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State ex rel I.W.


May 27, 2009


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FJ-12-416-08.

Per curiam.



Submitted April 29, 2009

Before Judges Lyons and Espinosa.

This is an appeal by a juvenile, I.W., from an adjudication of delinquency for what would have been, if committed by an adult, sexual assault in the second degree (N.J.S.A. 2C:14-2b). The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.

In the summer of 2006, I.W., who was fourteen years old at the time, and her mother, L.A., began residing in Ozanam Family Shelter in Edison. V.B. and her seven year old daughter, P.O., also resided at the shelter. Despite the seven year age difference, the two girls became friends. I.W. would assist P.O. with her homework and the children would play together on a regular basis.

On January 15, 2007, V.B. and P.O. moved from the shelter to an apartment as part of a transitional housing program in New Brunswick. Later that month, L.A. and I.W. also entered the transitional housing program and moved into an apartment across the hall from V.B. and P.O. The two girls continued their friendship, though V.B. observed that P.O. seemed distant from I.W. since moving from the shelter.

On a particular occasion in July 2007, the children were playing in the bedroom of V.B.'s apartment while she prepared food in the kitchen. When she did not hear the children laughing or playing, she walked toward the bedroom to check on them. The door was opened a crack and V.B. peered through. She observed P.O. wearing her bathing suit standing close to I.W., who was fully clothed and sitting on the bed. When V.B. asked what was going on, I.W. told her P.O. wanted the door closed.

Later that same day, I.W. asked V.B. if P.O. could spend the night at her apartment. V.B., concerned by what she observed in the bedroom of her apartment, refused. She testified that I.W. "seemed to get mad" at her. Based on what V.B. observed in the bedroom and I.W.'s reaction to P.O. not being permitted to sleep over, V.B. asked her daughter if I.W. had "ever touch[ed] her in any inappropriate way."

V.B. stated that, at first, P.O. denied any sexual contact between herself and I.W. However, after V.B. persisted, P.O. stated she and I.W. had played the "marriage game" and the "boyfriend-girlfriend" game. V.B. testified that P.O. told her both she and I.W. digitally penetrated each other, performed oral sex on each other and kissed each other on the mouth and chest. P.O. stated that she and I.W. had engaged in this behavior numerous times while living in the Ozanam Family Shelter and at the transitional housing apartments.

V.B. testified she was very distressed by her daughter's statements, but waited until she "calm[ed] down" before reporting her suspicions because she was close friends with L.A.. After five weeks passed, V.B. relayed P.O.'s story to her social worker. On August 15, 2007, Investigator Kent Arroya from the Middlesex County Prosecutor's Office interviewed V.B. and P.O., separately and together.

P.O.'s interview at the police station was video-recorded, and we have reviewed the disc.*fn1 During the interview, P.O. described how I.W. touched her mouth, chest and "private parts." She used an anatomically correct image of a female and dolls to depict how I.W. touched her and explained that I.W. touched her with her hands and mouth. She stated that I.W. engaged in this behavior, which I.W. called the "boyfriend-girlfriend" game, while they were living at the shelter and later at their apartments. P.O. informed Officer Arroya that I.W. told her she could not tell anyone what they were doing because they would both "get in trouble" and that she felt uncomfortable when I.W. touched her and it made her "sad."

Later that same day, Investigator Arroya questioned I.W. and L.A. at the Prosecutor's Office regarding P.O.'s allegation.

I.W. was questioned in the presence of her mother. Investigator Arroya testified that I.W.'s first response to the allegations was to ask "Was the child my age?" I.W. denied engaging in such behavior with P.O. and stated that, at most, she would give P.O. a kiss on the cheek. I.W. suggested that P.O. might have learned about the acts she described from her cousins.

On August 17, 2007, I.W. was charged with juvenile delinquency for conduct that would constitute aggravated sexual assault if committed by an adult, contrary to N.J.S.A. 2C:14-2a(1). The trial court tried the matter on February 15, 2008.

During the adjudication proceeding, V.B. testified to the incident in July when she observed P.O. wearing her bathing suit alone with I.W.; I.W.'s reactions when she would not allow P.O. to sleep over; and P.O.'s description of the alleged abuse.

V.B. also testified that the Monday before the adjudication proceeding, during an interview conducted by the prosecutor, P.O. stated that she had been abused by her two female cousins when she was five years old. V.B. testified that was the first time she had heard P.O. make such statements about anyone besides I.W.

P.O. also testified during trial. She stated that I.W. touched her in a "bad way" and, with the aid of an anatomically correct picture of a female, P.O. described how I.W. kissed her on her mouth, and touched her on her chest and genital area with her mouth and hands. P.O. testified that she performed these same acts on I.W. and I.W. called this behavior playing "the marriage game" and the "boyfriend-girlfriend" game. P.O. was also able to describe a large scar on I.W.'s chest, stating that it is shaped like a cross and is between one-and-a-half to two- feet long. P.O. testified that I.W. instructed her not to tell anyone about their "games" because they would be punished.

P.O. also described the incident in the bedroom of her apartment when she was alone with I.W. and wearing her bathing suit. She stated she only tried the suit on to see if it fit and denied that anything inappropriate occurred. P.O. also testified that her mother never came into the room or asked what was going on. When P.O. was questioned about the alleged abuse by her cousins, her responses were contradictory and incomprehensible. The State, over the defense's objection, also played the Arroya interview during trial.

I.W. testified in her defense. She denied ever touching P.O. inappropriately and said she never played a "marriage" or "boyfriend-girlfriend" game with her. I.W. further denied ever kissing P.O. on the cheek, though this testimony was inconsistent with the statements she made during her interview with Investigator Arroya. I.W. also described the scar on her chest, stating it was "[l]ike an upside-down Mercedes sign." She testified that both P.O. and V.B. had seen the scar, though she could not remember a particular incident when she had shown it to them. She explained that part of the scar is visible when she wears a bathing suit, so P.O. had probably seen it when the girls had gone swimming together while they were living at the shelter.

Regarding the incident in July 2007, when V.B. found P.O. alone wearing her bathing suit with I.W., I.W. denied that anything inappropriate occurred. She testified that P.O. was "playing dress-up" and put the bathing suit on over her underwear.

At the conclusion of the trial, the court found P.O. to be credible. The court explained that it made its credibility determinations based on four aspects of I.W.'s testimony:

One was her statement that the dress-up clothes, putting on the bathing suit and everything over the under clothes. The child, P.O., testified not so. It seems unusual that one would put a bathing suit on or change their clothes and keep on your underclothes to put on princess dresses then play dress-up. It didn't . . . ring true to this court. . . .

The second thing was with regard to the scar, and this was a major issue in this Court's mind, which is why I asked her specifically about the bathing suit because she described quite a large scar that I would have not described as a cross, it sounds more like an X. On the other hand, that leads me toward more credibility to the child because she describes it as something that might not be an adult's description of what she sees. And there is no way that one would see that in a full . . . one-piece bathing suit. The only way it would be visible is if they were to undress somewhere at the same time.

So I find that there had to be a disclosure of nudity somewhere which leads credence to the . . . victim's testimony. And the third thing was the statement, "Was it someone my age?". Those are three things that were discussed by I.W. which added to the credibility in the testimony of P.O. . . . . . .

[T]he fourth thing that caught my mind was the cross-examination with regard to whether I.W. kissed P.O. on the cheek or didn't kiss P.O. on the cheek. All of a sudden, she has to pull back from that. It just caused this Court to question some of what she said.

The court also found the State had failed to prove penetration. Based on its credibility finding and its finding that the State had failed to prove penetration, the trial court found I.W. delinquent by having violated N.J.S.A. 2C:14-2b, second-degree sexual assault.

I.W. filed a motion requesting a new trial claiming "the decision was against the weight of the evidence." The trial court denied the motion, reviewing only its credibility finding.

The trial court held a disposition hearing on February 29, 2008. The court noted at that hearing:

I think we have to deal with children different than we deal with adults. I think that there's too much pressure placed on our children as if they have to perform like adults and that they're held to that same standard. I disagree. I think I.W. can be a very good kid and still be guilty of this charge. I think she could be a very articulate and very competent student and have a very good life in front of her and still be guilty of this charge.

As children, we do all kinds of experimentation that we don't do when we're adults. If she were 19 and being involved in this type of behavior, . . . it takes a very sick adult to perform these acts. But I don't feel that way about children and I don't feel that way about I.W. I don't feel she's a sick kid or that she did a sick act, but I do think that she is guilty of sexual contact. . . .

Based on these considerations, the trial court sentenced I.W. to eighteen-months probation and required her to register under Megan's Law, N.J.S.A. 2C:7-2. The court required I.W. to attend counseling as a condition of probation, and further required L.A. to "undergo some individual counseling." This appeal ensued.

On appeal, the juvenile presents the following arguments for our consideration:


A. The totality of the circumstances under which the videotaped statement was made divested it of the spontaneity and trustworthiness necessary for admission into evidence.

B. Since P.O. had already inculpated the juvenile in her in-court trial testimony, admission of her out-of-court "tender years" statement resulted in undue prejudice to the juvenile under N.J.R.E. 403.




A. The trial court abused its discretion in failing to consider the aggravating and mitigating factors present.

B. The trial court abused its discretion by failing to give defense counsel the opportunity to correct any errors in the predisposition report.

C. The trial court abused its discretion by ordering that the juvenile's mother "undergo some individual counseling" as part of its sentence.

It is well established that the State is required to prove every element of a criminal offense beyond a reasonable doubt.

State v. Delibero, 149 N.J. 90, 99 (1997). The same allocation of the burden of proof applies in juvenile delinquency proceedings. State ex rel J.G., 151 N.J. 565, 594 (1997). On review of a judge's verdict in a non-jury case, the standard of review for determining if the State satisfied its burden is not whether the verdict was against the weight of the evidence, but rather "whether there is sufficient credible evidence in the record to support the judge's determination." State ex rel R.V., 280 N.J. Super. 118, 121 (App. Div. 1995). Moreover, we should "give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

The difficulty here is the dearth of factual findings and legal conclusions by the trial court. In order for the court to have found I.W. to be delinquent for violating N.J.S.A. 2C:14-2b, the trial court had to find beyond a reasonable doubt that I.W. committed an act of "sexual contact" with P.O. who, at the time, was less than thirteen-years old and I.W., at the same time, was at least four-years older than P.O. Under N.J.S.A. 2C:14-1d, "sexual contact" is defined as "an intentional touching by the victim or actor, either directly or through clothing, of the victim's or actor's intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor." An element of the offense of criminal sexual contact, therefore, is that the offender commits the contact for the purpose of degrading the victim or for the offender's own personal sexual arousal or gratification. State ex rel T.M., 166 N.J. 319, 333-34 (2001). In this case, the trial court did not address that element of the offense. Indeed, the trial court's statement at the disposition hearing could lead one to conclude that I.W.'s actions were ones of experimentation and not "for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor."

Rule 1:7-4(a) provides that "[t]he court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon in all actions tried without a jury, . . . ." Our Supreme Court has clearly enunciated the importance of that obligation stating:

Failure to perform that duty "constitutes a disservice to the litigants, the attorneys and the appellate court." Kenwood Assocs. v. Bd. of Adj. of Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976). Naked conclusions do not satisfy the purpose of R. 1:7-4.

Rather, the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions. See State v. Singletary, 165 N.J. Super. 421, 424-425 (App. Div. 1979), certif. denied, 81 N.J. 50 (1979); Kenwood, supra; Wertlake v. Wertlake, 137 N.J. Super. 476, 485-486 (App. Div. 1975). See generally Brochin and Sandler, Appellate Review of Facts in New Jersey, Jury and Non-Jury Cases, 12 Rutgers L. Rev. 482 (1957); Conford, Findings of Fact and Conclusions of Law, 92 N.J.L.J. 225 (1969). [Curtis v. Finneran, 83 N.J. 563, 569-70 (1980).]

Here, we conclude that fact finding on the purpose element of the offense was necessary to evaluate what the trial court considered, just as instructions are reviewed in a jury trial to determine legal error. State ex rel L.W., 333 N.J. Super. 492, 498 (App. Div. 2000). Only when the trial court makes specific findings of fact regarding the elements of an offense can there be effective appellate review. Ibid. Because that did not occur in this case, we vacate the adjudication and remand, without retaining jurisdiction, for findings of fact and conclusions of law.

We have, however, addressed the following points raised by I.W. as they may affect the trial court's formulation of its findings of fact and conclusions of law on remand.

We reject I.W.'s argument that the trial court erred in allowing the State to present P.O.'s interview with Investigator Arroya during the trial because it did not qualify under the "tender years" exception to the hearsay rule, N.J.R.E. 803(c)(27). The trial court allowed the State to play the recording of the interview, stating that "[t]he only way I can judge [its reliability] is by viewing it." The trial court, after viewing the interview in light of P.O.'s in court testimony, determined that the interview was reliable and considered it in rendering its verdict.

N.J.R.E. 803(c)(27) provides:

A statement made by a child under the age of 12 relating to sexual misconduct committed with or against that child is admissible in a criminal, juvenile, or civil proceeding if

(a) the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement at such time as to provide the adverse party with a fair opportunity to prepare to meet it; (b) the court finds, in a hearing conducted pursuant to Rule 104(a), that on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy; and (c) either (i) the child testifies at the proceeding, or (ii) the child is unavailable as a witness and there is offered admissible evidence corroborating the act of sexual abuse . . . .

I.W. contends that the circumstances surrounding the Arroya interview influenced P.O.'s statements. I.W. specifically takes issue with the lack of "spontaneity" associated with the Arroya interview, arguing that the interview occurred approximately siX weeks after P.O. initially told her mother about the alleged abuse. Also, I.W. contends that any statement could not be spontaneous after P.O. had already been questioned by her mother and the police.

Admission or exclusion of proffered evidence is within the discretion of the trial court. Such rulings should not be disturbed unless there is a clear abuse of discretion. Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991), certif. denied, 140 N.J. 329 (1995); State v. Wise, 19 N.J. 59, 98, (1955). Even where there may have been error, reversal is required only when an unjust result has occurred. Dinter, supra, 252 N.J. Super. at 92.

In determining whether a statement proffered under N.J.R.E. 803(c)(27) is sufficiently trustworthy to permit its receipt into evidence, a trial judge should consider "the totality of the circumstances" that surround the making of the statement. State v. Roman, 248 N.J. Super. 144, 152 (App. Div. 1991); Richard J. Biunno, Current New Jersey Rules of Evidence, comment 4 on N.J.R.E. 803(c)(27) (2008). The "trustworthiness" of a statement is determined by considering the extent to which the statement was made spontaneously without prompting or suggestive questioning, whether the account is consistently repeated, the mental state of the declarant and a lack of a motive to fabricate. State v. R.B., 183 N.J. 308, 318-321 (2005); see also State v. D. R., 109 N.J. 348, 359 (1988) (holding that a "child victim's spontaneous out-of-court account of an act of sexual abuse may be highly credible because of its content and the surrounding circumstances").

I.W.'s assertion that P.O.'s statements were not spontaneous because she was questioned by her mother and the investigator prior to being interviewed is unfounded. We have held that a child's statements during an interview can be considered spontaneous when that child freely recounts the events after only minimal open-ended questioning. State v. Burr, 392 N.J. Super. 538, 570 (App. Div. 2007), aff'd, 195 N.J. 119 (2008). In this case, P.O. and Investigator Arroya were the only people present in the interview room. P.O.'s mental state throughout the interview appeared to be calm; her responses to the questions show that she was engaging and did not appear to be under stress. P.O.'s description of the events during the Arroya interview were not prompted or the result of suggestive questioning. Investigator Arroya avoided leading questions and P.O. volunteered information, which she repeated consistently. She used terminology that would be expected of a young child, referring to her "backside" and her "private part" when asked by Investigator Arroya to label body parts on a diagram and in recounting the events. There was no evidence of coaching by an adult, who would likely use biologically accurate terms such as "vagina." See State v. Burr, supra, 392 N.J. Super. at 571.

Moreover, even if P.O.'s statements could not be considered spontaneous, N.J.R.E. 803(c)(27) does not require spontaneity in order for taped statements to be admissible. It is merely one factor to consider in support of reliability. P.O.'s testimony in court and her statements throughout the Arroya interview were consistent. The record contains no strong support regarding a motive to fabricate. No evidence was presented to suggest that P.O. or V.B. had any problems with I.W. or L.A. or that falsely accusing I.W. would benefit them in any way. In contrast, the evidence showed that they trusted I.W. and L.A. and felt that they were friends.

Based on these considerations, we find that the trial court did not err in determining P.O.'s statements in the Arroya interview were trustworthy and credible and, therefore, admissible.

I.W. also contends that the Arroya interview should have been excluded because P.O. testified to the alleged sexual abuse during trial and, as such, the video recording was cumulative and unduly prejudicial. N.J.R.E. 403 states that the trial judge may exclude relevant evidence "if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." Once the trial court determines that evidence is relevant, the admissibility of such evidence falls largely within its discretion. Biunno, supra, comment 2 on N.J.R.E. 403; State v. Nelson, 173 N.J. 417, 470 (2002). This is because the trial court is in the "best position to engage in th[e] balancing process" required by this rule. Biunno, supra, comment 2 to N.J.R.E. 403 (quoting State v. Ramseur, 106 N.J. 123, 266 (1987), cert. denied, 508 U.S. 947, 113 S.Ct. 2433, 124 L.Ed. 2d 653 (1993)).

We note in order for a videotape to be admissible in sexual misconduct cases, N.J.R.E. 803(c)(27) requires that the child must either testify in court or some other corroborating evidence must be presented. State v. Coder, ___ N.J. ___, ___ (2009) (slip op. at 20). Thus, the plain language of the hearsay exception states that in court testimony is often a condition of using a videotaped statement. Here, the trial court acknowledged the defense's concern that showing the Arroya interview would be cumulative and therefore prejudicial. However, the court noted that it "certainly wouldn't have five or six people testifying to the same statements over and over again" and found that the probative value of the interview outweighed the prejudice to I.W.

The trial court engaged in a balancing process and determined that the Arroya interview was admissible. Considering N.J.R.E. 803(c)(27)'s endorsement of having the victim testify in conjunction with presenting a videotaped statement, and in light of the fact that the State presented no eyewitnesses to the alleged sexual acts between P.O. and I.W., the court's decision to view the interview was not an abuse of discretion.

We next address I.W.'s argument that the trial court failed to consider applicable mitigating factors and abused its discretion by imposing an eighteen-month period of probation.

I.W.'s basis for contending the trial court did not consider any mitigating factors is its failure to specifically enumerate them in its oral decision.

Appellate review of a sentencing decision calls for the reviewing court to determine whether the trial court clearly erred "by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors." State v. Roth, 95 N.J. 334, 366 (1984). An appellate court should not "substitute its judgment for that of the lower court, and . . . a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989); see also State ex rel. S.B., 333 N.J. Super. 236, 246 (App. Div. 2000) (applying State v. Gardner to juvenile adjudications of delinquency). We may only disturb a trial judge's sentencing decision in three situations. State v. Carey, 168 N.J. 413, 430 (2001). Those situations are "(1) the trial court failed to follow the sentencing guidelines, (2) the aggravating and mitigating factors found by the trial court are not supported by the record, or (3) application of the guidelines renders a specific sentence clearly unreasonable." Ibid.

N.J.S.A. 2A:4A-43 sets forth the factors a sentencing court should consider in determining the appropriate disposition for a juvenile adjudicated delinquent. State ex rel. D.A., 385 N.J. Super. 411, 415 (App. Div. 2006). Those factors include: the nature and circumstances of the offense (N.J.S.A. 2A:4A-43(1)); the juvenile's age, previous record, prior social service received and out-of-home placement history (N.J.S.A. 2A:4A-43(3)); and whether the disposition recognizes and treats the unique physical, psychological and social characteristics and needs of the child (N.J.S.A. 2A:4A-43(6)).

The trial court regrettably did not specifically reference N.J.S.A. 2A:4A-43 in its oral decision. Therefore, on remand, if the trial court, following its articulation of its findings of fact and conclusions of law, adjudicates I.W. delinquent, it should specifically reference N.J.S.A. 2A:4A-43 in its resentencing. See State v. Cassady, 198 N.J. 165, 180 (2009) (stating, "'the judge's obligation to justify the sentence by referencing the mitigating and aggravating factors will continue to bring rationality to the process and minimize disparate sentencing.'" (quoting State v. Natale, 184 N.J. 458, 488 (2005)).

We next address I.W.'s contention that her adjudication of delinquency should be reversed because she was never provided with a predisposition report. When the court entered its oral decision on February 15, 2008, the State requested "any reports or evaluations that the Court could order before we move forward with disposition." I.W.'s attorney responded that he did not "need" to proceed with disposition that day but noted that "we already have all those things; we have a mental health evaluation from before, which is very detailed." The trial court ordered defense counsel to provide the State with his reports. I.W.'s attorney agreed, but noted that, other than the mental health evaluations and I.W.'s report card, there was "nothing else" the court could order because there was no other pertinent information. The parties then agreed to reconvene on February 29, 2008, for disposition.

Absent an express waiver, a predisposition report is required as a prerequisite to a delinquency disposition, and the trial court should not proceed with a disposition without one.

R. 5:24-2; N.J.S.A. 2A:4A-42; State ex rel T.A., 386 N.J. Super. 642, 644 (App. Div. 2006). "Express waiver" is defined as "[a] voluntary and intentional waiver." Black's Law Dictionary 1574 (7th ed. 1999). A juvenile's failure to lodge an objection to the deficient procedure on the day of disposition is not a waiver. T.A., supra, 386 N.J. Super. at 644. Moreover, "counsel's full agreement at the conclusion of trial to a disposition date the following week, usually an inadequate lead-time for the preparation of a predisposition report, [is] . . . no substitute for a waiver." Ibid.

In this case, the defense counsel specifically stated that he did not require any further information before proceeding with disposition, and even informed the court he was "not sure what else you need to known." He even indicated that he could proceed directly to disposition after the court entered its decision. Defense counsel had the opportunity to request a predisposition report and opted not to do so. He then enumerated the reasons why such a report was not necessary when the State requested whatever reports the court could order. This clearly qualifies as an express waiver, and, as such, the absence of a predisposition report does not constitute reversible error.

Lastly, I.W. contends that the trial court acted outside the bounds of its jurisdiction by requiring L.A., I.W.'s mother, to "undergo some individual counseling." At disposition, the trial court stated, "I know that as a Judge, this Court gets jurisdiction, not only of the juvenile, but also over the parents. In this case, . . . I'm going to require that the mom also undergo some individual counseling to deal with these issues and put them into context." I.W. argues that imposing such a requirement is "illegal."

N.J.S.A. 2A:4A-43(b)(15) gives a sentencing court the authority to "[o]rder the parent . . . of the juvenile to participate in appropriate programs or services when the court has found . . . that such person's omission or conduct was a significant contributing factor towards the commission of the delinquent act . . . ." In this case, given the nature of the offense, it was not unreasonable for the trial court to find that L.A. would benefit from counseling and thereby be better equipped to aid I.W. in understanding the limits of appropriate behavior. This is especially true considering that L.A. denied I.W. could commit the subject offenses because she personally considered them so heinous. As such, the court did not overstep its jurisdiction and properly required L.A. to attend counseling.

Accordingly, without retaining jurisdiction, we vacate the adjudication and remand for findings of fact and conclusions of law.

Reversed and remanded.

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