Cassidy Levi Barr, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Cassidy Levi Barr appeals his convictions and sentence after a jury found him guilty of three counts of Level 5 felony intimidation where the defendant draws or uses a deadly weapon.¹ Barr presents three issues for review: (1) Was there sufficient evidence Barr communicated a threat to another person to sustain his convictions?; (2) Did the trial court abuse its sentencing discretion in identifying certain aggravators and failing to find mitigating factors?; and (3) Is Barr's sentence inappropriate? We affirm.

Facts and Procedural History

[2] In November 2022, the split-level house at 40 Harding Court in Lafayette, Indiana was subdivided into two apartments. The front door led to an upstairs three-bedroom apartment where Erik Yanez, Yordys Jimenez, and Alan Lopez Blandon lived. Isai “David” Morales Gallardo lived in the basement apartment, which could be accessed from a door inside the garage.

[3] On the evening of November 12, 2022, an incident occurred between Gallardo and Barr's adult son at the house, and police were called to investigate.

[4] The next day, at around 1:15 p.m., Yanez was at home with Jimenez, Blandon, and some friends when a car unfamiliar to Yanez pulled into the driveway and parked in front of the garage door. As Yanez was watching from the window in his room above the garage, a man later identified as Barr got out of the car, although Yanez did not know him. Barr was holding a black handgun, and Yanez watched as Barr “charged the gun,” meaning he “pull[ed] the top backwards.” Tr. Vol. 2 at 33, 34. Jimenez was also upstairs, looked out his window, and saw Barr with a gun holstered at his waist.

[5] Barr walked to the front of the house. Yanez knew the front door was unlocked, so he rushed to secure it. He “was in fear because no one charges a gun to come to talk to someone” and there had been an incident at the house the night before. Id. at 34. After that, he went to Blandon's room. Blandon was sleeping when Yanez entered “saying that there was a fellow with a gun pointing and he was coming towards the house.” Id. at 45–46. Yanez and Blandon did not speak fluent English, so they asked one of the friends who did to call the police. They called because they “were in fear and that was the only way to handle it.” Id. at 37.

[6] Yanez described the scene at that point as: “We were all running around because that guy was kicking on [and] punching the door. We were all desperate. We were trying to look what was happening and we were hiding because of the man that was outside.” Id. at 35. According to Yanez, they “were all terrorized” and “[v]ery nervous.” Id. at 36. Yanez and Blandon went down to the living room to watch through the front window while trying to stay concealed. Blandon saw Barr with a gun, banging on and kicking the door, and pointing the gun at the house. Blandon thought Barr wanted to get inside. Blandon felt “nervous” and “thought the worst,” meaning, that he “was gonna die.” Id. at 46.

[7] Yanez and Blandon saw Barr move away from the front door and toward the garage. Jimenez was also watching from an upstairs window. He was “very curious” what was going on but only peeked through the blinds because he “was afraid that [Barr] would shoot to where [he] was.” Ex. Vol. 3 at 27. Jimenez saw Barr lift the garage door and go inside, then heard him hitting the door inside the garage. Jimenez “was very scared” because he “didn't know what was going on” but was “thinking of [his] family and [his] children” because he thought he might die. Id. at 30.

[8] Officer Jeremy Kennedy of the Lafayette Police Department responded to the 9-1-1 call. When he turned onto Harding Court, he saw Barr's car backing out of the home's driveway, then watched it turn and head toward the police car. Barr's window was rolled down and he slowed down to speak to the officer. Officer Kennedy said he was there about a man yelling, and Barr admitted that was him. Barr parked and got out of his car.

[9] As Officer Kennedy and Barr were talking, one of the residents exited the house and approached the officer, at which time Barr's demeanor turned “a little harsher” and he became a “little angry, agitated.” Tr. Vol. 2 at 63. Barr told Officer Kennedy “to keep [the man] away from ․ him.” Id. Officer Kennedy asked Barr to get back in his car and went to speak to the residents.

[10] As Officer Kennedy spoke with the residents outside, Barr's son arrived on scene in a white truck, then Barr's ex-wife and her boyfriend arrived in a silver SUV. After discussion with police, Barr walked toward the house and yelled at the residents, saying, “Come down here, you little b****,” and “You guys know I'm gonna find you, right?” Ex. Vol. 3, page 18 at 13:29:02–13:29:12 (Officer Kennedy's body camera footage).

[11] During the ensuing investigation, police recovered a small, black semi-automatic handgun from Barr's car. There was a round in the chamber. Barr also admitted he possessed a gun when he approached the door.

[12] The State charged Barr with three counts of Level 5 intimidation for the acts committed against Yanez, Blandon, and Jimenez. A jury trial was held on January 9 and 10, 2024, and the jury found Barr guilty of all counts. During the sentencing hearing on February 29, several character witnesses spoke on Barr's behalf, and Barr submitted numerous letters of support from family and community members. The State introduced Officer Kennedy's unredacted body camera footage, during which Barr directed ethnic and homophobic slurs at the residents. The trial court entered a written sentencing statement:

The Court finds as aggravating factors: The overall seriousness and circumstances of the offenses; the harm, injury or loss suffered by the victims is greater than necessary to prove the elements of the offenses; there were multiple victims; and the biased slurs made by the Defendant even after the arrival of law enforcement.

The Court finds as mitigating factors: Defendant has no criminal history; he has a good employment history; the offenses are the result of circumstances unlikely to reoccur; he has family and community support; he has expressed remorse; and long term incarceration would cause a hardship on his son with special needs (diminished by the fact the Defendant knew of his son's condition at the time he committed the offenses).

The Court further finds that the aggravating factors outweigh the mitigating factors.

Appellant's App. Vol. 2 at 69–70. The trial court sentenced Barr to four years on each conviction, to be served concurrently, with two years executed in the Indiana Department of Correction (“DOC”) and two years suspended to supervised probation. As to the executed portion, the court ordered the first six months executed in jail and the last one and one-half years served as a direct placement in community corrections.

There was sufficient evidence Barr communicated a threat to sustain his intimidation convictions.

[13] A sufficiency-of-the-evidence claim warrants a “deferential standard of review in which we ‘neither reweigh the evidence nor judge witness credibility[.]’ ” Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024) (quoting Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018), cert. denied). Instead, we respect the fact-finder's exclusive province to weigh conflicting evidence, Phipps v. State, 90 N.E.3d 1190, 1195 (Ind. 2018), and consider only the probative evidence and reasonable inferences that support the judgment of the trier of fact, Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021). We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024). It is “not necessary that the evidence ‘overcome every reasonable hypothesis of innocence.’ ” Sallee v. State, 51 N.E.3d 130, 133 (Ind. 2016) (quoting Moore v. State, 652 N.E.2d 53, 55 (Ind. 1995)).

[14] To convict Barr of each count of intimidation as charged, the State was required to prove Barr communicated a threat with the intent that another person be placed in fear that the threat will be carried out, and while committing the offense, Barr drew or used a deadly weapon. See I.C. § 35-45-2-1(a)(4) & (b)(2)(A); Appellant's App. Vol. 2 at 14–16. A “threat” includes, in relevant part, “an expression, by words or action, of an intention to: (1) unlawfully injure the person threatened or another person, or damage property; (2) unlawfully subject a person to physical confinement or restraint; [or] (3) commit a crime[.]” I.C. § 35-45-2-1(c)(1)–(3).²

[15] The State presented evidence Barr banged and kicked the front door of 40 Harding Court while yelling and brandishing a loaded gun. He then entered the garage and banged on the door to the basement apartment. At least three residents were inside the home and witnessed Barr's actions. One victim witnessed Barr rack the gun before approaching the front door. The victims testified they feared for their lives. After the police arrived, Barr told Officer Kennedy the officer should keep the residents away from him, intimating he would have trouble restraining himself in their presence. He also threatened, “You guys know I'm gonna find you, right?” Ex. Vol. 3, page 18 at 13:29:02–13:29:12 (Officer Kennedy's body camera footage). Officer Kennedy retrieved a loaded gun near the center console of Barr's car with a bullet in the chamber. This was sufficient evidence to support Barr's intimidation convictions. See Rhodes v. State, 144 N.E.3d 787, 790–91 (Ind. Ct. App. 2020) (holding there was sufficient evidence to support Level 5 felony intimidation conviction where the defendant made verbal threats to his estranged wife then showed up at her residence holding an AR-15 style weapon, kicked the door, and yelled for her to open the door).

[16] Still, Barr argues his convictions cannot be sustained because the State presented no evidence he communicated a threat to anyone. In support, Barr contends his actions were “[p]urely lawful” because it is “not a crime for a lawful gun owner ․ to retrieve his gun, holster his gun, or knock on the door.” Appellant's Br. at 13, 14. Throughout his brief, Barr downplays his behavior, arguing he was merely knocking on the door and never pointed the gun. But both Yanez and Blandon stated Barr kicked and punched the door while yelling. And although Jimenez said he saw the gun holstered at Barr's waist, Yanez witnessed Barr rack the gun's slide and Blanton testified Barr pointed the gun at the door. To the extent Barr argues we should adopt his version of events, this is a request to reweigh the evidence and credibility of the witnesses, which we cannot do. Willis v. State, 27 N.E.3d 1065, 1066 (Ind. 2015).

[17] Barr also argues, “[a]t the time this all occurred, [he] had no knowledge of anybody watching him so he could not have intended to threaten anyone by these otherwise legal actions.” Appellant's Br. at 15–16. Barr appears to argue both that he did not communicate a threat and had no criminal intent because he saw no one at the house. See id. at 16. He also distinguishes his behavior from the defendant in Rhodes, noting he did not communicate verbal threats to the victims before coming over to the house.

[18] Indiana courts have adopted an objective view of whether a communication is a threat. McBride v. State, 128 N.E.3d 531, 537 (Ind. Ct. App. 2019) (citing Owens v. State, 659 N.E.2d 466, 474 (Ind. 1995)), trans. denied. “A threat is punishable if the speaker ‘intend[s] his communications to put his targets in fear for their safety, and ․ the communications were likely to actually cause such fear in a reasonable person similarly situated to the target.’ ” Id. (quoting Brewington v. State, 7 N.E.3d 946, 964 (Ind. 2014), cert. denied). Whether a defendant's communications, objectively viewed, were threats is a question of fact for the fact-finder to decide. Id.

[19] Intent is a mental function; absent an admission, intent is determined from the defendant's conduct and the natural and usual consequences of it. Matter of K.Y., 175 N.E.3d 820, 825 (Ind. Ct. App. 2021), trans. denied. Put differently, a mens rea determination is almost inevitably a matter of circumstantial proof. Brewington, 7 N.E.3d at 964 (quotation omitted). “Because of the inferential nature of circumstantial evidence, that mens rea question will often depend on whether a reasonable person would recognize the statements’ threatening potential.” Id. at 965. Whether a communication is a threat “is highly dependent on context.” Id. at 963. And “we must leave room for a jury to use its reasonable judgment about all of the contextual factors.” Id. at 965 (internal quotation omitted).

[20] A person may express a threat by words or actions. See I.C. § 35-45-2-1(c). Generally, “ ‘the mere display of a handgun does not express an intention to unlawfully injure a person or his property.’ ” Johnson v. State, 743 N.E.2d 755, 756 (Ind. 2001) (quoting Gaddis v. State, 680 N.E.2d 860, 862 (Ind. Ct. App. 1997)). But where “the record shows the existence of words or conduct that are reasonably likely to incite confrontation, coupled with the display of a firearm, we are hard pressed to say that such facts are insufficient to prove that a threat has been communicated within the meaning of the intimidation statute.” Id. at 756–57.

[21] Moreover, the plain language of the intimidation statute does not require the defendant to make threats directly to or in the presence of the intended victim. Ajabu v. State, 677 N.E.2d 1035, 1042 (Ind. Ct. App. 1997), trans. denied. The word “communicate” encompasses threats made known or transmitted to another person and does not limit the means used to convey the threat. See id. (holding threats under the intimidation statute may “include those a person makes known to the victim through the print, radio or television media with the requisite intent”); c.f. Soucy v. State, 22 N.E.3d 683, 686 (Ind. Ct. App. 2014) (holding a threat made to a third person but not conveyed to the intended victim did not constitute intimidation).

[22] Here, Barr directly communicated threats to Yanez, Jimenez, and Blandon when he yelled, kicked and banged on the door, and pointed a loaded gun at the house while the men were present. They directly witnessed Barr's actions communicating threats, which placed them in fear the threats would be carried out. Although Barr contends he did not know the men were present, he did not need to see them to communicate threats to them. And in any case, there was evidence from which the jury could infer Barr had knowledge people were in the house, such as the presence of cars parked outside. After the police arrived, Barr angrily threatened the victims while they were standing outside the house, which is more evidence of Barr's mental state. When looking at all the contextual factors, the circumstances present sufficient evidence from which a jury could have concluded a reasonable person would recognize the threatening potential of Barr's statements and conduct.

[23] Sufficient evidence supported Barr's intimidation convictions.

The trial court did not abuse its discretion in sentencing Barr.

[24] Barr argues the trial court erroneously considered two aggravating factors and failed to consider two statutory mitigating circumstances when fashioning his aggregate four-year sentence.

[25] We review a trial court's sentencing decisions for an abuse of discretion. Owen v. State, 210 N.E.3d 256, 269 (Ind. 2023). A trial court abuses its discretion at sentencing if it (1) fails to enter a sentencing statement; (2) relies on aggravating or mitigating factors unsupported by the record; (3) fails to find aggravating or mitigating factors that are supported by the record and advanced for consideration; or (4) relies on reasons that are improper as a matter of law. Cardwell v. State, 895 N.E.2d 1219, 1223 (Ind. 2008). But a trial court does not have “any obligation to ‘weigh’ aggravating and mitigating factors against each other when imposing a sentence[.]” Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218. So a trial court cannot abuse its discretion in failing to “properly weigh” aggravating and mitigating factors. Id. (noting such review of the merits of a sentence may only be done based on Indiana Appellate Rule 7(B)).

[26] Aggravating Factors – Barr first challenges the trial court's identification of two aggravating factors: (1) there were multiple victims, and (2) the overall seriousness of the crime. As to the former, Barr notes he was convicted of three counts of intimidation, and therefore the trial court impermissibly imposed a “double enhancement” when it relied on the number of victims in sentencing him. Appellant's Br. at 22. Yet a trial court may consider the number of victims as an aggravating circumstance. Mateo v. State, 981 N.E.2d 59, 73 (Ind. Ct. App. 2012) (citing O'Connell v. State, 742 N.E.2d 943, 952 (Ind. 2001)), trans. denied. Moreover, other people besides Yanez, Jimenez, and Blandon were present when Barr committed the offenses, including the person who called the police. A trial court may consider uncharged conduct in sentencing a defendant. Id. at 74. The trial court did not abuse its discretion in finding the number of victims an aggravating factor.

[27] As to the seriousness of the crime, generally “the ‘nature and circumstances’ of a crime is a proper aggravating circumstance.” McCann v. State, 749 N.E.2d 1116, 1120 (Ind. 2001). Although a material element of a crime may not be used as an aggravating factor to support an enhanced sentence, the trial court may consider the circumstances of the factual elements as aggravating factors when evaluating the nature of the offense. McElroy v. State, 865 N.E.2d 584, 589–90 (Ind. 2007). When finding the seriousness of the crime to be an aggravating factor, a trial court must make more than a generalized reference to the nature and circumstances of the offense. See Anglemyer, 868 N.E.2d at 490 (a sentencing statement must “explain why each circumstance has been determined to be mitigating or aggravating”). We examine both the trial court's written and oral statements when reviewing the sufficiency of a sentencing statement. McElroy, 865 N.E.2d at 589.

[28] Barr contends the trial court did not explain why the nature of the offense was beyond what was necessary to establish its elements. But the trial court thoroughly explained its reasons at the sentencing hearing, describing Barr's actions as follows:

You go over to a house, and you pull out a gun and you threaten the people that are inside that home. You don't even know them. You don't even know if they're the culprits or the target of your anger. Yet you felt apparently, it's your privilege and your right to just go out in this community and march up to a house, whip out a gun, and put these three people in fear․ Your intent was clear. Moments after you banged on their door and put them in fear, you were still enraged. And you even said you know we'll find you. You again, continued to be belligerent ․

And what's even more aggravating ․ When your son said dad, that's not the dude. That's not the dude. And you responded, well did it happen at that house, that's good enough for me. Like you were ․ willing to ․ threaten anybody in the house. That ․ didn't dissuade you․ [Y]ou continued ․ in your rage. So, the overall seriousness and circumstances I think ․ is a serious significant aggravator of this offense.

Tr. Vol. 2 at 182–83. This was sufficient explanation to support the trial court's finding that the seriousness of the offense was an aggravating factor.³ The trial court did not abuse its discretion when it found these two aggravating circumstances.

[29] Mitigating Factors – Barr next contends the trial court overlooked as a mitigating circumstance the fact he was acting under strong provocation because of the incident involving his son. See Appellant's Br. at 19–20 (citing I.C. § 35-38-1-7.1(b)(5) (2019)). But Barr did not argue provocation as a mitigating factor at the sentencing hearing. A “trial court does not abuse its discretion in failing to consider a mitigating factor that was not raised at sentencing.” Anglemyer, 868 N.E.2d at 492.⁴

[30] Barr also argues the trial court failed to find the statutory mitigator that his “character and attitudes” indicate he is “unlikely to commit another crime.” I.C. § 35-38-1-7.1(b)(8). Barr points to the “tremendous amounts of evidence”—including character witness testimony and letters of support—he introduced at the sentencing hearing as evidence of his good character. Appellant's Br. at 20. “An allegation that the trial court failed to identify or find a mitigating factor requires the defendant to establish that the mitigating evidence is both significant and clearly supported by the record.” Anglemyer, 868 N.E.2d at 493. Yet if the trial court does not find the existence of a mitigating factor after counsel has argued it, the trial court need not explain why it has determined that factor does not exist. Id. And the trial court is “not obligated to accept the defendant's contentions as to what constitutes a mitigating circumstance.” Rascoe v. State, 736 N.E.2d 246, 249 (Ind. 2000).

[31] The trial court's oral sentencing statement reveals it considered the testimony and letters Barr put forth. At the sentencing hearing, the trial court stated it received “twenty-three letters of support for the Defendant, which I've read all of them. They came from his family, former employers, friends, even former wife and a former father-in-law. So, I have read all of those and taken those into consideration.” Tr. Vol. 2 at 157. Based on this statement, it is apparent the trial court did not find Barr's evidence established that his character and attitude made it unlikely he would engage in future criminal activity. And that “was the trial court's call.” Anglemyer, 868 N.E.2d at 493. But at the same time, the trial court found as a non-statutory mitigator that Barr “has family and community support[.]” Appellant's App. Vol. 2 at 70. The trial court was not obligated to explain why Barr's proffered evidence spoke more to his level of family and community support than his character and attitude. Accordingly, we discern no abuse of discretion in the trial court's identification of mitigating factors.

[32] The trial court did not abuse its sentencing discretion.

Barr's sentence was not inappropriate.

[33] A Level 5 felony conviction carries a sentencing range of one to six years, with a three-year advisory sentence. I.C. § 35-50-2-6(b) (2014). The trial court sentenced Barr to an above advisory, but below maximum, term of four years on each count. But “appellate review should focus on the forest—the aggregate sentence—rather than the trees—consecutive or concurrent, number of counts, or length of the sentence on any individual count.” Cardwell, 895 N.E.2d at 1225. When served concurrently, Barr received an aggregate four-year sentence, well below his maximum exposure for three Level 5 felony convictions.

[34] Still, Barr asks us to revise his sentence to the statutory minimum of one year for each offense. The Indiana Constitution authorizes this Court to review and revise a trial court's sentencing decision as provided by rule. Ind. Const. art. 7, § 6. Indiana Appellate Rule 7(B) provides we may revise a sentence authorized by statute if, “after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” The principal role of appellate review is to leaven the outliers, not to achieve a perceived correct sentence in each case. Conley v. State, 183 N.E.3d 276, 288 (Ind. 2022). Therefore, “we reserve our 7(B) authority for exceptional cases.” Faith v. State, 131 N.E.3d 158, 160 (Ind. 2019) (per curiam).

[35] “[S]entencing is principally a discretionary function in which the trial court's judgment should receive considerable deference.” Cardwell, 895 N.E.2d at 1222. “Such deference should prevail unless overcome by compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality) and the defendant's character (such as substantial virtuous traits or persistent examples of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). The two prongs of 7(B) review are “separate inquiries to ultimately be balanced in determining whether a sentence is inappropriate.” Lane v. State, 232 N.E.3d 119, 126 (Ind. 2024) (quoting Conner v. State, 58 N.E.3d 215, 218 (Ind. Ct. App. 2016)). “[T]o the extent the evidence on one prong militates against relief, a claim based on the other prong must be all the stronger to justify relief.” Id. at 127.

[36] The question “is not whether another sentence is more appropriate; rather, the question is whether the sentence imposed is inappropriate.” Helsley v. State, 43 N.E.3d 225, 228 (Ind. 2015) (quoting King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008)) (emphasis omitted). Whether we regard a sentence as inappropriate “turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Cardwell, 895 N.E.2d at 1224. The defendant bears the burden of persuading us a revised sentence is warranted. Cramer v. State, 240 N.E.3d 693, 698 (Ind. 2024).

[37] As discussed above, Barr terrorized three victims at their home based on his belief his son had been harmed at the residence the night before. The police were investigating the incident, yet Barr decided to take matters into his own hands. He brandished a loaded weapon while banging on their door and entering the garage. Although none of the victims participated in the prior incident, Barr expressed his intention to find and harm them even after his son stated he had the wrong parties in his sights. As the State has summarized in its appellate brief, Barr's behavior that day was “unprovoked, highly volatile, and potentially deadly.” Appellee's Br. at 12. We see no evidence of restraint that militates toward sentence revision.

[38] As to his character, Barr argues he “is a person of exceptional character” with no prior criminal history. Appellant's Br. at 25. Indeed, many family and community members attested to Barr's good qualities and positive influence in their lives. But we agree with the State that the unredacted body camera footage played during the sentencing hearing provides evidence of Barr's “unwholesome character” and attitudes. Appellee's Br. at 28. Barr blindly sought vengeance on uninvolved parties, was belligerent with law enforcement, and directed ethnic and homophobic slurs at the victims. Barr's own words and conduct at the time of the offense stand in contrast to the descriptions provided in the letters and testimony. In sum, he has not produced evidence of good character to justify relief, particularly considering the nature of the offenses. We decline Barr's invitation to exercise our independent authority to revise his sentence.

Conclusion

[39] Sufficient evidence supports Barr's intimidation convictions. The trial court did not abuse its discretion in sentencing Barr, and we conclude his sentence is not inappropriate considering his offense and character.

[40] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-45-2-1(a)(4) & (b)(2)(A) (2022).

2.   The charging information did not specify a subsection of the statutory “threat” definition, but the trial court instructed the jury on the first three subsections. See Tr. Vol. 2 at 139.

3.   Even if the trial court erred in identifying the two aggravating factors about which Barr complains, the trial court found other aggravating circumstances, namely, the harm, injury or loss suffered by the victims was greater than necessary to prove the elements of the offenses; and the biased slurs Barr directed at the victims. Barr does not challenge these on appeal, and as Indiana courts have often observed, “[a] single aggravating circumstance is enough to justify an enhancement or the imposition of consecutive sentences.” Williams v. State, 690 N.E.2d 162, 172 (Ind. 1997).

4.   However, Barr argued the situation with his son “involve[d] circumstances unlikely to reoccur,” which the trial court considered a mitigating factor in its sentencing statement. Tr. Vol. 2 at 173.

Kenworthy, Judge.

Judges Bradford and Pyle concur. Bradford, J., and Pyle, J., concur.