Jessika Aarius Terrell, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Jessika Aarius Terrell (“Terrell”) was convicted after a jury trial of three counts of Level 5 felony kidnapping ¹ and three counts of Level 6 felony interference with custody ² and sentenced to an aggregate sentence of ten years with four years executed in the Indiana Department of Correction (“the DOC”) and six years suspended. On appeal, Terrell raises the following dispositive issues for our review:

I. Whether Terrell was denied her right to a speedy trial under Indiana Criminal Rule 4(B);

II. Whether the State presented sufficient evidence to support Terrell's convictions for kidnapping; and

III. Whether Terrell's convictions for both Level 5 felony kidnapping and Level 6 felony interference with custody violate the protections against double jeopardy.

We affirm in part, reverse in part, and remand with instructions.

Facts and Procedural History

[2] Terrell met Willie Terrell (“Willie”) in late 2018, and the two quickly married. They had three children together: F.T., born in 2020; Q.T., born in 2021; and K.T., born in 2022 (together, “the Children”). In July 2023, a Child in Need of Services (“CHINS”) petition was filed concerning the Children, and an initial hearing was held at which Terrell was present, and both she and Willie were appointed counsel for the CHINS proceedings. After the initial hearing, the Department of Child Services (“DCS”) was not able to locate the family, and at a hearing in August 2023, at which Terrell and Willie participated via telephone, they were ordered to produce the Children to DCS. However, Terrell and Willie failed to do so. A fact-finding hearing, at which neither parent was present, was held in September 2023, and the trial court found the Children to be CHINS. A dispositional hearing was held in October 2023, and again, neither parent participated. The trial court ordered wardship of the Children to DCS, and Terrell and Willie were ordered to participate in services.

[3] In March 2024, DCS located the family in Illinois, and DCS placed the Children with their maternal grandparents in Indianapolis. The DCS family case manager (“the FCM”) informed Terrell and Willie that the Children were now wards of the State and told them what services they needed to participate in before they could regain custody of the Children. Over the course of the CHINS case, the FCM had many conversations with Terrell and Willie in which she told them that the Children were wards of the State. At a review hearing on April 17, 2024, at which both Terrell and Willie were present, the trial court found that they had not cooperated with the Children's case plan. At that time, the trial court reaffirmed that Terrell and Willie could participate in supervised visitation with the Children, with the visits supervised by a third-party provider in Indianapolis. A permanency plan hearing was set for July 17, 2024.

[4] Sometime after the hearing, Terrell and Willie requested a visit with the Children on July 2 to celebrate Q.T.’s birthday, where the visit would not be supervised by DCS. DCS approved the visit on the condition that maternal grandfather (“Grandfather”) FaceTime the FCM during the visit so that she could observe Terrell and Willie interacting with the Children. Grandfather took the Children to the mall for their visit with their parents, and the visit occurred without incident. Terrell and Willie requested to have another visit unsupervised by DCS on July 4 to celebrate the holiday with some barbeque at a restaurant. DCS approved this visit but told Terrell and Willie that future visits would need to occur with third-party supervision.

[5] On July 4, 2024, Grandfather took the Children to Famous Dave's restaurant in Indianapolis, where the visit was to occur, and arrived shortly after the restaurant opened at 11:00 a.m. Terrell and Willie called to say they were running late and did not arrive for over an hour. When they did arrive, they parked in the parking lot for Gordon Food Service, which was next door to the parking lot for Famous Dave's. After Terrell and Willie entered the restaurant, Grandfather needed to use the restroom and needed to retrieve the diaper bag from his truck because the youngest child had a dirty diaper. Grandfather greeted Terrell and Willie and handed K.T. to Terrell so that he could use the restroom and go to his truck, which was parked right outside the main entrance. As soon as Grandfather left, Terrell and Willie took the Children and left the restaurant. Willie carried Q.T., while Defendant carried K.T. and led F.T. by the hand. They exited the restaurant through the door inside the take-out area, rather than by the main door because Grandfather's truck was parked right outside that door. Terrell and Willie then walked quickly through a grassy area toward the Gordon Food Service lot where their vehicle was parked. As they approached the Gordon Food Service lot, Terrell and Willie began running, and F.T. was almost forced to run to keep up with Terrell.

[6] Grandfather was outside for only about two minutes, and when he re-entered the restaurant with the diaper bag, Terrell, Willie, and the Children were gone. After looking for them throughout the restaurant and not finding them, Grandfather called DCS and 911. Both he and his wife and the FCM tried calling Terrell and Willie, who did not respond.

[7] A few days later, the police obtained a ping on one of the parents’ cell phones and learned its location was in Pearsall, Texas. Texas law enforcement located their white van at a motel there and placed it under surveillance. Around 3:00 p.m. on July 9, 2024, Willie left the motel room and drove away in the van. Law enforcement initiated a traffic stop, but after initially stopping, Willie sped away in the van. Law enforcement pursued him as he made his way back to the motel. Once back at the motel, he exited the van, ran into the room, and locked the door. The officers ordered Terrell and Willie to come out with the Children, but they refused, and a standoff ensued. A crisis negotiator arrived and spoke primarily with Willie, but in the brief conversations she had with Terrell, Terrell was “very aggressive and confrontational.” Tr. Vol. 4 p. 102. Every time the negotiator was able to calm Willie down and make some headway, Terrell would talk to him, and his agitation would “spin back up.” Id. During the negotiations, Willie told police that their plan was to “go to Mexico and let nature take its course.” Id. at 103. Around 11:00 p.m., Terrell and Willie finally came out of the motel room with the Children. The FCM went to Texas to escort the Children back to Indianapolis and returned the Children to their grandparents’ custody.

[8] The State initially charged Terrell on July 9, 2024, with three counts of Level 6 felony interference with custody. At a pre-trial conference on September 4, 2024, Terrell orally requested a speedy trial. Pursuant to that request, the seventy-day deadline was November 13, 2024. The trial court set a trial date of October 28, 2024, which was sixteen days before the deadline. On September 26, 2024, the State moved to amend the information to add three counts of Level 5 felony kidnapping and three counts of Level 5 felony criminal confinement. Terrell objected to the amendment “for the record” but acknowledged that she had no “particular reason” as a basis for the objection. Tr. Vol. 2 pp. 31–32. The trial court granted the motion to amend “based on lack of prejudice based on the charges.” Id. at 32. By local rule, the addition of Level 5 felony charges required the case to be reassigned to a major felony court, which the clerk's office did by random reassignment.

[9] At the initial hearing in the new trial court, Terrell stated that she was not waiving her speedy trial request, and the trial court advised the parties that the court would likely still be in the middle of a two-week murder trial on October 28, so court congestion affecting the pending trial date was likely. As predicted, on October 28, the trial court was in the middle of the murder trial and continued Terrell's trial due to court congestion. The trial court proposed resetting the trial for November 12, which was the court's next available jury setting, but the State had two witnesses who were unavailable on that date and proposed a trial date of November 18 instead. Terrell stated she was available for a November 18 trial date but objected to “going outside of the speedy trial deadline.” Id. at 65. The trial court reset the trial for November 18, 2024, stating that the “time is not attributable to the Defense.” Id. at 66.

[10] The jury trial commenced on November 18, and at the conclusion of the trial, the jury found Terrell guilty as charged on all nine counts. At the sentencing hearing, the trial court did not enter judgment of conviction on the three confinement counts based on double jeopardy concerns. The court found as aggravating factors the Children's young ages and the fact that there were multiple victims. As mitigating factors, the trial court found Terrell's lack of criminal history and her “very significant mental health issues.” Tr. Vol. 5 p. 33. The trial court found that the factors were of equal weight, which warranted advisory sentences, but because there were multiple victims, the sentences should be consecutive in some way. Thus, the trial court imposed a one-year sentence on each of the interference with custody convictions, which were to run concurrently but consecutively to the kidnapping convictions. The trial court imposed consecutive three-year sentences on each of the kidnapping counts but ordered the sentences on two of those convictions to be entirely suspended to probation. This resulted in an aggregate sentence of ten years with four years executed in the DOC and six years suspended, and the trial court stated that probation could be terminated after four years if Terrell had no violations filed. Terrell now appeals.

Discussion and Decision

I. Criminal Rule 4(B)

[11] Terrell argues that the trial court violated her Criminal Rule 4(B) right to a speedy trial by continuing her trial beyond the seventy-day deadline. “In reviewing Criminal Rule 4 claims, we review questions of law de novo, and we review factual findings under the clearly erroneous standard.” State v. Harper, 135 N.E.3d 962, 972 (Ind. Ct. App. 2019), trans. denied. When we consider a question of law based on uncontested facts, our standard of review is de novo. Miller v. State, 225 N.E.3d 790, 792 (Ind. Ct. App. 2023) (citing Austin v. State, 997 N.E.2d 1027, 1039 (Ind. 2013)), trans. denied.

[12] Initially, we note that although Terrell objected when her trial date was continued to November 18, based on “going outside of the speedy trial deadline,” tr. vol. 2 p. 65, this was not sufficient to preserve this issue for our review. We have previously held that a defendant waives review of a speedy trial request on appeal if a motion for discharge or motion for dismissal is not made prior to trial. Parker v. State, 965 N.E.2d 50, 52 (Ind. Ct. App. 2012) (citing Hampton v. State, 754 N.E.2d 1037, 1039 (Ind. Ct. App. 2001), trans. denied), trans. denied. Here, there is no indication in the record that Terrell moved for discharge or dismissal prior to trial, and therefore, her claim is waived.

[13] Waiver notwithstanding, we will address Terrell's claim on its merits. Under Indiana Criminal Rule 4(B), an incarcerated defendant who moves for a speedy trial must be tried within seventy days from the date of the motion except as provided in the rule. One of the express exceptions in Criminal Rule 4(B) provides that “delays due to congestion of the court calendar or emergency are excluded from the seventy-day calculation.” Ind. Crim. R. 4(B)(1). Here, Terrell requested a speedy trial on September 4, 2024. The seventieth day from the date of that motion, i.e., the speedy trial deadline, was November 13, 2024. A jury trial was initially set for October 28, 2024. The State amended the information to add several Level 5 felony charges on September 26, 2024, which, pursuant to local rules, necessitated transferring the case to a different court. When the case was transferred to the new court, the seventy-day clock was not restarted, and the existing trial deadline of November 13, 2024, was maintained. However, the October 28 trial date could not occur due to court congestion—on that date, the trial court was in the middle of a murder trial. Due to this court congestion, the trial court continued the trial to November 18, 2024, which was the date that the trial commenced. Therefore, the delay from October 28 to November 18 was due to court congestion and did not count toward the seventy-day time period. On November 18, sixteen days remained before the seventy-day period expired. See Crim. R. 4.1(A)(3) (“In computing the period of delay caused by a motion to continue, the delay is measured from the original trial date to the rescheduled trial date.”).

[14] Even assuming that a portion of the continuance time should have been charged to the State based upon their witness’ unavailability, there was still no violation of Criminal Rule 4(B). Court congestion forced a continuance from the October 28 trial date, and the next available trial date was on November 12; however, based upon the State's request to continue the November 12 date because of the unavailability of two witnesses that week, the trial was scheduled for November 18. Even if the six-day delay between November 12 and November 18 was attributed to the State, there were still ten days remaining in the seventy-day period. Thus, the seventy-day period under Criminal Rule 4(B) had not expired when Terrell's trial commenced on November 18, and Terrell's Criminal Rule 4(B) right was not violated.

[15] To the extent that Terrell argues that the State's amendment of the charging information somehow caused a violation of Criminal Rule 4(B), we disagree. Terrell contends that allowing the late amendment of the charging information significantly affected her substantial rights because if the additional Level 5 felony charges had not been added, the case would have remained in the original court, without the need of a continuance, and she would have been tried on October 28, before the seventy-day time period expired. However, we first note that, although Terrell made an objection to the amendment of the charging information, she failed to identify any potential prejudice that may result from the amendment or identify the effect the amendment would have on Terrell's substantial rights. Nor does Terrell argue that the trial court abused its discretion in allowing the amendment. See Ind. Code § 35-34-1-5(b)(2) (permitting the State to amend a charging information even in matters of substance at any time before the commencement of trial so long as the amendment does not prejudice the defendant's substantial rights); Bright v. State, 205 N.E.3d 1055, 1059 (Ind. Ct. App. 2023) (stating that a trial court's decision on whether to permit an amendment to a charging information is reviewed for an abuse of discretion). Second, Terrell has not shown that the amendment of the charging information affected her rights under Criminal Rule 4. When the information was amended and the case was randomly transferred to a new court, her trial remained set for October 28. At the time of the amendment, it was not known that court congestion would cause the case to be continued. We, therefore, disagree with Terrell's argument that the State's amendment of the charging information caused a violation of Criminal Rule 4(B).

II. Sufficient Evidence

[16] Terrell argues that the State failed to present sufficient evidence to support her convictions for Level 5 felony kidnapping. When there is a challenge to the sufficiency of the evidence, “[w]e neither reweigh evidence nor judge witness credibility.” Gibson v. State, 51 N.E.3d 204, 210 (Ind. 2016), cert. denied. Instead, we consider only that evidence most favorable to the judgment together with all reasonable inferences drawn therefrom. Id. “We will affirm the judgment if it is supported by substantial evidence of probative value even if there is some conflict in that evidence.” Id. Further, “[w]e will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.” Love v. State, 73 N.E.3d 693, 696 (Ind. 2017).

[17] To convict Terrell of Level 5 felony kidnapping, the State was required to prove that she knowingly or intentionally removed the Children by fraud and/or force from one place by using a vehicle. I.C. § 35-42-3-2(a), (b)(1)(B). Terrell only challenges the evidence supporting the element that she removed the Children by fraud and/or force. Terrell initially argues that her conviction for kidnapping could not be based on the element of fraud because the term “fraud” has previously been found to be void for vagueness for a conviction of criminal confinement. See Brown v. State, 868 N.E.2d 464, 469 (Ind. 2007) (concluding that the inclusion of the words fraud and enticement in the criminal confinement statute was void for vagueness and could not be “a basis for the defendant's convictions in [that] case” (emphasis added)). She also maintains that, as to the element of force, the State failed to present sufficient evidence because there was no evidence of “struggle, resistance, or distress” when Terrell and Willie removed the Children from the restaurant. Appellant's Br. p. 17.

[18] We first look to see if there was sufficient evidence that she removed the Children by force. The term “force” is not defined by statute. Undefined words in a statute are given their plain, ordinary, and usual meaning. See I.C. § 1-1-4-1(1). In determining the plain and ordinary meaning of a statutory term, courts may consult English language dictionaries. State v. Hancock, 65 N.E.3d 585, 587 (Ind. 2016). Force is defined as “strength or energy exerted or brought to bear” or “physical violence, compulsion, or constraint exerted upon or against a person or thing.” Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/force (last visited Nov. 7, 2025) [https://perma.cc/3DCH-BVBA]. This court has previously found that “[w]hen the victims are children, a defendant may need only minimal force to accomplish a [kidnapping by] hijacking.” Taylor v. State, 879 N.E.2d 1198, 1203 (Ind. Ct. App. 2008). “That the victims are relatively helpless does not absolve the defendant of liability for kidnapping.” Id. It therefore stands to reason that only a minimal force is necessary to effectuate a kidnapping by force when the victim is a child.

[19] Here, the evidence established that Terrell used force to accomplish the kidnapping of the Children. When Grandfather left the restaurant, Terrell picked up and carried one-year-old K.T. out of the restaurant while Willie, her accomplice, picked up and carried three-year-old Q.T. out of the restaurant. Terrell also held four-year-old F.T. by the hand to compel F.T. to come with her as Terrell walked out of the restaurant. As Terrell exited the restaurant and hurried to the vehicle, Terrell was walking fast enough that F.T. had to almost run to keep up with her, and Terrell started to run as they approached the Gordon Food Service parking lot, which caused F.T. to have to move faster too. This evidence demonstrated that Terrell exerted strength and energy to move the Children from one place to another and she also exerted compulsion or constraint upon the Children to move them from one place to another. The Children did not walk out of the restaurant on their own accord. They were carried or pulled out of the restaurant. We conclude that sufficient evidence was presented to prove that Terrell removed the Children by force, and therefore, her convictions for kidnapping were supported by sufficient evidence.

[20] To the extent that Terrell argues that the term fraud is unconstitutionally vague, she has waived this argument because she has raised it for the first time on appeal. Terrell did not file a motion to dismiss the kidnapping charges based on the alleged unconstitutional vagueness, nor did she object to the charges at any point during the trial. Failure to raise an issue before the trial court generally results in waiver of appellate review. See Layman v. State, 42 N.E.3d 972, 975–76 (Ind. 2015) (providing that constitutional issues may be waived if not raised before the trial court). Further, although we can exercise our discretion to address the merits of a party's constitutional claim notwithstanding waiver, Plank v. Cmty. Hosps. of Ind., Inc., 981 N.E.2d 49, 53 (Ind. 2013), it is long established that a constitutional question that is not necessary to a determination of the merits should not be decided, Layman, 42 N.E.3d at 976. We, therefore, decline to address Terrell's constitutional challenge to the element of fraud in the kidnapping statute because we conclude that sufficient evidence was presented to support that she removed the Children by force.

III. Double Jeopardy

[21] Terrell asserts that her convictions for both Level 5 felony kidnapping and Level 6 felony interference with custody violated the prohibitions against double jeopardy. We review such questions de novo. A.W. v. State, 229 N.E.3d 1060, 1064 (Ind. 2024) (citing Wadle v. State, 151 N.E.3d 227, 237 (Ind. 2020)). Where a single act or transaction implicates multiple statutes, Wadle requires that we engage in a multi-step process to determine whether the convictions comport with double jeopardy principles. Wadle, 151 N.E.3d at 235. The first step is to review the two statutes under which Terrell was convicted. If the language of the statutes “clearly permits multiple punishment,” then there is no double jeopardy violation. Id. at 248. Terrell was convicted of Level 5 felony kidnapping under Indiana Code section 35-42-3-2(a), (b)(1)(B), and she was convicted of Level 6 felony interference with custody under Indiana Code section 35-42-3-4(a)(1). Neither of the statutes at issue expressly authorize multiple punishments for the same criminal act. Nor are they part of a statutory scheme that requires multiple punishments. Because neither statute clearly permits multiple punishment, either expressly or by unmistakable implication, we must move to the next step in the Wadle analysis. Wadle, 151 N.E.3d at 248.

[22] The second step is to determine whether either of the offenses is included in the other, either inherently or factually. Wadle, 151 N.E.3d at 248. Terrell does not argue that the Level 5 felony kidnapping charges are inherently included in the Level 6 felony interference with custody charges, so we assume for purposes of this opinion that they are not and proceed to determine whether the former are factually included in the latter. See A.W. 229 N.E.3d at 1067.

[23] “An offense, even if not inherently included in another, is factually included in the other if the charging information alleges ‘that the means used to commit the crime charged include all of the elements of the alleged lesser included offense[.]’ ” Robinson v. State, 251 N.E.3d 1124, 1132 (Ind. Ct. App. 2025) (quoting Norris v. State, 943 N.E.2d 362, 368 (Ind. Ct. App. 2011), trans. denied). The Indiana Supreme Court has recently clarified that “when assessing whether an offense is factually included, a court may examine only the facts as presented on the face of the charging instrument.” A.W. v. State, 229 N.E.3d at 1067. We assess whether the charging instrument shows that the “ ‘means used’ to commit the alleged greater offense ‘include all of the elements of the alleged lesser included offense.’ ” Bradshaw v. State, 239 N.E.3d 864, 867–68 (Ind. Ct. App. 2024) (quoting A.W., 229 N.E.3d at 1067). “Step 2 has core constraints: it does not authorize courts to probe other facts, such as evidence adduced from trial.” A.W., 229 N.E.3d at 1067. If the charging instrument is ambiguous as to whether one of the offenses is included in the other, we construe that ambiguity in favor of the defendant and proceed to step three presuming a double jeopardy violation. Id. at 1069. “ ‘If neither offense is an included offense of the other (either inherently or as charged), there is no violation of double jeopardy’ and the analysis ends—full stop.” Id. at 1067 (quoting Wadle, 151 N.E.3d at 248).

[24] Looking to the charging information, Level 6 felony interference with custody was charged as:

On or about July 4, 2024, [Terrell], with the intent to deprive another person of child custody rights, did knowingly remove [F.T.], a person under the age of eighteen, to wit: 4 [years old], to a place outside of Indiana, to-wit: Texas; such removal being in violation of a child custody court order.

Appellant's App. Vol. II p. 106.³ The charging information for the Level 5 felony kidnapping stated as follows:

On or about July 4, 2024, [Terrell] did knowingly remove [F.T.] by, fraud and/or force and by using a vehicle, to-wit: a white Pontiac SUV from one place to another place.

Id. at 106.⁴

[25] As to the means used to commit the two crimes, the charging information for the interference with custody charges provides that the means Terrell used to interfere with custody was removing the Children to a place outside of Indiana in violation of a child custody order. The charging information for the kidnapping charges provides that the means Terrell used to kidnap the Children were (1) removal by “fraud and/or force,” and (2) “using a vehicle.” Appellant's App. Vol. II p. 106. Looking to this language alone, as we must do, it is conceivable that the means used to commit the interference with custody charges—removal outside of Indiana in violation of a custody order—included all the elements of the kidnapping charges—removal by fraud and/or force and by using a vehicle. It is also conceivable that the removal from Indiana to Texas, as alleged in the interference with custody charges, included the removal from one place to another place as alleged in the kidnapping charges. Because there are conceivable facts that could show the means used to commit the interference with custody include all the elements of the kidnapping, we find the charging instrument ambiguous. Construing that ambiguity in Terrell's favor, we proceed to step three with the presumption that there is a double jeopardy violation. A.W., 229 N.E.3d at 1069.

[26] In the third step, we must then “examine the facts underlying those offenses, as presented in the charging instrument and as adduced at trial.” Wadle, 151 N.E.3d at 249. “If the underlying facts reveal the two offenses are indeed separate, there is no Wadle violation, even if one offense is, by definition, included in the other.” A.W., 229 N.E.3d at 1071 (internal quotations omitted) (quoting Wadle, 151 N.E.3d at. 249). However, the convictions will be found to violate substantive double jeopardy if the two offenses were “so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction.” A.W., 229 N.E.3d at 1071 (quoting Wadle, 151 N.E.3d at 249).

[27] Terrell argues that step three establishes that her convictions for kidnapping were part of the same transaction as the convictions for interference with custody, as the facts show that both sets of charges were “based on the same trip to Texas that began at the same Indianapolis restaurant and shared the same purpose.” Appellant's Br. pp. 19–20. In its brief, the State maintains that the offenses of kidnapping and interference with custody are not factually included and that there is no ambiguity in the charging information, resulting in a presumptive double jeopardy violation. Based on this assertion, the State makes no argument on appeal that the underlying facts reveal the two offenses are indeed separate. Accordingly, the State failed to rebut the presumptive double jeopardy violation. See A.W., 229 N.E.3d at 1071. Terrell has therefore established that her convictions for both kidnapping and interference with custody violate the protections against double jeopardy rights. In this scenario, we reverse “the conviction with the lesser penalty,” Eversole v. State, 251 N.E.3d 604, 609 (Ind. Ct. App. 2025) (citing Wadle, 151 N.E.3d at 256), trans. denied, which are Terrell's convictions for Level 6 felony interference with custody. Because reversing her convictions for interference with custody affects the aggregate sentence imposed by the trial court, we remand to the trial court to vacate Terrell's three convictions for Level 6 felony interference with custody and to resentence her accordingly.⁵

Conclusion

[28] We conclude that the trial court did not violate Terrell's Criminal Rule 4(B) right to a speedy trial and that the State presented sufficient evidence to support her convictions for kidnapping. However, we do conclude that Terrell's convictions for both interference with custody and kidnapping violate the protections against substantive double jeopardy. We therefore reverse her convictions for interference with custody and remand for resentencing.

[29] Affirmed in part, reversed in part, and remanded with instruction.

FOOTNOTES

1.   Ind. Code § 35-42-3-2(a), (b)(2).

2.   I.C. § 35-42-3-4(a)(1).

3.   The charging information is identical for all three interference with custody counts except for the name and age of the child. See Appellant's App. Vol. II pp. 105–06.

4.   The charging information is identical for all three kidnapping counts except for the name of the child. See Id. at 106.

5.   Because we reverse Terrell's convictions for interference with custody and remand for resentencing, we do not reach her assertion that her sentence is inappropriate.

Foley, Judge.

Kenworthy, J. and Scheele, J., concur.