IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA23-647
Filed 20 February 2024
Davidson County, No. 20CRS54440
STATE OF NORTH CAROLINA
v.
MOSE COLEMAN JONES
Appeal by defendant from judgment entered 3 November 2022 by Judge Carla
Archie in Davidson County Superior Court. Heard in the Court of Appeals 24
January 2024.
Attorney General Joshua H. Stein, by Assistant Attorney General Jodi P. Carpenter for the State.
Phoebe W. Dee for the defendant-appellant.
TYSON, Judge.
Mose Coleman Jones (“Defendant”) appeals from judgment entered upon a
jury’s verdict of guilty of felony fleeing to elude arrest. Our review discerns no error.
I. Background
Thomasville Police Officer Ryan Amos was routinely patrolling in a marked
patrol car while wearing his police uniform. Officer Amos observed Defendant driving
a motorcycle and turning onto James Avenue. The motorcycle did not display a
license plate.
Officer Amos activated his lights and siren and attempted to conduct a traffic STATE V. JONES
Opinion of the Court
stop. Instead of stopping, Defendant motioned with his hand for Officer Amos to pass
him. Officer Amos stayed behind Defendant with his lights and siren activated.
Defendant crossed the center line and attempted to speak with Officer Amos about
going around him. When Defendant slowed to approximately five to ten miles per
hour, Officer Amos rolled his window down and told Defendant to pull over.
Defendant repeatedly asserted his “right of a traveler” to Officer Amos, and claimed
he was not required to display a license plate.
When Defendant stopped at a stop sign, Officer Amos attempted to exit his
patrol car and remove Defendant from the motorcycle. Defendant drove off before
Officer Amos could stop him. Officer Jonathan Caldwell joined Officer Amos in
pursuit. Officers Caldwell and Amos attempted a rolling roadblock, but Defendant
went into the opposite lane of travel to avoid the roadblock. Defendant drove his
motorcycle through a residential property on Pineywood Road. Officer Caldwell
exited his vehicle and tried to restrain Defendant around his head and neck, but
Defendant accelerated the motorcycle and sped off, knocking Officer Caldwell to the
ground.
Sergeant Rusty Fritz joined the pursuit while Officer Amos attended to Officer
Caldwell. Sergeant Fritz observed Defendant make a right hand turn at too great a
speed, lose control, and flip the motorcycle. Following a struggle, officers handcuffed
Defendant. Defendant was charged with felony fleeing to elude a law enforcement
officer, assault on a law enforcement officer causing physical injury, and possession
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with intent to sell or deliver a schedule VI-controlled substance. The State dismissed
the possession with intent to sell or deliver a schedule VI-controlled substance prior
to trial.
Defendant was convicted of felony fleeing to elude arrest and was acquitted of
assault on a law enforcement officer causing injury. Defendant was sentenced to an
active sentence of 5 to 15 months of imprisonment. Defendant appeals.
II. Jurisdiction
Defendant gave his oral notice of appeal during the sentencing hearing prior
to the trial court imposing sentence. Appellate entries were filed, and the Appellate
Defender was appointed to represent Defendant on appeal.
Rule 4 of the North Carolina Rules of Appellate Procedure provides that notice
of appeal from a criminal action may be taken by: “(1) giving oral notice of appeal at
trial, or (2) filing notice of appeal with the clerk of superior court and serving copies
thereof upon all adverse parties within fourteen days after entry of the judgment[.]”
N.C. R. App. P. 4(a). Defendant prematurely entered an oral notice of appeal before
entry of the final judgment, in violation of Rule 4 of our Rules of Appellate Procedure.
See State v. Lopez, 264 N.C. App. 496, 503, 826 S.E.2d 498, 503 (2019). Defendant
recognizes this error and has filed a petition for writ of certiorari. In the exercise of
our discretion, we allow Defendant’s petition for writ of certiorari to reach the merits
of his appeal.
III. Issues
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Defendant argues the trial court erred by finding he had waived or forfeited
his right to counsel and committed plain error by allowing the State to introduce
foundationless expert testimony.
IV. Waiver of Counsel
Defendant argues the trial court erred by finding Defendant had waived his
right to counsel. This Court previously articulated two means by which a defendant
may lose his right to be represented by counsel: (1) a knowing and voluntary waiver
after being fully advised under N.C. Gen. Stat. § 15A-1242; and, (2) forfeiture of the
right by serious misconduct in State v. Blakeney, 245 N.C. App. 452, 459-61, 782
S.E.2d 88, 93-94 (2016), holding:
First, a defendant may voluntarily waive the right to be represented by counsel and instead proceed pro se. Waiver of the right to counsel and election to proceed pro se must be expressed clearly and unequivocally. Once a defendant clearly and unequivocally states that he wants to proceed pro se, the trial court must determine whether the defendant knowingly, intelligently, and voluntarily waives the right to in-court representation by counsel. A trial court’s inquiry will satisfy this constitutional requirement if conducted pursuant to N.C.G.S. § 15A-1242.
....
The second circumstance under which a criminal defendant may no longer have the right to be represented by counsel occurs when a defendant engages in such serious misconduct that he forfeits his constitutional right to counsel. Although the right to counsel is guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and Article I of the North Carolina Constitution, in some situations a defendant may lose this
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right:
Although the loss of counsel due to defendant’s own actions is often referred to as a waiver of the right to counsel, a better term to describe this situation is forfeiture. Unlike waiver, which requires a knowing and intentional relinquishment of a known right, forfeiture results in the loss of a right regardless of the defendant’s knowledge thereof and irrespective of whether the defendant intended to relinquish the right. A defendant who is abusive toward his attorney may forfeit his right to counsel.
Id. (internal citations, ellipses, alterations, and quotation marks omitted).
This Court in Blakeney also describes a third manner, a mixture of waiver and
forfeiture, in which a defendant may lose the right to counsel:
Finally, there is a hybrid situation (waiver by conduct) that combines elements of waiver and forfeiture. Once a defendant has been warned that he will lose his attorney if he engages in dilatory tactics, any misconduct thereafter may be treated as an implied request to proceed pro se and, thus, as a waiver of the right to counsel. Recognizing the difference between forfeiture and waiver by conduct is important. First, because of the drastic nature of the sanction, forfeiture would appear to require extremely dilatory conduct. On the other hand, a waiver by conduct could be based on conduct less severe than that sufficient to warrant a forfeiture. This makes sense since a waiver by conduct requires that a defendant be warned about the consequences of his conduct, including the risks of proceeding pro se. A defendant who engages in dilatory conduct having been warned that such conduct will be treated as a request to proceed pro se cannot complain that a court is forfeiting his right to counsel.
Id. at 464-65, 782 S.E.2d at 96 (citation, ellipses, and quotation marks omitted).
A. Standard of Review
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This Court “reviews conclusions of law pertaining to a constitutional matter de
novo.” State v. Bowditch, 364 N.C. 335, 340, 700 S.E.2d 1, 5 (2010) (citation omitted);
see State v. Watlington, 216 N.C. App. 388, 393-94, 716 S.E.2d 671, 675 (2011) (“Prior
cases addressing waiver of counsel under N.C. Gen. Stat. § 15A-1242 have not clearly
stated a standard of review, but they do, as a practical matter, review the issue de
novo. We . . . review this ruling de novo.”) (citations omitted)).
Whether a defendant was entitled to, waived, or forfeited counsel is also
reviewed de novo. State v. Poole, 305 N.C. 308, 318, 289 S.E.2d 335, 341-42 (1982)
(citations omitted); Blakeney, 245 N.C. App. at 459, 782 S.E.2d at 93.
B. Waiver of Counsel
Both the Constitution of the United States and the North Carolina
Constitution expressly recognize criminal defendants have a right to assistance of
counsel. U.S. Const. Amend. VI.; N.C. Const. Art I, §§ 19, 23; see also Powell v.
Alabama, 287 U.S. 45, 66, 77 L.Ed. 158, 169 (1932); State v. McFadden, 292 N.C. 609,
611, 234 S.E.2d 742, 744 (1977) (citations omitted); State v. Montgomery, 138 N.C.
App. 521, 524, 530 S.E.2d 66, 68 (2000).
Criminal defendants also have the absolute right to waive counsel, represent
themselves, and make trial strategy decisions without the assistance of counsel.
State v. Mems, 281 N.C. 658, 670-71, 190 S.E.2d 164, 172 (1972).
Before a defendant is allowed to waive counsel, a trial court must conduct a
statutorily-required colloquy to determine that “constitutional and statutory
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safeguards are satisfied.” State v. Moore, 362 N.C. 319, 322, 661 S.E.2d 722, 724
(2008) (citation omitted). Courts “must determine whether the defendant knowingly,
intelligently and voluntarily waives the right to in-court representation by counsel.”
Id. (citation omitted).
The statutory procedure to waive counsel is codified in N.C. Gen. Stat. § 15A-
1242 (2023). Courts may only enter an order to allow defendants to waive their right
to counsel after being satisfied the movant: (1) has been clearly advised of his rights
to the assistance of counsel, including his right to the assignment of appointed
counsel when he is so entitled; (2) understands and appreciates the consequences of
the decision; and, (3) comprehends the nature of the charges and proceedings and the
range of permissible punishments. Id. (citation omitted). A “trial court must obtain
a written waiver of the right to counsel.” State v. Thomas, 331 N.C. 671, 675, 417
S.E.2d 473, 476 (1992) (citation omitted).
The record does not contain a signed waiver and certification by the superior
court judge, which should provide whether a proper inquiry and disclosure was made
to Defendant in compliance with N.C. Gen. Stat. § 1242 (2023). This absence in the
record does not per se invalidate Defendant’s waiver. See State v. Heatwole, 344 N.C.
1, 18, 473 S.E.2d 310, 318 (1996) (holding inter alia the lack of a written waiver
neither alters the conclusion that the waiver was knowing and voluntary, nor
invalidates the defendant’s waiver of counsel); State v. Fulp, 355 N.C. 171, 176, 558
S.E.2d 156, 159 (2002) (re-affirming the holding in Heatwole “that a waiver was not
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invalid simply because there was no written record of the waiver.” (citation and
internal quotation marks omitted)).
The transcript shows trial court attempted to conduct a colloquy with
Defendant to determine whether he desired or waived his right to counsel. Defendant
refused to answer the questions presented to him and instead attempted to challenge
the jurisdiction of the court, sought the oath of office for the presiding judge, and he
refused to answer other questions regarding his level of education and age.
The trial court attempted to counsel Defendant on the complexity of handling
his own jury trial and warned that she, as the judge, would neither offer legal advice
to Defendant nor excuse non-compliance with any rules of evidence or procedure.
The transcript also shows the trial court addressed the seriousness of the
charges and apprised him of the maximum possible punishment. Defendant clearly
waived his right to further court-appointed counsel. Blakeney, 245 N.C. App. at 464-
65, 782 S.E.2d at 96. Defendant’s argument is overruled.
C. Forfeiture of Counsel
Presuming, without deciding, Defendant did not give a knowing and voluntary
waiver of his right to counsel, we examine whether Defendant forfeited his right to
counsel.
Our Supreme Court has long held “the right to be defended by chosen counsel
is not absolute.” McFadden, 292 N.C. at 612, 234 S.E.2d at 745 (citation omitted).
“[A]n indigent defendant does not have the right to have counsel of his choice to
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represent him.” State v. Anderson, 350 N.C. 152, 167, 513 S.E.2d 296, 305 (1999)
(citing State v. Thacker, 301 N.C. 348, 351-52, 271 S.E.2d 252, 255 (1980)).
“Forfeiture of counsel is separate from waiver because waiver requires a
knowing and intentional relinquishment of a known right[,] whereas forfeiture
results in the loss of a right regardless of the defendant’s knowledge thereof and
irrespective of whether the defendant intended to relinquish the right.” State v.
Schumann, 257 N.C. App. 866, 879, 810 S.E.2d 379, 388 (2018) (citation and
quotation marks omitted).
This Court has held when a defendant has forfeited their right to counsel, then
a “trial court is not required to determine, pursuant to [N.C. Gen. Stat.] § 1242 that
[the] defendant knowingly, understandingly, and voluntarily waived such right
before requiring him to proceed pro se.” State v. Leyshon, 211 N.C. App. 511, 518, 710
S.E.2d 282, 288 (2011) (citation omitted).
In Montgomery, this Court examined the issue of a criminal defendant
forfeiting their right to counsel as an issue of first impression. Montgomery, 138 N.C.
App. at 524, 530 S.E.2d at 69 (“Although the loss of counsel due to defendant’s own
actions is often referred to as a waiver of the right to counsel, a better term to describe
this situation is forfeiture.”). This Court held, inter alia, “a defendant who is abusive
toward his attorney may forfeit his right to counsel.” Id. at 525, 530 S.E.2d at 69
(citing U.S. v. McLeod, 53 F.3d 322, 325 (11th Cir. 1995)).
This Court further held “[a] forfeiture results when the state’s interest in
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maintaining an orderly trial schedule and the defendant’s negligence, indifference, or
possibly purposeful delaying tactic, combine[ ] to justify a forfeiture of defendant’s
right to counsel[.]” Id. at 524, 530 S.E.2d at 69 (citing LaFave, Israel, & King
Criminal Procedure, § 11.3(c) at 548 (1999) (quotation marks omitted)). The
defendant had been afforded “ample opportunity” to obtain counsel over a period of
over a year; had twice fired appointed counsel and had retained a private attorney;
had been disruptive in the courtroom, causing the trial to be delayed; had refused to
cooperate with his counsel when his counsel was not allowed to withdraw; and, had
physically assaulted his counsel. Id. at 525, 530 S.E.2d at 69. This Court ultimately
held the defendant had forfeited his right to counsel and the trial court did not have
to follow the waiver procedures outlined in N.C. Gen. Stat. § 15A-1242. Id.
Since the decision in Montgomery, this Court has upheld a forfeiture only in
“situations involving egregious conduct by a defendant.” See Blakeney, 245 N.C. App.
at 460, 782 S.E.2d at 93. The Supreme Court of North Carolina first examined and
recognized a defendant’s forfeiture of counsel in State v. Simpkins, 373 N.C. 530, 535,
838 S.E.2d 439, 445-46 (2020) (“We have never previously held that a criminal
defendant in North Carolina can forfeit the right to counsel.”). Our Supreme Court
recognized a defendant’s forfeiture, holding: “in situations evincing egregious
misconduct by a defendant, a defendant may forfeit the right to counsel.” Id. at 535,
838 S.E.2d at 446.
While the Supreme Court’s opinion in Simpkins recognized the ability of a
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criminal defendant to forfeit the right to counsel by “egregious misconduct,” the
Court held the defendant’s conduct under the facts in that case did not rise to a
forfeiture. Id. at 539, 838 S.E.2d at 448. The defendant did not employ counsel before
appearing at trial and put forth “frivolous legal arguments about jurisdiction
throughout the proceedings.” Id. at 540, 838 S.E.2d at 448. The defendant had
different counsels representing him previously during the pre-trial proceedings. Id.
The trial court did not conduct a colloquy to determine if the defendant was
waiving his right to counsel under N.C. Gen. Stat. § 15A-1242. Our Supreme Court
held this was error to fail to determine if the defendant desired to waive his right to
counsel using the proper procedure and further held, under the facts in Simpkins,
this defendant did not forfeit his right to counsel at trial. Id. at 540, 838 S.E.2d at
449. The record did not lead our Supreme Court to “conclude that h[is] failure to
retain counsel was an attempt to delay the proceedings, and certainly not an attempt
so egregious as to justify forfeiture of the right to counsel.” Id.
In 2022, the Supreme Court of North Carolina further examined the forfeiture
of counsel in both State v. Harvin, 382 N.C. 566, 879 S.E.2d 147 (2022) and State v.
Atwell, 383 N.C. 437, 881 S.E.2d 124 (2022).
In Harvin, our Supreme Court analyzed over two decades of persuasive and
consistent Court of Appeals’ precedents and found two circumstances where forfeiture
of counsel could occur:
The first category includes a criminal defendant’s display
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of aggressive, profane, or threatening behavior. See, e.g., id. at 536-39 (first citing State v. Montgomery, 138 N.C. App. 521, 530 S.E.2d 66 (2000) (finding forfeiture where a defendant, inter alia, disrupted court proceedings with profanity and assaulted his attorney in court); then citing State v. Brown, 239 N.C. App. 510, 519, 768 S.E.2d 896 (2015) (finding forfeiture where a defendant “refus[ed] to answer whether he wanted assistance of counsel at three separate pretrial hearings [and] repeatedly and vigorously objected to the trial court’s authority to proceed”); then citing State v. Joiner, 237 N.C. App. 513, 767 S.E.2d 557 (2014) (finding forfeiture where a defendant, inter alia, yelled obscenities in court, threatened the trial judge and a law enforcement officer, and otherwise behaved in a belligerent fashion); then citing United States v. Leggett, 162 F.3d 237 (3d Cir. 1998) (finding forfeiture where a defendant physically attacked and tried to seriously injure his counsel); and then citing Gilchrist v. O’Keefe, 260 F.3d 87 (2d Cir. 2001) (same)). . . .
The second broad type of behavior which can result in a criminal defendant’s forfeiture of the constitutional right to counsel is an accused’s display of conduct which constitutes a “[s]erious obstruction of the proceedings.” Simpkins, 373 N.C. at 538. Examples of obstreperous actions which may justify a trial court’s determination that a criminal defendant has forfeited the constitutional right to counsel include the alleged offender’s refusal to permit a trial court to comply with the mandatory waiver colloquy set forth in N.C.G.S. § 15A-1242, “refus[al] to obtain counsel after multiple opportunities to do so, refus[al] to say whether he or she wishes to proceed with counsel, refus[al] to participate in the proceedings, or [the] continual hir[ing] and fir[ing of] counsel and significantly delay[ing] the proceedings.” Id. at 538. In Simpkins, we further cited the decisions of the Court of Appeals in Montgomery and Brown, inter alia, as additional illustrations of this second mode of misconduct which can result in the forfeiture of counsel.
Id. at 587, 879 S.E.2d at 161.
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In Harvin, the court had appointed five attorneys to represent Defendant prior
to trial. Id. at 590, 879 S.E.2d at 163. Two of the defendant’s attorneys withdrew
due to no fault of the defendant, and two others withdrew as a result of “respective
incompatible attorney-client relationships with [the] defendant [and] did so not
because of [the] defendant’s willful tactics of obstruction and delay” but “due to
differences related to the preparation of [the] [d]efendants defense” not a “refus[al] to
participate in preparing a defense.” Id. (citation omitted).
The defendant in Harvin, at a hearing held approximately one month before
trial, had indicated his intent to not represent himself at trial. Id. at 574, 879 S.E.2d
at 154. At a pre-trial hearing held three weeks prior to trial, the defendant’s stand-
by-counsel stated he was prepared to serve as standby counsel, but counsel was not
prepared to assume full representation of the defendant. Id. On the morning of trial,
the defendant also indicated his intent to not represent himself during a colloquy
with the court to comply with N.C. Gen. Stat. § 15A-1242. Id. at 575, 879 S.E.2d at
154. The trial court took a recess and attempted to locate any of the prior counsel
who could come in to represent him, but none could. Id. at 579, 879 S.E.2d at 156.
The Supreme Court of North Carolina held the trial court erred by finding the
defendant had forfeited his right to counsel and requiring the defendant to proceed
pro se. Id. at 592, 879 S.E.2d at 164. The Supreme Court further held the defendant’s
behavior in requesting two of his counsel to be removed, seeking to proceed pro se,
and then deciding he needed the help of counsel before proceeding at trial, while
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remaining polite, cooperative, and constructively engaged in the proceedings, was not
“the type or level of obstructive and dilatory behavior which [would] allow[ ] the trial
court . . . to permissibly conclude that [the] defendant had forfeited the right to
counsel.” Id.
The Supreme Court further examined forfeiture of counsel and applied
reasonings from both Simpkins and Harwin in State v. Atwell. During a pretrial
hearing, the State had requested the case to proceed, after previously agreeing to a
continuance to allow more time for the defendant to hire a private attorney. Atwell,
383 N.C. at 448-54, 881 S.E.2d at 132-35. The defendant, appearing pro se, told the
trial court “she had made payments to a private attorney”, but could not afford to
continue to make payments and wanted another court-appointed attorney. Id. at 440,
881 S.E.2d at 127. The trial court then responded with a history of her firing two
prior attorneys, signing four waivers of appointed counsel, and asking why she now
wanted another continuance to hire yet another attorney. Id.
The trial court, in Atwell, did not conduct an N.C. Gen. Stat. § 15A-1242
colloquy and entered an order stating the defendant had forfeited her right to counsel
through her delay tactics prior to trial. Id. at 454, 881 S.E.2d at 135. The Supreme
Court held this was reversible error.
Relying on the analysis of Harvin, the Supreme Court of North Carolina held
“the record likewise does not permit an inference, much less a legal conclusion, by the
trial court or a reviewing court that defendant engage[d] in the type of egregious
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misconduct that would permit the trial court to deprive defendant of [her]
constitutional right to counsel.” Id. at 453, 881 S.E.2d at 135 (internal quotation
marks omitted). The defendant had not forfeited her right because she had “ongoing,
nonfrivolous concerns about her case.” Id. at 454, 881 S.E.2d at 135. The defendant
could not waive her right to counsel without expressing “the express[ ] desire to
proceed without counsel” through the statutory colloquy of N.C. Gen. Stat. § 15A-
1242. Id.
A defendant may also forfeit their right to counsel by engaging in “serious
misconduct.” Blakeney, 245 N.C. App. at 460, 782 S.E.2d at 93. This Court has
recognized forfeiture by misconduct when a defendant (1) engages in “flagrant or
extended delaying tactics, such as repeatedly firing a series of attorneys;” (2) employs
“offensive or abusive behavior, such as threatening counsel, cursing, spitting, or
disrupting proceedings in court;” or (3) “refus[es] to acknowledge the trial court’s
jurisdiction or participate in the judicial process, or insist[s] on nonsensical and
nonexistent legal ‘rights.’” Id. at 461-62, 782 S.E.2d at 94.
This Court recently examined this issue and held a defendant’s conduct before
trial and during trial to threaten his attorney with harm, intimidating his attorney
and the district attorneys prosecuting the case with filing frivolous bar complaints,
and dilatory conduct to delay proceedings constituted both a waiver and forfeiture of
counsel. State v. Moore, __ N.C. App. __, __, 893 S.E.2d 231, 256 (2023).
Here, Defendant engaged in serious delaying tactics to stall the trial for over
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two years. Defendant was twice found by the court to be in direct criminal contempt.
Defendant continued to frivolously challenge the trial court’s jurisdiction over him.
Defendant’s conduct attempted to delay, disrupt, and obstruct the proceedings. In
addition to a waiver, Defendant forfeited his right to counsel. Id. Defendant’s
argument is overruled.
V. Expert Testimony
Defendant argues the trial court committed plain error in admitting the
testimony of Officer Amos defining a “sovereign citizen” in violation of Rule 702. N.C.
Gen. Stat. § 8B-1, Rule 702 (2023). Defendant failed to object at trial.
“Unpreserved error in criminal cases . . . is reviewed only for plain error.” State
v. Lawrence, 365 N.C. 506, 512, 723 S.E.2d 326, 330 (2012). In order for a defendant
to prove plain error, he must show a fundamental error occurred and establish
prejudice. Id. at 518, 723 S.E.2d at 334.
Defendant bears the burden of showing that the unpreserved error “rises to
the level of plain error.” Id. at 516, 723 S.E.2d at 333. Defendant must show “the
error had a probable impact on the jury’s finding that the defendant was guilty.” Id.
(citations and quotation marks omitted).
B. Analysis
Officer Amos testified he had received over 1,000 hours of instruction including
handling alleged sovereign citizens. The State asked Officer Amos to define a
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sovereign citizen:
THE STATE: You mentioned sovereign citizen training. What is a sovereign citizen, to your knowledge.
OFFICER AMOS: Brief description is they kind of believe laws don’t apply to them. They have an idea that there’s another set of laws out there they can abide by.
In the absence of an objection and preservation, Defendant alleges the
admission of this testimony constitutes plain error. Presuming error, Defendant has
failed to show “the error had a probable impact on the jury’s finding that the
defendant was guilty.” Id. Defendant’s argument is overruled.
VI. Conclusion
Defendant knowingly and voluntarily waived his right to counsel by his
answers and conduct before trial after being repeatedly advised and informed of the
consequences of this decision. Defendant’s conduct during pre-trial and throughout
trial also supports a finding and conclusion he forfeited his right to counsel.
Defendant failed to show the trial court plainly erred in allowing Officer Amos
to define “sovereign citizen.” Defendant received a fair trial, free from preserved or
prejudicial errors. We discern no error in the jury’s verdicts or in the judgments
entered thereon. It is so ordered.
NO ERROR.
Judges WOOD and STADING concur.
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