414 N.W.2d 843 (1987)
STATE of Iowa, Plaintiff-Appellee,
v.
Ronald Gene CHRISTENSEN, Jr., Defendant-Appellant.
No. 86-1133.
Court of Appeals of Iowa.
August 26, 1987.
*844 Charles Harrington, Chief Appellate Defender, and Linda Del Gallo, Asst. Appellate Defender, for defendant-appellant.
Thomas J. Miller, Atty. Gen., and David L. Dorff, Asst. Atty. Gen., for plaintiff-appellee.
Considered by DONIELSON, P.J., and SNELL and HAYDEN, JJ.
SNELL, Judge.
On April 11, 1986, the appellant, Ronald Gene Christensen, Jr., was charged by trial information with sexual abuse in the third-degree, false imprisonment, and assault with intent to inflict serious injury. Those charges stemmed from allegations of Christensen's physical and sexual abuse of Debora Delp, a woman with whom Christensen lived from February 28 to March 12, 1986. Trial commenced on July 14, 1986, and two days later the jury returned verdicts finding Christensen guilty as charged on the sexual abuse and assault counts. The jury acquitted Christensen of the false imprisonment charges. On August 4, 1986, Christensen's motions in arrest of judgment and for new trial were denied. He was sentenced to concurrent terms not to exceed ten years on the sexual abuse conviction and not to exceed two years on the assault conviction. This appeal followed. Our review is limited to the correction of errors at law. Iowa R.App.P. 4.
Christensen maintains the district court erred in allowing the testimony of Carol Cohn into evidence. Cohn and Christensen lived together from September 1983 to January 1984. As a witness for the State, Cohn testified that Christensen had committed physical and sexual abuse on her similar in some aspects to that alleged by Delp. No criminal charges resulted from this alleged abuse; nor did Cohn report the abuse to the authorities. The district court, in its ruling on defendant's motion in limine, found the challenged testimony relevant to "the issue of absence of mistake or accident" as concerns Delp's consent to sexual intercourse. Accordingly, the district court ruled the testimony admissible. Christensen contends this ruling violates Iowa Rule of Evidence 404(b).
The general rule is that "one crime cannot be proved by proof of another." State v. Cott, 283 N.W.2d 324, 326 (Iowa 1979) (quoting State v. Schlak, 253 Iowa 113, 115, 111 N.W.2d 289, 291 (1961)). The purpose of the rule is to exclude from the jury's consideration evidence which has no relevancy except to show that the defendant is a bad person and thus likely committed *845 the crime in question. Id. This rule is codified as Iowa Rule of Evidence 404(b). See Iowa R.Evid. 404(b), federal advisory committee's notes. That rule reads as follows:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
The exceptions to this rule are based upon the relevancy of certain evidence to the proof of some fact or element in issue other than the defendant's criminal disposition. Cott, 283 N.W.2d at 326. The test of admissibility under an exception to rule 404(b) is two-pronged. First, the challenged evidence must be relevant to one or more legitimate issue other than a general propensity to commit wrongful acts. State v. Barrett, 401 N.W.2d 184, 187 (Iowa 1987). In order to be "legitimate" within this rule, the issue must be a material one which has been raised concerning one of the exceptions to rule 404(b). United States v. Farber, 630 F.2d 569, 571 (8th Cir.1980), cert. denied, 449 U.S. 1127, 101 S.Ct. 946, 67 L.Ed.2d 114 (1981). Stated differently, the proffered evidence must tend to establish some material issue in the case. State v. Roth, 403 N.W.2d 762, 765 (Iowa 1987); Barrett, 401 N.W.2d at 187. Unless evidence of other crimes, wrongs, or acts has probative value under a recognized exception to the general prohibition of such evidence, a district court has no discretion to admit it. State v. Belieu, 288 N.W.2d 895, 901 (Iowa 1980). Second, even if the proffered evidence is relevant to a material issue, its probative value must not be substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. State v. Munz, 355 N.W.2d 576, 579 (Iowa 1984).
The district court believed the challenged testimony probative on the issue of whether Christensen mistakenly or accidentally believed Delp was consenting to sexual intercourse. We think, however, that this issue was material to neither the State's case nor Christensen's defense. Christensen was charged with violating Iowa Code section 709.4(1) (1985). That subsection defines sexual abuse in the third degree as
[a]ny sex act between persons who are not at the time cohabiting as husband and wife ... by a person when the act... is done by force or against the will of the other participant.
Relatedly, Iowa Code section 701.6 (1985) provides, in pertinent part, that "[e]vidence of an accused person's mistake as to a matter of ... fact ... shall be admissible in any case where it shall tend to prove the existence or nonexistence of some element of the crime with which the person is charged." In State v. Bauer, 324 N.W.2d 320 (Iowa 1982), our supreme court held that a defendant's awareness of a putative sexual abuse victim's lack of consent is not an element of third-degree sexual abuse. In Bauer, appellant contended he could not be found guilty of third-degree sexual abuse "because he was justified in believing [the victim] was a willing partner [in the sex act]." Id. at 321. The supreme court began its analysis of this claim by noting Iowa Code section 709.5 (1979) which provides as follows:
Under the provisions of this chapter it shall not be necessary to establish physical resistance by a participant in order to establish that an act of sexual abuse was committed by force or against the will of the participant. However, the circumstances surrounding the commission of the act may be considered in determining whether or not the act was done by force or against the will of the other.
The court then emphasized that the current sexual abuse statute concerns itself with "the question of whether the sexual act was committed `by force or against the will' of the victim." Id. at 322. This inquiry is answered in each case with reference to the above-quoted section 709.5 and, if answered in the affirmative, "is all our statute demands." Id.; see also II Iowa Uniform Jury Instructions (criminal) No. 908 (1984). The appellant's contention that *846 his awareness of complainant's nonconsent must be shown was rejected. Id. This holding is consistent with the position taken by our supreme court that "[s]tatutes regarding sex offenses are common examples of employment of strict liability intended to protect the public welfare." State v. Tague, 310 N.W.2d 209, 211 (Iowa 1981). See also Commonwealth v. Lefkowitz, 20 Mass.App. 513, 517, 481 N.E.2d 227, 231, review denied, 396 Mass. 1103, 485 N.E.2d 188 (1985) ("the prosecution has proved rape if the jury concludes that the intercourse was in fact nonconsensual ..., without any special emphasis on defendant's state of mind.").
The Bauer holding is also consistent with the cases interpreting other subsections of our third-degree sexual abuse statute. For example, in State v. Tague, 310 N.W.2d 209 (Iowa 1981), our supreme court was called upon to interpret Iowa Code section 709.4(3) (1979) which defines as third-degree sexual abuse any sex act between persons not cohabiting as husband and wife when the other participant is under fourteen years old. After stating that the "[d]efendant plainly bears the full risk of his conduct," the court held both that this crime does not require a defendant's knowledge or intent and that, consequentially, a defendant's reasonable mistake of fact as to the victim's age did not constitute a defense. Id. at 212. State v. Sullivan, 298 N.W.2d 267 (Iowa 1980), contains identical holdings with respect to subsection 709.4(2) (1979) which prohibits sex acts between persons not cohabiting as husband and wife when the other participant is suffering a mental defect or incapacity which precludes giving consent. The Sullivan court acknowledged the possibility that "an erroneous judgment by an offender may still subject him or her to criminal sanction if the partner in fact does not possess the requisite mental capacity." Id. at 273. In light of the policies underlying the statute, however, the court found such protection warranted. Id. We think Tague and Sullivan serve as specific applications of the general principle that "the acts now defined as sexual abuse [do not] require a specific intent." State v. York, 293 N.W.2d 13, 14 (Iowa 1980).
Bauer determined that a defendant's knowledge of his or her partner's lack of consent is not an element of section 709.4(1). 324 N.W.2d at 322. We think it follows from this premise that a defendant's mistake of fact as to that consent would not negate an element of the offense. See State v. Williams, 696 S.W.2d 809, 813 (Mo.App.1985) ("[I]t is incongruous to define forcible rape ... as being accomplished `without that persons consent by the use of forcible compulsion' ... and yet authorize a verdict of not guilty upon the defendant's belief of consent, reasonable or not."); see also Lafave and Scott, Criminal Law, § 47 at p. 358 (1972) ("[T]he crime of rape must be understood as not including an element of knowledge of the woman's lack of consent, from which it follows that not every mistake by the defendant by which he believes the woman is consenting will be a defense.") Evidence tending to demonstrate Christensen's mistaken or accidental belief that Delp consented to the pertinent sex acts, therefore, would not constitute an admissible defense under Iowa Code section 701.6 (1985). As this mistake of fact defense is not available to Christensen, the State's attempt to rebut this anticipated defense by the use of Cohn's testimony is misguided. Such testimony has no tendency to establish any material issue in Christensen's case, see Roth, 403 N.W.2d at 765, and accordingly cannot be properly admitted pursuant to any exception contained in rule 404(b). The district court had no discretion to admit the testimony, see Belieu, 288 N.W.2d at 901, and, in doing so, erred.
We need not rest our decision on this ground alone. Assuming, arguendo, that the absence of mistake or accident on the part of Christensen as regards Delp's consent is in some way material to Christensen's case, we think the proffered evidence irrelevant to that issue. In State v. Ball, 262 N.W.2d 278, 280 (Iowa 1978), our supreme court stated in an analogous situation that "[w]e have never adopted the principle that a victim's consent to intercourse *847 with one man implies her consent in the case of another, and we reject it now." Neither, we think, does one woman's lack of consent to intercourse with a man imply a different woman's lack of consent to intercourse with the same man. See People v. Oliphant, 399 Mich. 472, 476, 250 N.W. 2d 443, 450 (1976) ("Certainly, the fact that an individual commits a rape at one time has no bearing on whether another woman consented to intercourse at a later time."). Much less do we accept the additional necessary logical thread connecting Cohn's alleged lack of consent, Christensen's awareness of that lack of consentan issue about which Cohn's testimony has nothing to sayand Christensen's awareness, mistaken or otherwise, of Delp's lack of consent.
Neither are we persuaded by the additional argument proffered by the State on appeal: that Cohn's testimony is relevant as tending to show that Christensen intended to have sexual intercourse with an unwilling victim. As we have noted supra, third-degree sexual abuse is a general intent crime. York, 293 N.W.2d at 14. Therefore, Christensen's specific intent was not a material issue at his trial. Cf. Commonwealth v. Grant, 391 Mass. 645, 647, 464 N.E.2d 33, 36 (Mass.1984) (rejecting contention that in order to convict of aggravated rape the State must prove defendant's specific intent that the intercourse be without consent). In addition, as manifest in our analysis above, we fail to see the logical progression of the State's argument. First, we find nothing in Cohn's testimony which would tend to establish Christensen's specific intent to engage in nonconsensual intercourse with her or anyone else. Assuming the facts as testified to by Cohn, Christensen in fact intended to have sexual intercourse with her, and may have been willing to effectuate that intent via the use of fear. But this evidence only establishes, at most, that Christensen was seeking sexual intercourse; it does not demonstrate that he was specifically seeking nonconsensual sexual intercourse. Second, the gap the State seeks to bridge between the Cohn/Christensen relationship and the Delp/Christensen relationship can be bridged, we think, in only one way: by allowing the jury to infer that Christensen acted in conformity with his character as manifested in his earlier acts. Our supreme court, in the context of a sex crime appeal, has stated that such a "focus on the criminal or aberrant disposition of the defendant with regard to various victims is exactly the sort of prejudice which the general rule [prohibiting evidence of prior bad acts] seeks to avoid." State v. Cott, 283 N.W.2d 324, 327 (Iowa 1979). In short, we cannot allow "intent" to become a not-so-subtle euphemism for "propensity."
We do not think this reasoning violates prior case law in which a criminal defendant's past sexual activities were held properly admissible in order to demonstrate his intent in the charged crime. State v. Spargo, 364 N.W.2d 203 (Iowa 1985), is such a case. Initially, we note that Spargo was tried and convicted of assault with intent to commit sexual abuse. Accordingly, and in contrast to the case at bar, the defendant's specific intent was a material issue at trial. Moreover, the inference held allowable in Spargo was much sounder than that urged by the State here. The Spargo analysis posits an earlier series of seductions, each of which resulted in an incident of sexual abuse. Spargo then reasons that a later similar seduction manifests an intent on the part of the defendant that the seduction will culminate in a similar incident of sexual abuse. In contrast, the State's present argument posits an earlier act, speculates as to the specific intent motivating that act, and contends that a reasonable interpretation of a later similar act would include that specific intent. The strength of the Spargo analysis results from its logical recognition that what the defendant began, he more than likely intended to finish. The State's present argument contains no such inner logic, and we decline to adopt it.
Finally, we realize that in addition to those bases for admission specifically enunciated in rule 404(b), our supreme court has recognized an exception applicable in the context of sex crime cases. In State v. Spaulding, 313 N.W.2d 878 (Iowa *848 1981), the sister of a sexual abuse victim testified to a sex act committed on her by the defendant, father of both the victim and the sister whose testimony was at issue. Although the testimony pertained to sexual contact other than that for which the defendant was being prosecuted, the Iowa Supreme Court held that it had been properly admitted. The court stated that such testimony
is generally received in the belief "that certain unnatural sex crimes are in themselves so unusual and distinctive that any previous such acts by the accused with anyone are strongly probative of like acts upon the occasion involved in the charge...."
Id. at 881 (quoting McCormick's Handbook on the Law of Evidence, § 190 at 449 (2d Ed. E. Cleary 1972)).
The use of the phrase "unnatural sex crimes" suggests that by "unnatural" the court is excepting from the general rule those sex crimes that are "unusual." Sadly, it would appear that nonconsensual sexual abuse is the naturalin the sense of "usual"sex crime in our society. To hold otherwise would be to allow the Spaulding exception to swallow the general rule in cases of this type.
We hold the district court committed reversible error in allowing Cohn's testimony. Her testimony was highly prejudicial and the remainder of the State's case against Christensen cannot be accurately described as overwhelming. Compare State v. Craney, 347 N.W.2d 668, 676 (Iowa 1984). Under these circumstances, we cannot find the error was harmless. See State v. Leuty, 247 Iowa 251, 258, 73 N.W.2d 64, 66-67 (Iowa 1955); State v. Johnson, 367 N.W.2d 319, 322 (Iowa App. 1985).
As we find reversible error in connection with Christensen's first contention, we do not address his argument that the record evidence is insufficient to support his conviction.

REVERSED AND REMANDED FOR NEW TRIAL.
HAYDEN, J., concurs.
DONIELSON, P.J., dissents.
DONIELSON, Presiding Judge (dissenting).
I respectfully dissent. I believe that the trial court was correct in admitting the testimony of Carol Cohn into evidence.
The general rule is that one crime cannot be proved by proof of another, but I contend that the challenged testimony relating to prior acts of the defendant is admissible for one of the stated purposes set out in Iowa Rule of Evidence 404(b).
I agree with the majority that a defendant's knowledge of a putative sexual abuse victim's lack of consent is not an element of Iowa Code section 709.4(1). Thus, the district court was in error for finding the challenged testimony relevant to the issue of absence of mistake or accident as it related to Delp's consent to sexual intercourse.
However, the district court's ruling on the admissibility of evidence concerning prior acts may be upheld so long as a specific objection could properly have been overruled on any theory. State v. Serr, 322 N.W.2d 96, 100 (Iowa App.1982). I find that the challenged testimony was properly admitted to show that defendant intended to have sexual intercourse with an unwilling participant, rather than to show absence of mistake or accident. The majority discusses at length rejection of the "intent" argument, based on the fact that third-degree sexual abuse is a general intent crime, rather than a specific intent crime. I do not find the term "specific intent" as opposed to "general intent" to be controlling. Iowa Rule of Evidence 404(b) states that evidence of other acts may be admissible to show intent. There is no mention of "specific" or "general" in the rule.
The majority finds that the evidence of defendant intending to have sexual intercourse with Cohn and effectuating that intent via fear only establishes that defendant was seeking sexual intercourse. I find that it establishes he was seeking nonconsensual sexual intercourse. Cohn feared *849 for her physical well being if she rejected defendant's sexual advances. I further find that the connection between the defendant-Delp relationship and the defendant-Cohn relationship is relevant and material to demonstrate the intent of defendant to engage in nonconsensual sexual intercourse with Delp. The similarities between the two relationships are overwhelming: both Delp and Cohn maintained a brief live-in relationship with defendant; both women testified that defendant accused them of having relationships with black men; both women testified as to defendant's jealous moods, wherein defendant would become violent, assaultive, and threaten further beatings and/or death; both victims testified as to being kicked in the vaginal area; both women testified they feared resisting defendant's sexual advances because they did not want to get beaten again or killed; and both women testified as to defendant's attempts to prevent them from leaving his sight. Thus, the connection between the two relationships is relevant to demonstrate defendant's intent to have nonconsensual sexual intercourse, not to show that defendant acted in conformity with prior bad acts.
The majority regards State v. Spargo, 364 N.W.2d 203 (Iowa 1985), as not on point because that case involved assault with intent to commit sexual abuse, a specific intent crime, as opposed to the general intent crime involved in the instant case. I find Spargo to be in line with the analysis which should be taken in this case. Evidence of defendant's past sexual activities with Cohn should be held properly admissible to demonstrate his intent in the instant charge to engage in nonconsensual sexual intercourse. The majority states that since the case at bar involves a general intent crime, the challenged testimony cannot be utilized to demonstrate this intent. However, the defendant claimed he did not intend to have nonconsensual intercourse with Delp; therefore, I find Cohn's testimony very probative of the issue which defendant put into deliberation for the jury. Furthermore, the majority does not cite any authority stating that the proffered testimony of prior bad acts may be used only for specific intent crimes. To so hold would mean that the State in prosecuting all general intent crimes could not elicit evidence concerning prior bad acts to prove the intent of the crime so charged. I believe "intent" as used in Iowa Rule of Evidence 404(b) refers to the requisite intent of the crime charged; and, as such, the challenged testimony was properly admitted to show defendant's intent to have nonconsensual sexual intercourse with Delp.
I also believe that Cohn's testimony was more informative and probative than prejudicial to the defendant. The level of prejudice inherent in this type of evidence is high, but it is nonetheless admissible if its value to search out the truth is higher than the possible prejudice. State v. Spaulding, 313 N.W.2d 878, 881 (Iowa 1981). An element of sexual abuse in the third degree is that the sexual intercourse was done against the other participant's will. Iowa Code § 709.4(1). As between defendant and Delp, it was defendant's word versus Delp's word that the sexual intercourse was nonconsensual: there were no eyewitnesses. Cohn's testimony helped corroborate Delp's testimony as it related to fear, fear being a substitute for the resistance otherwise required against defendant's sexual advances in a third-degree sexual abuse charge. State v. Bauer, 324 N.W.2d 320, 322 (Iowa 1982). Because of the similarities of the Delp/Cohn situations, the court was correct in admitting Cohn's testimony.
In light of the evidence available to the prosecution to prove Delp's lack of consent (wherein I might note there is still a tendency in today's society to believe a live-in relationship connotes consensual sexual intercourse) and in light of the balancing between the prejudice to the defendant and the probative value to the State's case, I feel such testimony was properly admitted. The trial court did not abuse its discretion.
The majority summarily states that the remainder of the State's case against defendant was not overwhelming. I summarily state that I think the evidence was overwhelming; therefore, even if allowing *850 the challenged testimony is considered error, it would be considered harmless error.
I find that there was sufficient evidence from which the jury could find defendant guilty of the crime charged.


925 N.E.2d 1280 (2010)
Jack Edwin SUPRENANT, Jr., Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.
No. 45A04-0906-CR-319.
Court of Appeals of Indiana.
April 30, 2010.
*1281 Thomas W. Vanes, Office of the Public Defender, Crown Point, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Kathy Bradley, Karl M. Scharnberg, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellee.

OPINION
BAILEY, Judge.

Case Summary
Jack Edwin Suprenant, Jr. ("Suprenant") appeals his conviction and sixty-year sentence for Murder, a felony.[1] We affirm.[2]

Issues
Suprenant presents two issues for review:[3]

*1282 I. Whether the trial court abused its discretion by refusing to instruct the jury on Voluntary Manslaughter; and
II. Whether his sentence is inappropriate.

Facts and Procedural History
Suprenant, Kerry Bruckman, and Bruckman's three children (two of which were fathered by Suprenant) lived together in Gary, Indiana. On September 16, 2006, after the couple had argued for several days, in part over Bruckman's involvement with a mutual friend, Bruckman stated her intention to leave Suprenant and began gathering her clothes. Suprenant tried to persuade Bruckman to stay; when his efforts failed, Suprenant stabbed Bruckman repeatedly. Bruckman's screams caused the children to run into their mother's bedroom, where they witnessed some of the attack. Suprenant chased the children back to their bedrooms and continued his attack on Bruckman. Ultimately, Suprenant inflicted sixty-one wounds (including forty-nine stab wounds) upon Bruckman and she died.
Suprenant was tried before a jury on the charge of Murder. He was convicted and sentenced to sixty years imprisonment. He now appeals.

Discussion

I. Voluntary Manslaughter Instruction
Indiana's Voluntary Manslaughter statute provides:
(a) A person who knowingly or intentionally:
(1) kills another human being; or
(2) kills a fetus that has attained viability (as defined in IC XX-XX-X-XXX);
while acting under sudden heat commits voluntary manslaughter, a Class B felony. However, the offense is a Class A felony if it is committed by means of a deadly weapon.
(b) The existence of sudden heat is a mitigating factor that reduces what otherwise would be murder under section 1(1) of this chapter to voluntary manslaughter.
Ind.Code § 35-42-1-3. The statute specifies that sudden heat is a mitigating factor to Murder, as opposed to an element of Voluntary Manslaughter. Watts v. State, 885 N.E.2d 1228, 1231 (Ind.2008). Although Voluntary Manslaughter is a lesser-included offense of Murder, it is an atypical example of a lesser-included offense. Id. at 1232. In the case of Voluntary Manslaughter, sudden heat is a mitigating factor that the State must prove in addition to the elements of murder. Id. Sudden heat must be separately proved and, therefore, if there is no serious evidentiary dispute over sudden heat, it is error for a trial court to instruct a jury on voluntary manslaughter in addition to murder. Id.
"Sudden heat" is characterized as anger, rage, resentment, or terror sufficient to obscure the reason of an ordinary person, preventing deliberation and premeditation, excluding malice, and rendering a person incapable of cool reflection. Dearman v. State, 743 N.E.2d 757, 760 (Ind.2001). Anger alone is not sufficient to support an instruction on sudden heat. Wilson v. State, 697 N.E.2d 466, 474 (Ind. 1998). Nor will words alone "constitute sufficient provocation to warrant a jury instruction on voluntary manslaughter," and this is "especially true" when the words at issue are not intentionally designed to provoke the defendant, such as fighting words. Allen v. State, 716 N.E.2d 449, 452 (Ind.1999).
In addition to the requirement of something more than "mere words," the provocation must be "sufficient to obscure *1283 the reason of an ordinary man," an objective as opposed to subjective standard. See Stevens v. State, 691 N.E.2d 412, 426 (Ind.1997) (refusing to find that a threat to disclose molestation would "understandably" provoke "an ordinary twenty-year-old man" to rage or terror). Finally, Voluntary Manslaughter involves an "impetus to kill" which arises "suddenly." Id. at 427.
The trial court refused to instruct the jury on Voluntary Manslaughter, concluding that Bruckman's words to Suprenant were insufficient provocation for sudden heat.[4] Where the trial court rejects a Voluntary Manslaughter instruction based on a lack of evidence of sudden heat, we review the trial court's decision for an abuse of discretion. Washington v. State, 808 N.E.2d 617, 626 (Ind.2004).
The parties agree that the record discloses evidence that Suprenant became enraged; they disagree as to the existence of a serious evidentiary dispute such that the jury could conclude that the lesser offense was committed but the greater was not. In arguing that sufficient evidence existed to support the giving of a Voluntary Manslaughter instruction, Suprenant claims that he "lost it" when Bruckman failed to deny that she had been unfaithful to him and was gathering things to move out of the residence with their children. He argues that the act of gathering belongings went beyond mere words. In response, the State points to the legal insufficiency of mere words and also to evidence that shows deliberation and cool reflection inconsistent with sudden heat.
Perigo v. State, 541 N.E.2d 936, 938 (Ind.1989) involved the killing of a woman and her fetus after she admitted to the defendant that "their relationship was finished," she had engaged in sexual intercourse with another man, and did not know by whom she was pregnant. The defendant had unsuccessfully argued to the trial court that confessions of illicit sex are sufficient provocation for a Voluntary Manslaughter verdict. Id. On appeal, the Court reiterated the principle that "words alone are not sufficient provocation to reduce murder to manslaughter", but nonetheless recognized, "[i]n some circumstances, words may be combined with actions engendering sufficient provocation to reduce an offense from murder to manslaughter." Id.
Subsequently, the Court has recognized that discovery of alleged infidelity can "introduce the element of sudden heat." Evans v. State, 727 N.E.2d 1072, 1077 (Ind. 2000). In Evans, the defendant had witnessed his recent girlfriend having sexual intercourse with another man, placing "sudden heat" in issue; yet the State had negated the presence of sudden heat by showing that the defendant had, after witnessing the tryst, gone downstairs, armed himself with knives, cut the telephone line, gone back upstairs, stood outside the bedroom for over a minute, and then struggled with and killed the man. Id. See also Ford v. State, 704 N.E.2d 457, 460 (Ind.1998) (observing that there was substantial evidence that a husband was not acting under sudden heat when, three days after discovering his wife's affair, he took a pistol and shot her twice at close range); Horan v. State, 682 N.E.2d 502, 507 (Ind.1997) *1284 (there was no serious evidentiary dispute as to whether husband was acting in sudden heat when he beat his wife's lover to death after an earlier confrontation and beating).
Here, the alleged provocation was comprised of words ending a relationship accompanied by preparations to leave. Although there was some non-verbal action by the victim, we do not find that the lawful conduct of gathering ones belongings goes so far beyond "mere words" as to constitute "sudden heat" justifying a Voluntary Manslaughter instruction. Furthermore, the record is replete with evidence that the impetus to kill did not "suddenly" arise in response to a contemporaneous event. The couple had been arguing at length. Earlier on the day of Bruckman's death, Suprenant had told his mother that Bruckman planned to leave and take the children. During that conversation, he was alternately calm and angry. He had also told his father of Bruckman's alleged infidelity.
Most compelling, Suprenant stopped his attack on Bruckman when confronted by the children, forced each of them into their rooms, and returned to resume stabbing his victim. This is akin to the circumstances in Stevens, where the defendant strangled his victim, who then resumed breathing, giving the defendant "ample time ... to collect his wits and realize the heinousness and depravity of his actions." 691 N.E.2d at 427. Instead, the defendant deliberated and chose to carry out the murder by another means; he could not later prevail upon his claim that a sudden heat instruction was warranted. Id. Likewise, when Suprenant's screaming children confronted him, he had ample time to reflect upon the heinousness of his actions and seek help for the children's mother. He chose not to do so. We find no abuse of discretion in the trial court's rejection of a Voluntary Manslaughter instruction.

II. Sentence
Suprenant contends that his sentence is inappropriate pursuant to Indiana Appellate Rule 7(B). In Reid v. State, the Indiana Supreme Court reiterated the standard by which our state appellate courts independently review criminal sentences:
Although a trial court may have acted within its lawful discretion in determining a sentence, Article VII, Sections 4 and 6 of the Indiana Constitution authorize independent appellate review and revision of a sentence through Indiana Appellate Rule 7(B), which provides that a court may revise a sentence authorized by statute if, after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender. The burden is on the defendant to persuade us that his sentence is inappropriate.
876 N.E.2d 1114, 1116 (Ind.2007) (internal quotation and citations omitted).
More recently, the Court reiterated that "sentencing is principally a discretionary function in which the trial court's judgment should receive considerable deference." Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.2008). Indiana's flexible sentencing scheme allows trial courts to tailor an appropriate sentence to the circumstances presented. See id. at 1224. One purpose of appellate review is to attempt to "leaven the outliers." Id. at 1225. "[W]hether we regard a sentence as appropriate at the end of the day turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case." Id. at 1224.
*1285 A person who commits murder has a sentencing range of between forty-five years and sixty-five years, with the advisory sentence being fifty-five years. Ind. Code § 35-50-2-3. As such, Suprenant received a sentence that is five years in excess of the advisory sentence. He asks that we reduce his sentence to the advisory, citing his lack of criminal history, his need for special education classes, and his acceptance of responsibility for the crime.
The nature of Suprenant's offense was particularly brutal. He inflicted sixty-one wounds on his victim, with forty-nine of these described as stab wounds. Three children were present in the trailer home during the killing; they observed a portion of the attack.
As to the character of the offender, Suprenant has no criminal history apart from an offense of operating a vehicle without a license. And, as he points out, Suprenant "admitted to guilt at the scene." Appellant's Brief at 12. Nonetheless, this admission was essentially pragmatic in that Suprenant was the only adult present and there were three small eyewitnesses to his crime.
In sum, we do not find that the nature of the offense or the character of the offender renders a sentence of five years more than the advisory sentence inappropriate.
Affirmed.
MAY, J., and ROBB, J., concur.
NOTES
[1]  Ind.Code § 35-50-2-3.
[2]  We held oral argument in this case on April 7, 2010 at Indiana University East in Richmond, Indiana, hosted by Indiana University East, its Criminal Justice Club and the Wayne County Bar Association. We thank our hosts for their gracious hospitality and thank the attorneys for their able advocacy.
[3]  In his appellate brief, Suprenant articulated a third issue, specifically, whether the trial court abused its discretion by excusing for cause two potential jurors, one of whom had some past social interaction with defense counsel and one of whom knew members of the Suprenant family, including one expected to be a State's witness. At oral argument, Suprenant conceded that, had the potential jurors not been excused for cause, the State had sufficient remaining peremptory challenges to remove them and thus, at most, he merely sustained "theoretical" prejudice. Accordingly, Suprenant no longer claims reversible error in this regard. See Ind. Trial Rule 61 (providing in relevant part, "[t]he court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.")
[4]  Although a defendant will typically draft and tender an instruction on a lesser-included offense, here the trial court's practice in Murder cases was to utilize a court-generated "combined" jury instruction addressing both the elements of Murder and Voluntary Manslaughter. At the conclusion of argument over the propriety of the Voluntary Manslaughter language, at which Suprenant argued for its inclusion, that portion of the "combined" instruction was stricken.


152 B.R. 779 (1993)
In re Carl R. COLEMAN, a/k/a C. Randolph Coleman, a/k/a Randy Coleman, Debtor.
Bethany B. COLEMAN, Plaintiff,
v.
Carl R. COLEMAN, a/k/a C. Randolph Coleman, a/k/a Randy Coleman, Defendant.
Bankruptcy No. 91-6155-BKC-3P7, Adv. No. 92-203.
United States Bankruptcy Court, M.D. Florida, Jacksonville Division.
March 29, 1993.
*780 Paul A. Louis, Miami, FL, for plaintiff.
C. Randolph Coleman, defendant pro se.

FINDINGS OF FACT AND CONCLUSIONS OF LAW
GEORGE L. PROCTOR, Bankruptcy Judge.
This adversary proceeding came before the Court upon Motions for Summary Judgment filed by the plaintiff and the defendant. A hearing by telephone conference call was held on November 11, 1992. At that time the defendant conceded that his obligation to pay child support is nondischargeable. The parties agree there are no genuine issues of material fact and that this proceeding may be determined on the filed papers. The Court enters the following Findings of Fact and Conclusions of Law:

Findings of Fact
The parties were married on May 27, 1983. One child was born as a result of the marriage, Carole Jacqueline, on October 4, 1985.
After a six-day trial, a Final Judgment of divorce was entered on July 9, 1990. Defendant appealed the judgment, challenging the state court's award of attorney's fees, equitable distribution of marital assets, and award of child support. On November 14, 1991, the Third District Court of Appeal of Florida affirmed the circuit court decision.
The judgment covered six categories, including Child Support, Alimony, Equitable Distribution, and Attorney's Fees.
The Child Support section ordered defendant to pay plaintiff $1,200.00 a month for *781 the support of the child. The payments were to be made through the Clerk of the Court. Defendant is in arrears on such payments and currently has a petition for modification of child support pending in the state court.
The Alimony section makes the following provisions:
IV. Alimony

The wife is seeking an award of rehabilitative alimony. The parties were married in May, 1983, and the wife worked full time until March 1988. She is an intelligent, attractive and healthy young woman with insurance licenses and employment experience. She is one of the few women members of the Orange Bowl Committee and is an active participant in many community organizations and activities. The wife has indicated she has no desire to resume any employment, but prefers to remain home as a full time mother.
The wife has the education, intellect, experience and ability to work competitively in the market place. The purpose of rehabilitative alimony is just that, to rehabilitate. As such, it is not warranted by the facts of this case, and accordingly, the husband shall not be required to pay any alimony to the wife.
The Equitable Distribution section covered a variety of assets, but provided in relevant part:
V. Equitable Distribution

This is a marriage of short duration. It is the intent of the Court to distribute the marital assets of the parties in as equal a manner as possible.
* * * * * *
C. Certificate of Deposit

This Certificate of Deposit is the wife's premarital asset which she pledged as collateral for the husband's loan at Sun Bank. The Certificate of Deposit is awarded to the wife, and the husband is ordered to obtain the release of said CD as collateral within 90 days from the date hereof, so that the wife may have the same free and clear for her own unrestricted use.
* * * * * *
E. Child's Custodial Account

The wife's grandmother gave $10,000.00 per year for the minor child of the parties. The parties took a portion of those gifts, and established a custodial account for the daughter, which is in the husband's name. The husband shall, within 30 days from the date of this judgment, account for said funds to the wife, and put the funds in the name of the wife in trust for the minor child.
The defendant initiated a case under chapter 7 on November 22, 1991, just eight days after the Final Judgment was affirmed.
The remaining issues involve the dischargeability of the obligations created in the Certificate of Deposit and the Child's Custodial Account sections of the Final Judgment.

Conclusions of Law
This adversary proceeding comes before the Court on competing motions for summary judgment. Rule 56(c) of the Federal Rules of Civil Procedure, as made applicable by Federal Rule of Bankruptcy Procedure 7056, mandates that summary judgment shall only be entered if the pleadings, depositions, and other evidence demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
Both the plaintiff and the defendant contend that no genuine issue of material fact exists. The Court concurs and finds that this adversary proceeding is ripe for resolution based on the pending summary judgment motions.
The dischargeability of obligations arising in the context of divorce is governed by § 523(a)(5), which provides:
(a) A discharge . . . does not discharge an individual debtor from any debt
(5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or *782 child, in connection with a separation agreement, divorce decree . . . or property settlement agreement, but not to the extent that
(B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support. . . .
The determination of whether an award is the nature of support is controlled by federal bankruptcy law rather than state law. The bankruptcy court must make an independent evaluation as to whether an obligation arising from a divorce decree is in the nature of alimony and, therefore, non-dischargeable. In re Harrell, 754 F.2d 902 (11th Cir.1985).
As the party challenging the dischargeability of the various debts, the plaintiff has the burden of proving that awards were intended to be in the nature of alimony, support, or maintenance. In re Long, 794 F.2d 928, 930 (4th Cir.1986).
This Court finds that each of the obligations at issue in the adversary proceeding were intended as a return of property and were not intended to be in the nature of support. Both the awards were made under the heading of Equitable Distribution. Although the label assigned by the state court is not dispositive, it is indicative of that court's intent.
As to the Certificate of Deposit, it was clearly a premarital asset of plaintiff. The state court stated that it was distributing the assets as equally as possible. The return of this asset to its pre-marriage owner was an equitable act and was not intended to provide support for plaintiff.
The custodial account is similarly postured. It was established with a cash gift from plaintiff's grandmother for the benefit of the child. The state court sought to return the funds to the plaintiff. The award was more in the nature of a property division than alimony.
Additionally, the state court specifically considered the respective positions of the parties, including education, health, and employability. Based on such considerations, the court found that the defendant would not be required to pay any alimony. Implicit in such a holding is the conclusion that plaintiff did not have a need for support; therefore, the awards made in the other sections of the judgment were not intended as support.
Defendant concedes that the debt for child support is excepted from discharge under § 523(a)(5). However, defendant has pending before the state court a petition for modification of child support. Given the Eleventh Circuit's recent instruction concerning involvement by bankruptcy courts in domestic matters, see Carver v. Carver, 954 F.2d 1573 (11th Cir.1992), this Court leaves for the state court the determination of the exact amount of child support arrearage due from defendant to plaintiff.
Summary judgment will be entered in accordance with these Findings of Facts and Conclusions of Law.

SUMMARY JUDGMENT
Upon the Findings of Facts and Conclusions of Law separately entered, it is
ORDERED:
1. Plaintiff's Motion for Summary Judgment is granted in part and denied in part.
2. Defendant's Motion for Summary Judgment is granted in part and denied in part.
3. Pursuant to § 523(a)(5), defendant's obligation to pay child support set forth in section III of the Final Judgment entered July 9, 1990, in the Circuit Court, Eleventh Judicial Circuit, in and for Dade County, Florida, is excepted from defendant's discharge. The precise amount of the arrearage is left for determination by the state court.
3. The obligations of defendant created in sections V(C) and V(E) of the Final Judgment entered July 9, 1990, in the Circuit Court, Eleventh Judicial Circuit, in and for *783 Dade County, Florida, are not intended as support and are dischargeable.


     Case: 15-50414      Document: 00513486780         Page: 1    Date Filed: 04/29/2016

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                    No. 15-50414
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                Fifth Circuit

                                                                                FILED
                                                                            April 29, 2016
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee,

versus

JESUS AGUILAR-SANCHEZ, Also Known as Jesus Aguilar Sanchez,

                                                 Defendant–Appellant.

                   Appeal from the United States District Court
                        for the Western District of Texas
                                No. 2:11-CR-147-1

Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *

       Jesus Aguilar-Sanchez, federal prisoner # 70345-280, appeals the denial

       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 15-50414    Document: 00513486780     Page: 2   Date Filed: 04/29/2016

                                 No. 15-50414

of a sentence reduction under 18 U.S.C. § 3582(c)(2). The district court origin-
ally sentenced him to 90 months—within the guideline range of 87 to 108
months—for possessing with intent to distribute cocaine. The court went
below the 10-year statutory minimum in 21 U.S.C. § 841(b)(1)(A)―even though
the offense involved more than five kilograms of cocaine―because Aguilar-
Sanchez met the conditions for the safety valve in 18 U.S.C. § 3553(f). Later,
the Sentencing Commission retroactively lowered the guideline range to 70 to
87 months, see U.S.S.G. App. C, Amend. 782, and the parties moved the court
to reduce the sentence to 72 months under § 3582(c)(2).

      The district court acknowledged Aguilar-Sanchez’s eligibility for a reduc-
tion but denied it. We review that decision for abuse of discretion. United
States v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011).

      Aguilar-Sanchez claims that the court gave improper weight to the unu-
sually high purity of the cocaine, which the court noted can be a basis for an
upward departure. See U.S.S.G. § 2D1.1, comment. (n.27(C)). The court was
not upwardly departing here but, instead, was only considering the relevant
factors. See § 3553(a)(1), (2)(A), (5)(A); U.S.S.G. § 1B1.10, comment. (n.1(B)),
p.s.; see also U.S.S.G. § 1B1.7. Aguilar-Sanchez also urges that the court
should not have treated the prior safety-valve reduction under U.S.S.G.
§§ 2D1.1(b)(16) and 5C1.2 and § 3553(f) as weighing against a reduction in the
sentence, but the court properly took into account the context of the original
sentence when it decided against a reduction. See, e.g., United States v. Evans,
587 F.3d 667, 673 & n.11 (5th Cir. 2009); see also § 3553(a)(2)(A). Aguilar-
Sanchez’s contention that the court failed to accord adequate weight to the
need to avoid unwarranted sentencing disparities, see § 3553(a)(6), is also un-
availing. See United States v. Smith, 595 F.3d 1322, 1323 (5th Cir. 2010).

      AFFIRMED.

                                       2


CHERA B. NORTON, Plaintiff,
v.
HENRY CLIFTON GOODS, Defendant.
No. COA08-963
Court of Appeals of North Carolina
Filed April 7, 2009
This case not for publication
R. Lee Farmer, for plaintiff-appellant.
Haywood, Denny & Miller, L.L.P., by Robert E. Levin, for defendant-appellee.
MARTIN, Chief Judge.
Plaintiff appeals from orders dismissing her complaint on the grounds that it was filed after the expiration of the statute of limitations. We affirm.
The factual and procedural history of this case is undisputed and may be summarized as follows: On 18 September 2003, Chera Norton ("plaintiff") and Henry Goods ("defendant") were involved in an automobile accident. On 18 September 2006, plaintiff filed a North Carolina AOC Form CV-101, "Application and Order Extending Time to File Complaint," with the Caswell County Clerk of Court. Form CV-101 states in pertinent part that "[t]he undersigned requests permission to file a complaint in this action withintwenty (20) days of any order granting this Application, as provided in Rule 3 of the Rules of Civil Procedure." The form has an area for the plaintiff to describe the nature and purpose of the action, and a space for the clerk to indicate the date by which the plaintiff must file a complaint. Below this space printed in italics is the following: "(Date must be within 20 days of date of Order.)" Plaintiff's attorney signed this form and marked the box labeled "Attorney For Applicant." Contrary to the directives on the form, however, the clerk entered 19 October 2006 as the extended date for the filing of plaintiff's complaint.
Plaintiff filed a complaint on 18 October 2006 in Caswell County, Case File No. 06 CVD 51, seeking to recover damages for injuries allegedly sustained in the collision. Defendant filed an answer on 5 January 2007, and moved to dismiss the complaint on the grounds that the statute of limitations had expired before the complaint was filed. On 25 April 2007, plaintiff voluntarily dismissed her complaint. She refiled the claim about four months later on 31 August 2007 in Caswell County, File No. 07 CVD 405. Defendant answered on 19 October 2007, and again moved to dismiss on the grounds the statute of limitations had expired. The trial court granted defendant's motion, dismissing plaintiff's claim in an order filed 15 May 2008 and in a "Supplemental Order" filed 6 June 2008. Plaintiff appeals from these orders.

Standard of Review
"Ordinarily, a dismissal predicated upon the statute of limitations is a mixed question of law and fact. But where the relevant facts are not in dispute, all that remains is the question of [the statute of] limitations which is a matter of law." Udzinski v. Lovin, 159 N.C. App. 272, 273, 583 S.E.2d 648, 649 (2003) (citing Poultry Co. v. Oil Co., 272 N.C. 16, 21, 157 S.E.2d 693, 697 (1967); Yancey v. Watkins, 17 N.C. App. 515, 519, 195 S.E.2d 89, 92, cert. denied, 283 N.C. 394, 196 S.E.2d 277 (1973)), aff'd, 358 N.C. 534, 597 S.E.2d 703 (2004). Once the statue of limitations has been pled, the burden is on the plaintiff to show that his cause of action accrued within the limitations period. See Crawford v. Boyette, 121 N.C. App. 67, 70, 464 S.E.2d 301, 303 (1995) (citing Hooper v. Lumber Co., 215 N.C. 308, 311, 1 S.E.2d 818, 820 (1939)). Where the relevant facts are undisputed, we review a trial court's decision to dismiss an action based on the statute of limitations de novo. See Udzinski, 159 N.C. App. at 273, 583 S.E.2d at 649. In this case, the parties agree on the pertinent facts, leaving only a question of law for our determination.
The issue before this Court is whether the statute of limitations expired before plaintiff commenced her action. For the reasons stated below, we conclude that plaintiff's action is barred by the statute of limitations and we affirm the trial court's dismissal.
Plaintiff's claim was for damages for personal injuries arising from an automobile accident. The statute of limitations for an action for recovery for personal injuries suffered in a motor vehicle accident is three years. N.C. Gen. Stat. § 1-52(16) (2007). The date of the automobile accident giving rise to plaintiff's claim was alleged to have been 18 September 2003. The parties agree that on 18 September 2006, the day that the statute of limitations would otherwise have expired, plaintiff sought an extension of time to file her complaint pursuant to N.C.G.S. § 1A-1, Rule 3.
Under the Rules of Civil Procedure, an action may be commenced by the filing of a complaint or, under certain circumstances, by the issuance of a summons. N.C. Gen. Stat. § 1A-1, Rule 3 (2005). Rule 3 allows a plaintiff to request that the clerk commence the action by issuance of a summons and provides in relevant part:
(a) A civil action is commenced by filing a complaint with the court. The clerk shall enter the date of filing on the original complaint, and such entry shall be prima facie evidence of the date of filing.
A civil action may also be commenced by the issuance of a summons when
(1) A person makes application to the court stating the nature and purpose of his action and requesting permission to file his complaint within 20 days and
(2) The court makes an order stating the nature and purpose of the action and granting the requested permission.

The summons and the court's order shall be served in accordance with the provisions of Rule 4. When the complaint is filed it shall be served in accordance with the provisions of Rule 4 or by registered mail if the plaintiff so elects. If the complaint is not filed within the period specified in the clerk's order, the action shall abate.
Id. § 1A-1, Rule 3(a) (emphasis added). Where the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must construe the statute using its plain meaning. See Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990) (citing Utils. Comm. v. Edmisten, 291 N.C. 451, 232 S.E.2d 184 (1977)). Here, the statutory language of Rule 3(a) is clear and provides that a civil action may be commenced by the issuance of a summons only when the "court makes an order stating the nature and purpose of the action and granting the requested permission," referring to plaintiff's request for "permission to file his complaint within 20 days." See N.C. Gen. Stat. § 1A-1, Rule 3(a). In North Carolina, the clerk of Superior Court has "very limited jurisdiction, having only such jurisdiction as is given by statute." Beaufort Co. v. Bishop, 216 N.C. 211, 214, 4 S.E.2d 525, 526 (1939). Clearly, Rule 3 only gives the clerk jurisdiction to grant a party's request for permission to file his complaint within twenty days.
Here, the trial court found plaintiff had complied with the provisions of Rule 3(a) by applying for permission to file her complaint within twenty days, and that the clerk had entered an order granting her until 19 October 2006 to file her complaint, thus extending the period beyond that authorized by the statute. The complaint was filed on 18 October 2006, more than twenty days after the entry of the clerk's order, and more than three years after the accident occurred. Based upon these findings, the trial court correctly concluded, inter alia: 2. The Caswell County Clerk of Superior Court either through mistake or inadvertence extending [sic] the time for filing the Complaint for 30 days.
3. The Clerk was without authority to extend the time for filing the Complaint beyond the 20 days provided for in Rule 3.
4. That statute of limitations in this case therefore expired on October 8, 2006.
. . . .
8. Neither the Court nor the Clerk has the authority or discretion to extend the time for filing of a Complaint beyond the three year statute of limitations and the twenty day extension authorized by Rule 3.
These conclusions of law comport with our holding in Congleton v. City of Asheboro, 8 N.C. App. 571, 174 S.E.2d 870 (1970). In that case, the clerk erroneously granted the appellant an extension of twenty-one days in violation of N.C.G.S. § 1-121, which provided for a maximum extension of twenty days and was in effect until superceded by Rule 3. We affirmed the trial court's ruling that "the clerk was without authority to grant an extension for more than [twenty] days and his order for an extension of [twenty-one] days was of no effect." Id. (citing Deanes v. Clark, 261 N.C. 467, 135 S.E.2d 6 (1964)). Furthermore, we noted that "the statute of limitations operates to vest a defendant with the right to rely on the statute of limitations as a defense." Id. (citing Wilkes Cty. v. Forester, 204 N.C. 163, 167 S.E. 691 (1933)). "It is clear that a judge may not, in his discretion, interfere with the vested rights of a party where pleadings are concerned." Id. (citingState Highway Comm'n v. Hemphill, 269 N.C. 535, 153 S.E.2d 22 (1967)).
We conclude that the trial court correctly granted defendant's motion to dismiss.
Affirmed.
Judges BRYANT and BEASLEY concur.
Report per Rule 30(e).


326 So.2d 209 (1976)
DONALDSON ENGINEERING, INC., Appellant,
v.
CITY OF PLANTATION, a Municipal Corporation, Appellee.
No. 75-185.
District Court of Appeal of Florida, Fourth District.
February 6, 1976.
James W. Geiger, of Devitt, Geiger, O'Neal & Booth, Fort Lauderdale, for appellant.
Mark S. Schecter, of Kirsch & Mills, Fort Lauderdale, for appellee.
OWEN, Judge.
The issue here is whether the trial court, upon post-judgment petition for enforcement of the judgment, erred in modifying the judgment.
Appellant, a land developer, brought suit against the City of Plantation to recover certain money which the City had required appellant to contribute to the City's bridge fund. In a final judgment entered November 17, 1972, the trial court found that certain of the required contributions were illegal and ordered their refund, but the court also found that certain other contributions, amounting to $7,630.09, were the subject of a valid contract between the parties to be applied to the construction of a specific bridge, the Sixteenth Street bridge. The court further found "that an implied in fact condition of the agreement was that the bridge would be built within a reasonable time" and "that under the circumstances a period of two years from the date of this judgment [is] a reasonable period of time." The court thereupon ordered, with respect to the $7,630.09, that
"The Defendant CITY OF PLANTATION be and it is hereby authorized to *210 retain the sum of Seven Thousand Six Hundred Thirty Dollars and Nine Cents ($7,630.09) towards the construction of the aforesaid Sixteenth Street bridge. Upon failure of the Defendant CITY OF PLANTATION to commence construction of the said bridge within two years from date of this judgment, then, in that event, the Plaintiff may apply to this Court for return of said sum. This Court specifically retains jurisdiction with respect to the said sum retained in the City of Plantation Bridge Fund." (e.s.)
After two years had transpired, appellant filed its motion for the return of the $7,630.09, alleging that the City had not commenced construction of the bridge. At hearing on the motion, the parties stipulated that the actual physical construction of the bridge had not commenced. However, the City was permitted to present testimony to explain why construction had not commenced. Upon the basis of the evidence submitted, the trial court, concluding that in entering its final judgment of November 17, 1972, it had "underestimated the time" for commencing construction on the bridge and that the City had "proceeded diligently", ordered that the two-year period provided for in the final judgment be extended so long as the City of Plantation continued to proceed diligently with obtaining the necessary permits and thereafter with constructing the bridge, failing which, appellant could reapply for the return of its $7,630.09. It is from this order that the appeal has been taken.
A final judgment is one that determines the rights of the parties and disposes of the cause on its merits leaving nothing more to be done other than to enforce the judgment. Gore v. Hansen, 59 So.2d 538, 40 A.L.R.2d 1281 (Fla. 1952); Hollywood, Inc. v. Clark, 153 Fla. 501, 15 So.2d 175 (1943). The judgment of November 17, 1972 was clearly a final judgment within these terms and, as such, its legal and factual findings were conclusively binding upon the parties and not subject to relitigation under the doctrine of res judicata. Delcher Bros. Storage Co. v. Carter, 132 So.2d 593 (Fla. 1961); Kent v. Sutker, 40 So.2d 145 (Fla. 1949). Among the conclusive factual findings made in the November 17, 1972 judgment was the finding that a period of two years from the date of the judgment was a reasonable time within which to commence (not necessarily complete) the physical building of the bridge and implicit therein was the further finding that the City's failure to commence construction within such a time would be a breach of the agreement entitling appellant to the return of the $7,630.09.
If the City had felt that such factual finding was erroneous, it should have sought a rehearing or sought a reversal upon appeal. The City did neither, apparently content to be bound by the judgment. When that judgment achieved ultimate finality, it could only be amended, modified or vacated by proper independent action or by an appropriate proceeding as provided in Rule 1.540 RCP. Appellee has not sought such relief, but had it done so timely it would not have been entitled to have the final judgment modified or amended as was done in this case. If the trial judge, in entering the original final judgment, "underestimated the time required for commencing construction on the bridge", such was a judicial decision, which, if erroneous, was a judicial error or mistake in judgment, and as such is not the type of mistake or inadvertence reachable under Rule 1.540(b) RCP.
The language of the final judgment (which provides that upon failure of the City to commence construction of the bridge within two years from the date of this judgment, "then, in that event, the Plaintiff may apply to this Court for a return of said sum,") may appear at first blush to be permissive only; however, we think that, in the context of the final judgment and its obvious finality, appellant's *211 right to "apply to [the] Court for return of said sum" meant that appellant was absolutely entitled to said refund, not merely that it had the right to have the issue of its entitlement made the subject of further inquiry. Otherwise, the judgment would lack finality leaving unsettled, just as did the postjudgment order, the question of when, if ever, appellant would be entitled to a refund of the $7,630.09.
The order appealed is reversed and this cause remanded with directions to enter an order consistent with the views herein expressed.
Reversed and remanded.
CROSS and DOWNEY, JJ., concur.


                         IN THE NEBRASKA COURT OF APPEALS

              MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                       (Memorandum Web Opinion)

                                       STATE V. EATON

  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

                                STATE OF NEBRASKA, APPELLEE,
                                              V.

                                MONTY R. EATON, APPELLANT.

                            Filed August 11, 2020.   No. A-19-796.

       Appeal from the District Court for Nemaha County: JULIE D. SMITH, Judge. Affirmed.
        Stuart J. Dornan and Jason E. Troia, of Dornan, Troia, Howard, Breitkreutz & Conway,
P.C., L.L.O., for appellant.
       Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.

       MOORE, Chief Judge, and BISHOP and WELCH, Judges.
       WELCH, Judge.
                                      INTRODUCTION
        Monty R. Eaton was convicted by a jury of manslaughter and operating a motor vehicle
while under the influence with underage passengers. Eaton argues there was insufficient evidence
to support his convictions, the sentences imposed were excessive, and his trial counsel was
ineffective. We affirm his convictions and sentences.
                                  STATEMENT OF FACTS
        On February 3, 2018, at approximately 8 p.m., three vehicles were traveling northbound
on a highway in Nemaha County, Nebraska. The first vehicle was driven by Eaton who was with
his family, including two children under the age of 16 years. The second vehicle was driven by
Marilyn Schneider. The third vehicle was driven by Heather Spurlin. Schneider estimated that
Eaton’s vehicle was traveling at 20 miles per hour which was much slower than the speed limit.

                                             -1-
Unaware she was in a no passing zone, Spurlin attempted to pass both vehicles. As Spurlin’s
vehicle was next to Eaton’s vehicle, Eaton turned on his left turn signal and immediately turned
left colliding with Spurlin’s vehicle. The collision caused Spurlin’s passengers, who were not
wearing seatbelts, to be ejected from her vehicle, resulting in the death of one passenger.
         Eaton was charged with one count of manslaughter, a Class IIA felony. In connection
therewith, the amended information alleged Eaton unintentionally caused the death of an
individual while in the commission of one or more of the following unlawful acts: (1) driving his
vehicle carelessly or without due caution so as to endanger a person or property in violation of
Neb. Rev. Stat. § 60-6,212 (Reissue 2010); (2) driving his vehicle in a manner indicating an
indifferent or wanton disregard for the safety of persons or property in violation of Neb. Rev. Stat.
§ 60-6,213 (Reissue 2010); (3) turning his vehicle left on a roadway when such movement could
not be made safely in violation of Neb. Rev. Stat. § 60-6,161 (Reissue 2010); (4) turning his vehicle
left upon a roadway without giving an appropriate signal in violation of Neb. Rev. Stat.
§§ 60-6,162 and 60-6,163 (Reissue 2010) or continuously during not less than the last one hundred
feet traveled by the vehicle before turning in violation of § 60-6,161; (5) driving his vehicle at a
slow speed impeding normal and reasonable movement of traffic in violation of Neb. Rev. Stat.
§ 60-6,193 (Cum. Supp. 2018); or (6) operating his vehicle with a concentration of .08 of 1 gram
or more by weight of alcohol per 210 liters of his breath, in violation of Neb. Rev. Stat. § 60-6,196
(Reissue 2010). See Neb. Rev. Stat. § 28-305 (Reissue 2016). Eaton was also charged with two
counts of operating a motor vehicle while under the influence with underage passengers, Class I
misdemeanors. See Neb. Rev. Stat. § 28-1254 (Reissue 2016). A jury trial was held in May 2019.
         Trooper Clint Zost, the responding trooper, testified that upon arriving at the scene around
8:24 p.m., he learned Eaton was the driver of one of the vehicles involved in the accident. Zost
believed Eaton was under the influence of alcohol because he observed that Eaton’s breath smelled
like alcohol and his eyes were bloodshot and watery. Zost further testified that when he asked
Eaton if he had consumed alcohol, Eaton responded he had one 25-ounce beer followed by four or
five more beers between the hours of 3:45 and 7 p.m. There were approximately 10 beer cans in
Eaton’s vehicle and 75 percent of them were open.
         Approximately 10 minutes after arriving on the scene, Zost performed a horizontal gaze
nystagmus test on Eaton. Zost testified that Eaton showed nystagmus on all six clues of
impairment. Zost testified that a person who has consumed alcohol will exhibit nystagmus in some,
if not all, of the six clues, while a person who has not consumed alcohol would exhibit none. Zost
further elaborated that a person exhibiting nystagmus on all six clues of impairment indicates the
person is under the influence of alcohol to such a degree that the person is operating a vehicle
while impaired.
         After arresting Eaton, Zost transported Eaton to the Nemaha County Law Enforcement
Center where he performed a breath alcohol content (BAC) test on Eaton at 9:17 p.m. using a
DataMaster machine. In connection therewith, Zost testified that he is a trained DUI investigator
and is certified to perform DataMaster tests. Zost testified that the BAC test results indicated that
Eaton had a breath alcohol content of 0.101. Zost testified that in his opinion, Eaton was under the
influence of alcohol while operating his motor vehicle in February 2018.
         The jury convicted Eaton on all three charges. Regarding manslaughter, the district court
sentenced Eaton to 6 to 10 years’ imprisonment with credit for 4 days served. For the Class I

                                                -2-
misdemeanors, Eaton was sentenced to 0 to 90 days on each count and the district court revoked
Eaton’s license for 1 year and ordered him not to drive for 45 days in connection with each count.
The sentences were ordered to run consecutively. Eaton has timely appealed to this court and is
represented by counsel different from counsel who represented him during his trial and sentencing.
                                  ASSIGNMENTS OF ERROR
        On appeal, Eaton contends there was insufficient evidence to support his convictions and
that the district court abused its discretion in sentencing him.
        Eaton also assigns as error that he “received ineffective assistance of counsel.” Brief for
appellant at 3. Assignments of error on direct appeal regarding ineffective assistance of trial
counsel must specifically allege deficient performance, and an appellate court will not scour the
remainder of the brief in search of such specificity. State v. Mrza, 302 Neb. 931, 926 N.W.2d 79
(2019). This assigned error is a general allegation and clearly lacks the specificity required by
Mrza. Accordingly, Eaton has failed to raise an ineffective assistance claim on direct appeal.
                                    STANDARD OF REVIEW
        In reviewing a criminal conviction for a sufficiency of the evidence claim, whether the
evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate
court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh
the evidence; such matters are for the finder of fact. State v. Smith, 302 Neb. 154, 922 N.W.2d 444
(2019). The relevant question for an appellate court is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Id.
        An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Iddings, 304 Neb. 759, 936 N.W.2d 747 (2020). It is
within the discretion of the trial court whether to impose probation or incarceration, and an
appellate court will uphold the court’s decision denying probation absent an abuse of discretion.
State v. Wills, 285 Neb. 260, 826 N.W.2d 581 (2013).
                                            ANALYSIS
                                   INSUFFICIENCY OF EVIDENCE
         Eaton first assigns that the State failed to offer evidence beyond a reasonable doubt to
convict him on all three charges. Specifically, Eaton argues that the evidence failed to establish
that he had a concentration of .08 of 1 gram or more by weight of alcohol per 210 liters of breath
at the time of the accident because the test result obtained after the accident was not sufficiently
related back to the time of the accident. Additionally, Eaton argues the evidence failed to establish
he drove a vehicle in a manner as to indicate an indifferent or wanton disregard for the safety of
persons or property.
         Eaton’s argument is better understood when analyzed in relation to the jury instructions
issued by the district court. In connection with the State’s manslaughter charge, jury instruction
number 7 set forth, in pertinent part:
                The elements of Manslaughter as charged in the Amended Information are that:
                1. On or about the 3rd day of February, 2018,

                                                -3-
              2. In Nemaha County, Nebraska,
              3. Defendant Monty R. Eaton, then and there did,
              4. Cause the death of another, namely Travis E. Ries,
              5. Unintentionally while in the commission of one or more unlawful acts:
              a. Did drive a motor vehicle in such a manner as to indicate an indifferent or wanton
       disregard for the safety of persons or property; or
              b. Did operate or be in the actual physical control of a motor vehicle when he had
       a concentration of eight-hundredths of one gram or more by weight of alcohol per two
       hundred ten liters of his breath.

       In connection with the State’s charge of operation of a vehicle while under the influence
with an underage passenger, jury instruction number 12 set forth, in pertinent part:
              The elements of Motor Vehicle Operation While Under the Influence with [an]
       Underage Passenger as charged in the Amended Information are that:
              1. On or about the 3rd day of February, 2018,
              2. In Nemaha County, Nebraska,
              3. The defendant, Monty R. Eaton,
              4. Did then and there operate or be in the actual physical control of a motor vehicle,
              5. With a person under the age of sixteen years as a passenger, namely Wyatt Eaton,
              6. When the defendant had a concentration of eight-hundredths of one gram or more
       by weight of alcohol per two hundred ten liters of his breath.

        As to that portion of the manslaughter instruction in which the State was required to prove
that Eaton operated a motor vehicle while over the legal alcohol limit, Eaton argues:
        The result of the DataMaster test was that Eaton’s breath had .101 grams of alcohol per
        210 liters of his breath at 9:17 p.m. or 9:18 p.m. Zost approximated that the .101 result was
        anywhere from 40 minutes to an hour after the accident. Zost could not testify to what
        Eaton’s BAC was at the time of the accident. Zost attempted to interject inadmissible
        preliminary breath test evidence when initially asked if he could testify to Eaton’s BAC at
        the time of the accident. There was not sufficient evidence offered to establish what Eaton’s
        BAC was at the time of the accident or any evidence to establish how the observations by
        any of the witnesses would support an inference or be considered circumstantial evidence
        that Eaton was above .08 at the time of the accident. As a result, his conviction for
        Manslaughter should be reversed.

(Citations omitted.) Brief for appellant at 16. Eaton makes the same argument in relation to that
portion of the instruction governing the State’s charge that he operated a vehicle while under the
influence with underage passengers.
        Contrary to Eaton’s assertion that the State was required to offer evidence of a temporal
nexus between the BAC test conducted between 40 minutes and 1 hour after the accident and the
time of the accident, the Nebraska Supreme Court specifically rejected that assertion in State v.
Dinslage, 280 Neb. 659, 789 N.W.2d 29 (2010). In Dinslage, the defendant was charged with
driving under the influence of alcohol in violation of § 60-6,196 and that the concentration of

                                                -4-
alcohol in her breath was sufficient to make her offense punishable under Neb Rev. Stat.
§ 60-6,197.03(6) (Cum. Supp. 2018). Dinslage argued that because of the significant amount of
alcohol she consumed at “last call” at the bar before driving, the intoxilyzer test results obtained
approximately 50 minutes after her stop which placed her over the legal limit did not establish that
she was operating her vehicle with a breath alcohol concentration beyond the legal limit at the time
of her stop. In response, the Nebraska Supreme Court held:
                 In State v. Kubik, [235 Neb. 612, 456 N.W.2d 487 (1990),] we explained that the
        State is not required to prove a temporal nexus between the test and the defendant’s alcohol
        level at the moment he or she was operating the vehicle. It would be an impossible burden
        on the State to conduct such an extrapolation when its accuracy depends on the defendant’s
        willingness to testify and his or her honesty in reporting all relevant factors, including the
        time and quantity of consumption. Thus, matters of delay between driving and testing are
        properly viewed as going to the weight of the breath test results, rather than to the
        admissibility of the evidence. And a valid breath test given within a reasonable time after
        the accused was stopped is probative of a violation. We speculated in Kubik that there
        might in some cases be a “delay . . . so substantial as to render the test results nonprobative
        of the accused’s impairment or breath alcohol level while driving.” But we held that a
        breath test given “less than 1 hour” after the defendant was stopped did not entail an
        unreasonable delay.

Dinslage, 280 Neb. at 664, 789 N.W.2d at 34.
        As in Dinslage, we hold that the 40-minute to 1-hour delay from the time of the accident
to the BAC test given to Eaton in the current case was not unreasonable. Taken together with the
evidence of the quantity of alcohol Eaton consumed prior to the accident in this case and his failure
of the field sobriety tests, there was sufficient evidence for a rational trier of fact to conclude that
Eaton was operating his vehicle with a BAC of .08 or greater as it relates to all three charges he
challenges in relation to that finding.
        Eaton then separately challenges that as to the State’s manslaughter charge only, there was
insufficient evidence to convict him of driving in a manner indicating an indifferent or wanton
disregard for the safety of persons or property, but as we indicated above, the district court’s
instruction indicated the State need only prove Eaton drove in a manner indicating an indifference
or wanton disregard for the safety of persons or property as an alternative to driving while
intoxicated. Certain crimes are single crimes that can be proved under different theories. State v.
Brouillette, 265 Neb. 214, 655 N.W.2d 876 (2003). As to such crimes, when there are alternative
theories of guilt presented to the jury, we will affirm the verdict if the evidence is sufficient to
support any alternative theory presented. State v. Dady, 304 Neb. 649, 936 N.W.2d 486 (2019).
The offense of manslaughter as charged by the State is such a crime. The State alleged Eaton could
be convicted of manslaughter if he either unintentionally caused the death of the victim because
of intoxication or by operating with indifference or wanton disregard for the safety of persons or
property. Because we have already found there was sufficient evidence in the record to support
Eaton’s conviction for causing the death of the victim unintentionally due to intoxication, we need
not consider his argument that there was insufficient evidence to support his manslaughter
conviction on the basis that he drove his motor vehicle with a degree of indifference or wanton

                                                 -5-
disregard for the safety of persons or property. See State v. Parnell, 305 Neb. 932, 943 N.W.2d
678 (2020) (appellate court is not obligated to engage in analysis that is not necessary to adjudicate
case and controversy before it). Eaton’s first assignment of error fails.
                                      EXCESSIVE SENTENCES
        Eaton argues the sentences imposed were an abuse of discretion. Specifically, Eaton asserts
the district court abused its discretion during sentencing when the district court articulated that
probation “‘would depreciate the serious nature of the crime and would not be justice in the event
that someone has lost their life, which is the case here.’” Brief for appellant at 21. Eaton contends
that one of the elements of manslaughter is that a death occurred, yet the Legislature has classified
manslaughter as a Class IIA felony, which requires neither a minimum, nor a mandatory, period
of incarceration. Additionally, Eaton argues that more of the sentencing factors weighed in favor
of probation.
        Eaton was convicted of one count of manslaughter, a Class IIA felony, and two counts of
operating a motor vehicle while under the influence with an underage passenger, Class I
misdemeanors. See, §§ 28-305 and 28-1254. Eaton’s sentence of 6 to 10 years’ imprisonment is
within the statutory sentencing range for Class IIA felonies which are punishable by a minimum
of no imprisonment to a maximum of 20 years’ imprisonment. See Neb. Rev. Stat. § 28-105
(Reissue 2016). Additionally, on each of the two Class I misdemeanor convictions, Eaton was
sentenced to 0 to 90 days’ jail time and his license was revoked for 1 year with an order not to
drive for 45 days, then a requirement that he must apply and install an ignition interlock permit.
These sentences are within the statutory sentencing ranges for Class I misdemeanors which are
punishable by a minimum of no imprisonment to a maximum of not more than 1 year’s
imprisonment, and/or a $1,000 fine. See Neb. Rev. Stat. § 28-106 (Reissue 2016). Also, Neb. Rev.
Stat. § 60-496 (Reissue 2010) authorizes the revocation of a motor vehicle operator’s license for
up to 1 year based on a conviction of a violation of any Nebraska law pertaining to the operation
of motor vehicles.
        Where a sentence imposed within the statutory limits is alleged on appeal to be excessive,
the appellate court must determine whether a sentencing court abused its discretion in considering
and applying the relevant factors as well as any applicable legal principles in determining the
sentence to be imposed. State v. Price, 306 Neb. 38, 944 N.W.2d 279 (2020). In determining a
sentence to be imposed, relevant factors customarily considered and applied are the defendant’s
(1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past
criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7)
the nature of the offense and (8) the amount of violence involved in the commission of the crime.
Id.
        During the sentencing hearing, Eaton’s counsel asked the district court to consider Eaton’s
risk and need levels regarding the factors in the Level of Service/Case Management Inventory
(LS/CMI). At the time of the preparation of the presentence investigation report (PSR), Eaton was
53 years old, married with two dependents, and had completed the 12th grade. His only prior
convictions were violating a stop/yield sign, reckless driving (amended from willful reckless
driving), and speeding. The LS/CMI indicated alcohol/drug problems as medium risk. Eaton
participated in a substance abuse evaluation approximately 3 months after the accident and the

                                                -6-
evaluation noted Eaton was focused on his financial and legal problems but he was not observed
to be remorseful for the accident. The evaluation also noted Eaton scored low on the readiness to
change factor in that Eaton did not identify a need to modify his current drinking patterns. At the
sentencing hearing, Eaton apologized for his actions and the pain he caused. Prior to handing down
the sentence, the district court stated it had considered Eaton’s PSR including his limited criminal
history, victim impact statements, the effect this case has on the lives of the families involved, the
evaluation, the seriousness of the offense, and the impact to Eaton’s family. In sum, based upon
the factors that the sentences imposed were within the relevant statutory sentencing range, the
serious nature of the offenses, Eaton’s lack of remorse, and the impact to the victim’s family, the
district court did not abuse its discretion in determining that probation was not appropriate and in
the sentences imposed.
                                          CONCLUSION
        For the foregoing reasons, we affirm Eaton’s convictions and sentences. We further find
that Eaton has failed to properly preserve his claims of ineffective assistance of trial counsel on
direct appeal.
                                                                                AFFIRMED.

                                                -7-


                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT

                              No. 07-4568

UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

THOMAS WALLY HAYES,

                  Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones, Chief
District Judge. (2:06-cr-00010)

Submitted:    July 7, 2009                  Decided:   July 20, 2009

Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Matthew A. Victor, VICTOR VICTOR & HELGOE, LLP, Charleston, West
Virginia, for Appellant.       Julia C. Dudley, United States
Attorney,   Jennifer  R. Bockhorst,    Assistant  United  States
Attorney, Abingdon, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Thomas         Wally     Hayes      appeals     his      conviction      and    240-

month    sentence            for     conspiracy       to     distribute         oxycodone,     in

violation of 21 U.S.C. § 841 (2006), and the district court’s

denial of his motion for new trial.                        We affirm.

                             I. Sufficiency of the Evidence

              Hayes argues that the evidence was not sufficient to

support his conviction because the case against him consisted

solely of witness testimony.                     He contends that the testimony of

two witnesses for the Government, Randall and Wesley Middleton,

was discredited by testimony by two inmates at the city jail in

Roanoke, Virginia, Roger Crowder and Steve Knapp.                                  Crowder and

Knapp testified that Randall Middleton told them he had never

met     or    bought         drugs     from       Hayes,     contrary       to     Middleton’s

testimony that he bought oxycodone directly from Hayes on two

occasions,         and        that     he       acknowledged           providing       erroneous

testimony         against      Hayes       in    order      to    get    his     own    sentence

reduced.

              When       a    defendant         challenges       the    sufficiency      of   the

evidence, we consider whether substantial evidence, viewed in

the light most favorable to the Government, supports the jury’s

verdict.      Burks v. United States, 437 U.S. 1, 17 (1978); United

States       v.    Stewart,          256    F.3d      231,       249     (4th    Cir.     2001).

                                                  2
“[S]ubstantial evidence is evidence that a reasonable finder of

fact   could      accept    as   adequate        and    sufficient          to   support    a

conclusion of a defendant’s guilt beyond a reasonable doubt.”

United    States    v.     Burgos,     94    F.3d      849,    862    (4th       Cir.   1996)

(citations      omitted).        We    do    not      review    the        credibility     of

witnesses and assume the jury resolved all contradictions in the

testimony in favor of the Government.                   United States v. Sun, 278

F.3d 302, 313 (4th Cir. 2002).

              The    jury     had      the       opportunity         to      compare       the

credibility of the Government’s witnesses to that of Crowder and

Knapp, and we will not review its determination.                             Assuming, as

we must, that the jury found the Government’s witnesses to be

more   credible,      their      testimony       was    sufficient          to   support     a

conclusion of Hayes’ guilt beyond a reasonable doubt.

                    II. Denial of Motion for New Trial

              Hayes argues that the district court erred in denying

his      motion     for       new      trial        because          the     prosecutor’s

characterization of his role in the conspiracy as “the top of

the    food    chain”      during     closing      arguments,         and    a    witness’s

reference     to    his    participation         in    cockfighting,          were      unduly

prejudicial.

              A district court may grant a defendant’s motion for a

new trial “if the interest of justice so requires.”                                  Fed. R.

                                             3
Crim.     P.    33(a).       A    district         court     “‘should      exercise      its

discretion to grant a new trial sparingly,’ and . . . should do

so ‘only when the evidence weighs heavily against the verdict.’”

 United    States       v.   Perry,    335    F.3d      316,   320    (4th    Cir.      2003)

(quoting United States v. Wilson, 118 F.3d 228, 237 (4th Cir.

1997).     This court reviews the denial of a Rule 33 motion for

abuse of discretion.             United States v. Adam, 70 F.3d 776, 779

(4th Cir. 1995).

               The district court did not abuse its discretion in

denying Hayes’ motion for new trial.                        As discussed above, the

evidence did not weigh heavily against the verdict, and it is

unlikely that Hayes was prejudiced by either the prosecution’s

characterization of his role in the conspiracy or the witness’s

reference to cockfighting.                 The characterization of Hayes’ role

was     entirely       supported      by     the     evidence       that     he   supplied

oxycodone to several witnesses, who in turn distributed the drug

to    others.          The    description          of      Hayes’    participation        in

cockfighting was not extensive and did not prejudice Hayes, in

light    of    the     substantial     evidence         that   supported      the    jury’s

verdict.

                        III. Reasonableness of Sentence

               Hayes     argues       that    the       district      court       did    not

adequately consider the factors set forth in 18 U.S.C. § 3553(a)

                                              4
(2006),    other     than      his    criminal        history,        in     determining      his

sentence.

            After United States v. Booker, 543 U.S. 220 (2005), we

review a sentence for reasonableness, and “whether inside, just

outside,    or     significantly         outside         the    Guidelines          range,”    we

apply a “deferential abuse of discretion standard.”                                    Gall v.

United States, 552 U.S. 38, ___, 128 S. Ct. 586, 591 (2007).                                   We

first     must     “ensure      that     the        district         court     committed       no

significant       procedural         error.”         Id.       at     597.     Only    if     the

sentence     is     procedurally            reasonable          can     we     evaluate       the

substantive       reasonableness         of     the      sentence,          again   using     the

abuse of discretion standard of review.                              Id.; see also United

States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009).                                    In our

determination       of    whether        the       district          court    committed       any

significant       procedural         error,    we     look     to     any    failure    in    the

calculation       (or    the    improper        calculation)           of    the    Guidelines

range, the treatment of the Guidelines as mandatory, the failure

to consider the § 3553(a) factors, the selection of a sentence

using clearly erroneous facts, and any failure to adequately

explain the chosen sentence and any deviation from the advisory

Guidelines range.         Gall, 128 S. Ct. at 597.                     We must also ensure

the     district     court      satisfied          its     obligation          to    “make     an

individualized       assessment         based       on   the        facts    presented”      when

rendering     a    sentence,         id.,     applying         the     relevant       § 3553(a)

                                               5
factors      to    the    specific        circumstances           of    the    case     and   the

defendant,        and    “state     in    open       court”       the   particular       reasons

supporting its chosen sentence.                       Carter, 564 F.3d at 328; see

also    18   U.S.C.       § 3553(c)       (2006).        A    brief       statement      of   the

reasons suffices under § 3553(c)(1).                        Rita v. United States, 127

S. Ct. 2456, 2468-69 (2007).

              The district court did not abuse its discretion in

sentencing Hayes to 240 months’ imprisonment, the high end of

the advisory guidelines range.                   The district court did not fail

to   consider       the       § 3553(a)     factors          as    they    related       to   the

arguments     made       at    sentencing.            The    Government         argued    for   a

sentence at the high end of the guidelines range based upon

Hayes’ extensive criminal history, and Hayes argued for a lower

sentence      based       upon      the    shorter          sentences          given     to   his

co-conspirators.           The court chose to sentence Hayes at the high

end of the guidelines range based upon his criminal history,

rejecting his argument in favor of the Government’s argument.

The court’s statement of its reasons for imposing the sentence,

although succinct, was sufficient under § 3553(c)(1).

              For the reasons stated above, we affirm the judgment

of the district court and the denial of Hayes’ motion for new

trial.       We dispense with oral argument because the facts and

legal    contentions          are   adequately         presented          in   the     materials

                                                 6
before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                    AFFIRMED

                                    7