IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 84,969
STATE OF KANSAS,
Appellee,
v.
MIKEL J. DREILING,
Appellant.
SYLLABUS BY THE COURT
1. The right of appeal is entirely a statutory right; no appellate review is required by the United States Constitution or the Kansas Constitution. This court has no jurisdiction to entertain an appeal by a defendant in a criminal case unless the defendant appeals within the time prescribed by the statutes providing for such an appeal. The Supreme Court has only such appellate jurisdiction as is conferred by statute. When the record discloses a lack of jurisdiction, it is the duty of the Supreme Court to dismiss the appeal. However, there is an exception to the rule requiring a dismissal following an untimely filed notice of appeal when the defendant either was not informed of his or her rights to appeal or was not furnished an attorney to exercise those rights or was furnished an attorney for that purpose who failed to perfect and complete an appeal.
2. When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
3. In a criminal case involving first-degree murder, conspiracy to commit first-degree murder, conspiracy to commit perjury, and terroristic threat, the record is reviewed and it is determined that the State presented sufficient evidence to support the jury verdict.
4. Jury instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.
5. In a criminal prosecution for perjury, the trial court is to determine, as a matter of law, if the alleged false testimony or writing was on a material matter. Where the issue of materiality is presented to the jury and resolved against the defendant, no prejudicial error occurs where the false testimony or writing is determined on appeal to be on a material matter as a matter of law.
6. All relevant evidence is admissible. Relevant evidence is evidence having any tendency in reason to prove any material fact. Evidence is relevant if it renders the desired inference more probable than it would be without the evidence, or if it has any tendency in reason to prove any material fact. Where the probative value is substantially outweighed by the risk of unfair prejudice, even relevant evidence may be excluded by the judge.
7. The admission of evidence lies in the sound discretion of the trial court. An appellate court's standard of review regarding a trial court's admission of evidence, subject to exclusionary rules, is abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. One who asserts that the court abused its discretion bears the burden of showing such abuse of discretion.
8. Evidence of prior acts of a similar nature between the same parties is admissible independent of K.S.A. 60-455 where the evidence is not offered for the purpose of proving distinct offenses, but rather to establish the relationship of the parties or the existence of a continuing course of conduct between the parties, or to corroborate the testimony of the complaining witness as to the act charged.
9. K.S.A. 22-3202(1) governs whether a defendant will be tried on separate charges in a single trial and allows two or more crimes to be charged against a defendant in the same complaint, information, or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
10. The decision to try separate charges in a single trial is a matter within the discretion of the trial court, and the trial court's decision will not be disturbed on appeal unless there is an abuse of discretion. In order to find reversible error, the appellate court is required to find that no reasonable person would agree with the trial court's decision to try the separate charges in a single trial.
11. Although there is no per se barrier to the introduction of evidence of a person's membership or participation in a religious group or association, to be admissible such evidence should be related to the commission of the crime charged or should be used to show a person's possible bias or motive.
Appeal from Geary district court, MELVIN M. GRADERT, judge. Opinion filed September 27, 2002. Affirmed.
Virginia A. Girard-Brady, of Lawrence, argued the cause and was on the briefs for appellant.
Chris E. Biggs, county attorney, argued the cause, and Robin Graham, assistant county attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
Per Curiam: Mikel Dreiling appeals his jury convictions of first-degree premeditated murder, conspiracy to commit first-degree murder, conspiracy to commit perjury, and terroristic threat. Mikel raises the following issues: (1) The State presented insufficient evidence to sustain its burden of proof, (2) the trial court erred in finding that materiality was an element of the perjury charge, (3) the trial court erred in admitting evidence of prior bad acts, (4) the trial court erred in refusing to sever the conspiracy to commit perjury charge from the murder charges, (5) the trial court violated his First Amendment rights, and (6) cumulative error denied him a fair trial.
This appeal follows the jury convictions in a joint trial of Mikel Dreiling and his sister, Dana Flynn, for the December 22, 1992, death of Randy Sheridan. The jury convicted Dana of first-degree premeditated murder, conspiracy to commit first-degree murder, and conspiracy to commit perjury. The State's theory was that Dana and Mikel killed Randy in order to settle a custody dispute over Dana and Randy's daughter, A.S.
Facts
History leading to the death of Randy Sheridan
Randy Sheridan's body was discovered in Geary County approximately 1 mile from his home shortly after 3 p.m. on December 22, 1992. He had been shot several times with what appeared to be a 12-gauge shotgun. His death was caused by two shotgun wounds to the head. Evidence indicated he had been shot from a vehicle and then shot at point-blank range while lying face up by the side of the road.
Randy's affair with Dana and the birth of A.S.: 1981--1987
Judith and Randy Sheridan were married April 11, 1981, and settled into a house near Junction City. The relationship was at times troubled, and Randy moved to Chapman without Judith within 1 year of the marriage.
While in Chapman, Randy had a relationship with Dana, and Dana gave birth to a daughter, A.S., on August 27, 1985. Dana filed a paternity action against Randy. Randy admitted paternity and was ordered to pay child support, to pay one-half of A.S.'s medical bills, and to obtain an insurance policy naming A.S. as beneficiary. He was granted reasonable visitation rights and visitation every other weekend.
Randy moved back into the house with Judith within 1 to 2 years after first moving out. When Judith learned that Dana had filed a paternity suit against Randy, Judith and Randy divorced, and Randy moved back to Chapman. Eventually, Randy and Judith reconciled their differences and Randy moved back with Judith, but they never remarried. The couple had their own daughter, S.S., in January 1989. Judith testified Randy was a good father.
In 1986, Randy sought and secured joint custody of A.S. Problems with visitation later surfaced as Dana and Randy began to disagree over various issues concerning A.S.'s upbringing.
Dana, who disapproved of Randy's lifestyle, also believed Randy was trying to turn A.S. away from Dana's church. According to one witness, Dana said she would "do anything to keep from having [A.S.] go back out there or see Randy."
Dana's relationship with Steve Flynn and the birth of J.F.: 1987--1992
Steve Flynn and Dana were married in November 1987 and moved to Salina after their marriage.
In May 1988, Steve and Dana began attending the Fountain of Life Church where Jerry Rollins was the pastor. Witnesses described the church as a Pentecostal church. Numerous witnesses testified that members of Pastor Rollins' church, including Pastor Rollins, would speak in tongues, which was described at trial as unintelligible vocalizations. The witnesses further testified that Pastor Rollins proclaimed to have the "gift of prophecy" and that he was "God's prophet during these later days" and that members of the Fountain of Life Church believed in prophesy. Witnesses also stated that Pastor Rollins regularly made prophesies during church services stating that he was quoting what God was supposedly telling him; the witnesses stated that Pastor Rollins believed Salina was the most evil town in Kansas and that Kansas was the most evil state in the United States.
During the fall of 1988, Pastor Rollins prophesied that Randy was evil and Steve was, in God's eyes, A.S.'s father. Pastor Rollins further prophesied that it was not God's will that Randy have visitation with A.S. and that God would take care of Randy.
Some of the church's services were held at Pastor Rollins' house. The church membership also included Dana and Mikel's father Norman, their mother Shirley, and a number of siblings.
After moving to Salina, Dana tried to change Randy's visitation rights. The change was precipitated, in part, by Dana's belief that the distance between Salina and Randy's home in Junction City necessitated the change.
After a few months of attending Pastor Rollins' church, Steve and Dana's marital relationship began to change. Pastor Rollins and Dana began spending increasing amounts of time together and telephoned each other frequently. They spent time at each other's homes. During this time, Pastor Rollins began to offer Dana and Steve marriage counseling. J.F., Steve and Dana's son, was born in January 1989. Steve and Dana divorced in June of that year.
Evidence that Dana referred to Steve as the devil: February 1992
J.F. began to call Steve various names. Steve described for the jury what he heard when he picked up J.F. on February 22, 1992:
"He saidbasically, yelled, 'Nanny nanny boo boo, you serve the devil. Nanny nanny boo boo, you serve the devil,' over and over and over for about ten miles, as we drove down Interstate 70 from Salina. 'Nanny nanny boo boo, you serve the devil,' over and over."
During the summer of 1992, J.F. said to his father, "Daddy serves the devil," in an angry manner. J.F. also said, "Grandma serves the devil." J.F. also told Steve that he had a new "daddy," which Steve took to be a reference to Pastor Rollins. Another time, J.F. said, "Hi, you old faggot," to his father. Steve believed Dana was teaching J.F. to make these comments and, as a result, contacted the Kansas Department of Social and Rehabilitation Services (SRS) to initiate an investigation.
On a later occasion when Steve picked up J.F., J.F. made a motion as if he was "zipping his lips." Steve explained:
"I asked him what he was doing, and he blurted out that I served the devil and that I was going to go to hell, and he started crying, and he--then he said he wanted to go back to his mom's house.
"He opens the door, I reach out, grab the door, right before he jumps out, I then get out my door and run around and catch him, as he's running for his mother's house. I catch up with him on the porch, I grab him, put him in my arms.
"I knock on the door, Dana comes to the door, and I yell at her. I say, 'You told him that I serve the devil and it's bullshit.' And that--I take him out to the truck, she yells out after him, 'Don't listen to him [J.F]. Don't listen to him.' And I strap him in and hold him down and take him home."
Dana's first sexual abuse allegation: 1989
In July 1989, Randy was contacted by Detective Albert Buskey from the Geary County sheriff's department concerning allegations that Randy was sexually molesting A.S. During this time, Randy and Dana were having significant disagreements over the visitation and raising of their daughter.
The sexual molestation allegations provided Dana an excuse for denying Randy visitation of A.S. Randy's attorney advised Randy to begin documenting the events.
Judy Pearce, a social worker with SRS, testified that Dana told her during June 1989 that A.S. had been sexually abused. Pearce interviewed A.S. Following an investigation, SRS sent a notice to Randy that the allegation was unfounded. At the same time, SRS sent a similar notice to Dana. However, Dana's notice also indicated SRS was concerned that A.S. had been coached to substantiate the sexual abuse allegations. The SRS notice stressed how "extremely emotionally damaging" such coaching can be.
Dana's second sexual abuse allegation; Randy and Steve ally against Dana: May 1992
A.S. and Randy had a good relationship through the beginning of 1991. Slowly things began to change. A.S. was standoffish on Friday nights when Randy picked her up, but would be friendlier by the next morning. During May 1992, Dana made additional allegations that Randy was molesting A.S., and Dana refused to allow Randy visitation. Randy would not again have any visitations with A.S. until July 1992. When visitations continued, Randy could only have SRS supervised visitation with A.S.
During March or April 1992, Randy contacted Steve to inquire whether Steve had been having similar problems with Dana. Steve and Randy began to share information regarding their mutual problems with Dana.
Marriage between Lee Anna Rollins and Pastor Rollins: 1979-1992
Pastor Rollins' wife from 1979 to 1992, Lee Anna Miller, found an invoice from an adult mail-order company, Adam and Eve, in 1990. The invoice indicated the adult items had been sold to Pastor Rollins and sent to Dana's house. Lee Anna made copies of the invoice and confronted Pastor Rollins. At the confrontation, Pastor Rollins and Lee Anna "wrestled over it," and Pastor Rollins got the copy away from Lee Anna.
Lee Anna believed Pastor Rollins was having an affair with Dana. Nevertheless, Dana moved in with Pastor Rollins and Lee Anna. Dana told her coworkers she was engaged but would not say to whom. Lee Anna moved out of the house in February 1992 and stopped going to the Fountain of Life Church. She gave her divorce attorney a copy of the invoice from the adult mail-order company and also gave a copy to Steve.
As a result of the cooperation between Steve and Randy, Randy obtained a copy of the invoice. Randy had a friend write "Praise the Lord" on the invoice and had several copies sent to Dana's family. A copy of the invoice with "Praise the Lord" written on it was found in Pastor Rollins' house following Randy's murder.
Pastor Rollins' shotgun
Lee Anna's brother, a hunter, sold a shotgun to Pastor Rollins. Lee Anna remembered Pastor Rollins kept the shotgun in his closet, and she remembered the shotgun was there when she moved out in February 1992.
Randy hires attorney Robert Pottroff: August 1992
Randy hired another attorney, Robert Pottroff, who began to aggressively approach the custody battle involving A.S. Randy was concerned about the welfare of A.S. and felt A.S. was being brainwashed. Randy wanted a custody evaluation, and Pottroff secured this for his client.
During a November 3, 1992, deposition of Dana, Pottroff asked Dana about her relationship with Pastor Rollins. Pottroff testified at trial: "She said, 'Just friends. He is a minister and I was someone who went to the church.'" Dana said she did not see Pastor Rollins often and denied that Pastor Rollins was her marriage counselor. She denied having lived with Pastor Rollins and denied that A.S. had lived in the same household as Pastor Rollins. Dana further denied that Pastor Rollins had packages mailed to her.
Randy was evaluated by Dr. Gail Roth as ordered by the court. Dr. Roth testified he was aware of the sexual abuse allegations against Randy. The prosecutor asked Dr. Roth what he thought of the sexual abuse allegations: "I had looked through them, and what I was concerned about is whether the reports were founded or unfounded. The information that I had suggested unfounded, and so I was not going to pursue that further. I was not going to investigate that." Dr. Roth did not have any concerns over Randy's parenting ability.
Dana did not complete the required evaluation. At first, she failed to contact the psychologist as ordered. Dana did not begin the court-ordered psychological testing until December 17, 1992. Dr. Roth testified the evaluation process ended after the death of Randy.
Based on the deposition testimony, Pottroff filed a motion on November 24, 1992, to compel an "immediate custody evaluation" and a motion to modify the custody arrangement. Pottroff alleged, in part, the following:
"2. On July 30, 1992, this court ordered an immediate psychological/custody evaluation. The court also allowed defendant supervised visitation, and his parents visitation rights. Dana Flynn has refused any grandparent visitation, despite the fact that there's never been any allegations of impropriety between the paternal grandparents and the minor child, [A.S.].
"3. Dana Flynn has circumvented the supervised visitation of Randy Sheridan by failing to appear for prearranged visitation with SRS.
"4. Dana Flynn has totally circumvented the evaluation process by refusing to agree upon an evaluator. After she was forced to agree upon an evaluator under threat of further litigation, she then refused to meet with the evaluator that was appointed by agreement of the parties.
"5. The agreed evaluator, Central Kansas Mental Health Center, Salina, Kansas, finally contacted the court and counsel concerning their being totally frustrated by Dana Flynn's failure to cooperate with the evaluation process.
"6. It appears that Dana Flynn's refusal to engage in the psychological/custody evaluation is part of her overall plan to totally avoid compliance with the court's orders.
"7. Defendant has evidence that Dana Flynn is currently involved in a relationship with Jerry Rollins. That relationship and all information about Jerry Rollins has been intentionally concealed by Dana Flynn. The concealment is obviously intended to circumvent the court's consideration of relevant factors as specified in K.S.A. 60-1610(a)(3)(B)(i), which directs the court to consider 'the length of time that the child has been under the actual care and control of any person other than a parent and the circumstances relating thereto.'
"8. Jerry Rollins has exercised long term, continuous control over Dana Flynn, her family, and, in particular, [A.S.]. That control has been psychologically and emotionally destructive to [A.S.]."
Pottroff asked for a number of orders in the motions, including that all adults "with any significant impact on [A.S.]" get a full psychological evaluation. A hearing on the motions was set for December 8, 1992, but the hearing did not take place. Over Pottroff's objection, Dana was able, the day before the hearing, to secure a continuance. Pottroff testified the continuance was a delay tactic on Dana's part. The hearing was continued until December 21, 1992.
As a result of the court-ordered continuance, Pottroff filed a temporary order for custody/visitation and a restraining order. The order removed the requirement that Randy's visits with A.S. be supervised. Randy was granted visits every weekend and visitation from December 29, 1992, through January 3, 1993, to accommodate an annual ski trip. A.S. was ordered to have no contact with Pastor Rollins. With regard to this last provision, Pottroff testified regarding the predicament into which this forced Dana:
"I--I asked the judge to issue a restraining order which would prevent [A.S.] from coming in contact with Jerry Rollins. There was an objection by Larry Livengood that he thought that was unnecessary order, because we were just taking somebody out of this child's life, at which point I related to the judge, 'Well, Judge, I've got the depositions of these two people, and they claim there is no relationship with Jerry Rollins and [A.S.], so humor me, just go ahead and make it a court order that they can't see each other, because if they're telling you the truth in the depositions and they're not seeing her, it shouldn't hurt anybody for them to not see her for the next few weeks.' That was very hard for the judge to listen to an argument on the other side, and he gave us the restraining order."
Randy's next visitation was scheduled for December 11, 1992, but A.S. refused to leave Dana's house. Pottroff filed a motion for citation of contempt and modification of custody arrangement, and the hearing was set for December 21, 1992. Pottroff filed the motion for contempt because of evidence from Pastor Rollins' neighbors that Dana allowed A.S. to have contact with Pastor Rollins the day after the court's order restraining such contact.
Threat to Steve: December 7, 1992
Steve, in his divorce case with Dana, made a number of allegations: (1) Dana had physically abused J.F., (2) Dana was having a relationship with Pastor Rollins and resided with Pastor Rollins, (3) Dana was accusing him of being a homosexual and told that to J.F., (4) Pastor Rollins exercised such control over J.F. that it interfered with Steve's relationship with J.F., (5) Dana continually "persists in telling [J.F.] that [Steve] serve[s] the devil," and (6) Dana had refused to get counseling. Steve requested that (1) all adults involved in J.F.'s life be evaluated, (2) J.F. be evaluated "to help determine the full extent of his emotional problems," (3) Steve be granted full custody of J.F., (4) and that Dana only have supervised visitation with J.F.
Steve first saw signs of physical abuse of J.F. in November 1992, when he noticed a bruise on J.F.'s bottom and took J.F. to the hospital to document the bruise. On the way home from the hospital, J.F. called Steve "a queer." When Steve returned J.F. to Dana, he informed her that he had taken J.F. to the emergency room and called the police, and that J.F. had called him a queer. Dana replied, "Thanks, Mr. Homosexual."
Steve took J.F. to see a counselor, Vanessa Fechter, a mental health therapist, on December 4, 1992. Based on the information provided by Fechter, Steve decided not to return J.F. to Dana. J.F. drew a picture of the devil and showed it to Fechter and also said his father was the devil. Fechter testified J.F. was very talkative when she first began meeting with J.F., but later J.F. became reserved. Fechter asked J.F. about Pastor Rollins, and J.F. replied, "He does not exist." Fechter believed it was strange for a 3-year-old to use those words.
On December 7, 1992, the day Steve filed his motion to modify custody, he was scheduled to return J.F. to Dana but instead went to Dana's front door, told her he was not returning J.F., and then went to work. Approximately 2 hours later, Dana and Mikel went to Steve's place of work. Dana and Mikel got out of their car and approached Steve. Mikel immediately began yelling, accusing Steve of having kidnapped J.F. Steve described what happened:
"Well, when he got up to me, he started--started poking. He didn't touch me, but he was like this, right in front of me, again, saying, 'Going to see you go down. I'm going to make--I'm going to make you go down. I'm going to see you go down,' repeating that over and over.
. . . .
". . . It was at that time Dana grabbed Mike's arm and said, 'Mike, now's not the time. Mike, now's not the time,' as he kept saying to me, 'I'm going to see you go down. I'm going to take--make you go down,' and it was after she grabbed his arm, he turned and spit a luggie right here on my cheek . . . ." (Emphasis added.)
Steve returned J.F. to Dana later that afternoon. Steve testified that as a result of his motion, he was later granted custody of J.F. and that he had maintained custody since.
Threat to Randy: December 12, 1992
Judith and Randy received two telephone calls during the early hours of December 12, 1992. The calls came between 3:30 and 4:30 a.m. Records from the telephone company indicated the calls originated from Mikel's residence. Judith did not hear anything after answering the first call. When Judith answered the phone the second time, Judith heard the words "die" or "dead." Randy took the phone from Judith, listened, and said, "Why don't you grow up, Mikey?" Randy used "Mikey" to refer to Mikel.
After the murder, KBI agent Jeffrey Brandau interviewed Judith regarding the telephone death threat. Judith specified, without looking at any phone records, the date of the telephone call and the identity of the caller.
Failure of Dana's sexual abuse allegations becomes apparent: December 15, 1992
Social worker Pearce spoke with Dana's attorney, Larry Livengood, and advised him she found "elements . . . missing" from the allegations that Randy abused A.S. Further, Pearce testified she told Livengood that she actually suspected Dana of a different type of abuse:
"Q. And what, if anything, did you advise her attorney on the 15th of December of 1992?
"A. I clarified my role, that it was my job to investigate the sexual abuse, and that--advised him the various elements was [sic] missing, so we couldn't confirm the sexual abuse, but that we did have some concerns about emotional abuse, and that if there is subsequent documentation by a therapist that she had been abused, there could be repercussions in terms of removal [of A.S.] from Dana's home through the juvenile court system.
"Q. And were you--when you were referring to abuse at that point being looked at by a doctor, what kind of abuse are you referring to?
"A. Emotional abuse.
"Q. And what, specifically, were you referring to?
"A. The trauma that [A.S.] was exhibiting, because of being torn between the two parents, and the fear that she was exhibiting of her father.
Later, Pearce spoke with Livengood and told her that Dana doubted her objectivity.
Trip to visit Dr. Edelman: December 18, 1992
On December 18, 1992, Randy met A.S. to begin his visitation. A.S. was quiet at first. Later that evening, Randy and Judith drove to Manhattan with A.S. to visit with Dr. Sheldon Edelman, a clinical psychologist. Dr. Edelman described A.S.'s behavior:
"Well, she was screaming. She had been--apparently, been screaming all the way from Salina to my office. Her voice was hoarse, at times, she was weeping inconsolably, and she was directing her rage at her father. She was saying that he was sent by the devil, that he was evil, and that she wanted to be with her mother."
When Judith and Randy returned the next day with A.S., A.S. was much calmer, acting like a normal child.
Evidence Dana received warning in custody battle: December 20, 1992
James Canfield, the ex-husband of Dana's sister Cheryl, met with Pottroff on December 20, 1992, to discuss testimony relating to the custody battle between Dana and Randy. Canfield later had a conversation with Cheryl during which he told Cheryl that Dana was going to lose her children and that Dana was in for a "rude awakening on it."
Dana delays contempt hearing: December 21, 1992--day before the murder
Pottroff testified that the December 21, 1992, hearing on his motion for contempt did not take place. Livengood called Pottroff on the morning of December 21, 1992, and said he and his client did not want to go to court. Pottroff told Livengood he was impatient with Dana and her delaying tactics and that he was not going to back off of the contempt citation. Pottroff was willing to negotiate on a number of other matters. In terms of custody, Pottroff secured a number of concessions, including giving Randy custody of A.S. from December 22, 1992, until the Saturday after Christmas for the annual ski trip and equal custody thereafter. Further, Pottroff again reiterated the requirement that A.S. have no contact with Pastor Rollins. Pottroff demanded that Dana get an evaluation. Pottroff and Livengood agreed to work out the details of when Randy would pick up A.S. for the ski trip the next morning.
Despite the continuance, Pottroff went to court to make a record of evidence supporting the motion for contempt. Livengood and Dana did not appear at the hearing. Pottroff took the testimony of Pastor Rollins' neighbors before the court reporter. Pottroff also hired a court reporter to take the testimony of Lee Anna Miller, Pastor Rollins' ex-wife.
Randy's actions prior to the murder: December 22, 1992
On December 22, 1992, the day of his murder, Randy was waiting to hear from Pottroff regarding the details of when A.S. could be picked up for the ski vacation. Randy called Judith between 2:30 and 3 p.m. and said he had not heard anything from Pottroff. Randy told Judith he was going running and that he would call her again at 3:30 p.m.
That same day, Pottroff still had to negotiate a date and time for Randy to pick up A.S. Randy woke Pottroff's secretary at 6:30 a.m. to inquire about the details. Pottroff tried to call Dana's attorney at 9 a.m., but no one was in Livengood's office at that time. Pottroff was not able to get the details worked out that morning. Pottroff spoke with Livengood around noon. Pottroff became frustrated that Liv