SECOND DIVISION MILLER, P. J., REESE and HODGES, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules
February 13, 2020
In the Court of Appeals of Georgia A19A2377. NIX v. THE STATE.
MILLER, Presiding Judge.
John Nix, a leader of his church’s youth group, engaged in sexual acts with his
underage nephew over the course of six years. Images and videos of child
pornography, including a naked image of at least one child in Nix’s youth group,
were also found in his garage. Because of these incidents, a jury found Nix guilty of
one count of child molestation (OCGA § 16-6-4) and fourteen counts of the sexual
exploitation of children (OCGA § 16-12-100). On appeal, Nix argues that (1) the
evidence was insufficient to support the convictions for the sexual exploitation of
children; (2) the trial court erred in applying the continuing witness rule; (3) the
indictment had a fatal defect; (4) the trial court erroneously applied the rape shield
statute; (5) the trial court wrongly denied Nix’s request for a severance of the child molestation count from the other counts; (6) the trial court constructively amended
the indictment; (7) there was a fatal variance between the date alleged in the
indictment and the proof at trial; and (8) his trial counsel rendered ineffective
assistance. We reject all of Nix’s claims of error and affirm his convictions and
sentence.
Viewed in the light most favorable to the verdicts,1 the record shows that J. N.,
Nix’s nephew, lived with Nix for some time during 2008 when J. N. was twelve years
old. During the summer of that year, at a pool party, Nix asked J. N. to see J. N.’s
private parts, at which point J. N. showed them to Nix. A week after the pool party,
Nix and J. N. had oral sex. Following that incident, sexual activity between the two
would happen “pretty regularly” and would happen “any opportunity [Nix] got.”
When the two were having sex, Nix would occassionally show J. N. porn depicting
girls J. N.’s age or younger. The sexual acts continued until J. N. was eighteen years
old. J. N. did not report these activities until July 2015.
In March 2016, Nix’s wife handed over two fanny packs to the police, which
she found in their garage, that contained various electronic devices including Nix’s
cell phone and a flash drive. The flash drive contained various videos and images of
1 Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
2 young pre-teen boys engaging in sexual activites. The flash drive also contained
multiple naked “selfies” of Nix. These same “selfies” were also found on Nix’s cell
phone. The flash drive also contained various short stories depicting sexual
relationships between adult men and underage boys. A witness identified two of the
pictures found on Nix’s cell phone as pictures of her then six-year-old son, a member
of Nix’s youth group, and one of those pictures showed the boy naked. The witness
testified that her son had spent the night at Nix’s house and that Nix had swum naked
with her son during that stay.
A grand jury indicted Nix on one count of child molestation (OCGA § 16-6-4
(a)) and fourteen counts of the sexual exploitation of children (OCGA § 16-12-100
(b)). For each sexual exploitation count, the indictment alleged that, “on or about the
3rd day of March, 2017,” Nix possessed a flash drive containing images and videos
of child pornography. The jury found Nix guilty of all charges. The trial court
sentenced Nix to a total of fifty-nine years’ imprisonment and one year of probation.
Nix filed a motion for new trial, which the trial court denied. This appeal followed.
1. Nix first argues that the evidence was insufficient to support the fourteen
counts of sexual exploitation of children that were based on his possession of the
flash drive containing pictures of child pornography. He argues that the
3 circumstantial evidence that he was the owner of the flash drive was insufficient to
exclude every reasonable hypothesis that the flash drive belonged to someone else
because other people had equal access to the garage where it was found. Because
there was sufficient evidence tying Nix to the flash drive, we conclude that the
evidence was sufficient to support these convictions.
On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and the defendant no longer enjoys a presumption of innocence. We determine only whether the evidence authorized the jury to find the defendant guilty beyond a reasonable doubt, and in doing so we neither weigh that evidence nor judge the credibility of the witnesses.
(Citations and punctuation omitted.) Barton v. State, 286 Ga. App. 49 (648 SE2d 660)
(2007). To support a conviction based on circumstantial evidence, the evidence “shall
not only be consistent with the hypothesis of guilt, but shall exclude every other
reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-14-6.
Not every hypothesis is reasonable, and the evidence does not have to exclude every conceivable inference or hypothesis; it need rule out only those that are reasonable. The reasonableness of an alternative hypothesis raised by a defendant is a question principally for the jury, and when the jury is authorized to find that the evidence, though circumstantial, is sufficient to exclude every reasonable hypothesis save
4 that of the accused’s guilt, this Court will not disturb that finding unless it is insupportable as a matter of law.
(Citation omitted.) Debelbot v. State, 305 Ga. 534, 538 (1) (826 SE2d 129) (2019).
A person commits the offense of sexual exploitation of children when, among
other things, he knowingly “possess[es] or control[s] any material which depicts a
minor or a portion of a minor’s body engaged in any sexually explicit conduct.”
OCGA § 16-12-100 (b) (8). Under Georgia law, “a person who knowingly has direct
physical control over a thing at a given time is in actual possession of it. A person
who, though not in actual possession, knowingly has both the power and the intention
at a given time to exercise dominion or control over a thing is then in constructive
possession of it.” (Citation omitted.) Dickerson v. State, 304 Ga. App. 762, 765-766
(2) (697 SE2d 874) (2010). Also,
[E]vidence merely showing that contraband was found in the residence occupied by the defendant is insufficient to support a conviction if it affirmatively appears from the evidence that other persons had equal access to the contraband and therefore an equal opportunity to commit the offense.
(Citations omitted.) Howard v. State, 291 Ga. App. 386, 388 (662 SE2d 203) (2008).
5 The State presented sufficient evidence specifically tying Nix to the flash drive
containing the child pornography images such that a reasonable jury could conclude
that he possessed the flash drive. The flash drive was found in Nix’s garage inside a
fanny pack, and Nix’s cell phone was found in a similar fanny pack in the same
location. In addition to the child pornography, the flash drive contained multiple nude
“selfies” of Nix, and these same photos were also located on Nix’s cell phone.
Finally, the jury was properly instructed on Nix’s equal-access defense, but it
necessarily rejected that defense when it returned a guilty verdict. See Howard, supra,
291 Ga. App. at 388 (“Whether or not in a given case circumstances [showing equal
access] are sufficient to exclude every reasonable hypothesis save the guilt of the
accused is primarily a question for determination by the jury.”) (citation omitted;
emphasis in original). We conclude that there was sufficient evidence from which a
jury could conclude beyond a reasonable doubt that Nix possessed the flash drive, and
thus his challenge to the sufficiency of the evidence fails. See Tennille v. State, 279
Ga. 884, 885 (2) (622 SE2d 346) (2005) (evidence was sufficient to demonstrate
defendant possessed child pornography when the images were found on defendant’s
computer and the jury rejected the defendant’s equal access defense). Compare
Lindley v. State, 345 Ga. App. 637, 639-641 (1) (814 SE2d 784) (2018) (physical
6 precedent only) (reversing conviction for possession of child pornography because
there was no evidence defendant owned the electronic device, downloaded the
images, or was present at the residence where and when the images were downloaded
or shared).
2. Nix argues that the trial court erred in applying the continuing witness rule
when it refused to allow the jury to have access to the record of text messages
between him and J.N. during their deliberations. We agree that the trial court erred
by denying the jury access to the record of text messages, but we conclude that the
error was harmless.
Normally, “[d]ocumentary or demonstrative evidence admitted without
objection goes out with the jury when it retires for deliberations.” (Citation omitted.)
Pearson v. State, 278 Ga. 490, 492 (4) (604 SE2d 180) (2004). However,
[i]n Georgia the ‘continuing witness’ objection is based on the notion that written testimony is heard by the jury when read from the witness stand just as oral testimony is heard when given from the witness stand. But, it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once.
7 (Citation omitted.) Gough v. State, 236 Ga. App. 568, 569-570 (2) (512 SE2d 682)
(1999). “What should be withheld from the jury is ‘written testimony,’ which merely
duplicates a witness’ oral testimony or substitutes as a written record of his testimony.
The proscription on the jury’s possession of ‘written testimony’ does not extend to
documents which are themselves relevant and admissible as original documentary
evidence in a case.” (Citations and punctuation omitted.) Pearson, supra, 278 Ga. at
492 (4).
The trial court here concluded that it would violate the continuing witness rule
for the jury to be provided with the 455 pages of text messages sent between Nix and
J.N. from 2008 until 2015. This was error. The text messages were “original
documentary evidence” demonstrating the type of relationship that Nix and J.N. had
during the time frame when the crime was committed. There is no indication that the
text messages contained testimonial evidence or constituted written versions of each
person’s testimony, such as would be the case with an affidavit, deposition, or sworn
statement. Therefore, the continuing witness rule did not apply, and the text messages
should have been sent back with the jury for their review during deliberations. See
Johnson v. State, 347 Ga. App. 831, 843-844 (3) (821 SE2d 76) (2018) (text
messages between defendant and others about a robbery made at the time of the
8 robbery were original documentary evidence of the robbery and were not subject to
the continuing witness rule) (physical precedent only).
Nevertheless, an erroneous continuing witness ruling is not grounds for
reversal if it is “highly probable that the error did not contribute to the judgment.”
(Citation omitted.) Broadnax-Woodland v. State, 265 Ga. App. 669, 670 (1) (595
SE2d 350) (2004). Nix primarily argues that the jury should have been allowed to
review the text messages during deliberations because the texts supported his theories
that no sexual relationship occurred and that the allegations were made just after Nix
requested payment of a loan from the victim. During trial, however, the defense
elicited testimony establishing that the victim’s reporting of the allegations of a
sexual relationship with Nix occurred at or around the time Nix asked the victim to
repay a loan. Details about the nature of the relationship between Nix and the victim
were extensively aired during the victim’s testimony. The defense also extensively
impeached and attacked the victim’s credibility and the credibility of the allegations
during trial. Finally, many of the relevant text messages between Nix and the victim
discussing the victim’s motivations to report the allegations were read for the jury
during trial. Thus, the text messages would have been largely cumulative of all of the
evidence presented at trial and would not have added to the jury’s deliberations. In
9 light of this and the other evidence presented at trial, we conclude that the error in
prohibiting the text messages from being sent to the jury during their deliberations
was harmless. See Dockery v. State, 308 Ga. App. 502, 506-507 (4) (707 SE2d 889)
(2011) (continuing witness error was harmless because of the evidence of
overwhelming guilt and the erroneously admitted evidence was cumulative of the
evidence already presented); Kent v. State, 245 Ga. App. 531, 533 (3) (538 SE2d 185)
(2000) (continuing witness error was harmless because “the evidence contained in the
statement was also brought out during the trial and the evidence of guilt was
overwhelming” and because the victim was extensively cross-examined about her
written statement and any inconsistencies or alterations); Gough, supra, 236 Ga. App.
at 569-570 (2) (continuing witness error was harmless in part because the statement
was also brought out during trial). See also Cruz v. State, 347 Ga. App. 810, 816-817
(2) (821 SE2d 44) (2018) (exclusion of evidence of part of a letter was harmless when
jury heard pertinent part of the letter during cross-examination).
3. Nix next argues that the indictment was void because it did not indicate the
names of the grand jurors or that they had been “selected, chosen, and sworn,” as
required by OCGA § 17-7-54. Nix, however, has waived this claim.
10 Objecting to an indictment for failing to list the names of the grand jurors is an objection only to the form, not the substance, of the indictment. In order to challenge the form of an indictment, the accused must file a written demurrer to, or motion to quash, the indictment before pleading to its merits. The accused waives all exceptions to the mere form of the indictment by failing to urge them in a timely written demurrer or motion to quash.
(Citations omitted.) Barnett v. State, 259 Ga. App. 465 (1) (576 SE2d 923) (2003).
A review of the record shows that Nix did not raise an objection to the indictment on
this basis until his motion for new trial. Since Nix did not timely challenge the form
of the indictment at a point in the proceedings when any defect could have been
cured, this enumeration of error is waived. See Daly v. State, 285 Ga. App. 808, 809-
810 (3) (648 SE2d 90) (2007) (challenge to the composition of the grand jury that
was raised for the first time in a motion for new trial was waived); Barnett, supra, 259
Ga. App. at 465 (1) (oral motion on first day of trial to quash indictment on grounds
that it failed to list the names of the grand jurors was an improper and untimely
challenge to the indictment).
4. Nix next argues that the trial court erroneously applied the rape shield statute
(OCGA § 24-4-412 (a)) to exclude evidence that J.N. had conducted an allegedly
consensual sexual relationship with another family member. However, in addition to
11 excluding this evidence under the rape shield statute, the trial court also excluded this
evidence on the entirely separate and independent basis that it was far more
prejudicial than probative under OCGA § 24-4-403, and Nix does not challenge the
trial court’s determination that this evidence was inadmissible under OCGA § 24-4-
403. Because the trial court’s evidentiary ruling may be sustained on independent
grounds, the merits of which are not before us, this enumeration of error raises a moot
issue that we cannot address. See Ambati v. Bd. of Regents, 313 Ga. App. 282, 283
(721 SE2d 148) (2011) (“Issuing an opinion . . . under these circumstances would be,
in essence, rendering an advisory opinion on a moot point.”).
5. Nix next argues that the trial court wrongly denied his request for a
bifurcated trial and to sever the charge for child molestation from the charges for
sexual exploitation of a child. We conclude that a severance was not mandatory and
that the trial court did not abuse its discretion in trying the charges together.
A defendant has a right to severance where the offenses are joined solely on the ground that they are of the same or similar character because of the great risk of prejudice from a joint disposition of unrelated charges. But where the joinder is based upon the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, severance lies within the sound discretion of the trial judge since the facts in each case are likely to be unique. Further, where evidence of one
12 charge would be admissible in the trial of another, a trial court does not abuse its discretion by denying a motion for severance. If severance is not mandatory, the court must then decide whether severance would promote a just determination of guilt or innocence as to each offense.
(Citations and punctuation omitted.) Cupe v. State, 327 Ga. App. 642, 647-648 (2)
(760 SE2d 647) (2014).
The charges in this case were not merely joined due to their similar character
but were factually connected. The offense underlying the sexual exploitation charges
was Nix’s possession of the flash drive, and that flash drive was turned over to the
police by Nix’s wife during the investigation into the offense underlying the child
molestation charge. Also, the circumstances underlying the charges of sexual
exploitation of a child and child molestation were relevant similar transactions such
that evidence of Nix’s commission of either type of offense would be admissible as
other acts evidence in the trial of the other offense. See OCGA § 24-4-414 (a) (“In a
criminal proceeding in which the accused is accused of an offense of child
molestation, evidence of the accused’s commission of another offense of child
molestation shall be admissible and may be considered for its bearing on any matter
to which it is relevant.”); see also OCGA § 24-4-414 (d) (1) (defining “offense of
child molestation” to include child molestation under OCGA § 16-6-4 and sexual
13 exploitation of a child under OCGA § 16-12-100). Thus, severance in this case was
not mandatory, and the decision to sever the charges was instead entirely within the
trial court’s discretion. See Cupe, supra, 327 Ga. App. at 647-648 (2).
We also conclude that the trial court did not abuse its discretion in determining
that a severance would not have promoted a just determination of guilt or innocence.
Nix first points out that the State presented similar transaction evidence
demonstrating other incidents where Nix allegedly had sexual contact with other
underage boys, and he argues that such evidence was only admissible for the jury’s
consideration of the child molestation charge and not the sexual exploitation charges.
However, the trial court’s order allowing this similar transaction evidence made no
such distinction or limitation, and we have not found any indication in the record that
the trial court only allowed this evidence for the jury’s consideration of one charge
but not the others. Furthermore, given the broad statutory rule of OCGA § 24-4-414
(a) allowing similar transaction evidence of other offenses involving child
molestation, Nix has not shown that any such distinction would have been warranted.
This argument thus does not compel reversal on the issue of severance.
Nix further argues that the ability of the State to compel his wife to testify
against him provided a justification for severance, but we do not agree. Normally, a
14 person cannot be compelled to testify against his or her spouse in any criminal
proceeding, OCGA § 24-5-503 (a), but an exception is made when the defendant is
charged with a “crime against the person of a child under the age of 18.” OCGA § 24-
5-503 (b) (1). Because all of the charges against Nix fell under this exception, the
State could have compelled Nix’s wife to testify against him for any of these charges,
and so a severance would not have made a difference in this respect. See Peck v.
State, 300 Ga. App. 375, 376-377 (3) (685 SE2d 367) (2009) (sexual exploitation of
a child through possession of child pornography constitutes a “crime against the
person of a minor child” and thus falls under the exception to the spousal privilege).2
Thus, the trial court did not abuse its discretion when it denied Nix’s request for a
severance.
6. Nix next argues that the trial court constructively amended the indictment
when it allowed the State to present proof that he possessed the child pornography in
March 2016, when the indictment alleged that he had possessed the pornography in
2 As noted in enumeration four, supra, Nix has not demonstrated that the trial court erred in excluding evidence of the victim’s sexual history. Accordingly, we do not address his argument that the differing admissibility of such evidence under the rape shield statute justified a severance.
15 March 2017. Because the State did not specially allege that the date was a material
allegation of the indictment, there was no error.
“An indictment cannot be materially amended after the grand jury has returned
the indictment into court; any subsequent amendment by the trial court or prosecution
that materially affects the indictment is void and cannot serve as the basis for a
conviction.” (Citation omitted.) Morris v. State, 310 Ga. App. 126, 128 (2) (712 SE2d
130) (2011). “An amendment to the indictment can be actual or constructive; a
constructive amendment occurs when the essential elements of the offense contained
in the indictment are altered to broaden the possible bases for conviction beyond what
is contained in the indictment as a result of erroneous jury instructions or a
prosecutor’s statements to the jury.” (Citations and punctuation omitted.) Id.
On the other hand, “[i]t is a long-standing principle of Georgia law that a date
or range of dates alleged in an indictment, without more, is not a material allegation
of the indictment, and, consequently, unless the indictment specifically states that the
alleged dates are material, the State may prove that the alleged crime was committed
on any date within the statute of limitations.” Thomas v. State, ___ Ga. App. ___ (1)
(a) (835 SE2d 640) (A19A1195) (2019).
16 Here, it is undisputed that the State did not specially allege in the indictment
that the date Nix allegedly possessed the flash drive was material. Thus, the State was
not required to prove that the possession occurred on the date listed in the indictment
but could instead prove that the possession occurred at any point during the statute
of limitations.3 Thomas, supra, ___ Ga. App. at ___ (1) (a). Accordingly, by allowing
the State to prove that Nix had the flash drive in his possession on a date other than
March 3, 2017, the trial court did not in any way change what the State was required
to prove at trial to secure a conviction, and it therefore did not constructively amend
the indictment.
Nix nevertheless argues that the date is an inherent and necessary element of
all crimes of possession, particularly crimes involving constructive possession, and
so the date was necessarily a material fact in this case. We, however, see nothing
particularly unique about possession crimes that would make the date an inherent
element of the crime. Indeed, we have never held that the date a crime was committed
is an inherent element of a possession crime, and we have often held the opposite.
See, e.g., Blackwelder v. State, 256 Ga. 283, 284 (4) (347 SE2d 600) (1986) (date was
3 Nix does not argue that the evidence of his possession of the flash drive demonstrated that such possession occurred outside the four-year statute of limitations. See OCGA § 17-3-1 (c).
17 not a material allegation of a charge of possession of illegally taken wildlife);
Thomas, supra, ___ Ga. App. at ___ (1) (date was not a material allegation of a charge
of possession of a firearm by a convicted felon). Accordingly, this enumeration of
error lacks merit.
7. Nix similarly argues that the difference between the date alleged in the
indictment (March 2017) and the date shown by the evidence at trial (March 2016)
created a fatal variance between the indictment and the proof presented at trial. We
similarly conclude that any variance between the date alleged in the indictment and
the date demonstrated by the proof at trial was not so material as to be fatal.
“Not all differences between an indictment and proof constitute fatal variances.
Our courts no longer employ an overly technical application of the fatal variance rule,
focusing instead on materiality.” (Citations and punctuation omitted.) Maxwell v.
State, 348 Ga. App. 870, 874 (2) (825 SE2d 420) (2019). “The true inquiry regarding
a fatal variance claim is whether there has been such a variance as to affect the
substantial rights of the accused.” Holmes v. State, 291 Ga. App. 196, 199 (2) (661
SE2d 603) (2008). “The variance is only fatal if the allegations fail to meet these two
tests: (1) the allegations must definitely inform the accused as to the charges against
him so as to enable him to present his defense and not be taken by surprise, and (2)
18 the allegations must be adequate to protect the accused against another prosecution
for the same offense.” (Citation omitted.) Id. For variances based on dates in
particular, “if there is a variation between the date alleged and the date proved at trial,
the variance does not entitle a defendant to a new trial unless it prejudiced the
defense.” (Citation and punctuation omitted.) Adams v. State, 288 Ga. 695, 699 (2)
(707 SE2d 359) (2011).
The indictment in this case clearly put Nix on notice that the basis for the
exploitation of children counts was Nix’s possession of a flash drive that contained
child pornography. There is no basis in the record to believe that Nix’s ability to
prepare for trial had been impeded or that he was somehow misled or surprised as to
the nature of the conduct referred to in the indictment. Instead, Nix’s statements in
his motion to quash the indictment on unrelated grounds (filed two months before
trial), in addition to both his arguments and the State’s arguments before the trial
court on that motion, make clear that he was well aware of the conduct for which the
State sought to prosecute him. Moreover, as noted above, the State did not specially
allege in the indictment that the date was material. Accordingly, the misaligned dates
did not create a fatal variance. See Holmes, supra, 291 Ga. App. at 198-199 (2) (a
wrong date alleged in the indictment did not create a fatal variance where the State
19 did not specially allege that the date was material and the defendant was clearly aware
of the nature of the charges against him).
8. Nix finally argues that his trial counsel rendered ineffective assistance to the
extent that trial counsel failed to preserve any of his enumerations of error on appeal.
The only enumeration wherein Nix’s challenge was not preserved by trial counsel was
his challenge in enumeration three to the form of the indictment for failing to list the
names of the grand jury members and for failing to state that the grand jury members
were sworn. Nix, however, has failed to demonstrate that he was prejudiced by such
failure such that it would have rendered a different result in the proceedings.
[T]o prevail on a claim of ineffective assistance, appellant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. Appellant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct. In reviewing a lower court’s determination of a claim of ineffective assistance of counsel, an appellate court gives deference to the lower court’s factual findings, which are upheld unless clearly erroneous; the lower court’s legal conclusions are reviewed de novo.
(Citation omitted.) Daly, supra, 285 Ga. App. at 810 (4).
20 Even assuming that counsel was ineffective for failing to timely challenge the
form of the indictment, Nix has not met his burden of showing that any challenge to
the form of the indictment would have rendered a different result in the proceedings.
Nix has not provided any affirmative evidence that the grand jury was indeed
improperly constituted, nor has he cited to any evidence in the record that the jury
members were not properly sworn. While Nix points out that there is no evidence in
the record affirmatively showing that the jury members were indeed properly sworn,
in the context of an ineffective assistance of counsel claim, it is Nix’s burden to
demonstrate from the record that there was an error instead of merely pointing to the
absence of evidence that the proceedings were properly conducted. Without such
affirmative evidence of an error, we will not rely on speculation as to what might
have happened during the grand jury proceedings. Instead, “we will rely on the
presumption in favor of the regularity and legality of all proceedings in the trial court.
We will not presume error from a silent record.” (Citations omitted.) McRae v. State,
252 Ga. App. 100, 103 (5) (555 SE2d 767) (2001). Accordingly, Nix has not
demonstrated that any challenge to the indictment would have possibly led to a
dismissal of the charges (as opposed to a mere correction of the record or a
superseding indictment being entered) or otherwise have had a material impact on the
21 outcome of the proceedings. Consequently, he has failed to demonstrate that he
suffered any prejudice by his trial counsel’s failure to challenge the indictment on
these grounds, and so his ineffective assistance claim fails.
As outlined above, Nix has not demonstrated that the trial court committed
reversible error, and so we affirm his convictions and sentence.
Judgment affirmed. Reese and Hodges, JJ., concur.