Curtis Lee Johnson v. State of Alabama

Rel: May 5, 2023

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

Alabama Court of Criminal Appeals
OCTOBER TERM, 2022-2023
_________________________

CR-21-0291
_________________________

Curtis Lee Johnson

v.

State of Alabama

Appeal from Cherokee Circuit Court
(CC-20-900036)

MINOR, Judge.

Curtis Lee Johnson appeals his convictions for two counts of first-

degree sodomy, see § 13A-6-63, Ala. Code 1975, and two counts of sexual
CR-21-0291

abuse of a child under the age of 12, see § 13A-6-69.1, Ala. Code 1975.1

On appeal, Johnson raises five issues arguing: (1) that the circuit court

erred by granting the State's motion in limine to exclude evidence that

S.T. was the victim of a prior sexual assault; (2) that the circuit court

erred by denying his motion in limine to exclude S.T.'s videotaped

interview; (3) that the jury pool was not made up of a fair cross-section of

the community because, he says, "the COVID pandemic resulted in the

systematic exclusion of all African-Americans from the jury panel"; (4)

that his substantial rights were violated when he received verdicts that

were not unanimous; and (5) that the State's evidence did not support his

convictions for sexual abuse of a child under 12. (Johnson's brief, p. 20.)

For the reasons below, we affirm the circuit court's judgment. But we

must remand this case to the circuit court for that court to impose post-

release supervision mandated by § 13A-5-6(c), Ala. Code 1975.

1The circuit court sentenced Johnson to 99 years' imprisonment on
each of the sodomy convictions and to 20 years' imprisonment on each of
the sexual-abuse convictions. The court ordered that those sentences
were to be served consecutively.
2
CR-21-0291

FACTS

Six-year-old S.T., who was eight years old at the time of trial,

testified to incidents of sexual abuse involving her mother's boyfriend,

"Mr. Curtis," or Johnson. (R. 133.) One time, S.T. and Johnson were at

the "burn pile" outside Johnson's house when Johnson told S.T. to "suck

his penis." (R. 134.) On another occasion, Johnson told S.T. to get in the

shower with him and to do the "same thing," which referred to the prior

oral sex. (R. 135.) S.T. testified that on both occasions Johnson stated

that "this is what boys will do to you" or that "boys will do this to you."

(R. 134-35.)

S.T. recalled another incident in which her mother, C.T., walked

into the bathroom and saw Johnson touching her "pocketbook."2 (R. 135.)

S.T. asked, "Did you see that?" and C.T. walked outside and "got her gun."

(R. 136.) S.T. covered her ears because she was scared that C.T. was going

to "kill [Johnson]." (R. 136.) Johnson walked out of the bathroom and

stated, "I just touched her belly" to which S.T. responded, "No, you did

2"Pocketbook" refers to S.T.'s vagina.

3
CR-21-0291

not." (R. 136.) S.T. also stated that Johnson touched her "boobies."

(State's Exhibit 8, minute 8:12. 3)

In the summer of 2019, C.T. allowed her then-boyfriend Johnson to

watch her daughter S.T. while she worked as a nurse near Centre. C.T.

testified that on July 23, 2019, she saw Johnson "grope [S.T.] in her

private area." (R. 150.) C.T. testified that she "lost it" and yelled, "What

the fuck did I just see?" (R. 151.) C.T. testified that S.T. stated, "Mom,

did you see that? … He touched me down in my pocketbook." (R. 151.)

C.T. testified that she went to her car to get her gun but that "Johnson

went flying past [C.T.]" so she said, "[S.T.], let's just get our stuff and go."

(R. 152.) C.T. testified that before she and S.T. could leave the house,

Johnson came back to the house and told C.T. to "just let it go" because,

he said, "we were horseplaying; I took it too far." (R. 153.) C.T. testified

that she threatened to call Johnson's church and report the incident to

the pastor and that Johnson responded, "Don't call the pastor. They're

going to kick me off the deacon board." (R. 153.) C.T. also testified that

3Nancy Green, Forensic Interviewer at the Talladega County Child
Advocacy Center ("CAC"), testified that she interviewed S.T. days after
the incident. The circuit court admitted a recording of the interview. See
State's Exhibit 8.
4
CR-21-0291

Johnson stated, "Can I pay you? Whatever it is. Just don't call and tell

nobody." (R. 154.)4

Johnson, who was 68 years old at the time of trial, testified in his

own defense. Testifying about the bathroom incident, Johnson explained

that he pulled S.T.'s shirt so that he could reach for the pliers that S.T.

held in her hands, and he denied touching her vagina.

A jury convicted Johnson of two counts of first-degree sodomy and

two counts of sexual abuse of a child under the age of 12. Johnson timely

appealed.

I. STATE'S MOTION IN LIMINE

Johnson argues that the circuit court abused its discretion by

preventing him from questioning S.T. about a prior sexual assault by

another individual. (Johnson's brief, pp. 26-33.) This issue is not properly

before this Court for review.

Before trial, the State moved in limine to prohibit Johnson's use of

any evidence related to a prior instance of sexual abuse suffered by S.T.

4T.T.,C.T.'s sister, testified that on July 23, she received a call from
C.T. about S.T. being abused by Curtis. T.T. telephoned and confronted
Curtis. The circuit court admitted a recording of the telephone
conversation. See State's Exhibit 7.

5
CR-21-0291

The State argued that the evidence was prohibited by Rule 412, Ala. R.

Evid. 5 Johnson responded in a motion of his own that the evidence was

essential to explain S.T.'s knowledge of sexual acts and her age-

inappropriate language. The circuit court granted the State's motion.

Johnson explicitly argues in his brief that he is challenging the

circuit court's granting of the State's motion in limine, yet the court's

ruling preserved nothing for appeal. See Harrington v. State, 858 So. 2d

5Rule 412, Ala. R. Evid., provides:

"(a) Evidence Generally Inadmissible. The following
evidence is not admissible in any prosecution for criminal
sexual conduct except as provided in sections (b) and (c):

"(1) evidence offered to prove that any complaining
witness engaged in other sexual behavior.

"….

"(b) Exceptions. The following evidence is admissible, if
otherwise admissible under these rules:

"….

"(3) evidence the exclusion of which would violate the
constitutional rights of the defendant."

A "complaining witness" is defined as "[a]ny person alleged to be the
victim of the crime charged, the prosecution of which is subject to the
provisions of this rule." Rule 412(d)(1), Ala. R. Evid.
6
CR-21-0291

278, 291-92 (Ala. Crim. App. 2002) (recognizing that it is generally held

that the granting of a motion in limine can never be reversible error). To

preserve this issue for appeal, it was incumbent upon Johnson to make

an offer of proof during trial. Id. at 291. "It is this refusal at trial to

accept that proffered evidence, not the granting of the pretrial motion in

limine, that serves as the basis for reversible error." Id. (emphasis

omitted).

The circuit court, under Rule 412, Ala. R. Evid., was tasked with

balancing the privacy interests of S.T. with Johnson's right to present a

defense. Johnson asserted below, as he does on appeal, that the evidence

was essential to explain S.T.'s knowledge of sexual acts and her age-

inappropriate language. All that was before the circuit court when it

ruled on the State's motion, however, was that S.T. "was molested by an

11-year-old in Talladega County" the year before Johnson's abuse. (R.

18.)

" 'The primary reason for the offer of proof is that it
better enables the trial judge to consider further the claim for
admissibility of such evidence. The secondary reason is that
the offer of the proposed [evidence] places the same in the
official record for the benefit of the appellate court called upon
to decide whether there has been error committed in the
ruling.' "

7
CR-21-0291

Ex parte Harris, 461 So. 2d 1332, 1334 (Ala. 1984) (quoting Charles W.

Gamble, McElroy's Alabama Evidence § 425.01(1) (3d ed. 1977)). The

allegations against Johnson were that S.T. performed oral sex on him

and that he touched S.T.'s "pocketbook" and her "boobies." Given the

dearth of information before the circuit court, it would have been

impossible for it to assess whether the prior instance of sexual abuse

would have been relevant to explaining S.T.'s knowledge of sexual acts or

her purportedly age-inappropriate language. 6 The absence of an offer of

proof similarly prevents this Court from assessing whether the circuit

court abused its discretion in granting the State's motion to prohibit the

evidence.

Because Johnson failed to make an offer of proof regarding the prior

sexual abuse suffered by S.T., he has failed to preserve this issue for

appellate review. See Harrington, 858 So. 2d at 292. Johnson is due no

relief on this claim. See Ex parte Coulliette, 857 So. 2d 793, 794 (Ala.

2003) (" 'Review on appeal is restricted to questions and issues properly

and timely raised at trial.' Newsome v. State, 570 So. 2d 703, 717 (Ala.

6Johnson did not identify for the circuit court the specific knowledge
or the language that he believed was age-inappropriate.
8
CR-21-0291

Crim. App. 1989).").

II. JOHNSON'S MOTION IN LIMINE

Johnson argues the circuit court violated his Sixth Amendment7

right to confront his accuser when it allowed S.T.'s videotaped interview.

(Johnson's brief, pp. 40-42.)

As best we can determine, Johnson objected to the videotaped

interview on the mistaken belief that S.T. was not going to testify. (R.

25.) After the State confirmed that S.T. would testify, the circuit court

asked Johnson "[d]oes that speak correctly?" to which Johnson replied,

"Yes, Your Honor. I mean, we would like to exclude the video. I think the

law allows it in, but I'm making that objection for constitutional grounds

there, and we'll stand on that." (R. 25.) Later, when the State moved to

admit the videotaped interview as State's Exhibit 8, Johnson again

objected: "Judge, I'd just renew my objection that I made prior to trial,

which was that they had given notice, and I have objected to the notice of

7The Confrontation Clause of the Sixth Amendment, made
applicable to the States through the Fourteenth Amendment, provides:
"In all criminal prosecutions, the accused shall enjoy the right ... to be
confronted with the witnesses against him."
9
CR-21-0291

intent to use it." (R. 194.) The circuit court overruled the objection and

allowed State's Exhibit 8 to be played. (R. 194.)

Johnson's objection based on his mistaken belief that S.T. was not

going to testify is moot. Any argument that Johnson now raises regarding

the video's admissibility considering the circuit court's "Rape Shield

ruling," was not raised below. "Review on appeal is restricted to questions

and issues properly and timely raised at trial." Newsome v. State, 570

So. 2d 703, 717 (Ala. Crim. App. 1989). Thus, Johnson is due no relief on

this issue.

III. JURY POOL

On appeal, Johnson argues that the jury pool was not made up of a

fair cross-section of the community because, he says, "the COVID

pandemic resulted in the systematic exclusion of all African-Americans

from the jury panel," thereby depriving him of his constitutional rights.

(Johnson's brief, pp. 42-49.)

" 'In Duren v. Missouri, 439 U.S. 357, 364, 99
S.Ct. 664, 58 L.Ed.2d 579 (1979), the Supreme
Court of the United States explained:

" ' "In order to establish a prima facie
violation of the fair-cross-section
requirement, the defendant must show
(1) that the group alleged to be

10
CR-21-0291

excluded is a 'distinctive' group in the
community; (2) that the representation
of this group in venires from which
juries are selected is not fair and
reasonable in relation to the number of
such persons in the community; and (3)
that this underrepresentation is due to
systematic exclusion of the group in the
jury-selection process."

" 'The Duren Court defined systematic exclusion as
exclusion that is "inherent in the particular jury-
selection process utilized." Id. at 366; see also
Gibson v. Zant, 705 F.2d 1543, 1549 (11th Cir.
1983) ( "[T]he Duren Court ... defined 'systematic'
as 'inherent in the particular jury-selection
process utilized.' "). "[T]he fair cross-section
requirement ensures only a venire of randomness,
one free of systematic exclusion. It does not ensure
any particular venire." Gavin v. State, 891 So. 2d
907, 945 (Ala. Crim. App. 2003) (internal citations
and quotations omitted). "Rather than being
entitled to a cross-sectional venire, a defendant
has a right only to a fair chance, based on a
random draw, of having a jury drawn from a
representative panel." Id. (internal citations and
quotations omitted). This Court has repeatedly
held that the random drawing of veniremembers
from a list of licensed drivers satisfies the fair-
cross-section requirement. See id. at 946–47;
Carroll v. State, 852 So. 2d 801, 807–08 (Ala. Crim.
App. 1999); Clemons v. State, 720 So. 2d 961, 972
(Ala. Crim. App. 1996); Sistrunk v. State, 630 So.
2d 147, 149–50 (Ala. Crim. App. 1993).'

"Gholston v. State, 57 So. 3d 178, 180–81 (Ala. Crim. App.
2010)."

11
CR-21-0291

Jackson v. State, 177 So. 3d 911, 917-18 (Ala. Crim. App. 2014).

During jury selection, Johnson stated that the afternoon jury panel

had more Black persons on it and requested that that panel be looked at

to "have a more accurate jury pool of [Johnson's] peers." (R. 88-89.) The

circuit court responded that there could have been the same number of

Black persons on the morning panel. The circuit court denied the request.

(R. 90-91.)

At a hearing on Johnson's motion for a new trial, the State recalled:

"[A]n objection was raised to the constitution of the panel,
and a discussion was held on the record then during the trial
that the panel was randomly selected based upon the driver's
licenses of the citizens of Cherokee County, and that method
of constituting jury panels has been litigated time and again
and held to be constitutional."

(R. 355.) Later, the circuit court addressed the issue:

"THE COURT: Let me go back to Paragraph 11 on the
Motion for Judgment of Acquittal, the first thing you argued,
that the defendant was denied his Sixth Amendment right
based on the makeup of the jury panel.

"Here's my recollection of what happened is that,
because of COVID, we called juries in two different panels,
randomly selected. One at 9:00 o'clock. One at 1:30. And the
9:00 o'clock panel had enough folks on it for us to go forward
and select a jury. We had other cases for trial that week, and
so we needed to get it started, and so we did.

12
CR-21-0291

"You all raised an objection that there were no African-
Americans in the panel at 9:00 o'clock, and I asked then, 'Are
there African-Americans in the panel at 1:30?' And I don't
remember that you all said yes or that you even knew.

"As it turns out—and I think it's important for the
record to contain this—that afternoon when the 1:30 panel
came in here, there was one. There was one African-American
in the 1:30 panel. There weren't any at the 9:00 o'clock panel.
And I think it's important, also, to note for appellate review
that both the defendant and the victim and the victim's family
in this case are all African-Americans. So this is not an
instance in which the victim and the defendant were of two
different races.

"And then, also, I will ask the same question about
Paragraph 11 that I've asked you about these others. You
made allegations here, but what does the law say about this?
What cases can you cite to me that would support your
position?

"[Johnson's counsel]: Yes, Your Honor. We're specifically
arguing—specifically, the Sixth Amendment itself, just the
right to a fair and impartial trial. I'm not really going under
Batson [v. Kentucky, 476 U.S. 79 (1986),] here in that the
prosecution struck him. More specifically, that there was
nobody there. And I get there was only one that afternoon.

"And, also, some statistics, I think there's, you know,
maybe five percent African-Americans in our county. But we
just felt like it was not a fair cross-section of his peers and
that we were only allowed those 24 on that panel."

(R. 360-62.)

In denying Johnson's motion for a new trial on this issue, the circuit

court held:

13
CR-21-0291

"[Johnson] made a variety of unsupported allegations in
his motion that the Court deems too frivolous to address
specifically, with the exception of the claim that in the jury
panel he selected from 'there were no African-Americans on
the entire panel from which strikes were made. That a panel
that arrived later in the trial week for other trials had
African-Americans on it.' The use of the plural 'African-
Americans' is inaccurate. As the Court noted at the hearing
on the motion, when the afternoon panel of jurors arrived,
there was one African-American that appeared for jury
service.

"At the time of jury selection, [Johnson] raised the lack
of African-Americans on the panel as an issue. The Court gave
him an opportunity to explain how the afternoon panel might
be better. However, [Johnson] offered no explanation as to the
makeup (or potential makeup) of the afternoon panel. His
request to use the afternoon panel was, therefore, speculative
as he had no information to provide the Court as to the racial
makeup of the afternoon panel.

"Further, [Johnson] has not presented the Court with
any information as to the racial makeup of the jurors
summoned for jury service. It could make a difference if the
panel of jurors summoned (by the Administrative Office of
Courts in Montgomery) contained no or only very few African-
Americans. However, no such information was provided by
[Johnson].

"Further, [Johnson] has not supported his argument
with adequate citation to and explanation of legal authority.
Merely citing cases and constitutional amendments without
adequate legal analysis is insufficient.

"Finally, as the Court noted at the motion hearing,
[Johnson] and the victim and the victim's family are all
African-Americans. This is not a case in which there is a racial
difference between the defendant and the victim."

14
CR-21-0291

(C. 58-59.)

We agree with the circuit court's holding that Johnson did not prove

a prima facie violation of the fair-cross-section requirement under Duren

v. Missouri, 439 U.S. 357 (1979). Thus, Johnson is due no relief on this

issue.

IV. UNANIMOUS VERDICTS

Johnson argues that his substantial rights were violated when he

received verdicts that, he says, were not unanimous. Johnson argues that

an unanimity charge should have been given because, he says, the jury

could not determine which acts constituted each charge of sexual abuse

of a child under 12.

The record shows that the circuit court instructed the jury: "The

defendant is charged with two counts of sexual abuse of a child less than

12 years old. …You must consider each of the two counts independently

of one other." (R. 320-21.) Following the circuit court's jury charge,

Johnson's counsel said that he had: "No objection, Your Honor." (R. 331.)

"Generally, Alabama follows a strict-election rule, by
which the State must elect the offense on which it will proceed
'[w]here the evidence discloses two or more offenses growing
out of distinct and separate transactions.' R.L.G. v. State, 712
So. 2d 348, 355 (Ala. Crim. App. 1997), aff'd, 712 So. 2d 372

15
CR-21-0291

(Ala. 1998) (internal quotation marks omitted). However, the
strict-election rule does not apply in cases of sexual abuse of
children by a resident abuser that involve purely generic
evidence, i.e., 'evidence of sexual abuse perpetrated upon a
young child so often and in so many locations "by an abuser
residing with the child ... that the young child loses any frame
of reference in which to compartmentalize the abuse into
'distinct and separate transactions,' " ' or that involve a
combination of both specific and generic evidence. Shouldis v.
State, 38 So. 3d 753, 761 n.4 (Ala. Crim. App. 2008) (quoting
R.L.G., 712 So. 2d at 356). In those cases, the either/or rule
applies: 'The "either-or" rule provides that the prosecution
must elect which single act it is relying [on] for a conviction or
else the trial judge must give a specific unanimity instruction.'
R.A.S. v. State, 718 So.2d 117, 119 (Ala. 1998).

" '[T]he "either/or" rule ... as that rule is modified
for generic evidence [provides that] where the
evidence of more than one incident of sexual
molestation to a child victim by a resident child
molester is purely generic and where "there is no
reasonable likelihood of juror disagreement as to
particular acts, and the only question [for the jury]
is whether or not the defendant in fact committed
all of [the incidents]," the trial court should
instruct the jury that it can find the defendant
guilty only if it unanimously agrees that he
committed all the incidents described by the
victim.'

"R.L.G., 712 So. 2d at 367 (emphasis omitted). Moreover:

" 'In cases … that involve both generic and specific
evidence, where evidence of multiple culpable acts
is adduced to prove a single charged offense, jury
unanimity must be protected. Therefore, in such a
case, the defendant is entitled either to have the
State elect the single act upon which it is relying

16
CR-21-0291

for a conviction or to have the court give a specific
unanimity instruction. If the State chooses not to
elect the specific act, the trial court must instruct
the jury that all 12 jurors must agree that the
same underlying criminal act has been proved
beyond a reasonable doubt, thereby assuring a
unanimous verdict on one criminal act.'

"R.A.S., 718 So. 2d at 122 (footnote omitted)."

State v. Kerley, 260 So. 3d 891, 898-99 (Ala. Crim. App. 2017).

Here, because Johnson stated that he was satisfied with the circuit

court's instructions, any challenge to those instructions is not preserved.8

See, e.g., Shouldis v. State, 953 So. 2d 1275, 1282 (Ala. Crim. App. 2006).

Thus, Johnson is due no relief on this issue.

V. SUFFICIENCY OF THE EVIDENCE

On appeal, Johnson argues that the State's evidence could not

support his convictions for sexual abuse of a child under 12.9 Johnson

8Defense counsel's argument that he ran into a juror who said that
Johnson had not produced enough evidence that he was not guilty was
not evidence that the circuit court's unanimity instruction was not
sufficient. See Johnson's Motion for a New Trial Hearing, R. 358-59. See
Ex parte Alabama Dep't of Mental Health & Mental Retardation, 937 So.
2d 1018, 1026 (Ala. 2006) ("Argument of counsel is not evidence.").

9Johnson does not challenge the sufficiency of the evidence
supporting his sodomy convictions. Thus, those convictions are affirmed.

17
CR-21-0291

argues that the State failed to prove which of Johnson's acts constituted

the "sexual contact" as defined in § 13A-6-60(3), Ala. Code 1975.

Section 13A-6-60(3), Ala. Code 1975, defines "sexual contact" as

"[a]ny touching of the sexual or other intimate parts of a person done for

the purpose of gratifying the sexual desire of either party. The term does

not require skin to skin contact." " 'The test used in determining the

sufficiency of evidence to sustain a conviction is whether, viewing the

evidence in the light most favorable to the prosecution, a rational finder

of fact could have found the defendant guilty beyond a reasonable

doubt.' " Nunn v. State, 697 So. 2d 497, 498 (Ala. Crim. App. 1997)

(quoting O'Neal v. State, 602 So. 2d 462, 464 (Ala. Crim. App.1992)).

" ' " ' [T]he credibility of witnesses and the weight or probative force of

testimony is for the jury to judge and determine.' " ' " Zumbado v. State,

615 So. 2d 1223, 1241 (Ala. Crim. App. 1993) (quoting Johnson v. Sate,

555 So. 2d 818, 820 (Ala. Crim. App. 1989), quoting other cases). And

circumstantial evidence can support a conviction, and that question is for

the jury. See White v. State, 546 So. 2d 1014, 1017 (Ala. Crim. App. 1989).

The State presented sufficient evidence of sexual contact within the

meaning of § 13A-6-60(3), Ala. Code 1975, when it showed multiple acts

18
CR-21-0291

of sexual abuse, including Johnson's touching six-year-old S.T.'s

"pocketbook," or vagina, and "boobies." Thus, based on the record before

us, we hold that there was sufficient legal evidence from which the jury

could reasonably have found Johnson guilty of two counts of sexual abuse

of a child under the age of 12. Johnson is due no relief on this issue.

VI. POST-RELEASE SUPERVISION UNDER § 13A-5-6(c)

Finally, although the circuit court's imposition of 99-year sentences

on Johnson's convictions for first-degree sodomy was authorized, because

those convictions are for Class A felony sex offenses involving a child, the

circuit court also must impose on each conviction "an additional penalty

of not less than 10 years of post-release supervision to be served upon the

defendant's release from incarceration." § 13A-5-6(c), Ala. Code 1975.

That subsection provides:

"In addition to any penalties heretofore or hereafter provided
by law, in all cases where an offender is designated as a
sexually violent predator pursuant to Section 15-20A-19, or
where an offender is convicted of a Class A felony sex offense
involving a child as defined in Section 15-20A-4,[10] and is
sentenced to a county jail or the Alabama Department of
Corrections, the sentencing judge shall impose an additional

10"Sex offense involving a child" is defined as "[a] conviction for any
sex offense in which the victim was a child or any offense involving child
pornography." § 15-20A-4(27), Ala. Code 1975.
19
CR-21-0291

penalty of not less than 10 years of post-release supervision
to be served upon the defendant's release from incarceration."

See also Bishop v. State, 344 So. 3d 906, 915 (Ala. Crim. App. 2021). Thus,

we must remand this case for the circuit court to impose the required

periods of post-release supervision on Johnson's convictions for first-

degree sodomy.

CONCLUSION

We affirm Johnson's convictions for two counts of first-degree

sodomy and two counts of sexual abuse of a child under the age of 12, and

we affirm his sentences for the sexual-abuse convictions. As to Johnson's

sentences for first-degree sodomy, a Class A felony offense, we remand

this cause to the circuit court for it to conduct a new sentencing hearing

at which Johnson, represented by counsel, will be sentenced in

accordance with this opinion. Due return must be filed with this Court

no later than 56 days from the date of this opinion. The return to remand

must include a transcript of the proceedings conducted on remand and a

new sentencing order.

AFFIRMED IN PART; REMANDED WITH INSTRUCTIONS.

Windom, P.J., and McCool and Cole, JJ., concur. Kellum, J., concurs

in the result.

20