State Of Louisiana v. Cody C. Dantin

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2019 KA 0407

STATE OF LOUISIANA

VERSUS

CODY C. DANTIN

00 17 2019
Judgment Rendered:

On Appeal from the
17' Judicial District Court,
Parish of Lafourche, State of Louisiana
Trial Court No. 574960

The Honorable F. Hugh Larose, Judge Presiding

Kristine Russell Attorneys for the State of Louisiana
District Attorney
Joseph S. Soignet
Assistant District Attorney
Thibodaux, Louisiana

Lieu T. Vo Clark Attorney for Defendant/Appellant,
Mandeville, Louisiana Cody C. Dantin

BEFORE: WHIPPLE, C. J., GUIDRY AND CRAIN, I JJ.

1
Justice Will Crain is serving as judge ad hoc by special appointment of the Louisiana
Supreme Court.

CRAIN, J.

The defendant, Cody Dantin, was convicted of possession of a firearm by a

person convicted of certain felonies ( count one), and armed robbery with a firearm

count two). See La. R. S. 14: 95. 1, 14: 64, and 14: 64.3. On count one, the trial

court sentenced the defendant to twenty years imprisonment at hard labor without

the benefit of probation, parole, or suspension of sentence. On count two, the trial

court sentenced the defendant to ninety-nine years imprisonment at hard labor, plus

an additional five years at hard labor pursuant to the enhancement provision of

Louisiana Revised Statute 14: 64. 3, all to be served without the benefit of

probation, parole or suspension of sentence. The sentences were to be served

consecutively. We affirm the convictions, amend the sentence on count one and

affirm as amended, and affirm the sentence on count two.

FACTS

On March 8, 2018, Amber Scott, the mother of the defendant' s children,

used a cell phone to access her Facebook account and received a message from

Ryan Kraemer, the victim. According to Amber, she replied to the message, then

the defendant took the cell phone and began messaging Ryan while posing as

Amber. Ryan was asked to pick up Amber at a given address to give her a ride.

When Ryan arrived, Amber opened the door and let him into the residence, then

left him in the living room while she tended to her dog.2 Two men with their faces

covered entered the living room armed with a gun and a bat and began beating and

threatening to kill Ryan.

2
Amber pled guilty to simple robbery in connection with the instant case and testified at
trial. Prior to trial, she told police it was the defendant who messaged Ryan; however, at trial,
she testified she could not recall whether it was the defendant or his friend, Preston Law. She
claimed she fearfully ran next door after she saw two masked men enter the living room and grab
Ryan. She stated she could not identify the attackers because their faces were covered, but
confirmed the defendant and Preston were at the residence when Ryan arrived.

2

Ryan identified the defendant as the man armed with the gun. Ryan testified

the defendant removed his mask during the incident, allowing Ryan to see his face.

Ryan explained he and the defendant knew each other, having served time together

at a detention center. The defendant' s friend, Preston Law, testified at trial and

admitted he participated in the attack and the defendant was armed with a gun.3

The defendant held the gun to Ryan' s head and demanded Ryan give him

money. Ryan removed his wallet from his back pocket and threw it on the floor.

Ryan testified the men continued beating and threatening to kill him, pressing the

barrel of the gun against his head. Ryan stated he felt the trigger being pulled and

heard the gun click two or three times, but it failed to fire.' Preston explained the

defendant " obviously" did not know how to operate the gun' s safety lock feature,

which prevented the defendant from shooting Ryan.

The defendant then began fighting to remove Ryan' s new tennis shoes,

resulting in Ryan' s shoes and pants coming off. Ryan was finally able to escape to

his truck, wearing only his sweatshirt. The defendant followed him to his truck,

still pointing the gun at him and pulling the trigger. While Ryan was looking for

the keys he left in the truck console, the defendant reached into the truck,

attempting to remove a speaker box located under the back seat. Ryan was able to

start his truck and leave the residence, driving into the front porch in the process.

Ryan drove to a nearby convenience store where he put on some work pants he

kept in his truck and asked someone to call the police because the defendant, who

he identified by name, and another guy just robbed him. Ryan eventually went to

the hospital and was treated for his injuries, which included a broken jaw.

3
Preston testified that at the time of the offense, he was under the false impression Ryan
had sexually assaulted his girlfriend. Preston pled guilty to robbery in connection with the
instant case.

4
Preston testified the defendant was unable to operate the gun due to its safety -lock
features. After Ryan escaped, Preston, Amber, and the defendant left the scene in Preston' s
truck. Preston saw the defendant unload the gun at that time.

3

INEFFECTIVE ASSISTANCE OF COUNSEL

In assignment of error number one, the defendant argues the trial court erred

in denying his motion for new trial in which he claimed he was denied a fair trial

due to ineffective assistance of counsel. The defendant argues his defense counsel

was ineffective in failing to object to the admission of (1) hearsay testimony, ( 2)

other crimes evidence, and ( 3) the firearm. The defendant further contends his

defense counsel was ineffective in failing to ( 1) call a witness to present forensic

testimony, ( 2) file a motion for the release of the victim' s medical records, ( 3)

impeach Preston, and ( 4) prepare and advise the defendant.'

A defendant is entitled to effective assistance of counsel under the Sixth

Amendment to the United States Constitution and Article I, § 13 of the Louisiana

Constitution. A claim of ineffective assistance of counsel is analyzed under the

two-part test of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80

L.Ed.2d 674 ( 1984); State v. Fuller, 454 So. 2d 119, 125 n.9 ( La. 1984). The

defendant must show ( 1) his attorney' s performance was deficient, and ( 2) the

deficiency prejudiced him. Strickland, 466 U.S. at 687, 694, 104 S. Ct. at 2064.

Counsel' s performance is deficient when it can be shown that he made errors so

serious that he was not functioning as the " counsel" guaranteed to the defendant by

the Sixth Amendment. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To show

prejudice, the defendant must demonstrate that but for the counsel' s unprofessional

errors, there is a reasonable probability the outcome of the trial would have been

different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. It is unnecessary to

5
The defendant also contends his defense counsel failed to object to leading questions by
the prosecution.A leading question is one that suggests the answer the witness is expected to
give, and, in general, should not be used on the direct examination of a witness. See La. Code
Evid. art. 611 C. The defendant did not provide a record reference or specify which witness or
witnesses were asked leading questions by the prosecutor. Nor did the defendant state how he
was prejudiced in this regard. Moreover, the use of leading questions is largely within the
discretion of the trial court and only a clear abuse of discretion that prejudices the defendant' s
rights will justify reversal of a conviction. See State v. Odom, 03- 1772 ( La. App. 1 Cir. 4/ 2/ 04),
878 So. 2d 582, 592, writ denied, 04- 1105 ( La. 10/ 8/ 04), 883 So. 2d 1026.

M

address the issues of both counsel' s performance and prejudice to the defendant if

the defendant makes an inadequate showing on one of the components. State v.

Mills, 13- 0573 ( La. App. 1 Cir. 8/ 27/ 14), 153 So. 3d 481, 497, writs denied, 14-

2027 ( La. 5/ 22/ 15), 170 So. 3d 982 and 14- 2269 ( La. 9/ 18/ 15), 178 So. 3d 139.

A claim of ineffective assistance of counsel is generally relegated to post-

conviction relief, unless the record permits definitive resolution on appeal. State v.

Bright, 98- 0398 ( La. 4/ 11/ 00), 776 So. 2d 1134, 1157. Decisions relating to

investigation, preparation, and strategy cannot possibly be reviewed on appeal.

State v. Robinson, 18- 1005 ( La. App. 1 Cir. 4/ 10/ 19), 275 So. 3d 938, 946. The

defendant' s allegations of ineffective assistance of counsel with respect to the

admission of the firearm, failing to obtain the victim' s medical records or a

forensic witness, and failing to advise and prepare the defendant for trial cannot be

sufficiently investigated from an inspection of the record alone. Accordingly,

these allegations are more properly reserved for an application for post -conviction

relief, subject to the requirements of Louisiana Code of Criminal Procedure articles

924 through 930. 9. However, the record is adequate to resolve the remaining

allegations.

Hearsay and Leading Questions

The defendant contends his defense counsel was ineffective in allowing

Detective Joe Anderson to testify as to hearsay statements made by Amber,

Preston, and Michelle Law ( Preston' s sister), which implicated the defendant and

provided corroborating testimony regarding a bat located in Preston' s vehicle and

the gun the defendant allegedly sold. Detective Anderson testified Michelle

informed him during her interview that she started dating the defendant a week or

so before the crime. She stated when the defendant and Preston came home the

night of the incident, she heard Preston talking about the blood on his clothes.

Detective Anderson also stated Michelle told him Preston kept a bat in his vehicle.

5

Detective Anderson testified the bat was located and seized during execution of a

search warrant. Detective Anderson further testified that Preston was arrested and

confirmed the defendant was armed with a gun at the time of the offense, which

Preston identified as a Rossi . 243. Preston further confirmed the gun was loaded

and the defendant attempted to shoot Ryan several times, but the gun would not

fire. Preston stated the defendant sold the gun to George Robichaux and provided

his address.

Hearsay is a statement, other than one made by the declarant while testifying

at trial, offered in evidence to prove the truth of the matter asserted. La. Code Ev.

art. 801C. However, if the statement is offered for any other purpose, it is not

hearsay. State v. Patton, 10- 1841 ( La. App. 1 Cir. 6/ 10/ 11), 68 So. 3d 1209, 1219-

20. The improper introduction of hearsay evidence will be

considered harmless error if it is determined the hearsay evidence was cumulative

and corroborative of other properly admitted evidence and did not contribute to the

verdict. State v. Stokes, 14- 1562 ( La. App. 1 Cir. 6/ 17/ 15) 175 So. 3d 419, 423.

Review of the trial transcript reveals the testimony in question consisted of

information relayed to Detective Anderson during his investigation. Such

testimonial evidence by a police officer is admissible to explain the sequence of

events leading to the defendant' s arrest when there is no indication the evidence is

presented to prejudice the defendant. State v. Mitchell, 16- 0834 ( La. App. 1 Cir.

9/ 21/ 17), 231 So. 3d 710, 726, writ denied, 17- 1890 ( La. 8/ 31/ 18), 251 So. 3d 410.

Here, the testimony was offered to explain the course of a police investigation and

there is no indication it was presented to prejudice the defendant; therefore, the

testimony was arguably not hearsay.

The testimony at issue was also cumulative, as it was presented during other

unchallenged testimony and evidence presented at trial. Preston testified the bat

introduced into evidence was removed from his truck (though he denied having it

Ce

at the time of the offense). The defendant does not challenge the admissibility of

the bat or Detective Anderson' s testimony that the bat was located in Preston' s

truck.
Further, Preston testified that after the incident, he was questioned regarding

his swollen hand and told Michelle and his mother that his hand was swollen from

the fight that he had with Ryan. Additionally, Preston identified the gun,

confirmed the defendant repeatedly attempted to fire the gun, and testified the

defendant sold the gun to George Robichaux, who also testified at trial and

confirmed the same.

Any error in admitting the testimony in question was harmless. See La.

Code Crim. Pro. art. 921; Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S. Ct.

2078, 2081, 124 L.Ed.2d 182 ( 1993). The defendant' s claim of ineffective

assistance of counsel for failing to object to the testimony fails.

Other Crimes Evidence

The defendant contends his defense counsel was ineffective in failing to

object to prejudicial evidence of other bad acts or other crimes evidence, when the

state failed to provide notice of intent to use that evidence.'

Evidence of other crimes is generally inadmissible because of the substantial

risk of unfair prejudice to the defendant. See La. Code Evid. art. 404B( 1); State v.

Becnel, 16- 1297 ( La. App. 1 Cir. 4/ 20/ 17), 220 So. 3d 27, 33, writ denied, 17- 1023

La. 3/ 9/ 18), 238 So. 3d 451. Louisiana Code of Evidence article 404B( 1)

provides several exceptions to this rule, including other crimes evidence that

relates to conduct that constitutes an integral part of the act or transaction that is

the subject of the present proceeding." This exception, sometimes referred to as

res gestae," incorporates a rule of narrative completeness without which the

6
While the defendant' s appeal brief does not specifically identify the evidence to which
his defense counsel failed to object, at the hearing on his motion for new trial he argued his
attorney failed to object to evidence regarding a prior conviction, the fact that he was in jail, and
his flight from the police.

7

state' s case would lose its narrative momentum and cohesiveness. State v.

Odenbaugh, 10- 0268 ( La. 12/ 6/ 11), 82 So. 3d 215, 251, cert. denied, 568 U.S. 829,

133 S. Ct. 410, 184 L.Ed.2d 51 ( 2012). Such evidence forms part of the res

gestae when the crimes are so related and intertwined with the charged offense that

the state cannot accurately present its case without reference to it. The evidence

completes the story of the crime by providing context to the events.

See Odenbaugh, 82 So. 3d at 251.

Erroneous admission of other crimes evidence is subject to a harmless error

analysis. Odenbaugh, 82 So. 3d at 251. An error is harmless if the jury' s verdict

actually rendered at trial was surely unattributable to the error. Odenbaugh, 82 So.

3d at 251 ( quoting Sullivan, 508 U.S. at 279, 113 S. Ct. at 2081).

On count one, the defendant was charged with possession of a firearm by a

convicted felon, in violation of Louisiana Revised Statute 14: 95. 1. To convict, the

state was required to prove beyond a reasonable doubt the defendant had ( 1)

possession of a firearm, ( 2) a prior conviction for an enumerated felony, ( 3) an

absence of the ten-year statutory period of limitation, and ( 4) the general intent to

commit the offense. State v. Bias, 14- 1588 ( La. App. 1 Cir. 4/ 24/ 15), 167 So. 3d

1012, 1019, writ denied, 15- 1051 ( La. 5/ 13/ 16), 191 So. 3d 1053. Proof the

defendant is indeed a convicted felon is an essential element of the crime. Further,

testimony regarding the defendant' s evasion and flight immediately after the

offense constituted res gestae, properly admitted for the sake of narrative

completeness.
The defendant has failed to show deficiency in defense counsel' s

performance based on the admission of other crimes evidence.

Impeachment

The defendant argues his defense counsel was ineffective in failing to

properly impeach Preston with a " prior inconsistent statement" and the plea deal

Preston made with the state in exchange for his testimony against the defendant.

8

He claims Preston' s testimony was pivotal in corroborating the defendant' s

participation in the crime and the impeachment evidence was necessary for the jury

to assess Preston' s credibility.

In making his argument, the defendant did not specify the prior inconsistent

statement allegedly made by Preston. However, he referenced the trial testimony

of Sergeant Ray Traigle, a detective with the Lafourche Parish Sheriff' s Office,

who identified the bat admitted into evidence. During cross examination, defense

counsel asked Sergeant Traigle, " In Preston Law' s statement, did he ever indicate

to you that he would have used a bat?" He responded, " No, ma' am." The state

then objected to the questioning, contending it was an attempt to elicit hearsay for

impeachment purposes without the proper foundation. The state argued defense

counsel should have confronted Preston with the statement and given him an

opportunity to refresh his memory before attempting to impeach him. In response,

defense counsel explained she did not question Preston regarding the transcribed

statement because Sergeant Traigle had not yet testified. The trial court agreed

with the state and sustained the objection.

Unsupported assertions of deficiency do not support a Sixth Amendment

claim for ineffective assistance of counsel. See State v. Prater, 15- 0079,

2015WL6835423, * 11 ( La. App. 1 Cir. 11/ 6/ 15), writ denied, 15- 2234 ( La.

4/ 22/ 16), 191 So. 3d 1046. Sergeant Traigle responded negatively when asked if

Preston indicated that he would have used a bat. Consistent with Sergeant

Traigle' s response, during his trial testimony, Preston denied having or using the

bat during the instant offenses. Further, regarding his plea deal, the state

questioned Preston in that regard and he admitted he was charged with attempted

first degree armed robbery, pled guilty to robbery, and was going to be sentenced

to five years imprisonment after the defendant' s trial. During cross- examination,

defense counsel again asked Preston about his guilty plea to robbery. Considering

9

this, the defendant has failed to support his claim of the existence of a prior

inconsistent statement that could have been used to impeach Preston.

The defendant failed to meet his burden of proof on the above asserted

ineffective assistance of counsel claims; therefore, the trial court did not err in

denying the motion for new trial insofar as it was premised on those claims. In all

other regards, the claims raised in this assignment of error are not subject to

appellate review.

SENTENCE

In a combined argument on assignments of error numbers two and three, the

defendant contends the trial court erred by imposing an excessive sentence and in

denying the motion to reconsider sentence. The defendant argues the

consecutively imposed maximum sentences, which amount to one hundred twenty

four years of imprisonment, amount to an unconstitutionally excessive sentence as

applied to him. He points out he is thirty- one years old and will serve a life

sentence, while his two co- defendants who admitted their participation received

significantly lighter sentences.

Both the United States and Louisiana constitutions prohibit the imposition of

excessive or cruel punishment. See U.S. Const. amend. VIII; La. Const. art. I, §

20. Although a sentence may be within statutory limits, it may violate a

defendant' s constitutional right against excessive punishment and is subject to

appellate review. State v. Sepulvado, 367 So. 2d 762, 767 ( La. 1979). A sentence

is unconstitutionally excessive if it is grossly disproportionate to the severity of the

offense or is nothing more than a purposeless and needless infliction of pain and

suffering. State v. Shaikh, 16- 0750 ( La. 10/ 18/ 17), 236 So. 3d 1206, 1209 ( per

curiam).
A sentence is grossly disproportionate if it shocks one' s sense of justice

when the crime and punishment are considered in light of the harm to society.

State v. Weaver, 01- 0467 ( La. 1/ 15/ 02), 805 So. 2d 166, 174. The sentence will

not be set aside absent a showing of manifest abuse of the trial court' s wide

discretion to sentence within statutory limits. State v. Lobato, 603 So. 2d 739, 751
La. 1992).

Louisiana Code of Criminal Procedure article 894. 1 sets forth what must be

considered by the trial court before imposing a sentence. The trial court need not

recite the entire checklist of Article 894. 1, but the record must reflect the

guidelines were adequately considered. State v. Herrin, 562 So. 2d 1, 11 ( La. App.

1 Cir.), writ denied, 565 So. 2d 942 ( La. 1990). A review for individual

excessiveness should consider the circumstances of the crime and the trial court' s

stated reasons and factual basis for the sentencing decision. Herrin, 562 So. 2d at

11. Remand for full compliance with Article 894. 1 is unnecessary when a

sufficient factual basis for the sentence is shown. See State v. Lanclos, 419 So. 2d

475, 478 ( La. 1982).

Louisiana law favors concurrent sentences for crimes committed as part of

the same transaction or series of transactions; however, the trial court retains the

discretion to impose consecutive sentences on the basis of other factors, including

past criminality, violence in the charged crimes, or the risk the defendant poses to

the general safety of the community. See La. Code Crim. Pro. art. 883; State v.

Thomas, 98- 1144 ( La. 10/ 9/ 98), 719 So. 2d 49 ( per curiam); State v. Underwood,

353 So. 2d 1013, 1019 ( La. 1977). Thus, even if convictions arise out of a single

course of conduct, consecutive sentences are not necessarily excessive. State v.

Riles, 06- 1039 ( La. App. 1 Cir. 2/ 14/ 07), 959 So. 2d 950, 956, writ denied, 07-

0695 ( La. 11/ 2/ 07), 966 So. 2d 599. The trial court abuses its discretion by

imposing consecutive sentences only when it contravenes the constitutional

prohibition of excessive punishment. Thomas, 719 So. 2d at 49. Additionally,

maximum sentences are ordinarily reserved for the most egregious and

blameworthy offenders who have committed the most serious violations of the

11

charged crime. State v. Strother, 09- 2357 ( La. 10/ 22/ 10), 49 So. 3d 372, 380; see

also State v. Mischler, 18- 1352 ( La. App. 1 Cir. 5/ 31/ 19), So. 3d ,

2019WL2334219, * 13).

In imposing the sentences, the trial court noted the offenses were committed

approximately ninety days after the defendant was released from jail for a prior

offense.
The trial court also stated the offenses involved not only the use of a
firearm, but also what the court deemed " callus and unusual viciousness." The

trial court continued, " Sir, but for the fact that you did not know how to use a

safety on [ the gun], there is no doubt in this Court' s mind that Mr. Kraemer would

be dead today. You attempted on three or four different occasions to pull the

trigger. And it was only the lack of experience on your part of how to use that

safety device that spared the victim' s life."

The trial court sufficiently considered the factors set forth in Article 894. 1

and concluded the aggravating circumstances of the crimes outweighed any

mitigating circumstances in this case. The record supports the trial court' s finding

that the defendant exhibited deliberate cruelty and was persistent in his attempts to

shoot the victim, even after the victim fled to his vehicle. See La. Code Crim. Pro.

art. 894. 113( 1). Considering the reasons for sentencing given by the trial court, the

testimony presented at trial, and the record as a whole, the trial court did not

manifestly abuse its discretion in sentencing the defendant to the maximum terms

of imprisonment and ordering that they be served consecutively.' Compare State

v. Mickey, 604 So. 2d 675, 679 ( La. App. 1 Cir. 1992), writ denied, 610 So. 2d 795

La. 1993); see also State v. Thomas, 572 So. 2d 681, 685 n. 3 ( La. App. 1 Cir.

1990), writ denied, 604 So. 2d 994 ( La. 1992) (" noting the well- settled proposition

that sentences must be individualized to the particular offender and the offense

7
The additional five year sentence pursuant to Section 14: 64. 3 is statutorily required to be
served consecutively; therefore, its imposition did not involve the trial court' s discretion.

12

committed, we
find little value in making such sentencing comparisons").

Therefore, we find no error in the trial court' s denial of the motion to reconsider

sentence.

REVIEW FOR ERROR

Pursuant to Louisiana Code of Criminal Procedure article 920, this court

routinely conducts a review for error discoverable by mere inspection of the

pleadings and proceedings and without inspection of the evidence. After a careful

review of the record, we have found a sentencing error.

Upon conviction for being a convicted felon in possession of a firearm,

Louisiana Revised Statute 14: 95. 1B mandates imposition of a fine of not less than

1, 000. 00 nor more than $ 5, 000. 00. The defendant' s sentence does not include

any fine. Because the sentence does not comply with the legislatively mandated

sentencing range in Section 14: 95. 113, it is illegally lenient. State v. Carter, 16-

1078 ( La. App. 1 Cir. 12/ 22/ 16), 210 So. 3d 306, 309; see also State v. Bell, 14-

1046 ( La. App. 1 Cir. 1/ 15115), 169 So. 3d 417, 426; State v. Passow, 13- 0341 ( La.

App. 1 Cir. 11/ 1/ 13), 136 So. 3d 12, 15.

The defendant has no constitutional or statutory right to an illegally lenient

sentence. See State v. Williams, 00- 1725 ( La. 11/ 28/ 01), 800 So. 2d 790, 797; see

also State v. Kondylis, 14- 0196 ( La. 10/ 3/ 14), 149 So. 3d 1210, 1211. As an

appellate court, we are authorized to correct an illegal sentence that involves no

more than the ministerial correction of a sentencing error. See La. Code Crim. Pro.

art. 882A; State v. Haynes, 04- 1893 ( La. 12/ 10/ 04), 889 So. 2d 224 (per curiam).

In general, imposition of a mandatory minimum fine can be considered nothing

more than the ministerial correction of a sentencing error. See Carter, 210 So. 3d

at 309; State v. Robertson, 14- 0252, 2014WL4668685, * 6 ( La. App. 1 Cir.

9/ 19/ 14) ( illegally lenient sentence under Section 14: 95. 1B was amended on appeal

to include the minimum fine of $ 1, 000. 00); contrast Haynes, 889 So. 2d at 224

13

finding that court of appeal erred by amending an illegally lenient sentence under

Section 14: 95. 1B to include the maximum fine of $5, 000. 00).

An amendment of the defendant' s sentence on count one to include this

nondiscretionary fine, in the minimum amount, does not constitute a due process

violation because neither actual retaliation nor vindictiveness exists in this

correction. See Carter, 210 So. 3d at 310; Robertson, 2014WL4668685 at

6; State v. Gregoire, 13- 0751 ( La. App. 1 Cir. 3/ 21/ 14), 143 So. 3d 503, 510, writ

denied, 14- 0686 ( La. 10/ 31/ 14), 152 So. 3d 151. Accordingly, we amend the

defendant' s sentence for his conviction on count one to include a fine in the

minimum amount of $1, 000. 00.

CONVICTIONS AFFIRMED; SENTENCE ON COUNT ONE
AMENDED AND, AS AMENDED, AFFIRMED; SENTENCE ON COUNT
TWO AFFIRMED.

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