January 15, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KEVIN SCOTT, RESPONDENT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 07-05-0311.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 8, 2009
Before Judges Grall and Messano..
Following a jury trial, defendant Kevin Scott was convicted of possession of cocaine, N.J.S.A. 2C:35-10(a)(1). The trial judge also convicted defendant of the disorderly persons offense of possession of narcotics paraphernalia, N.J.S.A. 2C:36-2. On appeal, defendant raises the following issues for our consideration:
THE TRIAL COURT ERRED IN DENYING MR. SCOTT'S MOTION TO SUPPRESS EVIDENCE RECOVERED DURING A WARRANTLESS VEHICLE SEARCH WHERE MR. SCOTT AND THE PASSENGER HAD BEEN REMOVED FROM THE VEHICLE, HANDCUFFED, ARRESTED, AND SECURED IN POLICE VEHICLES.
THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF MR. SCOTT'S PURPORTED REFUSAL TO SUBMIT TO A URINE TEST AT HIS EMPLOYER'S REQUEST AFTER HE WAS ARRESTED AS IT WAS IRRELEVANT, LACKED ANY PROBATIVE VALUE AND WAS UNDULY PREJUDICIAL PURSUANT TO N.J.R.E. 404(b).
THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF MR. SCOTT'S PURPORTED REFUSAL TO SUBMIT TO A URINE TEST AT HIS EMPLOYER'S REQUEST AFTER HE WAS ARRESTED, AND FURTHER ERRED IN ALLOWING THE PROSECUTION TO COMMENT ON THE EVIDENCE, IN VIOLATION OF MR. SCOTT'S RIGHT AGAINST SELF-INCRIMINATION.
CUMULATIVE ERRORS DENIED MR. SCOTT OF HIS RIGHT TO A FAIR TRIAL. (Not Raised Below)
We have considered these arguments in light of the record and applicable legal standards. We affirm the denial of defendant's motion to suppress; however, we conclude that the admission of evidence concerning defendant's post-arrest refusal to submit to a urine test at the request of his employer was harmful error. See R. 2:10-2. As a result, we reverse defendant's convictions and remand the matter for a new trial.
At the pre-trial evidentiary hearing on defendant's motion to suppress, the State's sole witness was Bound Brook police officer Gary Ulmer. After testifying as to his training and experience, which included assignment to the Somerset County Organized Crime and Narcotics Task Force, and over five-hundred narcotics investigations, Ulmer indicated that on March 9, 2007, he was assigned "as [a] quality of life officer . . . concentrat[ing] on high crime areas throughout" the town.
At approximately 11:00 p.m., he was on duty in plainclothes in the area of 230 East Main Street, "a large commuter parking lot between the Main Street of Bound Brook and the train station." There were "approximately . . . six bars" within a "quarter mile stretch" of the station, and Ulmer testified that he had made "[n]umerous" narcotics arrests in the area. He saw two men "standing outside a vehicle directly behind Torpedo's Bar." They entered the car, and Ulmer approached.
He saw the "passenger . . . using what [he] believed to be cocaine." While standing "[l]ess than three feet away" from the man, Ulmer observed "a white powdery substance underneath [the passenger's] nose and on his mustache." Ulmer identified himself as a police officer and displayed his badge. The passenger, Felton Jones, immediately tried to brush the powder off his face and shirt; defendant, who was in the driver's seat, quickly tried to place "an object in his hand . . . down between himself and the driver's door."
Ulmer drew his weapon and ordered defendant to "show his hand." Defendant did not immediately comply; instead Ulmer "could see his hand moving . . . as if he was continuing to reach for something." Ulmer threatened defendant with pepper spray, causing him to comply and display his hand. Ulmer radioed for backup assistance, and three other officers responded.
Jones was removed from the passenger's seat, handcuffed, and taken into custody by another officer. Ulmer ordered defendant out of the car, handcuffed him, and passed him into the custody of another officer. Ulmer then searched the area where defendant's hand had been. He found "[a] small amount of loose marijuana and a white paper fold that contained a white . . . powder[-]like substance[,]" that Ulmer suspected was cocaine. In the console between the two front seats, Ulmer found a cigarette pack; he opened that and found another paper fold containing suspected cocaine.
In denying defendant's motion, the judge concluded that the "automobile exception" to the warrant requirement applied. He found Ulmer's testimony to be credible, and concluded that
"[p]robable cause" existed to believe criminal conduct was afoot and evidence was in the car. The judge also determined that exigent circumstances existed, noting it was "unforeseen by the police officer that he would come upon this particular car with these people in it and discover drug activity occurring."
Defendant argues before us that because he and Jones were in custody, no exigency existed, and therefore, the judge improperly applied the automobile exception to the warrant requirement. He further argues that for the same reason, the "search incident to arrest exception did not justify the warrantless search."
The Supreme Court recently reaffirmed its formulation of the automobile exception to the warrant requirement in the consolidated cases of State v. Pena-Flores and State v. Fuller, 198 N.J. 6, 11 (2009): "[W]e reaffirm our longstanding precedent that permits an automobile search without a warrant only in cases in which the police have both probable cause to believe that the vehicle contains evidence and exigent circumstances that would justify dispensing with the warrant requirement." The court reiterated that "exigency above and beyond the mere mobility of the vehicle is required." Id. at 24; see State v. Colvin, 123 N.J. 428, 429 (1991). "Exigency must be determined on a case-by-case basis[,]" with "[n]o one factor [being] dispositive . . . ." Pena-Flores, supra, 198 N.J. at 28 (citation omitted). "[T]he totality of the circumstances" must be considered, with "the fundamental inquiry" being "[h]ow the facts of the case bear on the issues of officer safety and the preservation of evidence . . . ." Id. at 28-29 (citations omitted). "In each case it is the circumstances facing the officers that tell the tale." Id. At 29.
Defendant's contention that no exigency existed because he and Jones were in custody, therefore, is unavailing because that one factor standing alone does not remove exigency from the officer's consideration. "Even . . . where an arrested defendant has been secured, there may be justification to search a vehicle under the automobile exception." Id. at 20 (emphasis added).
Looking at the totality of the circumstances facing Ulmer, it is clear that exigent circumstances existed that permitted his limited intrusion into the vehicle and the warrantless seizure of the evidence. Ulmer, a trained narcotics officer, was familiar with the area, having made numerous narcotics arrests in the parking lot. It was 11:00 p.m., and, initially, he was alone. The car was parked in a large public parking lot, directly behind a bar, with numerous other bars and the train station nearby. The events unfolded spontaneously, leading seamlessly from Ulmer's initial observation of Jones's actual use of cocaine, to defendant's attempts to secrete or obtain something from the area next to the driver's seat, to defendant's initial refusal to comply with Ulmer's orders, to Ulmer's call for back up assistance, to the arrival of other officers, to defendant's arrest, and ultimately to Ulmer's search.
Obviously, based upon his own observations, Ulmer had probable cause to believe the area between the driver's seat and the door contained other evidence or perhaps a weapon. The Pena-Flores Court specifically cited factors like those that existed in this case as supporting exigency and providing justification for a warrantless search pursuant to the automobile exception. See id. at 29-30 (listing the various "[l]egitimate considerations" "surrounding an automobile stop" that may justify a warrantless search).
We affirm the trial judge's denial of defendant's motion to suppress based upon the automobile exception to the warrant requirement. As a result, we do not address defendant's argument regarding the search incident to arrest exception.
At trial, Ulmer repeated his testimony before the jury. During cross-examination, it was revealed that Jones owned the car in which defendant was seated when arrested. Ulmer, who was a "certified drug recognition expert," testified that he made no observations as to whether defendant was under the influence of any drugs at the time of his arrest. The State produced no other witnesses regarding the events in the parking lot. The parties stipulated that laboratory tests performed on the white powdery substance revealed that it was cocaine weighing .06 grams.
Defendant was employed as a corrections officer with the Department of Corrections (the D.O.C.) at the time of his arrest. Outside the presence of the jury, the prosecutor made a proffer regarding the testimony he intended to adduce from his next witness, Robert Trent, a senior investigator with the D.O.C. Trent was the "on-call internal affairs investigator" on the night of defendant's arrest. He was dispatched to the Bound Brook police station, spoke to defendant after he was processed by the police, and explained his obligation, pursuant to D.O.C. policy, to submit a urine sample. After the prosecutor described Trent's anticipated testimony, the judge summarized the proffer as follows:
Trent came in, . . . he's [D.O.C.], and . . . it's part of the employment procedure [that] you're required to submit . . . . [Defendant] attempted to submit, [Trent] gave him bottles of water and spent about an hour with him trying to get a sample. Ultimately[,] [defendant] refused . . . .
The prosecutor argued Trent's testimony was relevant to prove "consciousness of guilt" because defendant "knew that [his sample] would come up positive for cocaine, and . . . that would [be] evidence . . . that [defendant] was in knowing, purposeful possession of the cocaine found in the car at that time." Defendant argued that the evidence was inadmissible, claiming it concerned "a post arrest administrative dispute" between defendant and Trent. He further contended that the evidence failed to "shed any light on the issue" in the criminal case, because "there was no nexus between the possession of the drugs and the use of the drugs."
The judge concluded that Trent possessed a "individualized reasonable suspicion" regarding defendant's drug use, and therefore, the demand for a urine sample did not violate defendant's constitutional rights. He reasoned,
This is relevant evidence as to [defendant's] state of mind since the State has the burden of proving beyond a reasonable doubt that he knowingly or purposely possessed the cocaine at the time.
This information about his refusal to submit to a urine analysis . . . would be evidence from which [the jury] could draw a reasonable conclusion that the reason he was refusing to submit was because he knew what the result would be. That it would prove that he was using cocaine.
So, I find that the State is entitled to introduce the evidence because it is post crime conduct, immediately post crime conduct, . . . within an hour of being arrested . . . . [Defendant is] asked to submit as part of his work place routine [to a] urine test, and refuses. And that's evidence that [the jury] can take into consideration and evaluate.
Before the jury, Trent reviewed his official duties. On the night in question, he responded to the Bound Brook police department shortly after 3:00 a.m.; defendant was in a holding cell. Trent informed defendant "that [he] had an order from the Commissioner of the Department of Corrections to produce a urine [sample] under reasonable suspicion[,]" and reviewed various departmental forms with defendant.*fn1 Defendant signed a form explaining "what the conditions for producing the sample would be." Without objection, the forms were admitted into evidence, and Trent was permitted to read some of their contents to the jury.
For example, the jury was told that "on refusal to provide a sample of urine," defendant would be immediately suspended. Trent also testified that if defendant was "unable to provide enough urine for the . . . test sample, [he would] be given a period not to exceed eight hours to produce [a] sufficient amount of urine." Further, "after providing the urine for testing, [defendant] [would] be placed on leave with pay pending the results of the test."
Defendant was initially cooperative, completing his confidential personal medical history form, and drinking some water that Trent supplied. After not providing any urine during the next hour, defendant's demeanor changed. "He became agitated." Trent claimed that defendant "question[ed] [his] authority to take the urine at that time and place." Defendant's voice became angry, resulting in one of the Bound Brook officers, Sergeant Richard Colombaroni, entering the room. Colombaroni told defendant, "[Y]our business at Bound Brook Police Department is finished. If you want to leave, you can do so at this time." Defendant was also told, however, that he was free to stay if he wished in order to produce the urine sample. Defendant left, telling Trent and Colombaroni that "he was going to sue" them. On cross-examination, Trent acknowledged that he had no information that indicated defendant had actually used drugs that night.
After the State rested, defendant testified. He contended that he went to Torpedo's with Jones to celebrate Jones's birthday. After drinking for two hours, Jones was intoxicated, and defendant agreed to drive home in Jones's car. Defendant recounted how Ulmer approached the vehicle, and how he tried to tell the officer that he was "law enforcement," a reference to defendant's position as a corrections officer. Defendant attempted to reach into his back pants pocket to get his wallet that contained his badge and identification, ultimately producing it for Ulmer. Defendant claimed he had no knowledge of any drugs in the car, did not know if Jones was snorting cocaine in the passenger seat, and was unaware of the reason for his arrest until Ulmer told him that it was for possession of CDS.
Regarding his interactions with Trent, defendant admitted he was angry at being required to submit to a urine test. He had urinated twice before Trent arrived at the station, and he was "questioning" Trent's authority to keep him "there for eight hours" to produce a urine sample. Defendant reviewed the various D.O.C. forms Trent had identified, and denied signing some of them.
Defendant produced a witness, Marilyn Adams, who testified as to his good character. The State recalled Trent, and also called Colombaroni, on rebuttal. We need not review that evidence for purposes of our decision, except to note that it focused almost exclusively on defendant's refusal to submit a urine sample, whether he signed the administrative forms or not, and his conduct at police headquarters.*fn2
In summation, the prosecutor urged the jury to conclude that Trent's testimony established defendant's "consciousness of guilt." His review of defendant's actions and decision not to submit a sample is contained in four full pages of trial transcript, and the prosecutor referred to the refusal to submit a urine sample as defendant's last "desperate act" on the night of his arrest.
In his final jury instructions, the judge told the jury how it could consider the evidence regarding defendant's refusal to submit a urine sample:
The State . . . [h]as introduced information that the [d]efendant refused to submit to the urine test as required by [the D.O.C.]. The [d]efendant on the other hand claims that he was just unable to produce the urine sample and questioned the propriety of even having to take the urine test. Normally this evidence is not permitted under our rules. Our rules specifically exclude evidence that the [d]efendant committed some other act when it is offered only to show that he had a disposition or a tendency to do wrong. And therefore must be guilty of the charge alleged in the indictment.
Before you give any weight to this evidence, you must be satisfied that the [d]efendant committed this other act or refusal. If you're not satisfied, don't consider it for any purpose. However, our rules do permit evidence of other actions when the evidence is used for a certain specific narrow purpose.
In this case, the evidence was introduced to demonstrate that the [d]efendant was knowingly in possession of cocaine.
Here, the evidence is offered to attempt to convince you that the refusal is evidence of a consciousness of guilt on the part of the [d]efendant regarding the underlying charge in the indictment. You may not draw this inference unless you conclude that the acts alleged in the refusal were an attempt by the [d]efendant to cover up the crime that's alleged in the indictment. Whether this evidence does . . . demonstrate knowing . . . or purposeful possession of [a] controlled dangerous substance, that's for you to decide. You may decide that the evidence does not demonstrate knowing or purposeful possession of cocaine and is not helpful to you at all. In that case, disregard the evidence.
On the other hand, you may decide that this evidence as to the refusal does demonstrate knowing or purposeful possession of cocaine, and use it for that specific purpose only.
However, you may not use this evidence to decide that the [d]efendant has a tendency to commit crimes, or that he's a bad person. That is, you may not decide that just because the [d]efendant committed this action of refusal, he must be guilty of the present crime, as I have admitted the evidence only to help you decide the specific question that is knowing or purposeful possession of controlled dangerous substance, the charge in the indictment. You may not consider it for any other purpose. You may not find the [d]efendant guilty now of the indictment simply because the State offered evidence with regard to the refusal.
There was no objection to the charge.
During its first three hours of deliberation, the jury sent out two notes asking to be re-charged on the elements of possession. At 11:05 a.m. on the second day of deliberations, the jury asked to have Ulmer's testimony read back, and asked to be re-charged as to reasonable doubt. After deliberating the remainder of the day, at 4:05 p.m., the jury returned its guilty verdict.
Defendant contends that the testimony regarding his failure to provide a urine sample after arrest was "irrelevant, lacked any probative value and was unduly prejudicial pursuant to N.J.R.E. 404(b)." He also contends that the evidence, in conjunction with the prosecutor's summation comments, violated his "right against self-incrimination." The State counters by arguing that the evidence demonstrated defendant's "consciousness of guilt," and was "relevant, probative and not overly prejudicial." It further argues that because defendant's Fifth Amendment rights do not attach to the "production of a physical specimen," there was no constitutional violation.
Although the transcript fails to reveal that the State's proffer was the subject of any lengthy analysis by the parties or the judge, it is clear that the evidence was admitted pursuant to Rule 404(b).*fn3 Indeed, the judge's lengthy instruction, though not given at the time that the evidence was actually admitted before the jury, tracked the model criminal jury charge regarding Rule 404(b) evidence. We agree that the question of admissibility needed to be examined in this context.
The analytical framework that applies, enunciated by the Supreme Court in State v. Cofield, 127 N.J. 328, 338 (1992), is well-known.
To be admissible, the . . . evidence must have the following characteristics:
"1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence . . . must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice." [State v. Hernandez, 170 N.J. 106, 119 (2001) (quoting Cofield, supra, 127 N.J. at 338 (citations omitted)).]
We apply an abuse of discretion standard to our review of the judge's decision to admit Rule 404(b) evidence. See Hernandez, supra, 170 N.J. at 128 (citing State v. Marrero, 148 N.J. 469, 483-84 (1997)).
Although the judge did not engage in a full-blown Cofield analysis of the proffer made by the State, he determined that evidence of defendant's failure to submit a urine sample was relevant to "demonstrate knowing or purposeful possession of [the] cocaine" Ulmer found in the car. "'Relevant evidence' means evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. Evidence is usually considered "to be probative when it has a tendency 'to establish the proposition that it is offered to prove.'" State v. Burr, 195 N.J. 119, 127 (2008) (quoting State v. Allison, 208 N.J. Super. 9, 17 (App. Div.), certif. denied, 102 N.J. 370 (1985)). Although we accord deference to determinations of relevancy, Burr, supra, 195 N.J. at 127, we only do so "[w]hen it has been determined that there is logical relevancy between the evidence offered and a material issue in the case . . . ." State v. Catlow, 206 N.J. Super. 186, 193 (App. Div. 1985), certif. denied, 103 N.J. 465-66 (1986).
The sole charge against defendant was that he "knowingly or purposefully" possessed cocaine. The burden of proof, therefore, was on the State to demonstrate defendant's state of mind, as well as the other elements of possession. Usually, a defendant's "mental state is not conducive to demonstration through direct evidence." State v. Williams, 190 N.J. 114, 124 (2007). "The key to [the relevance of] circumstantial evidence generally, and as applied to state-of-mind questions specifically, is whether it bears a logical connection to the disputed fact." Ibid. "[C]onduct that occurs after the charged offense circumstantially may support inferences about a defendant's state of mind[,]" particularly "when the conduct demonstrates consciousness of guilt." Id. at 125.
The State argued, and the trial judge agreed, that evidence of defendant's refusal to provide a urine sample was probative of his consciousness of guilt. In particular, the prosecutor posited that the refusal was relevant evidence that defendant acted "knowingly or purposefully" when he possessed the cocaine seized from the vehicle several hours earlier in the parking lot. We fail to see "'the logical connection between the proffered evidence and [that] fact in issue.'" see Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 15 (2004) (citing State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990)).
An actor is criminally culpable of possessing an item if he "knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession." N.J.S.A. 2C:2-1(c). A person violates N.J.S.A. 2C:35-10(a) if he "knowingly or purposely . . . possess[es], actually or constructively, a controlled dangerous substance . . . ." "A person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result." N.J.S.A. 2C:2-2(b)(1). He "acts knowingly with respect to the nature of his conduct . . . if he is aware that his conduct is of that nature . . . ." N.J.S.A. 2C:2-2(b)(2).
The prosecutor contended that defendant refused to submit a urine sample because he believed it would be positive for cocaine. However, the fact that defendant's urine might test positive for cocaine, and arguably demonstrates that he recently used the drug, lacks any logical connection to whether he possessed the cocaine that was seized from the car. It fails to establish in any way that he "procured, "received," or "control[led]" the drugs contained in the two, small folds Ulmer seized from the vehicle, and it certainly failed to demonstrate that he acted "purposefully" or "knowingly" in that regard.
Had defendant submitted to the test, a positive result would not have been admissible at trial. We fail to see, therefore, how evidence of his refusal became relevant and admissible to prove the very same proposition, i.e., that he knowingly or purposely possessed the drugs found by Ulmer in Jone's car.
Arguably, defendant's refusal to submit a urine sample might have been relevant circumstantial proof of his recent use of a controlled dangerous substance. However, even in this regard, there was no testimony that explained how long cocaine might have be present in defendant's urine, thus producing a positive result. But, more importantly, defendant was not charged with violating N.J.S.A. 2C:35-10(b) (making it a disorderly persons offense to "use or . . . [be] under the influence of any controlled dangerous substance, or its analog"). Indeed, none of the State's witnesses could testify that defendant demonstrated any effects of the recent use of cocaine when arrested.
Lastly, there were other reasons why defendant might choose to not provide a urine sample. For example, had defendant actually used cocaine earlier that evening, he might have concluded that he should not submit to the test, even though it would affect his employment with the D.O.C. His decision to refuse under those circumstances would lack any logical connection to his "consciousness of guilt" regarding the possession charge.
Even if the evidence had some marginal value, and we think it did not, it was highly prejudicial and should have been excluded under Cofield's fourth prong. The trial judge did not address the issue at all.
Even if evidence is admissible as relevant under Rule 404(b), it "must nevertheless survive the crucible for all relevant evidence: 'relevant evidence may be excluded 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.'" State v. Lykes, 192 N.J. 519, 534-35 (2007) (quoting N.J.R.E. 403). In Hernandez, supra, for example, the Court concluded that evidence regarding twenty prior drug sales that the defendant engaged in with his co-defendant was "extremely prejudicial[,]" despite the fact that the sole issue in the case was whether defendant constructively possessed cocaine with the same co-defendant at the time of his arrest. 170 N.J. at 130.
So, too, here, defendant's failure to provide a urine sample was extremely prejudicial given the lack of any logical relevance to the crime charged. As we have already noted, defendant's refusal may have been based on circumstances completely unrelated to his possession of the cocaine. The jury, nevertheless, was permitted to hear extensive evidence regarding the circumstances of that refusal, as well as the immediate and long-term impact it would have on defendant's employment. A considered review of the transcript amply demonstrates that the truly relevant evidence regarding defendant's possession of the drug consumed a minority of the trial testimony, essentially Ulmer's and a portion of defendant's. A majority of the trial was spent on testimony that involved the circumstances regarding defendant's failure to provide a urine sample, D.O.C.'s procedures in that regard, including the requirement that defendant be placed immediately on leave, and defendant's conduct at police headquarters regarding the demand made by Trent.
The judge gave an excellent limiting instruction to the jury. It was both comprehensive and legally accurate, and we fully appreciate his attempt to focus the jury's attention on the permitted and prohibited uses of the evidence. However, given the evidence's lack of relevancy to any material issue in the case, the effect of the instruction was inadequate. Although the judge told the jury it was free to reject the evidence entirely, the charge lent a powerful imprimatur of relevancy to the evidence if the jury found it to be credible, i.e., that it demonstrated defendant's consciousness of his own guilt. Thus, despite the thoughtful effort, the charge did not cure the problem.
It is fair to say that the State's proofs in this case were not overwhelming. The jury had to decide whether defendant possessed the cocaine seized from Jones's car based solely upon Ulmer's testimony, and defendant's denial of any knowledge that the drugs were in the vehicle. Essentially, the decision devolved into a credibility contest. Evidence regarding defendant's failure to provide a urine sample obviously had the capacity to impact the jury's credibility determination, for indeed, that was the State's ultimate argument in summation. The admission of that evidence "raise[s] a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971); R. 2:10-2. Therefore, reversal is required. The same result inures to the judge's finding of guilt regarding defendant's possession of narcotics paraphernalia. See N.J.S.A. 2C:36-2.*fn4
In light of our decision, we do not address defendant's Fifth Amendment argument. Reversed and remanded. We do not retain jurisdiction.