                 MEMORANDUM *
DAVID CASAS-HERRERA,

               Defendant - Appellant.

                    Appeal from the United States District Court
                      for the Southern District of California
                    William Q. Hayes, District Judge, Presiding

                           Submitted November 16, 2010 **

Before:        TASHIMA, BERZON, and CLIFTON, Circuit Judges.

       David Casas-Herrera appeals from the 10-month sentence imposed

following revocation of his supervised release. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Casas-Herrera contends that the sentence is unreasonable because the district

court procedurally erred in failing to adequately address his mitigating arguments

and explain the reasons for imposing a 10-month sentence. The record reflects that

the district court did not procedurally err. See Rita v. United States, 551 U.S. 338,

358-59 (2007). The record also reflects that, under the totality of the

circumstances, Casas-Herrera’s sentence is substantively reasonable. See Gall v.

United States, 552 U.S. 38, 51-52 (2007); see also United States v. Carty, 520 F.3d

984, 991-93 (9th Cir. 2008) (en banc).

      AFFIRMED.

                                          2                                    10-50107


283 F.Supp.2d 917 (2003)
Michelle GUALTIERI and Ralph Gualtieri, Plaintiffs,
v.
Vassiliki Portari FARINA and Lawrence M. Farina, Jr., Defendants.
No. 02 CIV. 0992(WCC).
United States District Court, S.D. New York.
September 16, 2003.
*918 *919 Costello & Folcheti, LLP, Carmel, NY (Gregory L. Folcheti, of Counsel), for plaintiffs.
Boeggeman, George, Hodges & Corde, P.C., White Plains, NY (Paul A. Hurley, of Counsel), for defendants.

OPINION AND ORDER
WILLIAM C. CONNER, Senior District Judge.
Plaintiffs Michelle Gualtieri ("M. Gualtieri" or "plaintiff") and her husband Ralph Gualtieri bring this action against Vassilki Portari Farina and Lawrence M. Farina, Jr. for personal injuries arising out of a motor vehicle accident that occurred on August 29, 2000.[1] Defendants bring the *920 instant motion for summary judgment on the basis that M. Gualtieri has not sustained a "serious injury" pursuant to New York State Insurance Law Article 51.[2] For the reasons stated below, the defendants' motion for summary judgment is granted.

BACKGROUND
On August 29, 2000, R. Gualtieri, the driver of a 1986 Ford Bronco II, and M. Gualtieri, a passenger, were stopped at a red light. (Defs. Rule 56.1 Stmt. at 2; Folchetti Aff. ¶ 4.) A vehicle driven by V. Farina with the permission of the vehicle's owner L. Farina, struck the rear of plaintiffs' vehicle. (Defs. Rule 56.1 Stmt. at 2; Folchetti Aff. ¶ 4; Pls. Mem. Opp. Summ. J. at 1.) Neither party called the police nor an ambulance to the accident scene and no one went to an emergency room. (Defs. Rule 56.1 Stmt. at 2.)
After the accident, M. Gualtieri sought treatment from numerous doctors and claims that the following injuries were caused by the accident:
1) Cervical and lumbar sprain/strain with resultant constant pain in lower back and neck.
2) Straightening of the cervical curvature.
3) Bulging of disks C3 through C5-6.
4) Posterior disc herniation of C6-7 increasing right paracentrally.
Plaintiff claims these injuries cause constant pain, have limited her motion functions and prevented her from performing all of her household duties, responsibilities and activities for a period of ten months after the accident. (Pls. Mem. Opp. Summ. J. at 15.)

DISCUSSION

I. Summary Judgment Standard

Under FED. R. CIV. P. 56, summary judgment may be granted where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby, 477 U.S. 242, 247-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The burden rests on the movant to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine factual issue exists if there is sufficient evidence favoring the nonmovant for a reasonable jury to return a verdict in her favor. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In deciding whether summary judgment is appropriate, the court resolves all ambiguities and draws all permissible factual inferences against the movant. See id. at 255, 106 S.Ct. 2505. To defeat summary judgment, the nonmovant must go beyond the pleadings and "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The court's role at this stage of the litigation is not to decide issues of material fact, but to discern whether any exist. See Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1224 (2d Cir. 1994).

II. New York's No-Fault Law

New York's No-Fault law is intended to "weed out frivolous claims and limit recovery to significant injuries." Bewry v. Colonial Freight Sys., No. 01 Civ. 5634, 2002 WL 31834434, at *2 *921 (S.D.N.Y. Dec.17, 2002) (quoting Dufel v. Green, 84 N.Y.2d 795, 798, 622 N.Y.S.2d 900, 647 N.E.2d 105 (1995)). In fact, the No-Fault law states that there shall be no right of recovery for non-economic losses arising out of negligence in the use or operation of an automobile except in the case of a "serious injury." Id.; Barth v. Harris, No. 00 Civ. 1658, 2001 WL 736802, at *1 (S.D.N.Y. June 25, 2001). A serious injury is defined as:
Personal injury which results in death; dismemberment; a fracture; loss of a fetus; permanent loss of use of a body organ, member function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from pursuing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred and eighty days immediately following the occurrence or injury or impairment.
New York State Insurance Law § 5102.
M. Gualtieri contends that her injuries are serious in that they fall under the latter three categories: permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or injury or impairment of a non-permanent nature that satisfies the 90/180-day requirement. (Pls. Mem. Opp. Summ. J. at 10.)
The New York Court of Appeals has instructed that courts should first determine whether the plaintiff has established a prima facie case for serious injury. Licari v. Elliott, 57 N.Y.2d 230, 236, 455 N.Y.S.2d 570, 441 N.E.2d 1088 (1982). Further, the Court of Appeals provided a guideline for determining whether an injury is serious, specifying that subjective complaints alone are not sufficient for a finding of serious injury, and that objective evidence is needed. Toure v. Avis Rent A Car Sys., Inc., 98 N.Y.2d 345, 350, 746 N.Y.S.2d 865, 774 N.E.2d 1197 (2002). An expert's conclusion based on an MRI is considered objective evidence. Id. at 358, 746 N.Y.S.2d 865, 774 N.E.2d 1197. The Toure court went on to hold that "an expert's designation of a numeric percentage of a plaintiff's loss of range of motion can be used to substantiate a claim of serious injury," however "an expert's qualitative assessment of a plaintiff's condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system." Id.
On summary judgment, the burden is on the defendants to establish a prima facie case that plaintiff did not sustain a serious injury as defined by § 5102. Barth, 2001 WL 736802, at *2. To sustain their burden, defendants may rely on unsworn reports from plaintiff's treating physicians but any reports from defendants' own physicians must be in admissible form, i.e., affidavits or affirmations. Id.; Pagano v. Kingsbury, 182 A.D.2d 268, 270, 587 N.Y.S.2d 692 (N.Y.App.Div.1992); McGovern v. Walls, 201 A.D.2d 628, 628, 607 N.Y.S.2d 964 (N.Y.App.Div.1994). If defendants meet their burden, the plaintiff must then set forth a prima facie case that she sustained a serious injury by submitting admissible evidence in the form of affidavits or affirmations. Barth, 2001 WL 736802, at *2; Pagano, 182 A.D.2d at 270, 587 N.Y.S.2d 692 ("Plaintiff's opposition, to the extent that it relies solely on the findings of the plaintiff's own medical witnesses, must be in the form of affidavits or affirmations, unless an acceptable excuse for failure to comply with this requirement *922 is furnished."). However, New York State courts have consistently held that a plaintiff, when opposing summary judgment, may use the unsworn reports that defendants relied on. Pietrocola v. Battibulli, 238 A.D.2d 864, 866 n. 1, 656 N.Y.S.2d 559 (N.Y.App.Div.1997) (allowing plaintiff's doctor to rely on an unsworn MRI in his affidavit because it was the defendant who included the report in the materials offered in support of his motion for summary judgment and "cannot now be heard to complain"); Pech v. Yael Taxi Corp., 303 A.D.2d 733, 758 N.Y.S.2d 110, 111 (N.Y.App.Div.2003) (holding that it was proper for the plaintiff to use an unsworn physician's report and MRI to raise a triable issue of fact when they were initially relied on by the defendants, and therefore properly before the court); see also Perry v. Pagano, 267 A.D.2d 290, 290, 699 N.Y.S.2d 882 (N.Y.App.Div.1999); Pagels v. P.V.S. Chem., Inc., 266 A.D.2d 819, 820, 698 N.Y.S.2d 368 (N.Y.App.Div.1999); Raso v. Statewide Auto Auction Inc., 262 A.D.2d 387, 388, 691 N.Y.S.2d 158 (N.Y.App.Div.1999); Vignola v. Varrichio, 243 A.D.2d 464, 467, 662 N.Y.S.2d 831 (N.Y.App.Div.1997) (Goldstein, J., dissenting).

A. Defendants' Evidence

Defendants set forth unsworn evidence from three of plaintiff's physicians and an affirmation from their own physician.
The day after the accident, plaintiff saw a chiropractor, Dr. Grina. M. Gualtieri complained of acute lower neck pain and right-side lower back pain that began immediately after the accident and continued to worsen. (Defs.Mem.Supp.Summ. J., Ex. E.) Dr. Grina noted bilateral tenderness of the lower cervical and upper thoracic paraspinal muscles and in the lumbar region. (Id.) Dr. Grina noted joint motion restriction through all the lower cervical segments with all planes of motion stating: "Cervical ROM was restricted, flexion 40 degrees, extension 10 degrees, left and right lateral bending 15 degrees, left and rotation 50 degrees with pain. Thoracolumbar ROM was restricted with flexion at 40 degrees, extension 0 degrees, left and right lateral bending 15 degrees." (Id.) Also, a straight leg raise test on either side showed increased lower back related symptoms at 65 degrees. (Id.) However, Dr. Grina found that M. Gualtieri's neurological status was stable, her muscle strength was graded 5/5 and her sensory reactions to pin prick, light touch and vibration were intact. (Id.) Dr. Grina's impression was acute cervical sprain/strain injury and acute lumbar sprain/strain injury. (Id.) Dr. Grina provided massage therapy and advised plaintiff to modify her activities to tolerance. (Id.) M. Gualtieri saw Dr. Grina thirteen times and at each visit Dr. Grina noted that her physical findings remained essentially the same. (Id.)
Plaintiff saw Dr. Benjamin on September 20, 2000 for a neurological consultation. (Defs. Rule 56.1 Stmt. at 3.) Dr. Benjamin noted that the patient had a history of multiple sclerosis ("MS"), which was diagnosed in June 1997. (Defs.Mem.Supp.Summ. J., Ex. F.) The physical examination revealed tenderness in the right cervical paraspinal musculature, right trapezius, right scalene complex and right deltoid region. (Id.) The neurological examination revealed mostly normal functioning except decreased pin prick sensations in the left lower extremity and right ulnar distribution. (Id.) Dr. Benjamin's impression was cervical strain and right T6 radicular symptomatology, which was causally related to the motor vehicle accident with defendants. (Id.) He recommended continued chiropractic treatment, prescribed Relafen and a soft cervical collar and requested that plaintiff undergo a *923 cervical MRI. (Id.) The cervical MRI, performed on September 25, 2000, revealed "Straightening of the cervical curvature compatible with reflux muscle spasm. C3 through C5-6 posterior subligamentous disc bulges. C6-7 posterior disc herniation increasing right paracentrally." (Id.) An MRI of the lumbar spine performed on July 11, 2001 was normal and plaintiff reported that her lower back pain improved but that she still had consistent neck pain. (Id.) Three visits in 2001 indicated that her neck was supple. (Id.) Her visits to Dr. Benjamin continued through April of 2002 with the consistent diagnosis of chronic cervical and lumbar strain. (Id.) Dr. Benjamin's examination notes do not indicate whether plaintiff sustained any limitation in her range of motion.
Plaintiff also sought treatment with Dr. Duncan of the Mt. Kisco Medical Group in October of 2001, though apparently she went for treatment of her MS, not for treatment of her back.[3] (Defs.Mem.Supp.Summ. J., Ex. I.) Dr. Duncan found that the plaintiff's back was without tenderness and there was no evidence of pain on percussion of the cervical, thoracic or lumbosacral spine. (Id.) Dr. Duncan also noted plaintiff's history of MS and left sided optic neuritis but found that she was clinically stable with no new complaints. (Id.) A somatic evoked potential study of the bilateral lower extremities ordered by Dr. Duncan produced normal results. (Id., Ex. J.)
Dr. Pracella conducted an independent chiropractic examination of plaintiff on September 28, 2001. (Defs.Mem.Supp.Summ. J., Ex. K.) Dr. Pracella found that plaintiff's range of motion was within normal limits, however plaintiff reported increased lower back pain with extension and lateral bending. (Id.) Dr. Pracella diagnosed plaintiff with cervical and lumbar sprain with a good prognosis. (Id.)
Defendants' doctor, Dr. Weintraub, examined plaintiff on January 10, 2003. (Id., Ex. L.) He concluded, after examination of plaintiff and review of the above doctors' findings, that the accident caused a cervical and lumbar strain but plaintiff did not appear to be disabled from a neurological perspective. (Id.) Nothing in Dr. Weintraub's affirmation indicates that he performed any specific range of motion tests, nor did he indicate any conclusions as to plaintiff's range of motion based on the tests he did perform. However, he found her neck to be supple, her straight leg examination to be negative, equal strength in all four extremities and normal muscle tone. (Id.) He questioned why plaintiff never mentioned any back or neck pain to Dr. Duncan and could not evaluate the significance of the herniated disk in the neck because "this can be seen in up to 40% of individuals in the population on an asymptomatic basis." (Id.)

B. Defendants' Prima Facie Case

Based on the above evidence, we find that the defendants have satisfied their burden of making a prima facie case that plaintiff did not sustain a serious injury within the meaning of New York Insurance Law § 5102 based on plaintiff's own treating physician's notes that her neck was supple in 2001, Dr. Weintraub's affirmation that plaintiff's neck was supple in the most recent of all the physical examinations, January of 2003, and Dr. Pracella's examination in 2001 which indicated a range of motion within normal limits. *924 McCarthy v. Perault, 277 A.D.2d 664, 665, 716 N.Y.S.2d 463 (N.Y.App.Div.2000) (granting defendant summary judgment in part on physician's conclusion that neck was supple); see also Mejia v. Leisure Time Tours, No. 01 Civ. 263, 2002 WL 1732887, at *3 (E.D.N.Y. July 24, 2002). Further, Dr. Weintraub found plaintiff's straight leg examination to be negative and she had equal strength in all four extremities. Both Dr. Benjamin and Dr. Weintraub found normal muscle tone and normal gait. The only neurological problems found were decreased pin prick sensations in the left lower extremity and ulnar distribution, which Dr. Duncan attributes to plaintiff's previously diagnosed MS, but which Dr. Benjamin attributes to the car accident. (Defs.Mem.Supp.Summ. J., Ex. I.) Moreover, Dr. Benjamin never noted any range of motion restrictions in his examination reports and never advised plaintiff to limit her normal daily activities. In fact, plaintiff testified that she started work as a postal carrier the day after the accident and remained an employee for a year and a half, missed only ten days of work due to the pain of her injuries and quit her job only as a result of her pregnancy. (Id., Ex. C.) Letellier v. Walker, 222 A.D.2d 658, 659, 635 N.Y.S.2d 682 (N.Y.App.Div.1995) (holding that plaintiff failed to raise a triable issue of fact as to whether her injuries prevented her from performing "substantially all" of her daily activities when she missed less than three weeks of work).

C. Plaintiff's Prima Facie Case

The burden now shifts to plaintiff to set forth sufficient evidence to make out a prima facie case that she sustained a serious injury. In support of her claim that she suffers permanent consequential limitation of use of a body organ or member, significant limitation of use of a body function or system, or injury or impairment of a non-permanent nature which falls into the 90/180-day category, she offers an affidavit from her treating physician, Dr. Benjamin.
Plaintiff has failed to set forth sufficient evidence of a permanent limitation or an injury that satisfies the 90/180-day requirement. The only indication that plaintiff's injuries are permanent is Dr. Benjamin's affidavit, which states that as a result of the motor vehicle accident, the plaintiff sustained significant injury to her cervical spine, which is permanent and limits the function and use of her cervical spine. However, "if plaintiff is alleging that her injury has resulted in permanent damage, she is under an obligation to provide competent evidence documenting how and to what extent her injury is permanent. Mere conclusory statements by her physician are not sufficient to raise a triable issue of fact." Carter v. Geldis, 2000 WL 1159904, at *6 (E.D.N.Y. April 23, 2002); Lopez v. Senatore, 65 N.Y.2d 1017, 494 N.Y.S.2d 101, 102, 484 N.E.2d 130 (1985) (". . . the mere repetition of the word `permanent' in the affidavit of a treating physician is insufficient to establish `serious injury.'").
Also, based on Dr. Benjamin's affidavit, his examination notes and plaintiff's testimony, plaintiff has failed to set forth sufficient evidence of an injury or impairment of a non-permanent nature which prevented her from pursuing substantially all of the material acts which constitute her usual and customary daily activities for not less than ninety days during the one hundred and eighty days immediately following the occurrence or injury or impairment. In order to sustain a claim in the 90/180-day category, plaintiff must prove that she was "curtailed from performing [her] usual activities to a great extent rather than some slight curtailment." Licari, *925 57 N.Y.2d at 236, 455 N.Y.S.2d 570, 441 N.E.2d 1088.
Plaintiff testified that she started work as a postal carrier the day after the accident and remained an employee for a year and a half, only missing ten days of work due to the pain of her injuries and quitting her job only because of her pregnancy. While returning to work does not necessarily preclude plaintiff from establishing a prima facie case in this category, her self-serving testimony that she can no longer clean her house or hold her baby for long periods of time, is unsubstantiated. Sands v. Stark, 299 A.D.2d 642, 644, 749 N.Y.S.2d 334 (N.Y.App.Div.2002) ("The fact that plaintiff returned to work within a few months of the accident is not dispositive."); Arrowood v. Lowinger, 294 A.D.2d 315, 742 N.Y.S.2d 294, 295 (N.Y.App.Div. 2002) (plaintiff's unsubstantiated claim that he was unable to do household chores is insufficient to show serious injury in the 90/180-day category); Gaddy v. Eyler, 79 N.Y.2d 955, 958, 582 N.Y.S.2d 990, 591 N.E.2d 1176 (1992) (plaintiff failed to establish serious injury in 90/180-day category where she submitted no evidence to support her contention that her household and recreational activities were curtailed). Dr. Benjamin's affidavit states that "complete elimination of physical activity was necessary in the period subsequent to the accident in order to prevent relapse, regression and/or exacerbation." (Pls. Mem. Opp. Summ. J., Ex. B ¶ 14.) However, this statement in no way indicates that he instructed plaintiff to limit her activities and his notes likewise reflect no such instruction. Accordingly, plaintiff has failed to set forth a prima facie case of serious injury in the 90/180-day category, leaving only the category of significant limitation of use of a body function or system.
In order to make out a prima facie case for a significant limitation, plaintiff must show a significant limitation in both degree and duration. Khouzam v. Zalesky, No. 93 Civ. 6360, 1996 WL 79882, at *7 (S.D.N.Y. Feb.26, 1996) (citing Petrone v. Thornton, 166 A.D.2d 513, 561 N.Y.S.2d 49, 50 (N.Y.App.Div.1990)). The plaintiff has shown medical evidence of a quantifiable limitation in her range of motion in September of 2000. In his affidavit, Dr. Benjamin reiterates that the cervical MRI showed bulging discs, straightening of the cervical curvature and a disc herniation. We note that "herniated or bulging discs do not per se meet the statutory threshold of serious physical injury," without "objective evidence of the extent or degree of the alleged physical limitations resulting from the injuries and their duration." Rose v. Furgerson, 281 A.D.2d 857, 859, 721 N.Y.S.2d 873 (N.Y.App.Div.2001); Noble v. Ackerman, 252 A.D.2d 392, 394, 675 N.Y.S.2d 86 (N.Y.App.Div.1998). Defendants state in their moving papers that Dr. Grina did not "set forth a designation of a numeric percentage of plaintiff's loss of motion of either her cervical or lumbar spines." (Defs. Mem. Supp. Summ. J. at 3.) However, Dr. Grina did quantify plaintiff's limited range of motion in terms of degrees which Dr. Benjamin converted to percentages. (Defs. Mem. Supp. Summ. J., Ex. E; Pls. Mem. Opp. Summ. J., Ex. B.)[4] In his affidavit, Dr. Benjamin interprets Dr. Grina's impressions of plaintiff's limited range of motion as the following: "Cervical flexion was limited to 40 out of 60 degrees (33% loss of motion); extension 10 out of 30 degrees (67% loss of motion); *926 right and left lateral bending both 15 out of 30 degrees (50% loss of motion) and left and right rotation 50 out of 60 degrees (16% loss of motion)." (Pls. Mem. Opp. Summ. J., Ex. B ¶ 4.) Dr. Benjamin goes on to state that these limitations were evident during his examination of the plaintiff as well, though there is no indication of this in his examination notes. (Id.)
However, as noted above, plaintiff must also prove the duration of the significant limitation. Shao v. Paszynsky, No. 97 Civ. 3815, 2000 WL 307372, at *6 (E.D.N.Y. Jan.31, 2000) (quoting Troutovski v. Sitnir, 180 Misc.2d 124, 687 N.Y.S.2d 534, 535 (N.Y.Civ.Ct.1999)) ("[T]he absence of proof of a recent medical examination leaves an important evidentiary vacuum in a plaintiff's opposition to a motion for summary judgment, where the plaintiff is claiming some form of permanent or significant injury."). Dr. Benjamin's affidavit attesting to the degree of limitation was made almost three years after Dr. Grina's original examination showed a limited range of motion and almost three years after the cervical MRI. Further, Dr. Benjamin did not indicate that his opinion was based upon any recent medical examination and apparently the plaintiff's last visit to Dr. Benjamin was April 29, 2002, over a year before his affidavit. Covington v. Cinnirella, 146 A.D.2d 565, 566, 536 N.Y.S.2d 514 (N.Y.App.Div.1989) (medical affidavit submitted on behalf of plaintiff in which physician expressly bases his opinion on an examination of his records without indicating that he has recently examined the plaintiff is insufficient to withstand summary judgment). The lack of any evidence that this limitation continued, beyond her subjective complaints of pain, in conjunction with evidence that her range of motion was within normal limits by September of 2001 and that her neck was supple around that same time, necessitates the finding that plaintiff failed to meet the definition of serious injury with respect to the durational requirement. Beckett v. Conte, 176 A.D.2d 774, 575 N.Y.S.2d 102, 103 (N.Y.App.Div.1991) (holding that affidavit prepared three years after medical examination from which opinion is based is insufficient to prove duration of the alleged impairment); see also Khouzam, 1996 WL 79882, at *6.

CONCLUSION
For the reasons stated above, the defendants' motion for summary judgment is granted.
SO ORDERED.
NOTES
[1]  This Court has jurisdiction pursuant to 28 U.S.C. § 1332.
[2]  Plaintiffs cross moved for partial summary judgment on the issue of liability, but defendants conceded liability in their reply papers leaving only the issue of whether plaintiff's injuries fall within the category of "serious injury." (Defs. Reply Mem. ¶ 3.)
[3]  Defendants' doctor, Dr. Weintraub, notes that plaintiff visited Dr. Duncan for treatment of her MS. (Defs.Mem.Supp.Summ. J., Ex. L.)
[4]  Defendants argue that Dr. Benjamin may not interpret Dr. Grina's unsworn report, but we find that because defendants relied on it, it is properly before the Court. See discussion supra Part II.


                                           NO. 07-07-0120-CR

                                     IN THE COURT OF APPEALS

                            FOR THE SEVENTH DISTRICT OF TEXAS

                                               AT AMARILLO

                                                  PANEL D

                                      FEBRUARY 14, 2008
                                ______________________________

                                       ROY LEONARD MATHRE,

                                                                               Appellant

                                                       v.

                                        THE STATE OF TEXAS,

                                                            Appellee
                              _________________________________

                FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

                          NO. 53108-E; HON. ABE LOPEZ, PRESIDING
                             _______________________________

                                       Memorandum Opinion
                                  _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

        The appeal before us involves the offense of indecency with a child by exposure.

Appellant Roy Leonard Mathre contests his conviction by claiming that the trial court erred

in admitting hearsay testimony. We affirm the judgment.

        Background

        Appellant was accused of exposing his genitals to a ten-year-old girl in a laundromat

in Amarillo.1 She reported the incident to her older brother who was with her. In turn, he

        1
         The girl and her twelve-year-old brother had been left alone there while their father took his girlfriend
to a m eeting.
told two other persons who were also there. One of those persons immediately called the

police. The testimony of the two persons whom the victim’s brother contacted was

tendered as outcry, and the trial court allowed them to testify on that basis. However,

Officer Walter McGallian and the complainant’s father Jimmy Patterson were also

permitted to testify to what the complainant told them about the incident. Appellant

contends this was error.

       Standard of Review and Application

       We review the trial court’s decision to admit evidence under the standard of abused

discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). So too must

we uphold the decision if it is supported by any applicable theory of law. McDonald v.

State, 148 S.W.3d 598, 603 (Tex. App.–Houston [14th Dist.] 2004), aff’d, 179 S.W.3d 571

(Tex. Crim. App. 2005); Carter v. State, 145 S.W.3d 702, 707, (Tex. App.–Dallas 2004,

pet. ref’d).

       When McGallian, the initial responding police officer, attempted to testify to what the

complainant told him had happened, appellant objected on the ground of hearsay. The

court overruled the objection. The basis of the court’s ruling was not disclosed in the

record; however, just prior to the subject testimony, the officer said that both children were

very upset and the complainant was crying. Moreover, that demeanor is of import because

statements relating to startling events or conditions made while the declarant was under

the stress of excitement caused by the event or condition is an exception to the hearsay

rule. TEX . R. EVID . 803(2).

                                              2
       So, the question to be determined here is whether the declarant was still dominated

by the emotions, excitement, fear or pain of the event when speaking with the officer. King

v. State, 953 S.W.2d 266, 269 (Tex. Crim. App. 1997). And, based upon the officer’s

description of the complainant’s condition at the time he interviewed her as well as her

young age, we cannot say the trial court’s decision to admit the testimony fell outside the

zone of reasonable disagreement and constituted an abuse of discretion. See Davis v.

State, 169 S.W.3d 660, 671 (Tex. App.–Austin 2005), aff’d, 203 S.W.3d 845 (Tex. Crim.

App. 2006) (holding that a statement made to an officer shortly after the event when the

complainant was sobbing and appeared hysterical was an excited utterance).

       Next, appellant complains of the admission of the same evidence told by the

complainant to the children’s father Jimmy Patterson when he arrived at the laundromat

after the incident. Again, appellant objected on the basis of hearsay. In response, the

State sought admission of the evidence under the excited utterance exception. According

to Patterson, his daughter shook, her voice trembled, her face was red, she had an altered

breathing pattern, she was crying, and she appeared generally traumatized when he spoke

with her.

       While a bit of time elapsing between a startling event and the hearsay statement is

a factor to be considered when assessing whether the statement was an excited utterance,

Bufkin v. State, 179 S.W.3d 166, 171 (Tex. App.–Houston [14th Dist.] 2005), aff’d, 207

S.W.3d 779 (Tex. Crim. App. 2006), it is not dispositive. See Apolinar v. State, 155

S.W.3d 184, 190-91 (Tex. Crim. App. 2005) (finding that, under the circumstances, the

elapse of four days did not prevent the statement from being an excited utterance); White

                                            3
v. State, 201 S.W.3d 233, 246 (Tex. App.–Fort Worth 2006, pet. ref’d) (finding that a

statement made by the victim in a second interview after the defendant had been

interviewed by police, the complainant had put on more clothes, and another officer had

arrived was an excited utterance when the victim was still visibly shaken). And given the

emotional state of the victim as described by her father when he spoke with her, we cannot

say that a decision to consider the utterance an excited one fell outside the zone of

reasonable disagreement and constituted an abuse of discretion.

      Accordingly, appellant’s issue is overruled and the judgment is affirmed.

                                                Brian Quinn
                                                Chief Justice

Do not publish.

                                            4


                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-09-00051-CR

                 EX PARTE GEORGE CHARLES WYATT, JR.

                           From the 278th District Court
                              Walker County, Texas
                              Trial Court No. 24,505

                           MEMORANDUM OPINION

       Appellant has filed a motion to dismiss this appeal under Rule of Appellate

Procedure 42.2(a). See TEX. R. APP. P. 42.2(a); Crawford v. State, 226 S.W.3d 688, 688 (Tex.

App.CWaco 2007, no pet.) (per curiam). We have not issued a decision in this appeal.

Appellant personally signed the motion. The Clerk of this Court has sent a duplicate

copy to the trial court clerk. Id. Accordingly, the appeal is dismissed.

                                                        FELIPE REYNA
                                                        Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Appeal dismissed
Opinion delivered and filed April 8, 2009
Do not publish
[CR25]


285 Wis.2d 806 (2005)
701 N.W.2d 652
2005 WI App 176
STATE v. DOMENECH[]
No. 2004AP002357 CR.
Court of Appeals of Wisconsin.
June 30, 2005.
Affirmed.
NOTES
[]  Petition to review filed.


541 U.S. 1034
MORRISv.McCAUGHTRY, WARDEN.
No. 03-9484.
Supreme Court of United States.
May 3, 2004.

1
C. A. 7th Cir. Certiorari denied.