State of Louisiana v. Willie Lee Price, Jr. -Aka- Willie Price

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-899

STATE OF LOUISIANA

VERSUS

WILLIE LEE PRICE, JR.

-AKA- WILLIE PRICE

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 2013-CR-176957
HONORABLE WILLIAM BENNETT, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Marc T. Amy, Billy Howard Ezell, and Shannon J. Gremillion,
Judges.

CONVICTION AND SENTENCE AFFIRMED.

Charles A. Riddle, III
District Attorney, Twelfth Judicial District Court
417 N. Main St.
Marksville, LA 71351
(318) 253-6587
COUNSEL FOR APPELLEE:
State of Louisiana

Edward Kelly Bauman
Louisiana Appellate Project
P. O. Box 1641
Lake Charles, LA 70602-1641
(337) 491-0570
COUNSEL FOR DEFENDANT/APPELLANT:
Willie Lee Price, Jr.

Willie Price
Willie Lee Price, Jr.

GREMILLION, Judge.

On November 14, 2013, Defendant, Willie Lee Price, Jr., a.k.a. Willie Price,

along with codefendants Asa Bentley, Donnie Edwards, Chadwick McGhee, and

Tamika Williams, were charged by bill of indictment with the second degree

kidnapping of Jessica Guillot, in violation of La.R.S. 14:44.1. 1 On March 11,

2015, following a two-day trial, a unanimous jury found Defendant guilty as

charged.

On April 12, 2016, Defendant was granted an out-of-time appeal and

appointed appellate counsel. On August 4, 2016, Defendant was once again

granted an out-of-time appeal. He now seeks review of his conviction and

sentence, alleging three assignments of error.2

FACTS

The victim, Jessica Guillot, went missing from Simmesport, Louisiana in

September 2013 and has not been seen since. Laura Stelly, the victim’s mother,

testified that she last saw her daughter on September 6, 2013, around 8:00 p.m. She

testified that, when she saw her daughter, nothing seemed out of the ordinary.

Stelly noted that her daughter had run off for an extended period once before.

1
We have previously overturned Chadwick McGhee’s conviction and sentence for the lesser-
included offense of simple kidnapping, as well as affirmed Asa Bentley’s conviction for second
degree kidnapping, but remanded for resentencing. See State v. McGhee, 15-285 (La.App. 3 Cir.
11/4/15), 179 So.3d 739, writ granted, 15-2140 (La. 1/13/17), ___ So.3d ___, and 15-286
(La.App. 3 Cir. 11/4/15), 178 So.3d 316, writ granted, 15-2141 (La. 1/13/17), __ So.3d __; State
v. Bentley, 15-597 (La.App. 3 Cir. 1/6/16), 182 So.3d 1269, and 15-598 (La.App. 3 Cir. 2/3/16),
185 So.3d 254.
2
We have conducted an error patent review and found there are no errors patent.

Cecil Cooper, the victim’s fiancé, testified that the last time he saw her was

September 6, 2013.3 The remainder of Cooper’s testimony on direct examination

related to a ride home he received from Bentley and McGhee on September 7,

2013. Cooper testified on cross-examination that he had never seen the victim and

Defendant together.

James Crystal, Jr., testified that he knew the victim, Bentley, and Defendant,

and that Defendant and Bentley are brothers. The remainder of Crystal’s testimony

concerned an incident wherein he alerted Bentley to the presence of the victim near

his home. However, Crystal specifically noted that Defendant had “no part” in any

of the events about which Crystal testified.

Tomika Mason, Bentley’s girlfriend in September 2013, testified that

Defendant and Bentley were brothers and that Defendant would occasionally stay

at her and Bentley’s residence. She testified that Bentley sold drugs for a living.

She also testified that, on September 10, 2013, she found out that her Dodge

Durango had been damaged, and that Bentley had driven it the night before. She

testified that Bentley had come home around midnight, and that the next morning

her son informed her that the truck had been damaged. Mason testified that they

thought the truck had been vandalized, since there was paint on the outside of the

truck, the seats had been dyed blue inside, the back window was shattered, and

three of the tires were flat.

Mason testified that Bentley told her that on September 9, 2013, he had been

with his cousin, Chase, and Crystal. Mason said that Bentley did not mention

being with Defendant, nor did Mason see Defendant that day.

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Cooper actually testified that the last time he saw Jessica was September 7, 2013, but he then
testified that they were watching movies on September 6, that he went to bed around 9:30 p.m.,
and that Jessica was gone when he woke up the next morning.

2

Tamika Williams, a codefendant in this case, testified to the details of her

plea agreement; namely, that in exchange for truthful testimony against her

codefendants, she would be allowed to plead guilty to obstruction of justice,

receive a ten-year hard-labor sentence, and that upon the completion of the last

codefendant’s trial or plea, the district attorney’s office would move to have her

sentence reduced to time-served and she would be released. She then testified that

she has previously been a drug addict who had problems with pills and cocaine,

and that she knew Bentley because she had sex with him and purchased drugs from

him.

Williams testified about seeing Bentley chase the victim “[i]n Simmesport

on the back roads by the church,” but stated Bentley failed to catch the victim. She

also stated Bentley was looking for the victim because he claimed the victim stole

cocaine and money from him. Williams described later going for a ride with

Bentley from Simmesport towards Mansura on Louisiana Highway 1. She stated

that while she and Bentley were riding around, Defendant called Bentley and told

him to meet Defendant in Mansura. Williams also stated that she heard Defendant

ask Bentley why Williams was with him and tell him that she was not supposed to

be there. She testified that they travelled to the “Y Not Stop” on Highway 1 in

Mansura, where they met a small silver car on the side of the road.

Williams testified that she heard the victim yelling at Bentley to “stop

pulling on [her], let [her] go.” She testified that she saw Defendant get out of the

driver’s seat of the car and push the victim, but then Defendant stopped. Williams

testified that Donnie Edwards then got out of the silver car and got in the driver’s

seat of the Durango she and Bentley had originally been driving, and that Bentley

shoved the victim into the back of the Durango and got on top of her. Williams

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said that the silver car then made a U-turn and headed back towards Simmesport

with the Durango following.

Williams testified that she saw what appeared to be Bentley choking the

victim in the back of the Durango and heard what sounded like someone “slapping

or hitting her,” but claimed that she never turned around completely, so she did not

know for sure what was happening. She stated that after a few minutes, she heard

what sounded like glass breaking, then smelled a funny smell “[l]ike when

somebody go [sic] to the bathroom on they [sic] self.” Williams testified that she

was scared and texted her sister during the ride back to Simmesport, at the end of

which Edwards and Bentley dropped her off at her apartment. She further stated

that as soon as she was dropped off, she grabbed her baby and went to her mother’s

house, which was around eight minutes away. Shortly thereafter, the Durango

showed up at her mother’s house, and Bentley, Edwards, Chadwick McGhee, and

Defendant got out of the vehicle. She stated that Defendant complained she was

not supposed to be there, and that she subsequently began to see Defendant every

day.

Williams’ first call to police, in which she pretended to be her children’s

babysitter, Bonita Robinson, was played to the jurors, and Williams testified that

she pretended to be Robinson because she was scared. She acknowledged that she

spoke to the police multiple times before she ever admitted that she was in the

Dodge Durango, or gave the testimony she presented at trial.

On cross-examination, Williams acknowledged that, during a prior trial, she

never mentioned Defendant being “involved with placing [the victim] in the back

of th[e Durango.]” She also acknowledged that, while in prison, she sent a letter to

Bentley in which she claimed she had not told the police anything because “how

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can [she] say anything about what happen[ed] if [she] wasn’t there and don’t [sic]

know what happened.”

Detective Jeremiah Honea, a twelve-year veteran of the Avoyelles Parish

Sheriff’s Office (APSO) with over six years of experience as a detective, testified

that he was the lead detective in the case once the APSO took over the case from

the Simmesport Police Department. Detective Honea testified that the Durango

was sent off for testing by the state police, and the results indicated that “there

were no readable finger prints inside the vehicle and they did not locate any DNA

evidence inside the vehicle.” He also testified that the victim’s phone was active

on September 7, 2013, it did not leave the Simmesport area, and has been inactive

since that date.

After defense counsel pointed out that Williams’ story of what happened on

September 9, 2013, is not supported by her cell-phone records, Detective Honea

acknowledged that “we don’t have a solid exact time frame of what date it was,”

and that he could not “say for certain that [the] 9 th was the night that she was, that

[the victim] was taken, that she was kidnapped.”

SUFFICIENCY OF THE EVIDENCE

In his first assignment of error, Defendant argues that the evidence presented

at trial was insufficient to support his conviction for second degree kidnapping, in

violation of La.R.S. 14:44.1, under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.

2781 (1979). Second degree kidnapping is relevantly defined as kidnapping

someone wherein the victim is physically injured or sexually abused. La.R.S.

14:44.1(A)(3). Kidnapping is defined under La.R.S. 14:44.1(B) as:

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(1) The forcible seizing and carrying of any person from one place
to another; or

(2) The enticing or persuading of any person to go from one place
to another; or

(3) The imprisoning or forcible secreting of any person.

The analysis for an insufficient evidence claim is well settled:

When the issue of sufficiency of evidence is raised on appeal, the
critical inquiry of the reviewing court is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100
S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King,
436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982);
State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact
finder to weigh the respective credibility of the witnesses, and
therefore, the appellate court should not second guess the credibility
determinations of the triers of fact beyond the sufficiency evaluations
under the Jackson standard of review. See State ex rel. Graffagnino,
436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228
(La.1983)). In order for this Court to affirm a conviction, however, the
record must reflect that the state has satisfied its burden of proving the
elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

While Defendant contends that this court should vacate his conviction as it

did in the case of his codefendant, McGhee, or at least reduce his conviction to

simple kidnapping, we disagree. In the case of Chadwick McGhee, this court

noted that “[a]t most, the State proved that [McGhee] was present when the victim

was kidnapped and failed to stop the kidnapping or report it to authorities, so-

called misprision of a felony. However, while misprision may be unsavory, it

ceased to be a crime in Louisiana after 1942.” McGhee, 179 So.3d at 747. In

McGhee, the most damning testimony against him was that he was in the car

crying while the others turned the victim over to Bentley, and McGhee was

subsequently threatened by Bentley.

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Conversely, the evidence in the present case, when viewed in the light most

favorable to the prosecution, shows that Williams testified that Defendant

contacted his brother, Bentley, and arranged for Bentley to meet him in Mansura.

Upon arriving for said meeting, Defendant had the victim in his vehicle.

Furthermore, Williams testified that Defendant actually physically pushed the

victim while Bentley was pulling her towards the Durango, which in and of itself

satisfies the “forcible seizing and carrying of any person from one place to

another” requirement of second degree kidnapping. La.R.S. 14:44.1(B)(1).

Finally, Williams’ testimony reveals that Bentley then proceeded to, at the very

least, choke and beat on the victim, thereby satisfying the requirement that the

kidnapping result in the victim being physically injured or sexually abused. See

La.R.S. 14:44.1(A)(3). Based on his delivering the victim into Bentley’s hands,

the evidence at least meets the requirement of being a principal to the kidnapping

under La.R.S. 14:24, which states:

All persons concerned in the commission of a crime, whether
present or absent, and whether they directly commit the act
constituting the offense, aid and abet in its commission, or directly or
indirectly counsel or procure another to commit the crime, are
principals.

Although Defendant contends that Williams is not a credible witness, it is

the fact finder’s duty, not this court’s, to weigh the credibility of witnesses.

Kennerson, 695 So.2d 1367. Given the complete lack of evidence or testimony to

contradict Williams’ testimony, we cannot simply declare Williams to not be a

credible witness. Accordingly, when viewing the evidence in the light most

favorable to the prosecution, a rational finder of fact could have found that the

State proved its case beyond a reasonable doubt. Accordingly, this assignment of

error is without merit.

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SIXTH AMENDMENT RIGHT TO CONFRONT WITNESSES

In his second assignment of error, Defendant argues that his Sixth

Amendment right to confront and cross examine the witnesses against him was

violated when the trial court allowed two witnesses, Cooper and Crystal, to testify

regarding statements made by Bentley. Defendant further alleges that, under

Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004), the wording of the

Code of Evidence is irrelevant with regard to hearsay. We agree with the State,

however, that the testimony complained of does not fall under the protections of

Crawford, and that it does not violate Defendant’s Sixth Amendment right.

Initially, we note that the Crawford portion of Defendant’s claim lacks

merit. While refraining from giving a comprehensive definition of “testimonial,”

the Crawford court noted that testimonial evidence is protected by the Sixth

Amendment without regard for the hearsay rules of the States, but that the States

are afforded “flexibility in their development of hearsay law” with regard to

nontestimonial hearsay. 541 U.S. at 68. In State v. Short, 06-1451 (La.App. 3 Cir.

5/16/07), 958 So.2d 93, writs denied, 07-1473 (La. 2/1/08), 976 So.2d 714, and 07-

1646 (La. 2/1/08), 976 So.2d 715, cert. denied, 555 U.S. 869, 129 S.Ct. 164

(2008), this court noted that statements from an unavailable co-defendant which do

not attribute any conduct to the defendant on trial, and which were made to

acquaintances, are nontestimonial under Crawford.

Much like in Short, the statements at issue in this case were made by

Bentley, involve Bentley’s conduct, intent, and criminal activity, and do not

attribute any conduct to Defendant. The first challenged statement was Bentley

telling Cooper that Cooper’s girlfriend, the victim, was in trouble for stealing

cocaine from Bentley. The other challenged statement was Bentley telling Crystal

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that he, Bentley, was going to pay someone to hurt the victim. We find that these

statements, made to acquaintances in a nontestimonial atmosphere, are not

protected under Crawford, and, therefore, were admissible as statements against

interest under the La.Code Evid. art. 804(B)(3) hearsay exception, which defines

the “statement against interest” exception as:

A statement which was at the time of its making so far contrary
to the declarant’s pecuniary or proprietary interest, or so far tended to
subject him to civil or criminal liability, or to render invalid a claim
by him against another, that a reasonable man in his position would
not have made the statement unless he believed it to be true. A
statement tending to expose the declarant to criminal liability and
offered to exculpate the accused is not admissible unless
corroborating circumstances clearly indicate the trustworthiness of the
statement.

The statement made by Bentley to Cooper was clearly against his interest, as

he admitted to possession of cocaine. Additionally, Bentley’s statement to Crystal

that he was going to pay someone to hurt the victim was likewise a statement

against Bentley’s interest, as it tends to indicate criminal intent towards the victim.

Although the relevancy of these statements is questionable, the State is correct in

asserting that this assignment of error lacks merit, as neither admitted statement

violates Defendant’s Sixth Amendment right to confront and cross examine the

witnesses against him, considering neither of the statements actually involve

Defendant in any way.

EXCESSIVE SENTENCE

In his third and final assignment of error, Defendant argues that his sentence

of thirty years at hard labor, with the first two years to be served without benefits,

is excessive. He argues, in part, that his sentence “is nothing more than the

purposeless imposition of pain and suffering,” given that his codefendant,

Edwards, was allowed to plead guilty to simple kidnapping and received a five-

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year sentence. As noted by the State, the details of Edwards’ plea agreement are

“not at issue in this case, and the reasons therefor are not part of the record.”

Defendant’s thirty-year sentence is on the higher end of the five- to forty-year

range established by La.R.S. 14:44.1.

Louisiana Code of Criminal Procedure Article 881.1 provides the

mechanism for preserving the review of a sentence on appeal:

A. (1) In felony cases, within thirty days following the
imposition of sentence or within such longer period as the trial court
may set at sentence, the state or the defendant may make or file a
motion to reconsider sentence.

....

E. Failure to make or file a motion to reconsider sentence or to
include a specific ground upon which a motion to reconsider sentence
may be based, including a claim of excessiveness, shall preclude the
state or the defendant from raising an objection to the sentence or
from urging any ground not raised in the motion on appeal or review.

Louisiana courts have laid out the following guidelines with regard to

excessive sentence review:

Sentences within the statutory sentencing range can be
reviewed for constitutional excessiveness. State v. Sepulvado, 367
So.2d 762 (La.1979). In State v. Barling, 00-1241, 00-1591, p. 12
(La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-
838 (La. 2/1/02), 808 So.2d 331, a panel of this court discussed the
review of excessive sentence claims, stating:

La. Const. art. I, § 20 guarantees that, “[n]o law
shall subject any person to cruel or unusual punishment.”
To constitute an excessive sentence, the reviewing court
must find the penalty so grossly disproportionate to the
severity of the crime as to shock our sense of justice or
that the sentence makes no measurable contribution to
acceptable penal goals and is, therefore, nothing more
than a needless imposition of pain and suffering. State v.
Campbell, 404 So.2d 1205 (La.1981). The trial court has
wide discretion in the imposition of sentence within the
statutory limits and such sentence shall not be set aside as
excessive absent a manifest abuse of discretion. State v.
Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d

10

124, writ denied, 00-0165 (La. 6/30/00); 765 So.2d 1067.
The relevant question is whether the trial court abused its
broad sentencing discretion, not whether another
sentence might have been more appropriate. State v.
Cook, 95-2784 (La. 5/31/96); 674 So.2d 957, cert.
denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539
(1996).

Further, in reviewing the defendant’s sentences, the appellate
court should consider the nature of the crime, the nature and
background of the offender, and the sentences imposed for similar
crimes. State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d
57 (citing State v. Telsee, 425 So.2d 1251 (La.1983)), writ denied, 99-
433 (La. 6/25/99), 745 So.2d 1183. In State v. Smith, 02-719, p. 4
(La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562
(La. 5/30/03), 845 So.2d 1061, a panel of this court observed that:

While a comparison of sentences imposed for similar
crimes may provide some insight, “it is well settled that
sentences must be individualized to the particular
offender and to the particular offense committed.” State
v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991).
Additionally, it is within the purview of the trial court to
particularize the sentence because the trial judge
“remains in the best position to assess the aggravating
and mitigating circumstances presented by each case.”
State v. Cook, 95-2784 (La. 5/31/96); 674 So.2d 957,
958[, cert. denied, 96-6329, 519 U.S. 1043, 117 S.Ct.
615 (1996)].

State v. Soileau, 13-770, 13-771, pp. 4-5 (La.App. 3 Cir. 2/12/14), 153 So.3d 1002,

1005-06, writ denied, 14-452 (La. 9/26/14), 149 So.3d 261.

In State v. James, 95-962 (La.App. 3 Cir. 2/14/96), 670 So.2d 461, the

defendant filed a motion to reconsider his sentence one year and eight months after

sentencing, well beyond the thirty-day requirement provided by La.Code Crim.P.

art. 881.1. The record of sentencing did not reflect that the trial court gave any

additional time in which to file the motion. Therefore, this court found that,

because the motion to reconsider sentence was not timely filed, the defendant’s

sentencing claims lacked merit. See also State v. King, 95-344 (La.App. 3 Cir.

10/4/95), 663 So.2d 307, writ denied, 95-2664 (La. 3/15/96), 669 So.2d 433.

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In State v. Bamburg, 00-675 (La.App. 3 Cir. 11/2/00), 772 So.2d 356, the

defendant failed to object to the sentence imposed at the sentencing hearing and

did not timely file a motion to reconsider sentence. Thus, this court found his

claim of excessiveness of sentence was barred. See also State v. Williams, 01-998

(La.App. 3 Cir. 2/6/02), 815 So.2d 908, writ denied, 02-578 (La. 1/31/03), 836

So.2d 59; State v. Algere, 09-85 (La.App. 3 Cir. 6/3/09) (unpublished opinion);

State v. Robinson, 09-735 (La.App. 3 Cir. 12/9/09) (unpublished opinion); State v.

Stapleton, 09-891 (La.App. 3 Cir. 2/3/10) (unpublished opinion); State v. Gresham,

10-474 (La.App. 3 Cir. 11/3/10) (unpublished opinion), writ denied, 10-2699 (La.

4/25/11), 62 So.3d 90.

Although Defendant made a contemporaneous objection to his sentence, he

never filed a motion to reconsider the sentence as required by La.Code Crim.P. art.

881.1. In light of Defendant’s failure to file the motion to reconsider sentence, we

review Defendant’s claim as a bare claim of excessiveness. See State v. Johnlouis,

09-235 (La.App. 3 Cir. 11/4/09), 22 So.3d 1150, writ denied, 10-97 (La. 6/25/10),

38 So.3d 336, cert. denied, 562 U.S. 1150, 131 S.Ct. 932 (2011); State v. Thomas,

08-1358 (La.App. 3 Cir. 5/6/09), 18 So.3d 127; and State v. Perry, 08-1304

(La.App. 3 Cir. 5/6/09), 9 So.3d 342, writ denied, 09-1955 (La. 6/25/10), 38 So.3d

352.

Applying the Lisotta factors, we first look to the nature of the crime.

Defendant was convicted of second degree kidnapping, a violent crime under

La.R.S. 14:2(B)(16). Additionally, as noted repeatedly by the trial court during

Defendant’s sentencing, the victim of this kidnapping has never been seen or heard

from since this incident.

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Next, we examine Defendant’s nature and background. Defendant was only

twenty-four years old at the time of his sentencing, had previously attended

college, had the strong support of his family, and whom the trial court noted

“obviously had such potential.” However, the trial court found that a number of

aggravating factors in La.Code Crim.P. art. 894.1 were present, noting that

Defendant helped orchestrate the capture of the victim and actively sought to turn

her over to his brother, whom the trial court noted “injured and/or killed” her. The

trial court also found that Defendant was “in need of correctional treatment or of a

custodial environment that can be provided most effectively by your commitment

to an institution. And any sentence lesser than that that I issue today would

deprecate the seriousness of this offense.” Additionally, the trial court noted that

Defendant had a prior felony conviction for possession with the intent to distribute

marijuana, making him a second felony offender.

Finally, we look at sentences imposed for similar crimes. Again, we note

that Defendant’s sentence of thirty years is an upper range sentence, as it

represents seventy-five percent of the maximum allowable sentence.4 This court,

in State v. Office, 07-193 (La.App. 3 Cir. 10/3/07), 967 So.2d 1185, writ denied,

07-2274 (La. 4/18/08), 978 So.2d 348, affirmed a maximum sentence for second

degree kidnapping wherein the defendant lured the victim into his own car under

the pretense of wanting to purchase the car, subsequently stole the car, and fired a

shot at the victim. In Office, after reviewing multiple cases in which Louisiana

courts upheld maximum sentences for second degree kidnapping, this court noted

that “it does not appear that the forty-year sentences are outside the norms of

4
As noted by the trial court, the State could have filed habitual offender proceedings against
Defendant, but did not. Defendant would likely have faced a life sentence, given his prior
conviction for possession with intent to distribute marijuana. See La.R.S. 15:529.1.

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Louisiana jurisprudence, even though maximum sentences are usually reserved for

the worst offenders.” Id. at 1194.

Unlike the victim in Office, who managed to escape relatively unscathed, the

victim in this case has never been seen or heard from since the kidnapping for

which Defendant was convicted. The trial court stressed this during sentencing,

even noting the lack of closure and its impact on the victim’s family. In light of

Office and the cases cited therein, we cannot say that the trial court abused its

discretion in sentencing Defendant. Accordingly, this assignment of error lacks

merit.

DECREE

Defendant’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

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