State of Louisiana v. Jeremiah R. Teno

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-357

STATE OF LOUISIANA

VERSUS

JEREMIAH R. TENO

**********

APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. CR-2010-701
HONORABLE C. KERRY ANDERSON, DISTRICT JUDGE

**********

J. DAVID PAINTER
JUDGE

**********

Court composed of John D. Saunders, Marc T. Amy, and J. David Painter, Judges.

CONVICTIONS AFFIRMED;
ENHANCED SENTENCES VACATED
AND REMANDED FOR RESENTENCING.

Beth Fontenot
P. O. Box 3183
Lake Charles, LA 70602
(337) 491-3864
COUNSEL FOR DEFENDANT/APPELLANT:
Jeremiah R. Teno

Honorable David W. Burton, District Attorney
Beauregard Parish
P. O. Box 99
DeRidder, LA 70634
(337) 463-5578
COUNSEL FOR APELLEE:
State of Louisiana

PAINTER, Judge.

Defendant, Jeremiah R. Teno, appeals his convictions on the charges of

possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1 (Count 1);

illegal use of weapons or dangerous instruments, a violation of La.R.S. 14:94F (Count

2); and aggravated assault with a firearm; a violation of La.R.S. 14:34.4 (Count 3); as

well as his sentencing for those three convictions as a habitual offender. For the

following reasons, we affirm his convictions. However, we vacate the enhanced

sentences for the offenses of possession of a firearm by a convicted felon and

aggravated assault with a firearm because those enhancements were not sought in the

multiple offender bill. Therefore, this case is remanded for resentencing on those

convictions.

FACTS AND PROCEDURAL HISTORY

On June 15, 2010, Patrolman Tracy Crouch of the DeRidder Police Department

received two 911 calls from Auburn Place Apartments. The callers reported “pops”

that sounded like gunshots or firecrackers. One of the callers said: “they know who it

is,” but the caller did not identify anyone.

Skylor Johnson, age sixteen at the time of trial, was babysitting for Olivia

Martin at the apartments on the day of the incident. Her brother, Roman Johnson, was

involved in an altercation or argument with Defendant that morning. Before 4:30

p.m., Ms. Johnson went outside, and “[Defendant] and two more cars pulled up.”

Defendant got out of his car and stood around for fifteen to twenty minutes.

Defendant then said, “[w]e‟ll dump on y‟all,” ran to his car, and got a black,

“medium-sized gun.” Ms. Johnson held her hands six to eight inches apart when she

described the gun. The day after the incident, she chose Defendant from a photo

lineup.

Ms. Martin arrived home around 2:00 p.m. that day. “Around four-something,”

Ms. Martin “saw cars had pulled up and . . . it looked like a commotion was about to

happen.” She saw Defendant get out of one car, and residents of the complex began

to gather outside. After words were exchanged and Catissue Hayes, Defendant‟s

girlfriend, pushed Ms. Johnson, Defendant reached into one vehicle, got a black

handgun, “and started shooting . . . [n]ot specifically aiming anywhere, just shooting

everywhere.” Ms. Martin had her nine-week-old daughter in her arms and “took off

running.” She was “grazed” on the foot by a bullet. She further testified that after the

shooting, there was a “bullet hole in the wall on the left side of the building.”

Ms. Martin identified Defendant from a photo lineup. She also identified

Defendant at trial as the person who fired the weapon. She had never seen Defendant

before the day of the shooting.

Eight-year-old Diamond Banks also identified Defendant from a photo lineup

as the man “who did it.” At trial, however, she looked around the courtroom and did

not see the man. Tervell Roberson and Crystal Banks also identified Defendant from

photo lineups.

Jennifer Puckett also lived at the apartment complex and saw the incident. She

identified Defendant as being involved in the arguing. The commotion ended when

Defendant “just went to a car and just pulled out a gun and just started shooting.”

Lieutenant Shane Fruge of the DeRidder Police Department prepared the photo

lineup and showed it to seven witnesses. Five of them identified Defendant from the

lineup; the other two did not identify anyone. No one ever identified anyone other

than Defendant as the shooter. A security video from the apartment complex did not

show anyone shooting a weapon. Attempts to lift fingerprints from the shell casings

were unsuccessful. Nothing in Lieutenant Fruge‟s investigation indicated that any

person other than Defendant shot a gun.

Ms. Hayes, the mother of Defendant‟s child, testified as a defense witness. She

went to the apartment complex twice on the day of the shooting, the first time around

noon and the second time “around four-thirtyish, maybe.” The first time, she was

2

arguing with Mr. Johnson “about an altercation that happened the night before.” The

second time, she and Defendant argued “about him being there.” Although she saw

who fired the gunshots, she had never seen the shooter before, and she did not know

his name. Ms. Hays said that the shooter was not Defendant and that, in fact,

Defendant “put his arms over [Hayes] as [they] ducked.” Ms. Hayes, Defendant, Ms.

Johnson, Ms. Martin, Thea Hall, and Mr. Roberson were standing together, to the left

of the single-story building. Ms. Hayes described the shooter as “a black, skinny guy

with a tattoo on his neck” and said that he stood “closer to the cars.” Ms. Hayes

admitted that she lied to police and told them that she did not see anything “[b]ecause

we were afraid for our family.”

Mr. Roberson also testified for the defense. He was in jail for fighting in Lake

Charles at the time of trial. Mr. Roberson had seen Defendant before, but he did not

know him. He testified that he did not see Defendant with a gun and that he did not

see him shoot a gun. Mr. Roberson and Defendant were “face-to-face” when Mr.

Roberson heard gunshots; if Defendant had shot the gun, “[h]e would have . . . blew

my brains out right there.” He testified that “somebody with [Defendant] saw [Mr.

Roberson] was going to hit him, and they went to shooting.”

Nevertheless, Mr. Roberson chose Defendant from a photo lineup and “said

he‟s the shooter.” Mr. Roberson said that he did so because he really wanted to go

home and didn‟t care. His aunt pressured him to identify Defendant as the shooter.

At trial, he testified that what he told the police was “not the real story.”

Defendant testified as the last witness at trial. He was convicted of

unauthorized use of a vehicle in 2005. In 2006, he was convicted of attempted

possession of Alprazolam, and he also had a marijuana conviction. Defendant stated

that he pled guilty to those charges because he was actually guilty. He testified that

he was not guilty of the charges at issue in this case.

3

Defendant testified that around 11:00 a.m. to noon on June 15, 2010, he went

with Ms. Hayes and her sister to the Auburn Place Apartments. Defendant left and

returned around 4:00 p.m. after he received a call from Mr. Johnson suggesting they

“squash” their misunderstanding. He did not shoot a firearm at the complex. He

testified that someone named Tristan was the shooter.

Defendant stated that he and Mr. Johnson were about to fight, and “when the

gunshots rang off,” Ms. Hayes tried to get him into the car to leave. He testified that

they were standing by the single-story area of the complex to the side of the

breezeway. When Defendant spoke to police after the incident, he said that he did not

know the shooter. He testified that he “technically” did not know the shooter, but he

knew the shooter‟s first name. A search of Defendant‟s residence and the vehicles at

the residence three days after the incident revealed no gun.

Lieutenant Fruge testified on rebuttal that Defendant never said who he thought

fired the shots. Defendant said that the shots were fired from behind him while he

was standing in the parking lot, which was inconsistent with the other witnesses‟

testimony. Defendant‟s testimony that he arrived at the complex alone was also

inconsistent with the other testimony.

Defendant was charged with possession of a firearm by persons convicted of

certain felonies, a violation of La.R.S. 14:95.1 (Count 1); illegal use of weapons or

dangerous instruments, a violation of La.R.S. 14:94(F) (Count 2); and aggravated

assault with a firearm, a violation of La.R.S. 14:37.4 (Count 3). The State filed a

habitual offender bill of information, alleging prior convictions for attempted

possession of Alprazolam on October 4, 2006, and attempted unauthorized use of a

movable on December 1, 2005. The State amended the habitual offender bill to allege

Defendant‟s fourth felony offender status based on an additional conviction on

January 8, 2008, for second offense possession of marijuana. Both the original and

4

amended bills sought enhancement of the sentence for the conviction for illegal use of

weapons.

At the beginning of the trial, the parties stipulated to Defendant‟s October 4,

2006 guilty plea to attempted possession of Alprazolam in Vernon Parish.

Defendant‟s probation officer for that conviction, Charles Williams, testified at trial

that he supervised Defendant‟s probation on that charge. Defendant signed his

conditions of probation on March 6, 2007, which informed him that he could not carry

a firearm.

The jury found Defendant guilty on all three counts. At a hearing after trial, the

State presented evidence of Defendant‟s prior conviction for second offense

possession of marijuana on January 8, 2008, in St. Mary Parish; attempted possession

of Alprazolam on October 4, 2006, in Vernon Parish; and unauthorized use of a

movable on December 1, 2005, in Vernon Parish. The trial court found that the

evidence was sufficient to establish Defendant‟s felony record. The trial court found

that the sentencing range was a minimum of twenty years and a maximum of life

imprisonment on each of the three counts. The trial court then sentenced Defendant to

twenty-eight years at hard labor on each count. The trial court imposed sentences on

the charges of possession of a firearm by a person convicted of certain felonies and

illegal use of weapons or dangerous instruments without benefit of probation, parole,

or suspension of sentence. He imposed the sentence on the charge of aggravated

assault with a firearm, pursuant to the habitual offender statute, La.R.S. 15:529.1,

without benefit of probation or suspension of sentence. The sentences were to run

concurrently with each other but consecutively to any other sentences.

Defendant filed a motion to reconsider his sentences, which was denied by the

trial court. This appeal followed.

5

DISCUSSION

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors

patent on the face of the record. After reviewing the record, we find that there is one

error patent which is also raised as error by Defendant in his appeal. Defendant

argues that the trial court erroneously imposed enhanced sentences. The State agrees

regarding this error as to Counts 1 and 3.

The amended habitual offender bill alleged that there were three convictions

involved in this appeal in addition to prior convictions for second offense possession

of marijuana, attempted possession of Alprazolam, and attempted unauthorized use of

a movable. However, the bill asked the court to enhance only Defendant‟s “present

conviction for Illegal Use of Weapons (R.S. 14:94F) as a fourth-felony offender.” At

sentencing, however, the trial court enhanced all three April 21, 2011 convictions.

A defendant must be charged with criminal conduct through either a bill of

information or indictment. La.Code Crim.P. art. 382. The State did not request

enhancement of Defendant‟s other charges. Therefore, we find that Defendant‟s

adjudication on charges where adjudication was not requested is a violation of

La.Code Crim.P. art. 382.

Further, Defendant‟s sentences on the charges of possession of a firearm by a

felon and aggravated assault with a firearm are illegal. The sentencing range for a

violation of La.R.S. 14:95.1 (the possession charge) is ten to twenty years at hard

labor without benefit of probation, parole, or suspension of sentence and a fine of one

thousand to five thousand dollars. The sentencing range for a violation of La.R.S.

14:37.4 (the assault charge) is imprisonment with or without hard labor for up to five

years and/or a fine of up to five thousand dollars.

The trial court sentenced Defendant to twenty-eight years on each count. We

find that these sentences are illegal for the unenhanced charges of possession of a

6

firearm by a convicted felon and aggravated assault with a firearm. Accordingly, we

vacate the sentences on these two charges and remand this matter for resentencing on

these charges.

Sufficiency of the Evidence

Defendant, through counsel, claims that the evidence was insufficient to find

him guilty of illegal use of weapons. In his pro se Assignment of Error No. 3,

Defendant argues that the evidence was insufficient to convict him on all counts. In

his pro se Assignment of Error No. 4, Defendant argues that the State erred in

charging him and failed to prove its case beyond a reasonable doubt. To the extent

that Defendant‟s pro se assignments of error address the issue of sufficiency of the

evidence, they are included in the following discussion.

The standard of review in a sufficiency of the evidence claim is “whether,

viewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found proof beyond a reasonable doubt of each of the essential

elements of the crime charged.” State v. Leger, 05-11, p. 91 (La. 7/10/06), 936 So.2d

108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279 (2007) (citing Jackson v.

Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979); State v. Captville, 448 So.2d 676, 678

(La.1984)). The Jackson standard of review is now legislatively embodied in

La.Code Crim.P. art. 821. It does not allow the appellate court “to substitute its own

appreciation of the evidence for that of the fact-finder.” State v. Pigford, 05-477, p. 6

(La. 2/22/06), 922 So.2d 517, 521 (citing State v. Robertson, 96-1048 (La. 10/4/96),

680 So.2d 1165; State v. Lubrano, 563 So.2d 847, 850 (La.1990)). The appellate

court‟s function is not to assess the credibility of witnesses or reweigh the evidence.

State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442.

The fact finder‟s role is to weigh the credibility of witnesses. State v. Ryan, 07-

504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. Thus, other than insuring that the

sufficiency evaluation standard of Jackson is met, “the appellate court should not

7

second-guess the credibility determination of the trier of fact,” but rather, it should

defer to the rational credibility and evidentiary determinations of the jury. Id. at 1270

(quoting State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724,

726-27). Our supreme court has stated:

However, an appellate court may impinge on the fact finder=s
discretion and its role in determining the credibility of witnesses “only to
the extent necessary to guarantee the fundamental due process of law.”
State v. Mussall, 523 So.2d 1305, 1310 (La.1988). In determining the
sufficiency of the evidence supporting a conviction, an appellate court
must preserve “ „the factfinder=s role as weigher of the evidence‟ by
reviewing „all of the evidence . . . in the light most favorable to the
prosecution.‟ ” McDaniel v. Brown, 558 U.S. 120, ___, 130 S.Ct. 665,
674, 175 L.Ed.2d 582 (quoting Jackson v. Virginia, 443 U.S. 307, 319,
99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). When so viewed by an
appellate court, the relevant question is whether, on the evidence
presented at trial, “any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at
319, 99 S.Ct. at 2789. Applied in cases relying on circumstantial
evidence, . . . this fundamental principle of review means that when a
jury “reasonably rejects the hypothesis of innocence presented by the
defendant[ ], that hypothesis falls, and the defendant is guilty unless there
is another hypothesis which raises a reasonable doubt.” State v. Captville,
448 So.2d 676, 680 (La.1984).

State v. Strother, 09-2357, pp. 10-11 (La. 10/22/10), 49 So.3d 372, 378.

Count 2 charged Defendant with illegal use of weapons by discharging a

firearm while committing or attempting to commit aggravated criminal damage to the

Auburn Place Apartments, wherein it was foreseeable for human life to be

endangered. “Aggravated criminal damage to property is the intentional damaging of

any structure . . . wherein it is foreseeable that human life might be endangered, by

any means other than fire or explosion.” La.R.S. 14:55. Defendant argues that the

only evidence to support this charge “was testimony that [he] shot a small handgun

without aiming and that after the shooting there was an „impact area‟ in the apartment

building.” He claims that “[t]here was no evidence that there were people present in

or around the apartment building near the „impact area‟ or that [he] knew or should

have known that there were people in that area of the building.

8

In fact, Ms. Martin identified a hole in the side of the building that was not

present before the shooting. She was standing in the parking lot when the shooting

began. As she “took off running,” she was struck in the foot “right before [she]

stepped on the sidewalk.” Others testified that they were also in the parking lot.

Lieutenant Fruge testified that he found two .40-caliber Smith and Wesson shell

casings and a bullet fragment in the parking lot between the single-story building and

the two-story breezeway of the apartment complex. The location of the fragment was

consistent with what the witnesses said about where the suspects were parked and the

trajectory of the shooting. The bullet fragment was shiny, indicating it had not been

there a long time. The shell casings were found where the witnesses said the shooter

was standing. An impact area contained a fresh gouge mark in the concrete consistent

with ricochet. Another impact area was “the siding portion of the outer wall of the

apartment complex on the two-story” building. That area was three or four feet from

a window, five feet from the ground.

We find that the evidence sufficiently showed that the impact area on the

building resulted from the shooting on June 15, 2010. Testimony at trial included five

people identifying Defendant as the shooter in a photo lineup. Two of those witnesses

also identified Defendant at trial. Further, we find that the evidence was sufficient to

identify Defendant as the person who shot the gun, caused damage to the structure,

and wounded Ms. Martin. Thus, counsel‟s argument contending insufficient evidence

to convict Defendant of illegal use of weapons lacks merit.

Regarding Defendant‟s conviction for possession of a firearm by a person

convicted of attempted possession of Alprazolam, the evidence of Defendant‟s prior

conviction was clear. As discussed above, the evidence also clearly established that

Defendant possessed and fired the .40-caliber weapon on June 15, 2011. Thus, we

find that the evidence sufficiently established the elements of this offense. La.R.S.

14:95.1. Additionally, “aggravated assault with a firearm” is the attempt to

9

intentionally use “force or violence upon the person of another” by the discharge of a

firearm. La.R.S. 14:33, 14:36, and 14:37.4. Defendant discharged a firearm and

struck Ms. Martin; he also endangered the infant that Ms. Martin was holding, Ms.

Johnson, and everyone else in the area of the shooting. Defendant‟s pro se argument

also lacks merit.

Ineffective Assistance of Counsel

Defendant argues that his trial counsel, Leslie Leavoy, was ineffective. He

cites three instances: Mr. Leavoy did not follow through by filing a writ application

for review of the trial court‟s denial of his request for a stay of proceedings; he failed

to ask for the removal of a juror after Defendant mentioned he knew her; and he failed

to impeach witnesses Johnson and Roberson.

The issue of ineffective counsel is more appropriately addressed in an

application for post-conviction relief, where an evidentiary hearing can be conducted

in the trial court. State in the Interest of A.B., 09-870 (La.App. 3 Cir. 12/9/09), 25

So.3d 1012. However, where an ineffective assistance claim is raised on appeal, this

court may address the merits of the claim if the record discloses sufficient evidence to

rule on it. Id. If this court considers a claim of ineffective counsel on appeal,

Defendant must satisfy a two-part test. He must first show that counsel‟s performance

was deficient and next, that the deficiency prejudiced him. Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052 (1984).

Defendant alleges that he told his attorney that he knew a juror. In fact, the

record shows that one of the jurors, a Mr. Washington, said in voir dire that he did not

know any of the witnesses because he did not recognize any of the names. However,

after Ms. Puckett testified, Mr. Washington realized that he recognized her face and so

informed the trial court. Defense counsel had no objection and commented that he

thought the fact that Mr. Washington knew her was “beneficial to the defense.” After

10

a discussion with his client, Defendant agreed. As such, we find that Defendant‟s

alleged error is not factually supported by the record.

However, the record on appeal is not sufficient to determine whether counsel

was ineffective with regard to the failure to file a writ application seeking a stay of the

proceedings or the failure to impeach witnesses. Determination of those issues may

require testimony from defense counsel at an evidentiary hearing limited to those two

claims. Thus, Defendant‟s allegation of ineffective assistance of counsel based on

those issues should be relegated to post-conviction relief.

Photographic Evidence

Defendant argues that the State was erroneously allowed to introduce his

picture from a prior arrest into evidence. The trial court allowed the photograph “not

to prove the character of the person in order to show that he acted in conformity

therewith, but for the other purposes as allowed under the Code of Evidence,

including proof of motive, opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake or accident.”

Deputy Christopher Ryan of the Calcasieu Parish Sheriff‟s Office testified that

he was working an “off-duty security job at a club in Lake Charles” on July 8, 2007.

A security officer of the club informed him and other deputies about “a guy inside the

club that had a gun.” Deputy Ryan and the others approached the man, intending to

escort him out of the club. He testified that they had to wrestle him down. Another

officer removed a loaded gun from the man‟s pocket. A photographer inside the club

had taken a picture earlier that evening of a group of people, and one had the “gun

hanging out of his waistband.” Deputy Ryan identified Defendant as the man with the

gun.

Defendant objected to the introduction of the photograph into evidence.

Nevertheless, he asked for it to be published to the jury. The State elected to present

the photograph, its own exhibit, at the close of Defendant‟s cross-examination. At

11

that time, the State moved to publish the exhibit, and Defendant “join[ed] in that

motion.”

Defendant stated that he never owned or possessed a .40-caliber pistol. He

explained the photograph from the club as an incident where:

And the way I ended up getting the gun, somebody was about to do
something stupid with the gun. And the way the police found out, I kind
of took the gun from the person, and we kind of tussled, friendly tussled
for it; and it dropped to the floor. And we was right in front of the
camera booth where they hang up the pictures where we take them. And
I stupidly just put the picture there and – well, put the gun there and took
the picture with it. But I was actually saving a worser incident than me
going to jail from happening.

Defendant testified the charge that resulted “was left at no disposition,” but he served

thirty months of incarceration as a parole violation because of the incident.

“An error is harmless if it is unimportant in relation to the whole and the verdict

rendered was surely unattributable to the error.” State v. Koon, 96-1208, p. 9 (La.

5/20/97), 704 So.2d 756, 763, cert. denied, 522 U.S. 1001, 118 S.Ct. 570 (1997). Any

error in the admission of the photograph was harmless error in this case.

As discussed earlier, evidence at trial showed that five witnesses identified

Defendant as the shooter from a photo lineup. Damage to the apartment building was

not present prior to the shooting. Ms. Martin was injured as a result of the shooting.

We find that the evidence, absent the photograph of Defendant on an earlier occasion

with a gun at a club, was sufficient to sustain his conviction of these crimes. Even if

the trial court erred in admitting the photograph, we find that the verdict was not

attributable to the error in light of the other evidence of guilt.

Prejudicial Statements

In this assignment of error, Defendant argues that the trial court erroneously

admitted prejudicial statements from the State‟s witnesses. The statements he

mentions refer to: (1) Ms. Johnson‟s testimony that Mr. Roberson said that Defendant

had “choppers;” (2) Mr. Roberson‟s testimony that he and Defendant were arguing

12

“face to face” at the time of the shooting, that he would have been shot if Defendant

had been the shooter, that he identified Defendant from the photo lineup at his aunt‟s

urging, and that he went along with her request so he could go home: (3) Dymon

Banks was playing outside at the time of the shooting but could not identify

Defendant at trial; (4) Lieutenant Fruge‟s testimony that he did not see Defendant

shooting a weapon and that he told witnesses who viewed the photo lineup Defendant

may or may not be in it; (5) Two witnesses did not identify Defendant from the photo

lineup.

In fact, Ms. Johnson testified that her “cousin Tervell said, „We got choppers.‟”

According to Defendant‟s counsel, “choppers” are AK-47 firearms. Defendant

incorrectly states the facts because Ms. Johnson‟s testimony was that Mr. Roberson

said that he, not Defendant, had the firearms. Regarding Mr. Roberson‟s testimony, it

tended to show that Defendant was not the person who fired the shots and was

actually helpful, not prejudicial, to Defendant. Defendant has not shown how any of

these instances prejudiced him. Indeed, each seems to favor his position rather than

prejudice it. We find that this argument lacks merit.

Failure to Find the Weapon

In addition to his argument that the reasonable doubt standard was not met,

Defendant claims that he was erroneously charged because police found no weapon or

gun at the scene of the shooting and because the shell casings police recovered had no

fingerprints on them. The presence of a weapon or fingerprints is not an essential

element to any of the crimes for which Defendant was charged or convicted. We have

already discussed the elements of each crime and the sufficiency of the evidence,

which inherently includes reasonable doubt. This argument also lacks merit.

DECREE

For the foregoing reasons, Defendants convictions are affirmed. His sentence

on the charge of illegal use of weapons or dangerous instruments is also affirmed.

13

The enhanced sentences for the offenses of possession of a firearm by a convicted

felon and aggravated assault with a firearm are vacated because those enhancements

were not sought in the multiple offender bill. We remand this case for resentencing

on those convictions.

CONVICTIONS AFFIRMED; ENHANCED SENTENCES VACATED, AND
REMANDED FOR RESENTENCING.

14