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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 70520-2-1 Respondent,
v. UNPUBLISHED OPINION
DEREK JOHN CARTMELL, FILED: October 13, 2014 Appellant.
Leach, J. — Derek Cartmell appeals his convictions for possession of a
stolen vehicle, attempting to elude a pursuing police vehicle, possession of a
controlled substance, and hit and run (property damage). He challenges the trial
court's admission of certain evidence, including his Department of Corrections
(DOC) identification card, the testimony of his DOC community corrections
officer, and phone calls and text messages retrieved from his cell phone. He
also alleges prosecutorial misconduct committed by making improper argument
and shifting the burden of proof. And in a statement of additional grounds, he
questions the validity of search warrants police officers obtained before
searching the backpack and phone left in the stolen vehicle. Because the trial
court did not abuse its discretion in admitting evidence, the prosecutor did not
commit misconduct, and Cartmell's claims in his statement of additional grounds
have no merit, we affirm. NO. 70520-2-1 / 2
FACTS
Near Oak Harbor, on November 1, 2012, at about 9:00 a.m., Washington
State Patrol Trooper David Martin attempted to pull over a speeding pickup truck.
When the truck sped away, Martin followed in pursuit. The ensuing high-speed
chase ended when the truck struck a house.
By the time Martin parked his patrol car, the truck's driver had fled on foot.
Neither Martin nor the homeowner got a good look at his face.
Other law enforcement officers and the owner of the truck, Michael Hurley,
arrived at the scene. Hurley reported the truck stolen earlier that morning.
Hurley consented to an initial search of the truck, and officers found a backpack
and a red Samsung cell phone. After obtaining search warrants, officers
searched these items and found a wallet containing Derek CartmeN's social
security card, driver's license, DOC identification card, and Quest card.1 Police
also searched a second cell phone found in the backpack. The Samsung cell
phone revealed phone calls and text messages, the last of which was read
approximately 10 minutes before the collision. Police also recovered two glass
pipes used for narcotics, two small "baggies" containing suspected narcotics, and
a license plate.
1 A Quest card is an electronic benefits transfer (EBT) card, similar to a debit card that the Department of Social and Health Services issues to clients receiving food assistance, http://www.dshs.wa.gov/onlinecso/ebt.shtml. -2- NO. 70520-2-1 / 3
The State charged Cartmell with possession of a stolen vehicle,
attempting to elude a pursuing police vehicle, possession of a controlled
substance (methamphetamine), and hit and run (property damage). Before trial
started, Cartmell moved to exclude any reference to his DOC identification card
and the testimony of his DOC community custody officer, Helen Desmond.
Cartmell also sought to exclude 163 phone calls and text messages stored on
the cell phone. The trial court denied the motions. The court gave the jury oral
limiting instructions before the introduction of the DOC card and Desmond's
testimony, as well as a written limiting instruction before deliberations.
The jury convicted Cartmell as charged. He appeals.
ANALYSIS
DOC Evidence
Cartmell contends first that the trial court abused its discretion by
admitting his DOC card and Officer Desmond's testimony. Because his wallet
contained four types of identification, he asserts the DOC card was "at best"
cumulative evidence. He claims the DOC card "stigmatized [him] as a felony
offender." As a result, the danger of unfair prejudice caused by its admission
substantially outweighed its probative value and ER 403 required its exclusion.
He makes similar claims about Desmond's testimony, contending that both
"labeled the accused as a felony offender on State supervision, overwhelming
-3- NO. 70520-2-1 / 4
the jury's ability to weigh the evidence" and "encouraging] the jury to use
propensity reasoning." Cartmell describes the court's limiting instructions as
"wholly inadequate" to limit this evidence's prejudicial effect.
We review a trial court's decision about the admissibility of evidence under
an abuse of discretion standard. Unless the court made a manifestly
unreasonable decision or based it on untenable grounds or reasons, we affirm.2
Washington Rules of Evidence provide for the admission of all relevant
evidence unless an applicable constitutional requirement, statute, rule, or
regulation limits its admission.3 ER 401 defines "[r]elevant evidence" as evidence
having a tendency to make the existence of any fact consequential to the
resolution of an action more or less probable than it would be without that
evidence. A trial court may exclude even relevant evidence "if its probative value
is substantially outweighed by the danger of unfair prejudice."4 But "nearly all
evidence will prejudice one side or the other," and "[ejvidence is not rendered
inadmissible under ER 403 just because it may be prejudicial."5 The trial court
sits in the best position to determine the prejudicial effect of evidence.6 And the
chance that the harm of unfair prejudice will substantially outweigh the probative
2 State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997); State v. Luvene, 127 Wn.2d 690, 706-07, 903 P.2d 960 (1995). 3 ER 402. 4 ER 403. 5 Carson v. Fine, 123 Wn.2d 206, 224, 867 P.2d 610 (1994). 6 State v. Powell. 166 Wn.2d 73, 81, 206 P.3d 321 (2009). -4- NO. 70520-2-1 / 5
force of evidence is "'quite slim' where the evidence is undeniably probative of a
central issue in the case."7 Although a court may exclude a "needless
presentation of cumulative evidence," the admission of cumulative evidence is
not necessarily prejudicial error.8 Evidentiary error is not prejudicial "'unless,
within reasonable probabilities, the outcome of the trial would have been
materially affected had the error not occurred.'"9
Here, identity was the central issue. At trial, Cartmell argued that certain
differences between Trooper Martin's physical description and descriptions on
his identification cards created reasonable doubt. Though police recovered four
forms of identification from Cartmell's wallet, only the driver's license and DOC
card contained photos and physical descriptions. The photos showed Cartmell
with different hair lengths, and the physical descriptions listed slightly different
weights. Evidence of photo identification is "undeniably probative of a central
issue" in such a case, which the trial court noted in its ruling:
This is a circumstantial evidence case. The issue is who done it, as it were. This is an identity case. The primary issue is the identity of the person who committed the crimes.... [I]t would not be appropriate for the Court to limit the state in presenting the relevant
7 Carson. 123 Wn.2d at 224 (quoting United States v. 0.161 Acres of Land. 837 F.2d 1036, 1041 (11th Cir. 1988)). 8 ER 403; State v. Dunn. 125 Wn. App. 582, 589, 105 P.3d 1022 (2005) (citing State v. Todd. 78 Wn.2d 362, 372, 474 P.2d 542 (1970)). 9 State v. Bourgeois. 133 Wn.2d 389, 403, 945 P.2d 1120 (1997) (quoting State v. Tharp. 96 Wn.2d 591, 599, 637 P.2d 961 (1981)). -5- NO. 70520-2-1 / 6
evidence that it has on the issue of identity, and one of the relevant items would be the DOC offender card.
The court found that the DOC card's relevance "clearly outweigh[ed] any
danger of unfair prejudice from any inference . . . that Mr. Cartmell was the
subject of DOC supervision because of criminal activity." The court offered to
redact the word "offender" from the card to limit its prejudicial impact, but defense
counsel declined, telling the court, "Your Honor, I'm not sure, when it says the
Department of Corrections over the top of it and clearly not an employee badge,
that there's anything that one can do to the document to limit its prejudicial
content." The court sought confirmation on this point, asking, "Do I understand,
then, that you're not asking for any redaction from the document?" Defense
counsel responded, "No, Your Honor, we're not." The court also suggested a
limiting instruction and emphasized, "[T]he Court would certainly not permit any
evidence of why this card was issued or what the crimes were that he was
previously convicted of that required that he have an offender DOC card or
something of that nature. There will be no evidence whatsoever of that."
Cartmell cites In re Personal Restraint of Glasmann10 to support his claim
about the unduly prejudicial effect of the DOC card. In that case, the prosecutor
showed the jury a booking photograph of the defendant's face, on which the
prosecutor had superimposed the word "guilty."11 But Glasmann is inapposite.
10 175 Wn.2d 696, 286 P.3d 673 (2012). 11 Glasmann. 175 Wn.2d at 705-06. -6- NO. 70520-2-1 / 7
In that case, our Supreme Court did not reverse for evidentiary error but for
flagrant and ill-intentioned prosecutorial misconduct "so pervasive that it could
not have been cured by an instruction."12 Here, the State offered the DOC card
as issued, not altered to increase its prejudicial effect. Cartmell declined an
opportunity to redact potentially prejudicial content. Moreover, the jury received
information about CartmeN's criminal history through a different source. Cartmell
testified in his own defense. During cross-examination, he acknowledged three
convictions for crimes of dishonesty, two of which were felonies.13
The DOC card helped the State prove the central issue in the case, and
Cartmell does not show the trial court abused its discretion by admitting it. He
also fails to show a reasonable probability that the outcome of his trial would
have been materially affected had the court excluded it.
Cartmell also challenges the trial court's admission of DOC Officer Helen
Desmond's testimony. Desmond identified herself as a community corrections
officer who receives contact information from "particular people," including
Cartmell. Desmond testified about emergency contact information she kept as
CartmeH's community custody officer, which matched telephone numbers found
on the contacts list in the seized cell phone.
12 Glasmann. 175 Wn.2d at 707. 13 Two convictions were for possession of stolen property in the second degree, a class C felony. RCW 9A.56.160. -7- NO. 70520-2-1 / 8
Cartmell argues that Desmond's testimony was cumulative evidence
because he "had already conceded that the phone belonged to him and the
contact list inside the phone was his." But at the time Desmond testified,
Cartmell had only offered to stipulate that "the phone was his at one time," and
he later testified that someone stole it from him. Desmond's testimony directly
linking the phone to Cartmell was highly probative of the central issue of the
case. Before Desmond testified, the court instructed the jury that it could
consider Desmond's evidence "only for the purpose of identification." And here
again, any danger of unfair prejudice was neutralized by CartmeN's testimony
about his criminal history, which eliminated any juror speculation about why he
had a community corrections officer. The court did not abuse its discretion in
admitting Desmond's testimony.
Text Messages and Phone Calls
The trial court admitted a 20-page document that included the dates and
times of 163 text messages and phone calls sent from and received by the cell
phone over approximately an 18-hour period, plus the content of a number of text
messages. First, Cartmell contends the text messages were inadmissible
hearsay. He argues further that the trial court should have excluded them as
"irrelevant, cumulative, and substantially more prejudicial than probative." In
addition to objecting before trial to the admission of all the text messages, at trial
-8- NO. 70520-2-1 / 9
Cartmell objected specifically to several messages as prejudicial. The trial court
noted CartmeN's standing objection but admitted the information "for the limited
purposes of identification and to show the context of the statements made by the
owner of the phone."
ER 801(c) defines "hearsay" as "a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted." It is not admissible unless an exception applies.14
Because the State did not offer the text messages to prove the truth of the
statements contained in them, they were not hearsay. Although Cartmell asserts
that the State's aim in offering the messages was to prove the truth of the
senders' portrayals of Cartmell as "a lying, womanizing, unreliable 'player,'" the
trial court admitted the phone call and text message information only to allow the
State to "reasonably argue that this was Mr. CartmeN's phone." Before the State
introduced the document, the court instructed the jury that it "may consider the
evidence only for the purpose of identification." The court gave the same written
instruction before deliberations. And in response to a question from the
deliberating jury, the court reiterated, "You may use Exhibit 40 with regard to the
issue of the identity of the person who allegedly committed the crimes
14 ER 802. NO. 70520-2-1/10
charged . . . and for no other purpose. You may not consider Exhibit 40 for the
truth of the contents of the statements in Exhibit 40."
Moreover, as the trial court also ruled, text messages that Cartmell sent
were admissible and not hearsay because they were statements of a party
opponent:
Any statements made by the person who owned this phone, which the state's theory is that it was the defendant, Derek Cartmell, would be admissible as substantive evidence, not hearsay. Hearsay does not include statements by a party opponent. So those statements are all admissible by the possessor of the phone, as outlined in this document.'151
The messages were highly probative of the central issue: the identity of
the person in possession of the phone at the time of the chase and collision.
Several incoming text messages address "Derek," and the senders obviously
believed that they were communicating with the owner of the phone. Several
lengthy text message conversations imply an intimate relationship between
Cartmell and the other party to the conversation, supporting the State's assertion
that "[t]he implication is that [Cartmell is] the one using the phone all the way up
until ten minutes to nine in the morning." The last outgoing text message before
the police seized the phone was sent at 8:52 a.m.—shortly before the truck
15 ER 801(d)(2)(i) (An admission by a party opponent is a statement "offered against a party and is . . . the party's own statement, in either an individual or representative capacity."). -10- NO. 70520-2-1/11
collided with the house. The trial court properly admitted the text messages as
nonhearsay evidence of identity.
Many of the text messages unquestionably portray Cartmell in an
unfavorable light. They contain strong sexual content, numerous profanities,
language that arguably could refer to illegal activity, and one offensive racial
reference. But evidence is not inadmissible under ER 403 just because it may be
prejudicial. This evidence was highly probative of identity, the contested issue in
the case. Because the trial court has considerable discretion in administering ER
403, a reviewing court will find reversible error "only in the exceptional
circumstance of a manifest abuse of discretion."16 The court did not abuse its
discretion by admitting the text messages and phone calls.
Prosecutorial Misconduct
Cartmell also argues that prosecutorial misconduct violated his right to a
fair trial. He contends that in closing argument, the prosecutor "emphasized the
improperly admitted text messages, drawing the jury's attention to the prejudicial
content." He asserts that the prosecutor "repeatedly misstated the law in closing
argument, shifting the burden to the defense." And in a statement of additional
grounds, Cartmell alleges that the prosecutor made statements that were "not
consistent" with trial testimony and "without proper evidence."
16 Carson. 123 Wn.2d at 226. -11- NO. 70520-2-1/12
When a defendant did not object to the alleged prosecutorial misconduct
at trial, this court does not review the alleged error unless the misconduct was so
flagrant and ill intentioned that it caused prejudice incurable by a proper jury
instruction.17 Cartmell agrees that he made no specific objections during closing
argument but claims he appropriately relied on his standing objection to the
court's admission of the text messages. Cartmell correctly notes that if the court
makes a final ruling on a motion, the parties may rely on that ruling without
raising new objections during trial.18 But Cartmell made a standing objection to
the admission of the text messages, not the prosecutor's closing argument. He
made no objection, standing or otherwise, to the prosecutor's alleged improper
argument. Thus, the "flagrant and ill intentioned" standard applies, and Cartmell
bears the burden of establishing that the challenged conduct was improper and
prejudicial and could not have been cured by proper instruction. Prejudice
occurs only if '"there is a substantial likelihood the misconduct affected the jury's
verdict.'"19 This court reviews misconduct claims in the context of the issues in
the case, the total argument, the evidence, and the jury instructions.20
17 State v. Emery. 174 Wn.2d 741, 760-61, 278 P.3d 653 (2012). 18 State v. Powell. 126 Wn.2d 244, 256, 893 P.2d 615 (1995). 19 State v. Monday. 171 Wn.2d 667, 675, 257 P.3d 551 (2011) (internal quotation marks omitted) (quoting State v. Yates. 161 Wn.2d 714, 774, 168 P.3d 359 (2007)). 20 State v. McKenzie. 157 Wn.2d 44, 52, 134 P.3d 221 (2006). -12- NO. 70520-2-1/13
CartmeN's misconduct claims fail. First, the prosecutor did not improperly
discuss the text messages in closing argument. The prosecutor highlighted the
timing and content of the text message conversations to show that Cartmell
possessed the phone between the evening of October 31 and the morning of
November 1. The content of the text messages was often offensive. But the
prosecutor properly argued from the evidence to show identity—that "no one else
can carry on that conversation. That's what's important about those
conversations. That he convinced multiple people, male or female, that that's
Derek Cartmell." The prosecutor did not introduce "irrelevant and inflammatory
matter. .. , which has a natural tendency to prejudice the jury against the
accused."21
Second, Cartmell calls burden-shifting a missing witness argument the
State appropriately applied to the facts. In his testimony, Cartmell asserted that
he and Angie, his children's mother, took their children trick-or-treating the night
the truck was stolen. He testified that after trick-or-treating, he spent most of the
night with his girl friend. And he testified that the next morning, around 9:20, he
21 State v. Miles. 73 Wn.2d 67, 69-70, 436 P.2d 198 (1968) (improper and prejudicial to admit hearsay evidence alleging a plan by defendants to perpetrate a robbery like the one with which they were charged); see also State v. Belgarde. 110 Wn.2d 504, 507-08, 755 P.2d 174 (1988) (improper and prejudicial to describe American Indian defendant as a leader of a "deadly group of madmen" and "butchers [who] kill indiscriminately"). -13- NO. 70520-2-1/14
picked up his son from Angie's apartment and took him to school.22 On cross-
examination, the prosecutor referred to Angie and several other women whom
Cartmell identified as his girl friends and asked Cartmell, "Are any of them going
to testify on your behalf today?" Cartmell responded, "No." In closing argument,
the prosecutor referred to CartmeN's alibi, noting that "he could have called Angie
to help him out. I was with Tina all night. That's great. Where is Tina?"
"A criminal defendant has no burden to present evidence, and it is error for
the State to suggest otherwise."23 But the prosecutor may argue that the
evidence does not support the defense theory of the case.24 And under the
missing witness doctrine, the State may point out the absence of a "natural
witness" when it would be reasonable to infer the witness's peculiar availability to
the defendant, the materiality of the witness's noncumulative testimony, and the
witness's absence is not otherwise explained.25 In this case, the State could
argue, and the jury could infer, that the absent witness's testimony would not
22 A school employee testified as a rebuttal witness that Angie phoned the school that day to excuse CartmeH's son because of illness and that the boy was absent all day. 23 State v. Montgomery. 163 Wn.2d 577, 597, 183 P.3d 267 (2008) (citing State v. Cheatam. 150 Wn.2d 626, 652, 81 P.3d 830 (2003)). 24 State v. Russell. 125 Wn.2d 24, 87, 882 P.2d 747 (1994); State v. Killingsworth. 166 Wn. App. 283, 291-92, 269 P.3d 1064, review denied. 174 Wn.2d 1007 (2012). 25 Montgomery. 163 Wn.2d at 598-99 (citing State v. Blair. 117 Wn.2d 479, 485-86, 816 P.2d 718 (1991)). -14- NO. 70520-2-1/15
have been favorable to the defendant.26 In State v. Contreras.27 the defendant
testified that he spent the entire night with his girl friend and that they saw
several acquaintances during the night. While the acquaintances testified at trial,
the girl friend did not.28 This court held that the prosecutor was entitled both to
cross-examine the defendant and to comment in closing argument about the
defendant's failure to call his girl friend as an alibi witness.29 Here, as in
Contreras. the missing witnesses had both a special relationship to the defendant
and material information about the central issue in the case. The prosecutor's
comment on their absence was proper argument that did not shift the burden of
proof.
Cartmell challenges another remark as a misstatement of the law. In
closing argument, the prosecutor told the jury,
I want you to bear a couple things in mind when you listen to [defense counsel's] argument. Number one, in order to generate a reasonable doubt[,] there has to be a reasonable explanation. I was dropping off my son who didn't go to school that day is not reasonable. I was with Angie doesn't help us any, especially when he could have called Angie to help him out.
Cartmell contends that the prosecutor's statement that "in order to
generate a reasonable doubt[,] there has to be a reasonable explanation" implied
26 Montgomery. 163 Wn.2d at 598 (citing Blair. 117 Wn.2d at 485-86). 27 57 Wn. App. 471, 472-73, 788 P.2d 1114 (1990). 28 Contreras, 57 Wn. App. at 473. 29 Contreras. 57 Wn. App. at 475. -15- NO. 70520-2-1/16
that "a defendant has a burden to offer an explanation" and amounted to
impermissible burden-shifting. We disagree. In State v. Killingsworth.30 the
defendant made a similar claim, contending that the State improperly shifted the
burden of proof by arguing that the only "reasonable explanation" for the
evidence was the defendant's guilt. This court rejected that contention and
affirmed, noting that the prosecutor "did not argue or imply that the defense had
failed to offer other reasonable explanations or comment on Killingsworth's
failure to testify. Rather, he simply argued that the evidence did not support any
other reasonable explanation."31 Here, as in Killingsworth. the prosecutor
highlighted evidence that did not support a "reasonable explanation" other than
CartmeN's guilt: lack of corroboration of CartmeN's overnight alibi; school
personnel's rebuttal of his morning alibi that he was taking his son to school; his
belongings, identification, and unexplained fingerprint in the stolen truck; and the
numerous text messages that he apparently sent and received during the hours
directly before the chase and collision.32 The prosecutor properly argued
inferences from the evidence, and his argument did not shift the burden of proof.
30 166 Wn. App. 283, 290 n.5, 269 P.3d 1064, review denied. 174 Wn.2d 1007(2012). 31 Killingsworth. 166 Wn. App. at 291. 32 See Killingsworth. 166 Wn. App. at 291 ("If somebody offers you those two things for something less than $50, you know darn well it's stolen, and that's why you pawn it real fast. You don't buy something to pawn it. Nobody gives it to you in the middle of the night. There's no reasonable explanation for why—for how he would get this without knowing that it was stolen, either buying it too -16- NO. 70520-2-1/17
Search Warrants
In a statement of additional grounds, Cartmell alleges that the trial court
abused its discretion by "admitting evidence gained through faulty search
warr[a]nt[s]" concerning the backpack and Samsung phone. He argues further
that because he "was never identified being at the scene of the crime," the trial
court should not have relied on certain abandonment cases where identity was
not an issue.
Article I, section 7 of the Washington Constitution prohibits a warrantless
search, subject to a limited set of exceptions.33 One exception allows police to
retrieve and search voluntarily abandoned property without implicating an
individual's rights under the Fourth Amendment to the United States Constitution
or article I, section 7.34
The search warrants that officers obtained before searching the backpack
and cell phone contained several errors. Of two search warrants for the cell
phones, both stated the wrong date of the alleged crime and one also named the
wrong victims. Neither warrant described the phones with any particularity.
Similarly, although the warrant to search the backpack described more
cheaply or stealing it himself or knowing it was stolen in a stolen car and pawning it. That's trafficking."). 33 State v. MacDicken. 171 Wn. App. 169, 174, 286 P.3d 413 (2012), affd, 179 Wn.2d 936, 319 P.3d 31 (2014). 34 State v. Reynolds. 144 Wn.2d 282, 287, 27 P.3d 200 (2001). -17- NO. 70520-2-1/18
particularly a "black and gray North Face backpack," it initially listed the wrong
date and victims of the alleged offense.
In its evidentiary ruling, the trial court acknowledged these errors,
emphasizing that its ruling depended not on the warrants but on the fact that the
items were abandoned property. Cartmell attempts to distinguish his case from
the abandonment cases the trial court cited.35 He argues the police failure to
make a positive identification of him as the owner of the backpack and cell phone
at the time of the search makes his case different. But the propriety of the search
does not depend on police identification of the owner but on whether the property
was voluntarily abandoned. "Discarded property is voluntarily abandoned unless
there is unlawful police conduct, and a causal nexus exists between that conduct
and the abandonment."36 Here, Trooper Martin lawfully pursued a speeding
driver, who collided minutes later with a house. Cartmell does not dispute that
the person Martin saw flee the scene abandoned the truck and the items in it.
The trial court did not err in finding that police properly retrieved the backpack
and cell phone as abandoned property. Because the court did not rely on the
35 The court cited, for example, State v. Serrano. 14 Wn. App. 462, 544 P.2d 101 (1975), Reynolds, and State v. Kealev. 80 Wn. App. 162, 907 P.2d 319 (1995). 36 State v. Young. 86 Wn. App. 194, 201, 935 P.2d 1372 (1997) (citing State v. Whitaker. 58 Wn. App. 851, 856, 795 P.2d 182 (1990)). -18- NO. 70520-2-1/19
search warrants that the police obtained, we need not address their validity on
appeal.
Cumulative Error
Cartmell argues that because of prosecutorial misconduct and the court's
admission of "irrelevant, cumulative, and unduly prejudicial evidence," this court
should reverse under the cumulative error doctrine. Under this doctrine, a
combination of errors may deny the accused a fair trial even where any one of
the errors viewed individually may not justify reversal.37 Because Cartmell fails to
show any error, we conclude that the cumulative error doctrine does not apply.
CONCLUSION
Because the trial court did not abuse its discretion in admitting evidence,
the prosecutor did not commit misconduct, and CartmeN's claims in his statement
of additional grounds have no merit, we affirm.
U^^^ //. WE CONCUR:
thx.J
37 In re Pers. Restraint of Yates. 177 Wn.2d 1, 65-66, 296 P.3d 872 (2013). -19-