14 So.3d 1111 (2009)
W. Kenneth LOVELL, Appellant,
v.
Heidi M. LOVELL, Appellee.
Nos. 5D08-12, 5D08-1393.
District Court of Appeal of Florida, Fifth District.
June 12, 2009.
*1113 Mina Bustamante, of Beller & Bustamante, P.L., Jacksonville, and Michael J. Korn, and Mary C. Coxe, of Korn & Zehmer, P.A., Jacksonville, for Appellant.
William S. Graessle, of William S. Graessle, P.A., Jacksonville, for Appellee.
MONACO, J.
The former husband, the appellant, W. Kenneth Lovell, seeks review of the final judgment of dissolution of marriage from his former wife, the appellee, Heidi M. Lovell, with respect to child custody and visitation, rehabilitative alimony, attorney's fees, and other determinations by the trial court. As we agree, at least to some extent, with the former husband's position regarding several of these grounds, we reverse in part, remand certain issues for additional consideration, and affirm the remainder of the final judgment.
The parties were married for thirteen years when they separated, at which time the former husband petitioned for dissolution. The former husband is a well-paid executive with the PGA Golf Tour, while the former wife is a school teacher whose primary occupation prior to the separation was as a mother and homemaker. There were two children born of the marriage, a son who is now 14, and a daughter who is now 12. The former wife and children have relocated to the State of Utah where the former wife has returned to her teaching career.
The dissolution process appears to have been highly charged emotionally, primarily because the former husband admitted that he had developed a relationship with a close friend of the family and fellow church member. Religion and church membership are particularly important to the parties and their children. Subsequent to the dissolution, the former husband married the person who the trial court referred to as the "paramour."
At the conclusion of the trial the court, with the acquiescence of the former husband, awarded the primary residential responsibility for the children in Utah to the former wife, and granted visitation to the former husband in accordance with local guidelines, but with some provisos that have proven to be troublesome. In addition, the former wife was awarded rehabilitative alimony in the amount of $4,000 per month for a period of eight years, along with guidelines child support. Finally, the court also awarded attorney's fees to the former wife. With this as a factual backdrop, we now deal with the legal issues raised by the parties.

I. Child Visitation Issues.

A. Limitation on Visitation In Presence of New Wife.
The former husband does not challenge the trial court's decision to award full residential custody of the children to the former wife. He does, however, appeal the order of the trial court forbidding his current wife from being in the presence of the children during visitation. More specifically, the final judgment (with proper names deleted) provides that:
The Husband shall not expose the minor children to his paramour ... until such time as the minor children's therapist... deems it appropriate.
There are two serious flaws with this ruling. First, it is not supported by evidence or findings that would warrant the requirement to sequester the children from the current wife; and second, the court seems to have delegated an important part of the visitation regime to a third party.
It is clear from the testimony that the children do not like the their father's new *1114 wife, and that they blame her for the breakup of the family. There is testimony, in fact, that they refer to her as "Satan's Wife." The former husband, on the other hand, is very distressed by the fact that his children do not wish to talk to his new wife, nor be with her in the same room. Thus, emotions on this issue have been ratcheted to a high degree. More importantly, the children now live in Utah, while the former husband still lives in Florida and is now married to the woman they despise. When the children come to Florida for visitation, however, they are going to be staying in the former husband's residence, which, inconveniently, is also the residence of his current wife. One can easily appreciate the difficulties this situation presents.
Still, when the testimony is examined, there is scant evidence that being in the presence of the new wife is detrimental to the welfare of the children. There is no evidence that the female child suffered any ill effects by being exposed to the new wife, and the only negative manifestation demonstrated by the male child is that he lost a few pounds of weight. The experts testifying on behalf of each of the parties noted, on the other hand, that the new wife had never harmed the children, and that the young man's weight loss stemmed either from a severe case of parental alienation (in the view of one expert), or from "anxiety related issues" (in the view of the other). One of the experts testified that:
They've not felt love because that's being victimized by parental alienation. They're caught between God, this game I'm in with my mother is crazy but I got to do it or I'll be abandoned. It's madness what's going on in this family.
The former wife's expertthe person to whom the trial court delegated the responsibility of determining when the children could be exposed to the new wifetestified that she saw no parental alienation being practiced by the former wife. She said, instead that "from the depths of their heart, [the children] don't want to be around [new wife]."
We review a trial court's decision to restrict or limit visitation by an abuse of discretion standard. Allen v. Allen, 787 So.2d 215 (Fla. 5th DCA 2001). There must, however, be competent, substantial evidence that such a restriction or limitation is in the best interests of the children in order for it to be sustained. Miller v. Miller, 423 So.2d 638 (Fla. 4th DCA 1982). In Miller, our sister court succinctly held that because restrictions such as the one imposed in the present case "impact upon the private life of the custodial parent, they will be sustained only if the record contains competent substantial evidence to demonstrate that they are required to safeguard the best interests of the child." Id. at 639-40. See also, Trylko v. Trylko, 392 So.2d 1034, 1035 (Fla. 2d DCA 1981). That logic applies here, as well.
In the present case the record is devoid of evidence demonstrating that exposure to the former husband's new wife is detrimental to the best interests of the children, nor does the record contain findings in the final judgment to that effect. For this reason alone, that portion of the final judgment requiring the sequestration of the new wife from the children must be reversed. Additionally, reversal is required because the trial court cannot delegate its authority to another person to rule on the visitation details. There is no legal basis for allowing the children's therapist to make the final call on when the new wife can be allowed to be in the presence of the children. This determination is solely within the province of a court of law.

*1115 B. Ambiguity With Respect To Summer Visitation.

The former husband contends that the trial court erred in not giving him the Seventh Circuit's guidelines summer visitation period in long distance visitation cases. While we do not conclude that the trial court erred in its division of the summer visitation period, we do find that the award is ambiguous and in need of clarification.
The former husband was awarded "one-half of the children's summer break, beginning at 5:00 p.m. on the second Friday after the end of the school year until 5:00 p.m. on the sixth Sunday after the end of the school year." We note initially that the final judgment in this regard mirrors the language of the visitation guidelines found in the local rules for the Seventh Circuit. Nonetheless, the former husband argues that the language used in the judgment did not comport with the goal of the guidelines of awarding the non-custodial parent half of the children's summer vacation because the award in time specific does not amount to half of the vacation period of the children.
Although we observe that the trial court is not bound by the visitation guidelines, as the guidelines themselves specifically provide, it appears that the trial court may have been attempting to adopt them in crafting the final judgment. Because it is uncertain from the final order whether the trial court intended to award to the former husband half of the summer vacation or four weeks of the vacation, either one of which would be reasonable under the circumstances, we remand to the trial court for clarification.

II. Propriety of Rehabilitative Alimony.
The former husband contends that the rehabilitative alimony awarded by the trial court to the former wife is not supported by a rehabilitative plan as required by law. The trial court awarded the former wife rehabilitative alimony in the amount of $4,000 per month for eight years. The award was supported, in part, by the following findings contained in the final judgment:
5. The time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment: The Husband is gainfully employed and has maintained his present employment for slightly over seven years. Although the Wife is employed as a school teacher, she just commenced her gainful employment on a full time basis. The Wife desires to return to school and pursue at least a master's degree, which will place her at the same educational level as the Husband. In order for the Wife to obtain a master's degree, she will need 45 credit hours at the rate of $270.00 per credit hour. In order for Wife to obtain her doctorate degree, she will be required to take an additional 70 credit hours at $270.00 per credit hour. Since the Wife is required to be employed, and since she is the primary caretaker of the minor children, it will take the Wife approximately six to ten years to complete her educational plan.
The principal purpose of awarding rehabilitative alimony is to provide funds to the requesting spouse so he or she can establish the capacity for self-support, either through the redevelopment of previous skills or the provision of the training necessary to develop potential supportive skills. Hill v. Hooten, 776 So.2d 1004, 1006 (Fla. 5th DCA 2001). Rehabilitative alimony, however, cannot be awarded absent a rehabilitative plan. Id. (citing Fullerton v. Fullerton, 709 So.2d 162, 164 (Fla. 5th DCA 1998)). The spouse *1116 seeking the award must present evidence establishing the objective of the rehabilitation, the areas in which rehabilitation is desired, and the amount of rehabilitative alimony necessary. Rowl v. Rowl, 864 So.2d 1236, 1239 (Fla. 5th DCA 2004) (citing Kalmanson v. Kalmanson, 796 So.2d 1249, 1250 (Fla. 5th DCA 2001)). Although the plan does not have to be in writing, an adequate and credible rehabilitative plan must be presented to the court. Layeni v. Layeni, 843 So.2d 295, 299 (Fla. 5th DCA 2003). In addition, the record must contain evidence of the need of the requesting spouse for such alimony, and a determination by the court that the other spouse has the ability to pay the amount awarded. Id. Finally, the trial court must make explicit the basis for the amount and duration of the award. Saporito v. Saporito, 831 So.2d 697, 701 (Fla. 5th DCA 2002).
In order to improve her employment status, former wife requested rehabilitative alimony because she planned to acquire a master's degree in education. She argues that achieving that degree would put her at the same educational level as the former husband. She suggested, as well, that she would also like to acquire a doctorate in education because achieving the terminal degree in her field would allow for her to be employed as a principal of a school. She testified that the cost of this additional education would be approximately $30,000. She related that each credit hour costs $270, and that it would take 45 credits for her to earn a master's degree, and an additional 70 credits for a doctorate degree. In her opinion these degrees would improve her ability to increase her salary significantly. Her plan was to work full time while attending classes on a part time basis. At the time of the trial, however, she had not made an application to any graduate school and had not yet even taken the graduate record examination.
In the present case the orally presented plan is sparce on details, but rich in aspiration. For example, there was no testimony or other evidence to show how much the foregoing degrees would increase her salary, or how much it would cost per year for her to reach her goal. Moreover, the award for eight years is based on a great deal of speculation. Candidly, however, it is logical that a master's degree and a doctorate would increase the former wife's income, as they would enhance her existing education in the field in which she currently works, and we thus agree with the trial court that rehabilitative alimony is appropriate. On the other hand the plan unquestionably needs to be fleshed out. We, therefore, affirm an award of rehabilitative alimony, but not the amount or time period for which it should be awarded. We remand to the trial court to revisit these unresolved issues after a new evidentiary hearing. While we certainly do not require it, this might be an instance where rehabilitative alimony should be tied to time-performance standards, such as taking the graduate record exam, gaining entrance into graduate school, and obtaining the master's degree within specific outside time limits.

III. Propriety of an Award of Attorney's Fees.
The final judgment requires the former husband to pay $28,906.42 to the former wife for attorney's fees. The standard for awarding attorney's fees in dissolution cases remains the financial need of the requesting party factored with the financial ability of the other party to pay. Price v. Price, 951 So.2d 55, 59 (Fla. *1117 5th DCA 2007)[1] (quoting Derrevere v. Derrevere, 899 So.2d 1152, 1153 (Fla. 4th DCA 2005) (citations omitted)). The purpose of section 61.16, Florida Statutes, which governs the award of attorney's fees in dissolution cases, is to ensure that both parties will have a similar ability to secure competent legal counsel. Canakaris v. Canakaris, 382 So.2d 1197, 1205 (Fla.1980). For this reason the most important factor in awarding attorney's fees is the financial resources of each party. Rosen v. Rosen, 696 So.2d 697, 700 (Fla.1997).
One spouse does not have to "be completely unable to pay attorney's fees in order for the trial court to require the other spouse to pay [them]." Canakaris, 382 So.2d at 1205. On the other hand, this court has noted that attorney's fees should not be awarded when the spouse has "received assets via equitable distribution or alimony, or has another income source with which to pay the attorney fees without diminishing the party's standard of living or depleting that party's assets." Kelly v. Kelly, 925 So.2d 364, 368 (Fla. 5th DCA 2006). The trial court should make its determination regarding attorney's fees "after the dissolution proceeding has concluded, based upon the financial situation in which it has left the parties." Id. (citing Driscoll v. Driscoll, 763 So.2d 1189 (Fla. 4th DCA 2000)).
Here, the former wife has received sufficient assets as a result of the dissolution so that it cannot be said that there is a requirement for the former husband to pay this part of the former wife's attorney's fees. Given the asset distribution, it is clear that both parties had a similar ability to secure competent legal counsel (and, parenthetically, did so). Accordingly, we conclude that the trial court abused its discretion in the award of $28,906.42 in fees to the former wife, and reverse in that respect. See (Stern v. Chovnick, 914 So.2d 524 (Fla. 4th DCA 2005); Ondrejack v. Ondrejack, 839 So.2d 867, 872 (Fla. 4th DCA 2003)).

IV. Conclusion.
While the former husband has sought relief with respect to other aspects of the final judgment, we find no merit in any of these positions. Accordingly, we reverse the final judgment of dissolution of marriage with regard to the limitation on visitation of the children of this marriage with the former husband which requires him not to expose the children to his current wife, and with respect to the award of attorney's fees. We also reverse the award of rehabilitative alimony, and remand for a new evidentiary hearing on amount and length of the award. Finally, we remand for clarification with respect to the extent of summer visitation. Otherwise, we affirm.
AFFIRMED in part, REVERSED in part, and REMANDED with instructions.
COHEN, J., and PLEUS, JR., R., Senior Judge, concur.
NOTES
[1]  This court reversed the trial court's order requiring husband to pay wife's attorney's fees because husband would be "in no better position to pay [wife's] attorney's fees than she [would] be in after the divorce."


166 Cal.App.4th 488 (2008)
CITY OF CLOVERDALE, Cross-complainant and Appellant,
v.
DEPARTMENT OF TRANSPORTATION, Cross-defendant and Respondent.
No. A115570.
Court of Appeals of California, First District, Division One.
August 29, 2008.
CERTIFIED FOR PARTIAL PUBLICATION[*]
*490 Lepper & Harrington and Gary M. Lepper for Cross-complainant and Appellant.
Bruce A. Behrens, David Gossage and Lucille Y. Baca for Cross-defendant and Respondent.

OPINION
MARCHIANO, P. J.
This lawsuit concerns a drainage channel constructed by the Department of Transportation (Department) when it rerouted Highway 101 to bypass the center of the City of Cloverdale (City). Nearby property owners (plaintiffs) sued the Department and the City for flooding caused by the drainage channel, and the City cross-complained against the Department for indemnity, damages, and declaratory relief. Plaintiffs settled with the City and obtained a judgment on jury verdicts for damages against the Department. Judgment was entered for the Department on the City's cross-complaint.
A threshold issue in the case was whether the Department, after completing the bypass project, effectively relinquished title to the drainage channel to the *491 City. That issue was tried to the court, and the court determined that title was in fact relinquished. The court subsequently ruled for the Department on the City's indemnity claim, and granted in part the Department's motion to dismiss other City causes of action. This appeal by the City contests the relinquishment, indemnity, and dismissal rulings.
In the published portion of this opinion, we set forth our reasons for affirming the relinquishment ruling, which include the City's failure to exhaust an administrative remedy by which the relinquishment could have been challenged. In the unpublished portion, we explain our reversal of the indemnity ruling and affirmance of the dismissal ruling. The court determined from an analysis of the settlement agreement and the jury verdicts that the City was not entitled to equitable indemnity from the Department. We disagree with that ruling and conclude that a retrial of the indemnity issue is required.

I. RELINQUISHMENT

A. Background

The Department and the City entered into a Freeway Agreement in August 1990 providing for the bypass project; the project was completed in 1994. The drainage channel at issue is in Cloverdale and was built as part of the bypass project. The project included construction of Asti Road, a frontage road that disrupted the natural course of Heron Creek, so the creek was reconfigured to run through the drainage channel, which lies next to the frontage road.
Robert Perrault, city manager from 1990 to 2000, told the Department in a June 1992 letter that the City "will maintain the constructed improved channels within the City limits upon their relinquishment from Caltrans to the City. It is the City's understanding that this relinquishment will occur after the Cloverdale Bypass is completed and after the three year plant establishment phase and the five year monitoring for assessing the success of the riparian vegetation."
Perrault advised the Department in a February 1994 letter of a "drainage problem" with "the channelization at Heron Creek." He said that "the present system is not working. After very modest rainfall, substantial ponding is occurring at the bottom of the channel. The City believes this ponding presents a potential health and safety problem and will also inhibit the City's *492 ability to maintain the channel once it is relinquished. [¶] I am requesting CalTrans resolve these issues. Prior to the City assuming any responsibility for the channel, it must drain properly and be in a state that will enable easy maintenance."
The City received a "Notice of Intention to Relinquish Highway Right of Way" pursuant to Streets and Highways Code section 73[1] from the Department on December 6, 1996. Section 73 provides for relinquishment to a county or city by the California Transportation Commission (Commission) of: (1) "any portion of any state highway within the county or city that has been deleted from the state highway system by legislative enactment"; (2) "any portion of any state highway that has been superseded by relocation"; (3) certain "frontage or service road[s] or outer highway[s]"; and (4) certain "nonmotorized transportation facilit[ies]." The frontage road provision, and the relevant balance of the statute, are as follows:
"Whenever the [D]epartment and the county or city concerned have entered into an agreement providing therefor, or the legislative body of the county or city has adopted a resolution consenting thereto, the [C]ommission may relinquish, to that county or city, any frontage or service road or outer highway, within the territorial limits of the county or city, which has a right-of-way of at least 40 feet in width and which has been constructed as a part of a state highway project, but does not constitute a part of the main traveled roadway thereof. . . .
"Relinquishment shall be by resolution. A certified copy of the resolution shall be filed with the board of supervisors or the city clerk, as the case may be. A certified copy of the resolution shall also be recorded in the office of the recorder of the county where the land is located and, upon its recordation, all right, title, and interest of the state in and to that portion of any state highway shall vest in the county or city, as the case may be, and that highway or portion thereof shall thereupon constitute a county road or city street, as the case may be. [¶] . . . [¶]
"Prior to relinquishing any portion of a state highway to a county or a city, except where required by legislative enactment, the [D]epartment shall give 90 days' notice in writing of intention to relinquish to the board of supervisors, or the city council, as the case may be. . . . [¶] . . . [¶]
*493 "Within the 90-day period, the board of supervisors or the city council may protest in writing to the [C]ommission stating the reasons therefor, including, but not limited to, objections that the highway is not in a state of good repair, or is not needed for public use and should be vacated by the [C]ommission. In the event that the [C]ommission does not comply with the requests of the protesting body, it may proceed with the relinquishment only after a public hearing given to the protesting body on 10 days' written notice."
Attached to the notice to the City was a copy of the relinquishment resolution to be presented to the Commission. In accordance with the statute, the notice advised that the resolution would not be taken up by the Commission until 90 days after the notice was received. The notice specified where objections should be sent.
The relinquishment resolution recited that, in the freeway agreement, the City had agreed to accept title to "frontage roads, reconstructed and relocated city streets and cul-de-sacs" upon relinquishment by the State of California, and that the state "ha[d] acquired right of way for and ha[d] constructed the above-mentioned collateral facilities in the City" pursuant to the agreement. The property to be relinquished was "all of the State of California's right, title and interest in and to said collateral facilities in said City, together with the right of way and appurtenances thereof, described as follows: [¶] Segments 3, 4, 5, 6, 8 and 9, as shown on that certain set of maps of 13 sheets" to be filed in the Sonoma County (County) Recorder's office. The 13 maps were attached to the resolution. The first map gave an overview of the 12 segments to be relinquished, some to the City and some to the County, and showed how the areas to be received by the City and County were shaded differently; maps of the individual segments followed.
The maps were interpreted at the trial of the relinquishment issue by Matthew Goetz, a land surveyor working in the right-of-way section of the Department. Goetz did not prepare the maps; he was asked to review them and assess what they revealed. He testified that the maps depicted the boundaries of the areas to be relinquished, and constituted "a technical description of the real property to be transferred." He said that the drainage channel in question was located within segment 6, one of the segments to be given to the City as shown on the maps. One of the maps of segment 6 bore the label "Frontage Road," but no topographical features were shown and the drainage channel was not identified by any words or markings. Goetz said that the letters "FR" on the maps were shorthand for "frontage," and the *494 "`FR' Line" shown on the maps of segment 6 was the center line of Asti Road. He said it was readily apparent from the size of the shaded area around this center line that the area to be relinquished was "much wider than the rights-of-way that are normally associated with a road." One could have taken the maps and a tape measure out to the center of the road, walked the length of the shaded area shown on the maps, and determined that it included the drainage channel.
The City did not protest the relinquishment during the 90 days following receipt of the notice. Perrault testified at trial that he reviewed the notice and "could not discern that it covered the channel," and that he "relied on the recommendation and assurance of the City Engineer," John Wanger. Perrault said that, to the best of his recollection, Wanger reviewed the notice during the 90-day period and did not find anything objectionable, but Wanger testified in his deposition that he did not get a copy of the notice from Perrault until after the 90 days had expired.
The relinquishment resolution was approved by the Commission on April 2, 1997, and recorded with the Sonoma County Recorder on May 2, 1997. The City received a recorded copy of the resolution three weeks later.
After the relinquishment, the City continued complaining to the Department about the condition of the drainage channel. Wanger wrote the Department a letter on June 18, 1997, noting the City's long-standing concern with the flat slope of the channel, and pointing out problems the channel was posing to a nearby City facility. Among other things, it appeared that "a 36 [inch] storm drain with a flap gate installed through the dike between the corporation yard and Heron Creek . . . allow[ed] flows from Heron Creek to flow adversely back into the City corporation yard ditches." The City "appreciate[d] the State's commitment to performing the remedial drainage work" the Department had identified in a letter dated April 22, 1997. In a September 25, 1997 letter, Wanger listed the City's "minimum" expectations of the Department, which included installation of "appropriate sized pipe(s) . . . through the levy to replace the existing undersized pipe with the faulty flap gate." The Department proceeded to replace the 36-inch pipe with two 48-inch pipes, but Wanger thought that the new pipes were installed at an incorrect elevation, and wrote to the Department in December 1997 asking how it proposed to remedy that defect.
Wanger testified that he did not realize the Department considered the channel part of the relinquished property until he was so advised by Department officials at a meeting in late 1997 or early 1998. Wanger told the Department officials that the City did not agree that the channel had been relinquished.
*495 Wanger acknowledged at trial that, in the relinquishment, the City had received a right-of-way from the Department. "Q. What you got from CalTrans was right-of-way, wasn't it? [¶] A. Yes. [¶] . . . [¶] Q. You knew you were getting titled boundaries as identified in the right-of-way; correct? When that's relinquished? [¶] A. That's correct. [¶] Q. What was formerly the State property was now your property from the limits of the right-of-way; correct? [¶] A. Correct. [¶] Q. From the width of the right-of-way as depicted on maps that you received; correct? [¶] A. Correct."
However, at another point during this exchange, Wanger denied knowing what the City received when it obtained the right-of-way. He elaborated: "This was the first relinquishment that I as . . . an engineer had gone through with CalTrans, and my experience with the City is such thatlet's say somebody was going to give us a right-of-way on a map or on a separate document. The City would generally accept the right-of-way but would not necessarily accept the improvements, and this is my experience, until those improvements were in a condition that the City felt was appropriate. And in this particular case I felt I didn't have any issues with Asti Road, but we clearly had documented, gosh, since 1992 that we had issues with the drainage channel . . . ."
Perrault conceded that no one in the Department ever told him the channel would not be relinquished, but while he had "anticipated the relinquishment of the channel," he believed that the channel "would have to work correctly before the City would be in a position to be able to accept it."

B. Discussion

(1) Whether Section 73 Authorized Relinquishment of the Drainage Channel

The City contends that section 73 does not permit relinquishment of the drainage channel. Section 73 does not appear to have been construed in any reported case.
(1) As has been noted, section 73 provides for relinquishment of "highway[s]," "road[s]," and "transportation facilit[ies]." Section 23 states that "[a]s used in this code, unless the particular provision or the context otherwise requires, `highway' includes bridges, culverts, curbs, drains, and all works incidental to highway construction, improvement, and maintenance." A *496 drainage channel created to replace a creek displaced by a new highway could literally be characterized as a "drain," and would unquestionably constitute a "work[] incidental to highway construction" within the meaning of section 23. Therefore, "unless . . . the context otherwise require[d]," relinquishment of a highway would include relinquishment of a drainage channel necessitated by the highway's construction. (2) The City concedes that section 73 does not distinguish, as to the scope of what may be relinquished, between a "highway" and a "road." The concession is well taken; nothing in the statute suggests such a distinction. Accordingly, unless the context dictates otherwise, the relinquishment of Asti Road, the frontage road in this case, included relinquishment of the drainage channel that was built to permit the construction of that road.
The City does not explain why the context of a relinquishment would require any other result. The City simply dismisses section 23 as one among "an array of statutes" where "different definitions apply in different contexts." However, unlike the other statutes the City cites, section 23 bears directly on section 73: It defines the scope of the term "highway" in section 73, and thus, per the City's apt concession, the scope of the term "road" in section 73 as well. We see no reason why the Legislature would provide for relinquishment of highways and roads, but prohibit relinquishment of the works incident to their construction. Consequently, we conclude that the drainage channel could be relinquished as part of the frontage road under section 73.

(2) Whether a Relinquishment Occurred

(a) The Freeway Agreement

Section 73 requires an agreement between the Department and the city or county for relinquishment of a frontage road. Paragraph 4 of the Freeway Agreement in this case authorized the Department to acquire on the City's behalf "all necessary right of way as may be required for construction, reconstruction, or alteration of CITY streets, frontage roads, and other local roads" in connection with the bypass project. Paragraph 6 provided: "CITY will accept control and maintenance over each of the relocated or reconstructed CITY streets, and the frontage roads, and other [Department] constructed local roads on receipt of written notice to CITY from [Department] that the work thereon has been completed, except for any portion which is adopted by [Department] as a part of the freeway proper. CITY will accept title to the portions of such roads lying outside the freeway limits, upon relinquishment by [Department]."
*497 (3) The City refers to an "absence of even an oblique reference to `drainage facilities' in the 1990 Freeway Agreement," and, presumably to point up the alleged omission, underlines the references to "roads" in its quotation of paragraph 6. However, the terms "frontage road" in the paragraph of the Freeway Agreement dealing with relinquishment would likely have the same meaning as in the relinquishment statute, which, as we have said, includes drains and other works incidental to construction. This understanding was confirmed by City Manager Perrault's June 1992 and February 1994 letters to the Department, which contemplated that drainage channels would be part of the relinquished property. (See generally 1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 749, p. 838 [parties' subsequent conduct may establish meaning of contract]; CACI No. 318 (2008) [same].) Perrault admitted at trial that he had anticipated relinquishment of the channel at issue. Thus, the City does not deny that it was "well aware that the drainage channel would be relinquished" after construction was completed, nor does it dispute that the Freeway Agreement was one that provided for relinquishment of frontage roads as required by section 73.
(4) The City nonetheless believes that the Department was not unilaterally entitled to decide when work on the channel was complete, and it reads the Freeway Agreement to provide for a "consensual" future acceptance of the channel. The text of the agreement does not support these positions. The agreement states in mandatory terms that the City "will accept" control and maintenance of completed frontage roads, and title to such roads upon relinquishment by the Department. This language does not purport to depart from section 73, which requires an advance agreement for relinquishment, but provides that a relinquishment can ultimately be accomplished over a city's objection.

(b) Relinquishment Notice and Resolution

The City contends that the notice of relinquishment it received and the resolution of relinquishment thereafter recorded did not effectively transfer title to the drainage channel. This issue, as the City implicitly concedes, is essentially one of fact, governed for purposes of appellate review by the substantial evidence rule. Substantial evidence supported the trial court's findings "that the notice of relinquishment did in fact put the City on notice that the drainage channel would be relinquished and that the recorded relinquishment did in fact convey the drainage channel to the City."
The resolution, furnished with the notice, provided for relinquishment of "collateral facilities" that included "frontage roads," "together with the right of way and appurtenances thereof" as shown on attached maps. The drainage channel, again, could be part of a frontage road, and City Engineer Wanger *498 confirmed in his testimony that the City received rights-of-way in the relinquishment. Thus, the only question was whether the channel was shown on the maps to be within a frontage road right-of-way conveyed to the City. The only evidence on this issue was the testimony of Department surveyor Goetz, who indicated that the maps were precise legal descriptions of the areas conveyed, and that the channel was located within one of those areas. That testimony fully supported the court's finding that notice and resolution were adequate to transfer title to the drainage channel to the City.
(5) The City observes that the maps did not depict or identify the channel itself, but cites no authority for the proposition that any such description was legally required to effectuate the transfer of title. A deed will generally "be sustained if it is possible from the whole description to ascertain and identify the land intended to be conveyed with reasonable certainty." (Denbo v. Senness (1953) 120 Cal.App.2d 863, 866 [262 P.2d 31]; see, e.g., Blume v. MacGregor (1944) 64 Cal.App.2d 244, 251-252 [148 P.2d 656] [description is generally sufficient "if a competent surveyor can take the deed and locate the land on the ground . . . with or without the aid of extrinsic evidence"].) Goetz explained how relinquishment of the channel could be determined by taking the maps into the field, and the City offered no evidence that called that explanation into question.

(c) Administrative Remedy

The City argues that the drainage channel was not relinquished because it was not prepared to accept the channel unless it was satisfied with how the channel worked, and had conveyed that position to the Department before it received the relinquishment notice. This argument flows from a misconception that a relinquishment is consensual, which, again, it ultimately is not. Moreover, section 73 afforded a means of protesting the relinquishment on the ground that the channel was "not in a state of good repair." In that event, the Commission would have been required to hold a public hearing to resolve the issue. That issue is not properly before us because the City failed to pursue that administrative remedy.
(6) "[W]here an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act." (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 292 [109 P.2d 942].) This rule "is not a matter of judicial discretion, but is a fundamental rule of procedure . . . binding upon all courts." (Id. at p. 293.) "Exhaustion of administrative remedies is `a jurisdictional prerequisite to *499 resort to the courts.' [Citation]." (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 70 [99 Cal.Rptr.2d 316, 5 P.3d 874].) The exhaustion doctrine "has been successfully invoked as a bar to legal proceedings in a wide variety of situations" (3 Witkin, Cal. Procedure (4th ed. 1996) Actions, § 308, p. 393), including Commission proceedings (see People ex rel. Dept. of Transportation v. Cole (1992) 7 Cal.App.4th 1281, 1286 [9 Cal.Rptr.2d 750]). The doctrine precludes the City from contesting the relinquishment based on the channel's alleged defects.
The City contends that exhaustion doctrine cannot be invoked here because the relinquishment notice did not adequately advise that the drainage channel would be included (see Hittle v. Santa Barbara County Employees Retirement Assn. (1985) 39 Cal.3d 374, 384 [216 Cal.Rptr. 733, 703 P.2d 73] [doctrine not applicable where party not advised that administrative review procedure was available]), but we have already explained that the notice with respect to the channel was sufficient. The City protests that it "genuinely did not realize" that the channel was to be relinquished, but the City has only itself to blame for that ignorance. According to the evidence, the City neglected to have the maps in the notice examined during the 90-day period when the relinquishment could have been contested; Perrault and Wanger essentially pointed the finger at each other for that failing.
The City notes that a court can agree to hear a case involving important questions of public policy even if the arguments as to those issues would ordinarily be waived by virtue of the exhaustion doctrine (Lindeleaf v. Agricultural Labor Relations Bd. (1986) 41 Cal.3d 861, 870-871 [226 Cal.Rptr. 119, 718 P.2d 106]), and the City submits that issues involving section 73 are important enough to warrant that treatment. However, defects in the drainage channel and the City's unwillingness to accept relinquishment of the channel in light of those defects are not matters of general public interest. The trial court correctly accepted the Department's exhaustion of administrative remedies argument as to those issues, and we can assume without deciding that the exhaustion doctrine would not apply to the other relinquishment issues we have discussed.

II., III.[*]

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

*500 IV. DISPOSITION
The judgment for the Department on the City's cross-complaint is reversed on the indemnity causes of action, and is otherwise affirmed. The parties shall bear their own costs on appeal.
Stein, J., and Margulies, J., concurred.
NOTES
[*]  Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts II. and III.
[1]  All further statutory references are to the Streets and Highways Code unless otherwise indicated.
[*]  See footnote, ante, page 488.


717 F.Supp. 709 (1989)
UNITED STATES of America, Plaintiff,
v.
Christian ACHOLONU, Defendant.
No. CR-R-80-46-ECR.
United States District Court, D. Nevada.
June 9, 1989.
William Maddox, U.S. Atty., Reno, Nev., for plaintiff.
Patrick Gilbert, Reno, Nev., for defendant.

MEMORANDUM DECISION AND ORDER
EDWARD C. REED, Jr., Chief Judge.
The matter before the Court is defendant's March 24, 1989, petition for a writ of audita querela (document # 77). Upon a plea of guilty, on December 17, 1980, the defendant was convicted of mail fraud, 18 U.S.C. § 1341 (1982). Defendant requests that the Court vacate this conviction so that he will not be ineligible for "amnesty" under the Immigration Reform and Control Act ("IRCA"), Pub.L. 99-603, 100 Stat. 3359 (codified in scattered sections of 7 U.S.C., 8 U.S.C., and 42 U.S.C.), because of 8 U.S.C. § 1255a(a)(4)(B) (Supp. V 1987) which denies amnesty to any alien convicted of a felony or three or more misdemeanors. On April 26, 1989, the Government timely filed a response opposing defendant's petition.

I. Audita Querela

Audita querela is the name of a common law writ which is used to vacate a judgment upon a showing "of events occurring subsequently," Lapin v. Shulton, Inc., 333 F.2d 169, 171 (9th Cir.) cert. denied, 379 U.S. 904, 85 S.Ct. 193, 13 L.Ed.2d 177 (1964), which constitute "some matter of defense or discharge," United States v. Salgado, 692 F.Supp. 1265, 1269 (E.D. Wash.1988), "which could not be taken advantage of otherwise." Id. quoting Black's Law Dictionary (5th Ed.).
*710 Audita querela has been expressly abolished in civil cases by Fed.R.Civ.P. 60(b), which governs obtaining relief from final judgments in civil cases. United States v. Kimberlin, 675 F.2d 866, 869 (7th Cir. 1982). United States v. Morgan, 346 U.S. 502, 505-06 n. 4, 74 S.Ct. 247, 249 n. 4, 98 L.Ed. 248 (1954), held that coram nobis continues to be available in criminal cases because the abolishment of the common law writs by Fed.R.Civ.P. 60(b) applies only in civil cases. Other courts have similarly ruled that audita querela continues to be available in criminal cases. Salgado, 692 F.Supp. at 1269; United States v. Ghebreziabher, 701 F.Supp. 115 (E.D.La.1988). The authority to grant a writ of audita querela exists pursuant to the All-Writs Act, 28 U.S.C. § 1651(a) (1982). Salgado 692 F.Supp. at 1269; See, Morgan, 346 U.S. at 506, 74 S.Ct. at 250.

II. Defendant's Petition

Having concluded that audita querela is available in federal courts in criminal cases, the initial difficulty the Court faces in this matter is determining whether the passage of the amnesty provisions of IRCA constitute a "defense" or "discharge" which justifies the nullification of defendant's conviction. Additionally, even if the enactment of IRCA is not a defense or discharge, the Court must determine whether the granting of a writ of audita querela would be appropriate on some other basis.
Certainly, it would be a non-sequitur to say that IRCA constitutes a discharge of defendant's conviction since 8 U.S.C. § 1255a(a)(4)(B) specifically provides that a felony conviction disqualifies an alien from the amnesty program. The classic example of a discharge which gives rise to audita querela relief is the case of a judgment debtor who obtains a discharge of the debt in bankruptcy. See, e.g., Coan v. Auerbach, 340 Ill.App. 422, 92 N.E.2d 211 (1950).
Similarly, passage of the IRCA amnesty provision is not a defense to defendant's conviction because it is irrelevant to the substantive law and facts upon which defendant was convicted. An increase in the collateral consequences of a conviction might affect the sentence[1] a defendant receives, but does not go to the merits of the offense charged.[2] Thus, even if we had known that defendant's conviction would ultimately prevent him from obtaining U.S. citizenship through an amnesty program, the Court would not have dismissed the indictment on that basis.
Turning to the most difficult issue in this matter, some of the cases suggest that audita querela is available not only where subsequent events constitute a "defense" or a "discharge" to a judgment but where subsequent events render the continued existence of the judgment, and its consequences, unjust. See Salgado, 692 F.Supp. at 1269-1271; Ghebreziabher, 701 F.Supp. at 117. But see Ames v. Sears, Roebuck and Co., 206 Conn. 16, 536 A.2d 563, 566 (1988) (post-judgment change in law upon which judgment based is not grounds for audita querela relief). We need not decide whether audita querela is available in federal courts for this purpose because, even if it is, we cannot conclude that justice demands that defendant's conviction be vacated in these circumstances.
In Ghebreziabher, the court vacated one of three misdemeanor convictions and noted that "[c]onviction of two counts with the same sentence would serve the interests of justice and not in any way prejudice the United States." Ghebreziabher, 701 F.Supp. at 117. Here, a vacation of the defendant's one felony conviction would vitiate the government's interest in the maintenance of a criminal record. See generally Doe v. Webster, 606 F.2d 1226, 1232 *711 (D.C.Cir.1979) ("Congress and the courts have recognized that keeping criminal records constitutes an important police function," citations omitted).[3]
In Salgado, the defendant's request for audita querela relief was unopposed by the government, Salgado, 692 F.Supp. at 1270, unlike the situation here where the government has timely filed its opposition. The conviction which was vacated by the court in Salgado was 24 years old, Salgado, 692 F.Supp. at 1266, and the defendant had displayed no indications of recidivism during the 24 years after his conviction. Salgado, 692 F.Supp. at 1268. Here, the defendant's conviction is less than nine years old, and, while the defendant appears to have been a model citizen since his conviction,[4] the government opposes his motion and the government's interest in maintaining a criminal record of a conviction of mail fraud for longer than nine years is not insubstantial. See, e.g., Fed.R.Evid. 609 (conviction for crime involving dishonesty which is not more than ten years old always admissible to attack credibility of a witness). See also 28 U.S.C. § 534(a)(1) (1982) ("The Attorney General shall(a) acquire, collect, classify, and preserve identification, criminal identification, crime, and other records"). Thus, while the Court is gratified by defendant's successful rehabilitation, we conclude that even though it may justify many other things, it does not justify a writ of audita querela.
IT IS, THEREFORE, HEREBY ORDERED that defendant's petition for writ of audita querela is DENIED.
NOTES
[1]  For example, this Court sentenced the defendant to a term of less than one year in response to defendant's unopposed argument that to do otherwise would render him automatically deportable as a result of his conviction. Minute Order of this Court, February 20, 1981.
[2]  It is true that had defendant known of the ultimate consequences of his plea, he might have insisted on a jury trial. This Court, however, cannot relieve him of his plea at this late date. See Ackermann v. United States, 340 U.S. 193, 198, 71 S.Ct. 209, 211-12, 95 L.Ed. 207 (1950).
[3]  The government's interest in maintaining a criminal record includes the general deterrence effects of the consequences of a criminal record as well as the protection of the public by providing notice of an individual's past misdeeds. Society's interest in fostering rehabilitation and reintegration of individual's convicted for past misdeeds is also significant; however, IRCA is expressly not intended to further these latter interests in the case of persons convicted of a felony. See 8 U.S.C. § 1255a(a)(4)(B) (Supp.V 1987).
[4]  The defendant was discharged from probation on February 6, 1985, and has obtained a master's degree in metallurgical engineering, and completed the course work towards a doctorate degree. The defendant is now gainfully employed as a chemist.


608 P.2d 206 (1980)
45 Or.App. 295
In the matter of the Compensation of Donald BUTTON, Claimant, Petitioner,
v.
STATE Accident Insurance Fund, Respondent.
No. 77-7905; CA 15003.
Court of Appeals of Oregon.
Argued and Submitted December 20, 1979.
Decided March 17, 1980.
*207 Charles Robinowitz, Portland, argued the cause and filed the brief for petitioner.
Darrell Bewley, Associate Counsel, State Accident Insurance Fund, Portland, argued the cause for respondent. With him on the brief were K.R. Maloney, Chief Counsel, and James A. Blevins, Chief Trial Counsel, State Accident Insurance Fund, Salem.
Before BUTTLER, P.J., and GILLETTE and ROBERTS, JJ.
GILLETTE, Judge.
Claimant appeals from an order of the Workers' Compensation Board awarding him temporary total disability from August 24, 1977 to January 13, 1978. He claims that he should have been awarded interest on certain disability benefits the Fund originally refused to pay; that the referee and Board cannot reduce the amount requested as attorney fees without stating their reasons for doing so; and that he was entitled to penalties on certain unpaid disability benefits. We affirm.
The claimant, Donald Button, was working as a timber cutter on August 24, 1977, when a log rolled against him, hitting him in the right hip and pinning him against a stump. He experienced pain in his right upper leg and hip. That same day he went to the hospital where emergency treatment was received for soft tissue injury to the right thigh.
Claimant returned to work briefly but, by the end of August, was unable to do anything because of pain in his right knee and hip. He was off work from August 31 through October 31, 1977. Claimant tried working again at the end of October but, because of pain, he had to quit. At that time, he consulted his doctor who concluded that, because of a tear of the right medial meniscus (an injury affecting the knee), claimant would need to undergo surgery. In the doctor's opinion, the knee injury resulted from the accident on August 24th. On November 30, 1977, the surgery was performed. Claimant was released for work on January 13, 1978.
SAIF paid claimant disability benefits until October 31, 1977. However, it miscalculated the amount due and paid claimant less than he was entitled to. The error was subsequently corrected by SAIF but only after some time had passed. SAIF denied the knee injury claim and refused to pay any temporary disability benefits or hospital and medical bills after October 31, 1977. Claimant appealed the denial.
After a hearing, the referee found the claimant's knee injury claim to be compensable. He ordered SAIF to pay all of the claimant's medical and hospital bills in connection with the claim and temporary total disability benefits between October 31 and December 5, 1977 (the date of the denial). In addition, he found that the claimant was entitled to a 25 percent penalty on the medical bills, on the accrued temporary total disability for the period from October 31 through December 5, and on the amount owed for miscalculation in benefits from the date of the accident through October 31. He awarded claimant $2,000 in attorney fees.
On further appeal, the Board extended the period of compensation to January 13, 1978. However, it did not assess a further penalty payment for this later time period. In addition, the Board did not find any justification for assessing penalties against the Fund for failure to pay medical and hospital bills. In all other respects, the referee's order was affirmed. The claimant was awarded $300.00 in attorney's fees for the Board review.
Initially, claimant assigns as error the Board's failure to award him interest on unpaid temporary disability benefits. There is no statutory authority for such an award in the Workers' Compensation Act. The only penalties available are those specified in ORS 656.262(8). The claimant is not entitled to interest payments on any of the unpaid benefits.
*208 Claimant's second contention is that the referee and Board cannot reduce the amount of attorney fees requested by him without stating their reasons. Claimant requested $2,952.75 from the referee and $879 from the Board; he was awarded $2,000 and $300 respectively. The problem with this contention is that the claimant's initial remedy lies elsewhere. ORS 656.388(2) provides:
"If an attorney and the referee or board cannot agree upon the amount of the fee, each forthwith shall submit a written statement of the services rendered to the presiding judge of the circuit court in the county in which the claimant resides. The judge shall, in a summary manner, without the payment of filing, trial or court fees, determine the amount of such fee. This controversy shall be given precedence over other proceedings."
There is no evidence that this procedure was followed in this case. The question of the amount of attorney fees is not properly before us and we decline to rule on the matter.[1]
Claimant's final argument is that, in addition to those awarded, he was entitled to penalty payments on his unpaid medical bills and on his unpaid benefits for the entire period from October 31, to January 13. ORS 656.262(8) provides that:
"(8) If the [fund] or direct responsibility employer or its insurer unreasonably delays or unreasonably refuses to pay compensation, or unreasonably delays acceptance or denial of a claim, the fund or direct responsibility employer shall be liable for an additional amount up to 25 percent of the amounts then due plus any attorney fees which may be assessed under ORS 656.382."
The referee awarded disability payments from October 31 through December 5; the Board extended the award to January 13. The Board, however, while agreeing with the finding that claimant was entitled to penalty payments for the October 31 to December 5 period, did not extend the penalty payments through January 13.
The claim was filed on September 7; the denial was not made until December 5. The referee awarded penalties for the October 31 to December 5 period because he found that SAIF unreasonably delayed making a decision on claimant's case. Claimant is now requesting penalties for that time after the denial. However, there was no unreasonable delay in reaching a decision with respect to that later period because one had already been made. After denial is made, no further compensation must be paid absent an unreasonable refusal, until an appeal of the denial establishes that further compensation is due. There was no penalty for delay due for the compensation ultimately determined to be due after December 5.
Claimant also objects to the Board's denial of penalties for unpaid medical bills. The Board found no justification for assessing penalties for failure to pay the medical bills relating to the knee surgery because there was "no consequential delay between the surgery and the denial." The tests and operation were performed on November 8 and November 30, respectively; SAIF denied responsibility for the claim on December 5.
The award of penalties is a policy matter largely within the Board's expertise. It is clear there was a basis for the Board's decision here. It was "not obliged to assess a penalty on all unpaid items," as the Fund's action "* * * was unreasonable only in certain of the circumstances." Francoeur v. SAIF, 20 Or. App. 604, 611, 532 P.2d 1148, 1151 (1975), rev. den., 1974. We decline to alter the Board's decision.
Affirmed.
NOTES
[1]  We have had a previous occasion to note the anomaly of continued circuit court involvement in the Workers' Compensation process. See Moe v. Ceiling Systems, Inc., 44 Or. App. 429, 606 P.2d 644 (1980).


                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 16a0153n.06

                                        Case No. 15-3642

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                FILED
                                                                                Mar 17, 2016
                                                                              DEBORAH S. HUNT, Clerk

UNITED STATES OF AMERICA,                              )
                                                       )        ON APPEAL FROM THE
       Plaintiff-Appellee,                             )        UNITED STATES DISTRICT
                                                       )        COURT     FOR      THE
v.                                                     )        NORTHERN DISTRICT OF
                                                       )        OHIO
KENNETH A. PINKNEY,                                    )
                                                       )
       Defendant-Appellant.                            )                  OPINION

BEFORE: KEITH, COOK, and McKEAGUE, Circuit Judges.

       McKEAGUE, Circuit Judge. Kenneth Pinkney was charged with being a felon in

possession of a firearm and ammunition after police found him in the back seat of a vehicle with

a stolen gun in between his feet and a box of ammunition hidden under a scarf next to him.

While in prison awaiting trial, Pinkney wrote two letters to his brother instructing him to pay the

driver of the vehicle to testify that Pinkney never possessed the gun. A jury convicted Pinkney

of possessing the ammunition but found him not guilty of possessing the firearm. On appeal,

Pinkney raises issues regarding his trial, conviction, and sentence, but his arguments are without

merit. We affirm.

                                                 I

       At approximately 10:00 p.m. on May 23, 2014, officers from the Cleveland Police

Department initiated a traffic stop on a vehicle for failure to stop at a stop sign. The vehicle was
Case No. 15-3642, United States v. Pinkney

occupied by three men: defendant-appellant Kenneth Pinkney, seated in the back seat on the

driver’s side; Kwamaine Davis, Pinkney’s brother, seated in the front passenger seat; and Slater

Howell III, the driver.

       Officer Angelia Gaston approached the vehicle and used her flashlight to illuminate the

interior, where she noticed that Pinkney was “wiggling” and “moving a lot.” R. 77, Trial Tr. at

260–61, Page ID 607–08. When Gaston illuminated the backseat, she saw a firearm on the floor

beneath Pinkney’s feet. Gaston yelled “gun,” and Davis fled as Gaston and her partner secured

Pinkney and Howell. At that point, Gaston observed that the firearm, a 9-millimeter pistol, was

under the driver’s seat “like if it had been kicked or something.” Id. at 267, Page ID 614. In

addition, the officers found a box of 9-millimeter ammunition with seventeen rounds—a full box

holds fifty rounds—hidden under a scarf on the seat next to Pinkney. The police would later find

a spent round of ammunition lodged in the barrel of the gun. A grand jury indicted Pinkney for

being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1).

       Pinkney initially told Officer Gaston that the gun belonged to Howell (the driver) and that

Howell had shoved it under the front seat. Pinkney would later tell Special Agent Derek

Graham, of the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), that

Howell dropped the gun on the floor of the back seat and he then kicked it under the front seat to

hide it from the police. Pinkney knew exactly how many rounds (seventeen) were in the

ammunition box, he knew that the ammunition was 9-millimeter, and he admitted that he

concealed the ammunition when police stopped the vehicle. He also told Graham that he knew

the gun was a 9-millimeter and that it wasn’t possible to load ammunition in the gun. Graham

testified at trial that the police recovered a round of ammunition that was lodged in the firearm

which would, as Pinkney had said, prevent loading the gun. In addition, ATF Special Agent

                                              -2-
Case No. 15-3642, United States v. Pinkney

Gregory Bartoe testified that the firearm and ammunition were manufactured outside Ohio and

traveled in interstate commerce.

       While in prison, Pinkney wrote two letters to his brother, Kwamaine Davis, telling Davis

to pay Howell and instruct him to testify that Pinkney never possessed the firearm. Pinkney also

asked Davis to set up an account for Howell and deposit at least $20 in it. At trial, Pinkney

stipulated that the letters were authentic, and the government agreed to redact information that

would reveal Pinkney’s incarceration. The district court admitted the letters over Pinkney’s

objection as evidence of his consciousness of guilt.

       Pinkney declined to present any evidence in his defense at trial. The jury returned a

verdict of guilty on being a felon in possession of ammunition, but found Pinkney not guilty on

possession of the firearm.

       At sentencing, the district court found that Pinkney had obstructed justice and had

possessed the stolen firearm, warranting two two-point enhancements under the U.S. Sentencing

Guidelines (U.S.S.G.). Pinkney obstructed justice by writing letters to his brother instructing

him to tell a witness what to say on the stand. As to possession of the firearm, the district court

found by a preponderance of the evidence that the events leading to Pinkney’s arrest, his

knowledge of the firearm, and a number of recorded prison phone calls between Howell and

Pinkney indicated that Pinkney possessed the firearm. In these calls, Howell and Pinkney

initially discussed having Pinkney take responsibility for the gun, but once it was determined

Pinkney would be prosecuted federally, the two discussed Howell taking responsibility for the

gun. With the enhancements, the Guidelines range for Pinkney’s sentence was 110 to 120

months’ imprisonment.

                                               -3-
Case No. 15-3642, United States v. Pinkney

       After considering the applicable factors under 18 U.S.C. § 3553(a), including Pinkney’s

age and mental health, the court imposed a sentence that included 110 months’ imprisonment. In

imposing a sentence at the low end of the Guidelines range, the court emphasized the need for

adequate deterrence and to protect the public, given the “continuing pattern” of Pinkney’s

criminal history. R. 73, Sentencing Tr. at 22, Page ID 340. The court also considered Pinkney’s

criminal activity after his indictment, including his attempt to obstruct justice by writing the

letters and his attempts to file fraudulent tax returns using stolen personally identifiable

information. Pinkney timely appealed.

                                                II

       Pinkney raises four arguments on appeal: (1) the district court erred in denying his

request for a mistrial based on allegedly prejudicial statements made by Officer Gaston during

her trial testimony; (2) the district court erred in admitting the letters; (3) the evidence was

insufficient to sustain his conviction and sentence; (4) the district court erred by imposing a

substantively unreasonable sentence and by improperly applying two enhancements to Pinkney’s

sentence. We reject each in turn.

                                                A

       Motion for Mistrial. Pinkney first argues that the district court erred in denying his

motion for a mistrial based on two statements made by Officer Gaston at trial. First, when asked

whether any other officers wrote reports for the incident, Gaston indicated that her partner wrote

a “stolen gun report.” R. 77, Trial Tr. at 274, Page ID 621. Second, when asked whether the

police recovered other firearms or ammunition, Gaston testified that they did not find anything

else but recalled that “there was a bullet hole in the side of the vehicle.” Id. at 277–78, Page ID

624–25. Pinkney’s counsel did not object when Gaston made either statement, but asked for a

                                               -4-
Case No. 15-3642, United States v. Pinkney

mistrial following Gaston’s testimony on direct examination by the government. The district

court denied the motion for a mistrial, but later gave the jury a limiting instruction to disregard

the two statements.

       We review the denial of a motion for a mistrial for an abuse of discretion. United States

v. Howard, 621 F.3d 433, 458 (6th Cir. 2010) (citation omitted). The government asserts that

plain error review applies because Pinkney failed to make a contemporaneous objection, but the

distinction is immaterial because the district court did not err or abuse its discretion.

       To justify a mistrial, a statement must be “so clearly improper and prejudicial to the

defendant[] that the harm could not be erased by any instruction which the court might give.” Id.

at 459 (citation omitted). We consider five factors: “(1) whether the remark was unsolicited,

(2) whether the government’s line of questioning was reasonable, (3) whether the limiting

instruction was immediate, clear, and forceful, (4) whether any bad faith was evidenced by the

government, and (5) whether the remark was only a small part of the evidence against the

defendant.” Zuern v. Tate, 336 F.3d 478, 485 (6th Cir. 2003) (citing United States v. Forrest,

17 F.3d 916, 920 (6th Cir. 1994)).

       Based on these factors, it is clear that the district court properly denied Pinkney’s motion

for a mistrial. Gaston testified she did not include certain statements Pinkney made at his arrest

in her report, so the government had reason to ask if any other officers made reports. And

Pinkney was on trial for possessing a firearm and ammunition, so the government had reason to

ask whether the police found more firearms or ammunition in the vehicle. These questions did

not solicit remarks about the gun being stolen or the bullet hole. The two statements were only a

small part of the evidence against Pinkney, and there is no evidence of bad faith by the

government. Finally, the district court issued a clear and forceful limiting instruction, despite

                                                 -5-
Case No. 15-3642, United States v. Pinkney

Pinkney’s failure to request one—or even to object to Gaston’s statements—and the limiting

instruction was sufficient to cure any error. See United States v. Ursery, 109 F.3d 1129, 1133

(6th Cir. 1997) (“[E]ven if the evidence was erroneously admitted, the striking of the evidence

with instructions to the jury to disregard it will ordinarily cure the error.”). Even if there were

some risk of prejudice, “‘juries are presumed to follow their instructions.’” Zafiro v. United

States, 506 U.S. 534, 540 (1993) (quoting Richardson v. Marsh, 481 U.S. 200, 211 (1987)).

Accordingly, we affirm the district court’s decision to deny Pinkney’s motion for a mistrial.1

                                                        B

        Admission of Pinkney’s Letters. Pinkney next argues that the district court erred in

admitting into evidence the letters where Pinkney instructed his brother to pay Howell to testify

in his favor. He claims that, under Fed. R. Evid. 403, the letters’ probative value is substantially

outweighed by the risk of unfair prejudice. We review Rule 403 determinations for abuse of

discretion, see United States v. Whittington, 455 F.3d 736, 740 (6th Cir. 2006), maximizing the

probative value of the evidence and minimizing its potential prejudice. United States v. Sanders,

95 F.3d 449, 453 (6th Cir. 1996) (citation omitted).

        Pinkney’s argument is barely developed in his brief and has no merit. Pinkney asserts

that the letters suggested to the jury that his attorney was working with the police, but the

reference to “police” was redacted, and Pinkney could not have been prejudiced by information

never presented to the jury. He also argues that the letters show he and his attorney were at odds,

but in truth all they show is Pinkney’s consciousness of guilt and his attempts to tamper with a

witness. See United States v. Poulsen, 655 F.3d 492, 509 (6th Cir. 2011). Such evidence is

1
  Pinkney argues that Gaston’s statements were impermissible evidence of “crimes, wrongs, or other acts,” and so
should not have been admitted under Fed. R. Evid. 404(b). But the district court was “dealing with relevant
testimony mixed with [allegedly] improper testimony,” and accordingly we do not review the statements as “other
acts” evidence. United States v. Hemphill, 76 F. App’x 6, 9, 15–16 (6th Cir. 2003) (citing United States v. Barnes,
49 F.3d 1144, 1149 (6th Cir. 1995); United States v. Torres, 685 F.2d 921, 924 (5th Cir. 1982) (per curiam)).

                                                       -6-
Case No. 15-3642, United States v. Pinkney

undoubtedly probative, and it is not unfairly prejudicial. See id. Accordingly, we affirm the

district court’s decision to admit the letters into evidence.

                                                        C

        Sufficiency of the Evidence. Pinkney also makes a barebones challenge to the sufficiency

of the evidence supporting his conviction and sentence.2 Pinkney must show that, “after viewing

the evidence in the light most favorable to the prosecution, [no] rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,

443 U.S. 307, 319 (1979) (citing Johnson v. Louisiana, 406 U.S. 356, 362 (1972)). To obtain a

conviction under 18 U.S.C. § 922(g)(1) for being a felon in possession, the government was

required to prove that: (1) the defendant had a previous felony conviction; (2) the defendant

knowingly possessed the firearm or ammunition; and (3) the firearm or ammunition traveled in

or affected interstate commerce. United States v. Morrison, 594 F.3d 543, 544 (6th Cir. 2010).

Pinkney challenges only the second element of the charged crime, but does no more than point

out that no one testified his fingerprints were on the gun or ammunition and that the police did

not test them for his DNA.

        Again, Pinkney’s undeveloped argument has no merit. He pointed out the lack of DNA

and fingerprint evidence to the jury at trial, to no avail.                 And he cites no case requiring

fingerprint or DNA evidence to sustain a conviction. See Morrison, 594 F.3d at 545–46 (holding

“pretty spare” evidence was sufficient to sustain conviction for felon-in-possession despite

absence of fingerprints on the gun). Pinkney’s counsel even admitted at trial that such evidence

was not required to convict him.

2
 Pinkney makes separate arguments challenging the sufficiency of the evidence and the district court’s denial of his
Rule 29 motion for a judgment of acquittal, but “‘[a] Rule 29 motion is a challenge to the sufficiency of the
evidence.’” United States v. Kuehne, 547 F.3d 667, 696 (6th Cir. 2008) (emphasis added) (quoting United States v.
Jones, 102 F.3d 804, 807 (6th Cir. 1996)).

                                                       -7-
Case No. 15-3642, United States v. Pinkney

       Pinkney also ignores the evidence presented by the government at trial and at sentencing.

Officer Gaston testified at length about the events leading to Pinkney’s arrest, including the

location of the gun (beneath Pinkney’s feet) and the ammunition (beside Pinkney). Gaston and

Special Agent Graham testified about Pinkney’s admissions regarding the firearm and the

ammunition, including that Pinkney knew the caliber of the gun, the caliber of the ammunition,

the exact number of rounds in the ammunition box, and that the gun would not load. This

evidence, viewed in the light most favorable to the government, was sufficient to sustain

Pinkney’s conviction and sentence. See, e.g., United States v. Walker, 734 F.3d 451, 456–57

(6th Cir. 2013) (holding evidence was sufficient for possession of a firearm given the

defendant’s proximity to the firearm and testimony that the defendant disobeyed officers’ orders

in a manner that suggested he was reaching for the firearm); Morrison, 594 F.3d at 544–45

(holding evidence was sufficient for possession of a firearm where the firearm was in the center

console of a car and “less than inches” away from the defendant driver).

                                                D

       Pinkney finally challenges his sentence. He argues that his sentence of 110 months’

imprisonment was substantively unreasonable, despite being at the low end of the Guidelines

range. He also argues that the district court erred by applying a two-level enhancement under

U.S.S.G. § 2K2.1(b)(4) for possession of a stolen firearm and a two-level enhancement under

U.S.S.G. § 3C1.1 for obstruction of justice based on Pinkney’s letters.         We review the

reasonableness of a defendant’s sentence for abuse of discretion, Gall v. United States, 552 U.S.

38, 51 (2007), and the district court’s factual findings in applying sentencing enhancements for

clear error. United States v. Stafford, 721 F.3d 380, 400–01 (6th Cir. 2013).

                                               -8-
Case No. 15-3642, United States v. Pinkney

           Substantive Reasonableness. For a sentence to be substantively reasonable, the district

court must consider the factors set forth in 18 U.S.C. § 3553(a) and arrive at a sentence that is

“‘sufficient, but not greater than necessary, to comply with’” those factors. United States v.

Gunter, 620 F.3d 642, 647 (6th Cir. 2010) (quoting 18 U.S.C. § 3553(a)). When a sentence is

within the Guidelines range, we presume it is substantively reasonable. Gall, 552 U.S. at 51.

           Pinkney’s argument is a bare assertion that a lesser sentence was required because of his

age and history of mental health issues. Yet the district court noted both Pinkney’s age (twenty-

four) and his history of mental health issues at sentencing, and took them into account with the

required factors under 18 U.S.C. § 3553.                     The district court properly balanced Pinkney’s

mitigating evidence against the other factors, including Pinkney’s lengthy criminal history, the

need to deter him from future criminal conduct, and the need to protect the public. As such, the

district court did not abuse its discretion in imposing a sentence at the low end of the Guidelines

range.

           Enhancements.          Nor did the district court err in applying the two sentencing

enhancements. Pinkney argues that the district court should not have applied the two-level

enhancement for possessing a stolen firearm because he was acquitted of possessing the firearm

and there was insufficient evidence that he knowingly possessed it.3 However, acquitted conduct

may support an enhancement when found by a preponderance of the evidence. United States v.

Watts, 519 U.S. 148, 149 (1997) (per curiam); see also United States v. White, 551 F.3d 381,

383–84 (6th Cir. 2008) (en banc). The district court found, by a preponderance of the evidence,

that Pinkney knowingly possessed the firearm. As we have already discussed, there was ample

evidence presented at trial to support that conclusion, including Pinkney’s own admissions about

3
    Pinkney does not challenge the district court’s finding that the firearm was stolen.

                                                            -9-
Case No. 15-3642, United States v. Pinkney

and knowledge of the firearm. Thus, we cannot say that the district court erred in applying this

enhancement.

       The same goes for the two-level enhancement for obstruction of justice. Pinkney’s only

argument is that the letters should never have been admitted. We have already rejected that

argument; the letters were properly admitted at trial and sentencing, and they include an attempt

by Pinkney to pay a witness to testify favorably. Pinkney’s conduct falls squarely within one of

the examples provided by the Guidelines. See U.S.S.G. § 3C1.1 app. (4)(A)–(B). Moreover, the

letters, which Pinkney conceded were authentic, were admissible at sentencing even if they were

not admissible at trial. See United States v. Graham-Wright, 715 F.3d 598, 601 (6th Cir. 2013)

(“Sentencing hearings may include evidence otherwise inadmissible at trial so long as the

evidence is reliable.”). Accordingly, we affirm Pinkney’s sentence.

                                               III

       For the foregoing reasons, we find no error and affirm.

                                             - 10 -


613 So.2d 510 (1993)
Charles LARZELERE and Christel Larzelere, his wife, Appellant,
v.
EMPLOYERS INSURANCE OF WAUSAU, a Mutual Company, C.P. Ward, Inc., Kbh Equipment Company, Ssp Construction Equipment, Inc., Ssp Industries, Fred Gramlich and Enterprise Building Corporation, Appellees.
No. 91-04047.
District Court of Appeal of Florida, Second District.
January 15, 1993.
Rehearing Denied February 22, 1993.
John A. Lloyd, Jr., of John Lloyd Law Offices, P.A., St. Petersburg, for appellants.
Jeffrey R. Fuller of Williams, Brasfield, Wertz, Fuller, Goldman, Freeman & Lovell, *511 P.A., St. Petersburg, for appellees C.P. Ward and KBH Equip.
FRANK, Acting Chief Judge.
Charles Larzelere and Christel Larzelere, his wife, have appealed from a final summary judgment in favor of C.P. Ward, Inc., and KBH Equipment Company. We reverse.
Charles Larzelere, an employee of Enterprise Building Corporation, was injured on the job when shorejacks being raised by a crane fell and hit him. The crane was owned and furnished by KBH and Ward, but the crane and the operator had been leased to Enterprise. When the accident occurred, Enterprise's employees had seated the load on the hook and were directing the crane operator with hand signals.
The trial court granted summary judgment on the ground that suit against KBH and Ward was barred by the exclusive remedy provision of section 440.11, Florida Statutes, the workers compensation statute. The trial court concluded that, as in Halifax Paving v. Scott & Jobalia Construction Co., Inc., 565 So.2d 1346 (Fla. 1990), the crane had become a workplace tool of Enterprise. See Smith v. Ryder Truck Rentals, Inc., 182 So.2d 422 (Fla. 1966). When a dangerous instrumentality is leased to an employer, the lessor shares the employer's worker's compensation immunity from suit by employees. Morales v. Ryder Truck Rental, 559 So.2d 317 (Fla. 3d DCA 1990). The crane operator, acting under Enterprise's direction, became Enterprise's borrowed servant.
Although the trial court acted correctly in its disposition of the negligence issue, it failed to take into account that the Larzeleres had also sued Ward and KBH for supplying a defective crane. In the order granting summary judgment in favor of Ward and KBH on the issue of the crane operator's negligence, the trial court did not preserve the Larzeleres' pleaded product liability claim.
The fifth district has recently addressed a similar situation in Litton v. Saf-T-Green of Orlando, Inc. and Stillman, 608 So.2d 908 (Fla. 5th DCA 1992). There the court stated,
Given the evidence in the record, this case appears ultimately to turn on a disputed issue of fact: was the cause of accident a defect or other problem with the machinery or was it operator error? Under the former, Saf-T-Green would be liable to the employee; under the latter, Saf-T-Green would enjoy worker's compensation immunity. This factual issue could not, however, be decided by way of summary judgment.
608 So.2d at 910.
At the hearing on the Ward/KBH motion for summary judgment, the attorney for the Larzeleres specifically advised the trial court that the products liability claim was not a part of the motion for summary judgment. The court nevertheless entered a final summary judgment in favor of KBH and Ward, without excluding that claim from its order.
Because genuine issues of material fact may exist concerning whether a defect, if any, in the crane supplied by Ward and KBH contributed to the Larzeleres' injuries, the final summary judgment is reversed to the extent that it deprives the Larzeleres of their product liability claim.
PATTERSON and BLUE, JJ., concur.


Order                                                                                Michigan Supreme Court
                                                                                Lansing, Michigan

  September 21, 2016                                                                                Robert P. Young, Jr.,
                                                                                Chief Justice

  153181                                                                                Stephen J. Markman
                                                                                Brian K. Zahra
                                                                                Bridget M. McCormack
                                                                                David F. Viviano
                                                                                Richard H. Bernstein
  PEOPLE OF THE STATE OF MICHIGAN,                                                                          Joan L. Larsen,
            Plaintiff-Appellee,                                                                                Justices

  v                                                                 SC: 153181
                                                                    COA: 330187
                                                                    Saginaw CC: 14-040635-FC
  JUSTIN LEE THOMAS,
             Defendant-Appellant.

  _________________________________________/

         On order of the Court, the application for leave to appeal the December 30, 2015
  order of the Court of Appeals is considered and, it appearing to this Court that the cases
  of People v Steanhouse (Docket No. 152849) and People v Masroor (Docket Nos.
  152946-8) are pending on appeal before this Court and that the decisions in those cases
  may resolve an issue raised in the present application for leave to appeal, we ORDER that
  the application be held in ABEYANCE pending the decisions in those cases.

                           I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                     foregoing is a true and complete copy of the order entered at the direction of the Court.
                           September 21, 2016
           t0914
                                                                               Clerk


                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE

                       STATE OF ARIZONA, Appellee,

                                        v.

                     ARTHUR REY JUAREZ, Appellant.

                             No. 1 CA-CR 15-0308
                              FILED 3-17-2016

           Appeal from the Superior Court in Maricopa County
                        No. CR 2013-114721-001
             The Honorable Pamela Hearn Svoboda, Judge

                                  AFFIRMED

                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

The Hopkins Law Office, PC, Tucson
By Cedric Martin Hopkins
Counsel for Appellant

Arthur Rey Juarez, Florence
Appellant
                             STATE v. JUAREZ
                            Decision of the Court

                       MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge John C. Gemmill joined.

D O W N I E, Judge:

¶1            Arthur Rey Juarez appeals his convictions and sentences for
three sexual offenses involving a child. Pursuant to Anders v. California, 386
U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), counsel has searched
the record, found no arguable question of law, and asked us to review the
record for reversible error. See State v. Richardson, 175 Ariz. 336, 339 (App.
1993). Juarez filed a supplemental brief that we have considered. For the
following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY1

¶2            In 2001, two brothers and their cousin reported to police that
they had been molested by their long-time coach and close family friend,
Juarez. Due to police mishandling, there was no follow-through on the case
for over a decade. In 2013, the State filed charges against Juarez.

¶3            A.G., the youngest victim, testified at trial that he occasionally
stayed overnight at Juarez’s home when he was about 13 years old, and
Juarez would sometimes sleep alongside him in the same bed. On one such
occasion, he awakened to Juarez caressing him and trying to pull down his
shorts; Juarez stopped after A.G. got up to use the bathroom and returned
with his shorts double-knotted. A.G. described a similar scenario occurring
a few months later, when he woke to find Juarez lowering his shorts and
caressing his genitals. Juarez then placed A.G.’s penis in his mouth.

¶4            The older brother, S.G., and the cousin, J.G., also testified that
Juarez acted inappropriately when they were young teenagers. S.G. stated
that Juarez grabbed his genitals while they were wrestling and later
caressed his testicle while giving him a leg massage after a soccer game.

1      Juarez’s offenses took place sometime between May 1, 1998, and
November 27, 2000. As applicable here, no statute underwent significant
changes between 1998 and 2001. Thus, unless otherwise indicated, any
statutory citation is to the 2001 version.

                                       2
                            STATE v. JUAREZ
                           Decision of the Court

S.G. also testified he once woke up in Juarez’s bed to find Juarez caressing
his penis. Similarly, J.G. testified that he was asleep on Juarez’s couch and
awakened to find Juarez caressing his leg and groin.

¶5            Juarez conceded his relationship with the victims could be
considered inappropriate and admitted he found himself in several
inappropriate situations with young boys. Juarez agreed that nearly
everything occurred as the three boys described, but claimed he did not
recall touching any of them in a sexual manner. Juarez testified he suffered
from sleep apnea, which caused him to toss and turn, and he would
sometimes wake up in different positions or rooms with no memory of
moving.

¶6             The jury found Juarez guilty of three counts involving A.G.:
(1) attempt to commit molestation of a child in violation of Arizona Revised
Statutes (“A.R.S.”) sections 13-1001(A)(2), -1410(A), a class 3 felony; (2)
molestation of a child in violation of A.R.S. § 13-1410(A), a class 2 felony;
and (3) sexual conduct with a minor in violation of A.R.S. § 13-1405, a class
2 felony.2 The superior court sentenced Juarez to lifetime probation for
count 1, see A.R.S. §§ 13-901(A)–(B), -902(E), imprisonment for 15 years for
count 2, see A.R.S. § 13-604.01(D), (F), and a consecutive 18-year sentence
for count 3, see A.R.S. § 13-604.01(C), (F), (K). Juarez timely appealed. We
have jurisdiction pursuant to Article 6, Section 9, of the Arizona
Constitution, and A.R.S. §§ 12-120.21(A)(1) (West 2016), 13-4031 (West
2016), and -4033(A)(1) (West 2016).

                              DISCUSSION

¶7            We have read and considered the briefs submitted by Juarez
and his counsel, and we have reviewed the entire record. See Leon, 104 Ariz.
at 300. We find no reversible error. All of the proceedings were conducted
in compliance with the Rules of Criminal Procedure, and the sentences
imposed were within the statutory ranges. Juarez was present at all critical
phases of the proceedings and was represented by counsel. The jury was
properly impaneled and instructed. As described supra, the State presented
substantial evidence of guilt. See State v. Burns, 237 Ariz. 1, 20–21, ¶ 72
(2015) (“Substantial evidence to support a conviction exists when
reasonable persons could accept it as adequate and sufficient to support a

2      The State initially charged Juarez with seven counts, but only five
were presented to the jury. Before trial, the State moved to dismiss two
counts relating to S.G. on statute of limitations grounds. The jury found
Juarez not guilty of two counts involving S.G. and J.G. (counts 4 and 5).

                                     3
                             STATE v. JUAREZ
                            Decision of the Court

conclusion of defendant’s guilt beyond a reasonable doubt.”); cf. State v.
Clemons, 110 Ariz. 555, 556–57 (1974) (witness credibility and weight to be
given to testimony are determined exclusively by the jury). The record
reflects no irregularity in the deliberation process.

¶8           Next, we briefly address several issues Juarez raises in
conclusory fashion in his supplemental brief.

I.     Batson Challenge

¶9             Juarez argues that during jury selection, “Prosecutors
removed all minorities as candidates.” The record reflects that defense
counsel raised a Batson challenge when the State moved to strike the only
remaining black juror in the venire. See Batson v. Kentucky, 476 U.S. 79, 80
(1986) (Equal Protection Clause prevents peremptory strikes based solely
upon race). The State responded that it struck that individual because she
was a teacher, and “teachers tend to believe that students lie a lot.” The
prosecutor stated she intended to strike every teacher because, “It is just not
a field that I’m crazy about having on a jury on a child case.” The superior
court accepted the State’s explanation and denied the Batson challenge.

¶10           We will affirm the denial of a Batson challenge unless it is
clearly erroneous. State v. Newell, 212 Ariz. 389, 400, ¶ 52 (2006). We give
great deference to the trial court’s ruling on a Batson challenge because the
determination hinges largely on being able to assess the prospective jurors,
as well as the prosecutor’s sincerity and credibility. See State v. Canez, 202
Ariz. 133, 147, ¶ 28 (2002). We cannot say here that the State’s race-neutral
explanation was clearly pretextual. See State v. Gay, 214 Ariz. 214, 220, ¶ 17
(App. 2007) (party challenging strike must show the proffered race-neutral
explanation is pretextual).

II.    Ineffective Assistance of Counsel

¶11            Juarez expresses concern that he received ineffective
assistance of counsel. However, claims for ineffective assistance of counsel
must be brought in proceedings pursuant to Arizona Rule of Criminal
Procedure 32. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9 (2002). “Any such claims
improvidently raised in a direct appeal . . . will not be addressed by
appellate courts regardless of merit.” Id.

                                      4
                            STATE v. JUAREZ
                           Decision of the Court

III.   Other Issues Raised

¶12           Juarez’s supplemental brief suggests other errors without
offering support or context. For example, the brief asserts without
elaboration that:

       In addition, the video interview of myself was not allowed to
       be played during trial despite numerous requests and
       arguments to get it played. For some reason a medical
       diagnosis of Sleep Apnea was not allowed to be admitted.
       School Records of the presumed victim was [sic] not
       permitted to be obtained either.

¶13          It is not this Court’s role to develop arguments not clearly
made. We have nonetheless reviewed these issues as we understand them
and found no error.3 See State v. Cookus, 115 Ariz. 99, 104 (1977)
(“Fundamental error aside, general allegations without specific contentions
or references to the record do not warrant consideration on appeal.”).
Moreover, Juarez has not explained how he was prejudiced. See State v.
Henderson, 210 Ariz. 561, 567, ¶ 20 (2005) (reversal requires a defendant to
show both fundamental error and resulting prejudice).

                             CONCLUSION

¶14           We affirm Juarez’s convictions and sentences. His counsel’s
obligations of representation in this appeal have ended. Counsel need do
nothing more than inform Juarez of the status of the appeal and his future
options, unless counsel’s review reveals an issue appropriate for

3      Though the superior court would not admit the entire interview
video because it contained hearsay, Juarez was free to play snippets and
introduce testimony about non-hearsay content. The jury heard ample
testimony that Juarez had been diagnosed with sleep apnea and that he had
supporting medical records. Further, the record establishes that neither the
State nor the victims possessed the school records Juarez sought.

                                     5
                           STATE v. JUAREZ
                          Decision of the Court

submission to the Arizona Supreme Court by petition for review. See State
v. Shattuck, 140 Ariz. 582, 584–85 (1984). On this Court’s own motion, and
if he so desires, Juarez may proceed with an in propria persona motion for
reconsideration or petition for review within 30 days of this decision.

                                 :ama

                                    6