West Valley City v. Kent

2016 UT App 8
THE UTAH COURT OF APPEALS
WEST V ALLEY C ITY ,
Appellant,
v.
JAMES C HRISTIAN K ENT,
Appellee.
Memorandum Decision
No. 20131057-CA
Filed January 14, 2016
Third District Court, Salt Lake Department
The Honorable Ann Boyden
No. 121905515
Ryan D. Robinson and Daniel R. Strong, Attorneys
for Appellant
L. Bruce Larsen, Attorney for Appellee
JUSTICE JOHN A. PEARCE authored this Memorandum Decision, in
which JUDGES S TEPHEN L. R OTH and M ICHELE M. C HRISTIANSEN
concurred.1
PEARCE, Justice:
West Valley City (the City) appeals from the district	¶1
court’s order denying its motion in limine to admit the transcript
of an unavailable witness’s preliminary hearing testimony. The
district court concluded that the unavailable witness’s prior
testimony was not admissible under rule 804(b)(1) of the Utah
1. Justice John A. Pearce began his work on this case as a
member of the Utah Court of Appeals. He became a member of
the Utah Supreme Court thereafter and completed his work on
the case sitting by special assignment as authorized by law. See
generally Utah R. Jud. Admin. 3-108(3).

West Valley City v. Kent
20131057-CA 	2 	2016 UT App 8
Rules 	of 	Evidence 	and 	that 	its 	admission 	would 	violate
Defendant James Christian Kent’s right to confront his accuser
under the Sixth Amendment to the United States Constitution.
We conclude that the district court erred in ruling, under Utah
Rule of Evidence 804(b)(1)(B), that Defendant did not have a
similar 	motive 	to 	develop 	the 	witness’s 	testimony 	at 	the
preliminary hearing and at trial. The district court also erred in
the manner in which it analyzed two letters, allegedly written by
the unavailable witness after her preliminary hearing testimony.
Accordingly, we vacate the district court’s order and remand the
case for further consideration of the City’s motion in limine.
At 	the 	preliminary 	hearing, 	Defendant’s 	girlfriend	¶2
(Victim) testified that she and Defendant had an “on and off”
relationship. One day, Defendant and Victim were arguing in
the 	garage 	of 	their 	shared 	residence. 	Defendant 	was 	upset
Victim had visited him at the home of his other girlfriend
(Girlfriend) at 1:00 a.m. the previous morning. Victim had gone
to Girlfriend’s house, where Girlfriend’s parents also lived, to
ask 	Defendant 	“to 	come 	home.” 	According 	to 	Defendant,
Victim’s visit had caused Girlfriend’s parents to become upset
with Girlfriend.
Victim 	testified 	that 	during 	the 	argument, 	Defendant	¶3
asked Victim a string of questions regarding how it made her
feel “to go and tell [Girlfriend’s] parents everything and [get] her
in trouble.” Victim responded by asking Defendant how she was
supposed to feel with Defendant visiting Girlfriend and “going
out on me?” Defendant then asked Victim, “[H]ow would it feel
if he kicked the shit out of [Victim]?” Victim responded, “[D]o
what you’ve got to do,” not believing that Defendant would
actually do it. Defendant kicked Victim in the head, making
contact somewhere near Victim’s eye. The impact gave Victim a
black eye, turned her eyeball red and black, and created swelling
sufficient to cause her eye to close completely.

West Valley City v. Kent
20131057-CA 	3 	2016 UT App 8
The City charged Defendant with one count of assault. See	¶4
Utah Code Ann. § 76-5-102 (LexisNexis 2012). At the preliminary
hearing, Victim testified to the altercation, as described above.
Victim also stated, among other things, that she was not the
aggressor, that she did not approach Defendant during the
argument, and that she was sitting in a chair when Defendant
kicked her.
Defendant’s 	counsel 	cross-examined 	Victim 	about 	the	¶5
altercation. 	Counsel 	asked 	Victim, 	“[D]id 	you 	have 	a
screwdriver in your hand at the time . . . he kicked you?” Victim
responded, 	“No, 	sir. 	I 	didn’t.” 	Counsel 	asked 	Victim 	if
Defendant “wanted to get that screwdriver out of your hand”
and “kicked that screwdriver out of your hand and accidentally
made contact with your face.” Victim again responded, “I wasn’t
holding anything when he kicked me in my face.” Defendant’s
counsel then asked Victim if, during the argument, Victim’s face
was near the ground. Victim responded that it was not and that
she was sitting in a chair during the argument. Defendant’s
counsel also questioned Victim about the anticipated testimony
of another witness to the argument. Specifically, counsel asked
Victim whether she had blocked Defendant from leaving the
garage 	prior 	to 	the 	assault. 	Victim 	disagreed 	with 	this
characterization.
Although 	Defendant’s 	counsel 	questioned 	Victim	¶6
extensively 	at 	the 	preliminary 	hearing, 	the 	district 	court
prevented him from pursuing certain lines of inquiry. Counsel
asked whether Victim “threatened [Defendant] with scissors on
one or more occasions,” and whether she had “ever threatened
[Defendant] with a pipe wrench.” The City objected on relevance
grounds. The court sustained the City’s objection, stating that the
boundaries of the preliminary hearing would be limited to the
day of and the day before the altercation. Defendant’s counsel
also asked for “a little latitude” to explore Victim’s criminal
history because he had not yet received a response to a discovery
request regarding Victim’s criminal history. Counsel for the City

West Valley City v. Kent
20131057-CA 	4 	2016 UT App 8
objected, stating that the evidence would be relevant at trial “if
there is a self-defense claim raised,” but was not relevant to the
court’s 	probable 	cause 	determination. 	The 	court 	allowed
Defendant’s counsel to inquire into crimes related to Victim’s
veracity and truthfulness. The court also permitted questioning
about crimes or alleged crimes occurring within approximately
twenty-four hours of the altercation but otherwise sustained
the 	City’s 	objection, 	stating 	that 	Defendant 	could 	acquire
information outside of these two categories through “a discovery
request.” At the end of the preliminary hearing, the district court
concluded that probable cause existed to believe that Defendant
committed the crime charged and bound Defendant over for
trial.
At a final pre-trial hearing, it became apparent to the	¶7
parties that Victim would likely not appear at trial. The court
had received two letters, purportedly written by Victim, asking
the court to drop the charges against Defendant. The first letter
states that Victim “wish[ed] to withdraw [her] statements . . .
made the night of the incident and in court” because she had
“made false accusations” and asks that all proceedings against
Defendant be dropped. The second letter, which is notarized,
again asks that all charges be dropped but does not contain the
prior letter’s reference to “false accusations.”
The day before trial, the City filed a motion in limine to	¶8
declare Victim unavailable and to admit her preliminary hearing
testimony at trial. The morning of trial, the parties disagreed on
the admissibility of Victim’s testimony under rule 804 of the
Utah Rules of Evidence and whether the admission of the
testimony would violate the Confrontation Clause of the Sixth
Amendment 	to 	the 	United 	States 	Constitution. 	Defendant’s
counsel 	argued 	that 	Victim’s 	testimony 	was 	inadmissible
because 	he 	was 	prevented 	from 	inquiring 	into 	“multiple
instances 	of 	domestic 	violence 	or 	assaultive 	behavior 	of
[Victim].” The district court denied the City’s motion in limine
and 	ruled 	that 	the 	preliminary 	hearing 	testimony 	was

West Valley City v. Kent
20131057-CA 	5 	2016 UT App 8
inadmissible under rule 804 and that its admission would violate
Defendant’s Confrontation Clause rights.2
The court ruled that Victim was unavailable for purposes	¶9
of rule 804, see Utah R. Evid. 804(a)–(b), but concluded that rule
804(b)(1) 	was 	not 	satisfied 	in 	light 	of 	Defendant’s 	lack 	of
opportunity and similar motive to develop Victim’s testimony
through direct, cross-, or redirect examination at the preliminary
hearing, 	see 	id. 	R. 	804(b)(1)(B). 	The 	court 	determined 	that
Defendant lacked a motive to develop Victim’s testimony at the
preliminary hearing in large part due to the inherent differences
between a trial and a preliminary hearing to determine probable
cause. And the court found that Defendant’s opportunity “was
limited by [the prior judge’s] sustaining of objections when
anything went beyond the scope of the preliminary hearing”; by
Defendant’s inability to present testimony related to potential
affirmative defenses, “specifically prior incidents, the threats, the
screwdrivers”; and by the prior judge’s limiting of Defendant’s
questioning “to the time frame immediately preceding” the
altercation. The court also concluded that Defendant’s cross-
examination “simply was not sufficient” to satisfy Defendant’s
Confrontation Clause rights, in part because “the defense was
not 	able 	to 	fully 	attack 	or 	even 	completely 	attack 	the
prosecution’s evidence or to look to presenting any affirmative
defenses.”
The 	court 	also 	addressed 	the 	recantation 	statements	¶10
Victim allegedly made in the letters and ruled that “even though
[they] did not rise to the level of being admitted . . . in trial,” they
were 	the 	“biggest 	reason 	why . . . there 	was 	[not] 	sufficient
examination at the preliminary hearing on that issue to allow it
to come in unchallenged.” Because the district court denied its
motion in limine, the City concluded that it had insufficient
2. 	The 	judge 	presiding 	over 	the 	trial 	proceedings 	had 	not
presided over the earlier preliminary hearing.

West Valley City v. Kent
20131057-CA 	6 	2016 UT App 8
evidence to proceed and the case was dismissed. The City
appeals.
The 	City 	contends 	that 	the 	district 	court 	erred 	by	¶11
concluding that Victim’s preliminary hearing testimony did not
satisfy rule 804 of the Utah Rules of Evidence and that its
admission 	would 	violate 	Defendant’s 	Confrontation 	Clause
rights. We review the district court’s evidentiary ruling for an
abuse of discretion. See State v. Workman, 2005 UT 66, ¶ 10, 122
P.3d 	639 	(“[W]e 	review 	the 	district 	court’s 	ruling 	on
admissibility [of hearsay evidence] for abuse of discretion.”). The
court’s ruling under the Confrontation Clause is a question of
law, reviewed for correctness. State v. Garrido, 2013 UT App 245,
¶ 9, 314 P.3d 1014.
Utah Rule of Evidence 804(b)(1) provides an exception for	¶12
hearsay evidence where the declarant is unavailable and has
previously 	provided 	testimony 	in 	certain 	trial 	and 	pre-trial
proceedings. See Utah R. Evid. 804(b)(1); see also id. R. 804(a).
Rule 804(b)(1) has three elements. First, the declarant must be
“unavailable.” Id. R. 804(b); see also id. R. 804(a). Second, the
testimony of the unavailable declarant must have been “given as
a 	witness 	at 	a 	trial, 	hearing, 	or 	lawful 	deposition.” 	Id. R.
804(b)(1)(A). Third, the testimony must be “offered against a
party who had . . . an opportunity and similar motive to develop
it by direct, cross-, or redirect examination.” Id. R. 804(b)(1)(B).
The Sixth Amendment’s Confrontation Clause3 provides,	¶13
“In all criminal prosecutions, the accused shall enjoy the right . . .
3. On 	appeal, 	the 	City 	supports 	its 	Confrontation 	Clause
argument with cases interpreting the confrontation clauses of the
Utah 	and 	United 	States 	Constitutions. 	The 	City 	does 	not,
however, 	make 	a 	separate 	argument 	based 	upon 	the 	Utah
Constitution, 	and 	the 	district 	court’s 	ruling 	relied 	on 	the
Confrontation Clause of the Sixth Amendment to the United
(continued…)

West Valley City v. Kent
20131057-CA 	7 	2016 UT App 8
to be confronted with the witnesses against him.” U.S. Const.
amend. VI. When out-of-court testimonial statements, including
“prior testimony at a preliminary hearing,” are offered against a
defendant at trial, “the [Confrontation Clause] demands what
the 	common 	law 	required: 	unavailability 	and 	a 	prior
opportunity for cross-examination.” Crawford v. Washington, 541
U.S. 36, 68 (2004).
The City first argues the district court erred by holding	¶14
that Defendant did not have a similar motive to examine Victim
at the preliminary hearing as at trial. The district court seemed to
conclude that Defendant lacked sufficient motive to develop
Victim’s 	testimony 	at 	the 	preliminary 	hearing 	because
Defendant’s ability to question Victim was narrower in scope
than an examination he likely would have been afforded at trial.
As one example, the court highlighted that Defendant lacked a
motive at the preliminary hearing to question Victim about the
post-hearing statements allegedly made by Victim in the letters.
The 	district 	court 	reasoned 	that 	the 	differences 	between 	a
preliminary hearing and a trial give rise to a different motivation
to develop witness testimony in each proceeding. In reaching
this 	conclusion, 	the 	district 	court 	failed 	to 	credit 	the 	Utah
Supreme Court’s holding in State v. Brooks, 638 P.2d 537 (Utah
1981).
In Brooks, the supreme court rejected the defendants’	¶15
argument that “by its very nature a preliminary hearing is
(…continued)
States Constitution, as interpreted by Crawford v. Washington, 541
U.S. 36, 68 (2004). “[I]n keeping with our preservation policy, a
state constitutional law argument must be raised in the trial
court, preserved through the appellate process, and adequately
briefed to us.” State v. Worwood, 2007 UT 47, ¶ 18, 164 P.3d 397.
Accordingly, we review the parties’ arguments under only the
Sixth Amendment’s Confrontation Clause.

West Valley City v. Kent
20131057-CA 	8 	2016 UT App 8
different in motive and interest than a trial.” Id. at 541. The
defendants in Brooks argued that at a probable cause hearing,
“[t]he prosecution does not bear the burden of proving the crime
‘beyond a reasonable doubt’ as in a trial,” “[t]he evidentiary and
procedural rules are relaxed,” and the forum “is limited to a
determination of probable cause as a screening device.” Id.
Despite recognizing the fundamental differences between the
two 	proceedings, 	the 	supreme 	court 	concluded, 	“Defense
counsel’s motive and interest are the same in either setting; he
acts in both situations in the interest of and motivated by
establishing 	the 	innocence 	of 	his 	client.” 	Id. 	The 	court
determined, 	“[C]ross-examination 	takes 	place 	at 	preliminary
hearing and at trial under the same motive and interest.” Id.
Despite the supreme court’s instruction in Brooks, the	¶16
district court relied on the differences between a preliminary
hearing 	and 	trial 	and 	the 	new 	developments 	after 	the
preliminary hearing to conclude that Defendant did not have a
similar 	motive 	to 	develop 	Victim’s 	testimony 	in 	the 	prior
proceeding. 	The 	district 	court 	abused 	its 	discretion 	in
concluding, contrary to Brooks, that Defendant did not have a
similar 	motive 	to 	develop 	Victim’s 	testimony 	at 	both 	the
preliminary hearing and trial, for purposes of rule 804(b)(1)(B).
The 	City 	also 	contends 	that, 	in 	determining 	the	¶17
admissibility of Victim’s testimony, the district court erred by
considering 	the 	letters 	Victim 	allegedly 	penned 	after 	her
preliminary hearing testimony. The court concluded that under
rule 804(b)(1)(B) and the Confrontation Clause the letters were
the “biggest reason why I just did not feel that there was
sufficient examination at the preliminary hearing on that issue to
allow it to come in unchallenged.” The City not only argues that
the district court gave the letters undue weight in its analysis,
but also that the district court should not have considered the
letters at all in its rule 804 analysis because they “did not affect
[Defendant’s] motive or opportunity to cross-examine [Victim]
at the preliminary hearing.” The City contends that Utah courts

West Valley City v. Kent
20131057-CA 	9 	2016 UT App 8
have found “intervening events,” such as the letters at issue
here, to be “uniformly” not dispositive, and thus it contends “the
[district court] erred in finding them determinative.” The City
concedes that the letters may have some relevance to the district
court’s Confrontation Clause determination, but argues that the
manner in which the district court considered the letters was
error. We agree with the City; the district court erred in its
analysis of the letters.4
The Utah Supreme Court has addressed the impact of	¶18
intervening 	events 	on 	the 	admissibility 	of 	an 	unavailable
witness’s preliminary hearing testimony. In State v. Menzies, 889
P.2d 393 (Utah 1994), the defendant argued that the admission of
an unavailable witness’s preliminary hearing testimony would
violate his Confrontation Clause rights5 because, among other
4. Neither the City nor Defendant brief whether the opportunity
to develop witness testimony under Utah Rule of Evidence
804(b)(1)(B) differs from the Confrontation Clause’s requirement
that a defendant be provided with an adequate opportunity to
cross-examine 	the 	unavailable 	witness 	under 	Crawford 	v.
Washington, 541 U.S. 36, 57 (2004). It appears that the district
court applied both without drawing a distinction. We assume,
without 	deciding, 	for 	purposes 	of 	this 	analysis 	that 	the
opportunity to develop a witness’s testimony under Utah Rule
of 	Evidence 	804(b)(1)(B) 	is 	coextensive 	with 	the 	Sixth
Amendment’s requirement that there be a prior opportunity for
adequate 	cross-examination 	before 	the 	admission 	of 	an
unavailable witness’s preliminary hearing testimony.
5. We note that Menzies was decided before the United States
Supreme Court decided Crawford v. Washington, 541 U.S. 36
(2004), 	and 	analyzed 	a 	different 	test 	under 	the 	Sixth
Amendment’s 	Confrontation 	Clause. 	Prior 	to 	Crawford, 	the
Confrontation Clause jurisprudence focused on whether the
witness was unavailable and her testimony contained “adequate
(continued…)

West Valley City v. Kent
20131057-CA 	10 	2016 UT App 8
things, the witness’s “mental competence was at issue and [the
defendant] was not aware of this until after the preliminary
hearing.” 	Id. 	at 	402–03. 	The 	defendant 	also 	contended 	that
“defense counsel did not have the opportunity to examine [the
witness] at the preliminary hearing regarding his subsequent
convictions.” 	Id. 	at 	403. 	The 	supreme 	court 	rejected 	these
arguments, noting the relevant consideration for Confrontation
Clause purposes was the actual testimony developed at the
preliminary hearing and not the potential testimony that could
have 	been 	developed 	at 	trial. 	Id. 	The 	supreme 	court
acknowledged 	the 	defendant’s 	argument 	that 	the 	newly
discovered information would have made cross-examination
more effective. Id. But it reasoned, “The Confrontation Clause
guarantees only an opportunity for effective cross-examination,
not cross-examination that is effective in whatever way, and to
whatever 	extent, 	the 	defense 	might 	wish.” 	Id. 	(emphasis
omitted) (citation and internal quotation marks omitted).
The supreme court in Menzies ultimately rejected the	¶19
contention that the defendant’s inability to examine the witness
about 	the 	contested 	evidence 	automatically 	required 	the
exclusion 	of 	the 	preliminary 	hearing 	testimony 	under 	the
Confrontation Clause. Id. The court highlighted that the evidence
raised by the defendant focused on the witness’s credibility and
(…continued)
‘indicia of reliability.’” See Ohio v. Roberts, 448 U.S. 56, 66 (1980),
overruled by Crawford, 541 U.S. 36. In Crawford, the Supreme
Court 	emphasized 	that 	“[w]here 	testimonial 	evidence 	is 	at
issue . . . the Sixth Amendment demands what the common law
required: 	unavailability 	and 	a 	prior 	opportunity 	for 	cross-
examination.” 541 U.S. at 68. Under Crawford, “the only indicium
of reliability sufficient to satisfy constitutional demands is the
one the [Sixth Amendment] actually prescribes: confrontation.”
Id. at 69.

West Valley City v. Kent
20131057-CA 	11 	2016 UT App 8
concluded that the Confrontation Clause required no further
examination 	because 	the 	witness’s 	credibility 	had 	been
thoroughly explored at the preliminary hearing. Id.
Thus, Menzies outlines the analysis a district court should	¶20
employ when presented with a claim that preliminary hearing
testimony should not be admitted because of an inability to
cross-examine a witness about events unknown to the defendant
or occurring after that testimony. The Menzies court identified
the topics the intervening events implicated and reviewed the
preliminary hearing examination to gauge whether counsel had
been afforded the opportunity to explore those topics during the
preliminary hearing. Id. In Menzies, the intervening events raised
issues 	concerning 	the 	witness’s 	credibility. 	Id. 	Even 	after
acknowledging that the new evidence “may have aided an
attack” on the witness’s credibility, the court examined the
preliminary hearing testimony and concluded that “the issue [of
credibility] was well-explored” at the preliminary hearing and
thus the admission of the testimony would not infringe the
defendant’s Confrontation Clause rights. Id.
Here, the district court should have employed the same	¶21
analysis. Although the district court’s reasoning is not entirely
clear, 	it 	appears 	that 	the 	court’s 	analysis 	focused 	only 	on
Defendant’s inability, at the preliminary hearing, to specifically
question Victim about the letters. In its analysis, the district court
noted, 	“[I]t 	is 	the 	new 	information 	that 	[Victim] 	may 	be
recanting 	her 	information 	and 	certainly, 	there 	was 	no
information to that extent at the preliminary hearing . . . . [S]o
there 	was 	no 	motive 	to 	be 	examining 	her 	as 	far 	as 	any
recantation goes.” In explaining the decision, the district court
stated,
[The letters were] the specific factual issue here
that made me just simply feel uncomfortable, it
was just almost one of those smell tests that the
examination 	that 	was 	done 	at 	the 	preliminary

West Valley City v. Kent
20131057-CA 	12 	2016 UT App 8
hearing just did not rise to the level of opportunity
or motive to make it fair to use that testimony as
opposed to her being present here at trial.
The 	district 	court 	appears 	to 	have 	been 	primarily	¶22
concerned 	with 	Defendant’s 	inability 	to 	question 	Victim
regarding 	her 	alleged 	recantation 	letters. 	Under 	Menzies’s
reasoning, 	the 	district 	court’s 	focus 	was 	misdirected. 	The
ultimate question for the district court was whether Defendant
had been afforded an adequate opportunity to cross-examine
Victim at the preliminary hearing. The proper analysis under
Menzies requires the court to evaluate Defendant’s actual cross-
examination of Victim to determine whether Defendant was
afforded 	an 	opportunity 	to 	question 	Victim 	on 	the 	topics
implicated by the letters. Because the letters spoke to Victim’s
credibility, 	the 	district 	court 	should 	have 	reviewed 	the
preliminary hearing testimony to ensure that Defendant had
been provided an adequate opportunity to explore Victim’s
credibility. If Defendant was afforded such an opportunity, the
subsequent 	appearance 	of 	the 	letters 	does 	not 	retroactively
negate that opportunity. See id. at 403. Menzies instructs that this
is true even if the letters would have improved the effectiveness
of Defendant’s examination of Victim at the preliminary hearing.
See id. The court erred by relying on the letters to exclude
Victim’s testimony without conducting this analysis.
We next must determine the impact of the district court’s	¶23
errors. If we conclude that the errors were harmless, we are not
required to reverse the district court’s determination. Proctor v.
Costco Wholesale Corp., 2013 UT App 226, ¶ 9, 311 P.3d 564.
“Harmless error is defined . . . as an error that is sufficiently
inconsequential 	that 	we 	conclude 	there 	is 	no 	reasonable
likelihood 	that 	the 	error 	affected 	the 	outcome 	of 	the
proceedings.” Covey v. Covey, 2003 UT App 380, ¶ 21, 80 P.3d 553
(omission in original) (citation and internal quotation marks
omitted). Put another way, “an error is harmful only if the
likelihood of a different outcome is sufficiently high that it

West Valley City v. Kent
20131057-CA 	13 	2016 UT App 8
undermines our confidence” in the result below. Id. (citation and
internal quotation marks omitted).
Here, the district court identified a number of questions,	¶24
unrelated to the letters, that Defendant had been prevented from
asking at the preliminary hearing. For example, the district court
found 	that 	Defendant’s 	ability 	to 	inquire 	into 	potential
affirmative defenses had been limited. It is unclear, however, if
the 	district 	court 	concluded 	that 	these 	limitations 	alone
prevented Defendant from having an opportunity to develop
Victim’s testimony through examination within the meaning of
rule 804(b)(1)(B) or the Confrontation Clause. And the district
court ultimately reasoned that the recantation letters constituted
the “biggest reason” why it believed Defendant did not have an
opportunity to cross-examine Victim. Because of the district
court’s express reliance on the letters and its failure to factor
Brooks’s reasoning into its motive analysis, we conclude that its
errors 	are 	harmful 	and 	we 	remand 	this 	case 	further
consideration.
In sum, we conclude the district court erred in holding,	¶25
contrary to the supreme court’s reasoning in Brooks, that the
differences between a preliminary hearing and trial dictate the
conclusion that Defendant did not have the same motive to
develop Victim’s testimony at the preliminary hearing that he
would at trial. We also conclude that the district court erred in
the manner in which it considered the post-testimony letters,
allegedly written by Victim. We vacate the court’s order and
remand for further consideration of the City’s motion in limine
consistent with the analysis set out in this opinion.