IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 78,786
STATE OF KANSAS,
Appellee,
v.
ADAM VALDEZ,
Appellant.
SYLLABUS BY THE COURT
1. The purpose of the endorsement of witnesses requirement in a criminal action and a juvenile offender action is to prevent surprise to the accused and to allow that person the opportunity to interview and examine the prosecution witnesses prior to trial or the adjudication hearing.
2. The standard for evaluating whether the decision to certify a juvenile as an adult was proper is whether the decision as a whole is supported by substantial competent evidence. It is not error for a court to give greater weight to some factors than it gives to others. The trial court is not required to give the factors listed in K.S.A. 38-1636(e) equal weight.
3. In ruling on a motion for judgment of acquittal, if a trial judge concludes from the evidence that a reasonable mind might fairly decide a defendant is guilty beyond a reasonable doubt, the motion must be denied and the case must go to the jury. On appeal, the reviewing court must decide whether a rational factfinder could have found the accused guilty beyond a reasonable doubt.
4. To constitute the crime of robbery, it is necessary that the violence to the owner of property must either precede or be contemporaneous with the taking of the property. Robbery is not committed where the thief has gained peaceable possession of the property and uses no violence except to resist arrest or to effect escape.
5. The test of whether a robbery has occurred should be whether the taking of the property has been completed at the time the force or threat is used by the defendant. In order to constitute a taking, the prospective robber must have obtained at some particular moment the complete, independent, and absolute possession and control of the thing desired adverse to the rights of the owner therein.
6. Statistics based on population studies are admissible into evidence in a criminal trial, and challenges to the reliability of the testimony goes to its weight, not its admissibility. Population percentages on the possession of certain combinations of blood characteristics, based upon established facts, are admissible as relevant to identification.
7. The erroneous admission of evidence may not be raised on appeal absent a timely and specific objection at trial. K.S.A. 60-404.
8. The foundation for admission of results of DNA testing is discussed.
9. Miranda warnings are required where there has been such a restriction on a person's freedom as to render him or her in custody. An objective standard is used to judge whether an interrogation is custodial. The proper analysis is how a reasonable person in the suspect's position would have understood the situation.
10. The right against self-incrimination is personal to the witness, and the defendant in a criminal action has no standing to assert the witness' privilege.
11. Some volunteered statements by a suspect are not barred by the Fifth Amendment. The special procedural safeguards stated in Miranda are not required where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation. "Interrogation," as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself. Since police cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation extends only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.
12. An exception to the general rule concerning the nonadmissibility of a suspect's pre-Miranda statements during a custodial interrogation is that absent deliberately coercive or improper tactics by law enforcement officers in obtaining an initial statement, the mere fact that a suspect has made an admission prior to receiving Miranda warnings does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement while in custody may remove the conditions that precluded admission of the earlier statement. In such circumstances, the finder of fact may reasonably conclude that the suspect made a rational and intelligent choice whether to waive or invoke his or her rights.
Appeal from Finney district court; J. STEPHEN NYSWONGER, judge, and PAMELA J. FULLER, magistrate judge. Opinion filed March 5, 1999. Affirmed.
Ricklin R. Pierce, of Ricklin R. Pierce, Chartered, of Garden City, argued the cause and was on the briefs for appellant.
Robert R. Johnson, assistant county attorney, argued the cause, and John P. Wheeler, Jr., county attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
LOCKETT, J.: The defendant appeals, raising 11 issues which include his certification as an adult; trial errors regarding his convictions of premeditated first-degree murder, aggravated kidnapping, conspiracy to commit murder, conspiracy to commit aggravated kidnapping, aggravated robbery, and aggravated battery; and the imposition of the 40-year mandatory prison sentence.
On February 3, 1996, a group of young people met to party at a residence in Garden City, Kansas. The group included several members of a local gang, the Young Crowd (Y.C.) and others who were not gang members. The defendant, Adam Valdez, age 17, was a Y.C. member. The victim, Juan Ayon, age 33, was not a Y.C. gang member.
During the party, an argument developed between a Y.C. member and Ayon. When the argument became physical, the Y.C. members converged on Ayon and started beating him. The fray moved outside to the front porch. The conflict ended with Ayon laying with his head hanging over the edge of the front porch bleeding profusely from the face and head and unable to defend himself while the Y.C. members hit and kicked him.
The young man who resided at the house stopped the beating by bringing his pit bulldog to the porch. The crowd went into the residence. Several individuals, including Richard Garcia, the leader of the Y.C.'s, Jose Avalos, and Valdez met in the bathroom for a conversation concerning the victim, Ayon. Richard Garcia ordered Valdez and Avalos to "go take care of him."
Valdez, Avalos, and Ayon left the party in Ayon's car at about 4:30 a.m on February 4, 1996. The injured Ayon was lying on the back seat of his car.
At 5:30 a.m. on February 4, 1996, Ayon's abandoned car was found by police on Taylor street. The car had been vandalized and was soiled with copious amounts of blood. Shoe impressions in the snow around the car and in the vicinity indicated that two individuals exited the car, wandered through the neighborhood, and were picked up by another car a short distance from the abandoned car. Later that day, Ayon's body was found in an isolated field outside Garden City. Ayon's body appeared to have been run over several times by a car.
The police investigation uncovered circumstantial and forensic evidence that led to the arrest and indictment of Valdez, Avalos, and others. The statements of Kamber Snyder, a guest at the party on Chesterfield Street, and Jose Avalos were of primary importance in narrowing the focus of the police investigation to Jose Avalos and Adam Valdez. Kamber Snyder told police that a couple days after the party, she confronted Avalos and Valdez regarding their involvement in the killing of Juan Ayon. Both admitted to Kamber Snyder that they had killed Juan Ayon.
In an interview with police on February 20, 1996, Jose Avalos admitted that he and Valdez had killed Ayon. Avalos stated that following the fight on the front porch, Avalos, Valdez, Richard Garcia, the leader of the Y.C. gang, and others, met in the bathroom. The defendant told Richard Garcia that they had to take care of Ayon. Garcia replied, "It's up to you, you take care of him then." Avalos, who was told to accompany Valdez, stated that he did not want to go with Valdez. Richard Garcia informed Avalos that if he did not go, he would be "jumped out" of the gang and would not deserve to live.
Avalos told police that Valdez drove Ayon's car to a sandpit area where Valdez pulled Ayon from the car. When Valdez returned to the car, he drove in circles, running over Ayon numerous times. Avalos stated he felt the car going over the body of Ayon and heard the sound of the car hitting tall weeds as it drove over the terrain. Valdez then drove to Taylor Street where he abandoned the car. Valdez climbed on the hood and kicked in the windshield. Because Valdez' blue Dickies coat, black jeans, and black Nike tennis shoes were soiled with blood, they stopped at Valdez' home so Valdez could clean up.
Prior to Valdez' trial, Jose Avalos pled guilty to felony murder. As agreed, the State dropped several charges against Avalos, including premeditated murder.
After his arrest, Valdez was certified to stand trial as an adult. The case was tried to a jury. Valdez was found guilty of first-degree premeditated murder, aggravated kidnapping, conspiracy to commit murder in the first degree, conspiracy to commit aggravated kidnapping, aggravated robbery, and aggravated battery. Prior to Valdez' sentencing, the State moved for imposition of the mandatory 40-year sentence. The trial judge granted the motion. Valdez was sentenced to life imprisonment (hard 40 sentence) for first-degree premeditated murder, 97 months for aggravated kidnapping (consecutive to murder sentence), 73 months for conspiracy to commit murder (concurrent with kidnapping sentence), 49 months for conspiracy to commit aggravated kidnapping (concurrent with conspiracy to commit murder sentence), 49 months for aggravated robbery (consecutive to previous sentences), and 43 months for aggravated battery (consecutive to previous sentences). Valdez appealed directly to the Supreme Court pursuant to K.S.A. 22-3601(b)(1).
CERTIFICATION AS AN ADULT
The standard for an appellate court to evaluate whether the district court's decision to certify a juvenile as an adult was proper is whether the decision as a whole is supported by substantial competent evidence. The insufficiency of the evidence pertaining to one or more of the factors listed is not determinative. State v. McIntyre, 259 Kan. 488, 498, 912 P.2d 156 (1996).
In 1996, K.S.A. 38-1636(a)(2) provided that the court may authorize the prosecution of a respondent 16 or more years of age as an adult. K.S.A. 38-1636(e) required consideration of the following eight factors:
consideration of the respondent's home, environment, emotional attitude, pattern of living or desire to be treated as an adult; (7) whether there are facilities or programs available to the court which are likely to rehabilitate the respondent prior to the expiration of the court's jurisdiction under this code; and (8) whether the interests of the respondent or of the community would be better served by criminal prosecution."
K.S.A. 38-1636(b) and (g) provided that the motion requesting that the court authorize prosecution of a juvenile as an adult may also contain a request by the prosecuting attorney to allow the introduction of evidence of the offenses alleged in the complaint and a request that, on hearing the motion and authorizing prosecution as an adult, the court make the findings required in a preliminary examination and the finding that there is no necessity for further preliminary examination. Therefore, the hearing where the court authorizes prosecution of the juvenile as an adult may also serve as the preliminary examination.
In this case, the certification hearing and the preliminary examination were conducted at the same time. The evidence presented by the State was to determine Valdez' status as a juvenile or if he should be prosecuted as an adult for the offense and to determine if there was probable cause to bind him over for arraignment. The evidence pertaining to certification as an adult included testimony by the crime investigation officers, friends of the defendant, the defendant's mother, school officials, and police officers. We will review that evidence.
Detective Morgan Wright of the Garden City police department testified the evidence he obtained at the crime scenes strongly supported an inference that Ayon had been run over multiple times with his own car. Blood was found on the car's passenger side headlight, the driver's side door and fender, the side quarter panel, the tires, the gas tank, the underside of the car, the side mirror, the right side of the windshield, across the cowling, and around the area of the catalytic converter.
Detective Goeman of the Finney County Sheriff's Office photographed Ayon's body in the morgue prior to and during the autopsy. Goeman testified that the clothing and body of Juan Ayon were soiled with black and blue tire marks. He stated that in his law enforcement career of 25 years, he had investigated 20-25 homicides. In Goeman's opinion, the murder of Juan Ayon was a very brutal crime.
Kamber Snyder, age 15, was at the party where the initial beating of the victim occurred. Snyder testified that she saw Valdez and Avalos beating and kicking Juan Ayon on the porch of the residence. After the beating, Ayon was bleeding profusely from his face.
Carlos Valencia, age 20, testified on behalf of the State in hopes of favorably influencing plea negotiations in a pending criminal case against him. He stated that he and Adam Valdez were very good friends. A few days after the murder, Valdez told Valencia that he, referring to Valdez, and Jose Avalos had driven Ayon to a location on Burnside Drive where he had repeatedly run over Ayon with Ayon's car.
Dr. Bruce Melin, M.D., the pathologist who performed the autopsy of Juan Ayon, testified that Ayon's injuries were inflicted during two time frames: Ayon sustained head injuries at least one-half hour prior to his death and later sustained massive injuries to his trunk and extremities close to or at the time of his death. Ayon's head wounds were described as disfiguring and would have necessitated medical attention. The head wounds were not life-threatening injuries. The cause of Ayon's death was massive blunt trauma to his trunk with exsanguination (massive blood loss). The pattern of injuries indicated that Ayon had been run over by a car more than once from different directions.
Maria Garcia, Valdez' stepmother, testified that in the 2 years preceding the murder, Valdez had gone to school for only 2 weeks. He had quit school prior to the murder. Although Valdez lived at home with Maria and his father, he spent much of his time at the home of his older brother, Walter. According to police gang tracking reports, Valdez' brother, Walter, age 20, was also a member of the Y.C.
Jonelle Erskin, who was in charge of the records department in Valdez' school district, testified that the last time Valdez attended school regularly was the sixth grade in 1991-92. Valdez re-enrolled in 1994. His attendance was sporadic, and he was dropped from the school rolls for truancy in December 1994. Connie Stucky, a youth officer for the middle school, testified that she had notified Valdez' parents regarding his truancy problem, but neither parent had responded.
Detective William Relph, the Garden City Police Department's expert on gang culture and issues, testified that the Y.C. gang had been active in Garden City for approximately 4 years. Detective Relph stated that his first contact with Valdez as a gang member was in 1995. He confirmed that most of the individuals at the party on Chesterfield street were gang members or associates. Detective Relph testified that, according to his records, Valdez had been involved in violent gang activity on at least five prior occasions.
Hyong Perkins, patrol officer with the Garden City Police Department, testified that he had had contact with Valdez in the past where Valdez had exhibited disrespect and contempt for the authority of the police department. On one occasion, Perkins had stopped Valdez to inform Valdez that a detective wanted an interview with him. Valdez had responded by throwing gang signs and stating, "Fuck the police; you motherfucking pigs; you'll get yours because we're Y.C."
Valdez' testimony was limited to the certification issue. Valdez stated that since his incarceration, he had experienced no problems in the system. He had not been written up. He had been subject to a lock down when the cell population was punished for breaking up brooms and "everything like that." Even though he had been housed with adults and rival gang members, he had not gotten into any fights. Regarding the jailers, Valdez stated, "They haven't done nothing to me, nothing like that, so I'm going to respect 'em." Valdez testified that he got "jumped out" of the Y.C. gang in November, prior to the murder in February.
Valdez' first complaint is that the State was allowed to present witnesses, Officer Perkins, Jonelle Erskin, and Connie Stucky, who had not been endorsed on the complaint prior to the combined hearing. Although the witnesses Valdez complains of testified as to certification for prosecution as an adult, they did not later testify at his criminal trial. Was it error for the trial court to allow the testimony of witnesses for the certification determination who had not been previously endorsed on the complaint as witnesses?
An action under the Kansas Juvenile Offenders Code, K.S.A. 38-1601 et seq., is commenced by the filing of a verified complaint. K.S.A. 38-1622(a)(5) provides for the endorsement of witnesses in a juvenile offender action:
"
The purpose of the endorsement of witnesses requirement in a criminal action and a juvenile offender action is to prevent surprise to the individual and to allow that person the opportunity to interview and examine the prosecution witnesses prior to trial or the adjudication hearing. State v. Timley, 255 Kan. 286, 304, 875 P.2d 242 (1994) (quoting State v. Green, 252 Kan. 548, 553, 847 P.2d 1208 [1993]).
K.S.A. 22-3201(g) of the Kansas Code of Criminal Procedure also requires the prosecuting attorney to endorse the names of all witnesses known to the prosecuting attorney upon the complaint, information and indictment at the time of filing. The prosecuting attorney is allowed to endorse the names of other witnesses that may afterward become known to the prosecuting attorney.
The State was required to endorse all its witnesses prior to Valdez' certification/preliminary hearing. However, the issue of the endorsement was raised by Valdez at the hearing, and the court allowed the previously unendorsed witnesses to testify.
A trial court's order permitting a late endorsement of a witness is not to be overturned absent an abuse of discretion. The test is whether the defendant's rights have been prejudiced. Appellate courts are not to condone surprise caused by the intentional withholding of the name of a witness as a part of the prosecution's trial strategy. The purpose of the endorsement requirement is to prevent surprise to the accused and to give him or her an opportunity to interview and examine the witnesses for the prosecution in advance of trial. The trial court commits reversible error in allowing a late endorsement when surprise prevents a fair preparation of the accused's defense. State v. Bryant, 227 Kan. 385, 387, 607 P.2d 66 (1980).
The district judge has broad discretionary power to allow the late endorsement of a witness under K.S.A. 22-3201(g) and K.S.A. 38-1622(a)(5). The district judge did not abuse his discretion in permitting a late endorsement.
Valdez next complains that the State presented no evidence regarding factor (7) in K.S.A. 38-1636(e), the facilities and programs available in the juvenile system to rehabilitate the juvenile. The statute does not require evidence supporting all eight factors, only that those factors be considered by the court. State v. Irvin, 16 Kan. App. 2d 214, 220, 821 P.2d 1019 (1991). Therefore, there was no error in failing to present evidence regarding this factor.
Valdez' primary contention regarding the certification hearing is that the trial court did not consider all of the factors listed in K.S.A. 38-1636(e) for determining the certification question. The record shows that Valdez' argument is without merit.
The standard for evaluating whether the decision to certify a juvenile as an adult was proper is whether the decision as a whole is supported by substantial competent evidence. It is not error for a court to give greater weight to some factors than it gives to others. The trial court is not required to give the factors listed in K.S.A. 38-1636(e) equal weight. See State v. Irvin, 16 Kan. App. 2d 214, Syl. ¶ 2.
Before making her decision, the judge announced that she would consider the criteria listed in K.S.A. 38-1636(e). Although the judge did not make formal findings as to each factor, she clearly gave consideration to each one and reviewed the evidence presented. When rendering her decision, the district judge stated that after considering, in particular, Valdez' lack of respect for authority, lack of school attendance, and lack of a stable home, there was little or nothing in favor of retaining juvenile jurisdiction over Valdez. The judge, therefore, determined that Valdez should be certified as an adult for trial.
The record is replete with evidence that supports the finding of the district court. There was no error in certifying Valdez as an adult.
MOTION TO ACQUIT
Although Valdez frames this issue to include the sufficiency of the evidence to convict him of all the charges in the amended information, he briefed arguments only as to the charges of aggravated robbery, aggravated kidnapping, and conspiracy to commit aggravated kidnapping. An issue which is not briefed is deemed abandoned. State v. Patterson, 262 Kan. 481, 483, 939 P.2d 909 (1997). Therefore, this court will consider the issue of sufficiency of the evidence only as it applies to the convictions of aggravated robbery, aggravated kidnapping, and conspiracy to commit aggravated kidnapping.
In ruling on a motion for judgment of acquittal, if a trial judge concludes from the evidence that a reasonable mind might fairly decide a defendant is guilty beyond a reasonable doubt, the motion must be denied and the case must go to the jury. On appeal, the reviewing court must decide whether a rational factfinder could have found the accused guilty without a reasonable doubt. State v. Schlein, 253 Kan. 205, 207-08, 854 P.2d 296 (1993).
AGGRAVATED ROBBERY
The aggravated robbery charge was based on the taking of Ayon's car and certain belongings in the car. There was testimony that prior to the altercation Ayon willingly gave his car keys to Jose Avalos so that Avalos could use the car and return it to Ayon the following day. Because Avalos peaceably obtained the keys to Ayon's car prior to the fight, Avalos asserts that he also had lawful possession of the car long before taking the car to transport and kill Ayon. Valdez concludes that because Avalos had lawful possession of the car at the time the car was used to kill Ayon, there was no aggravated robbery.
The trial court reasoned that Ayon did not loan the car to Avalos to kill him or to vandalize and abandon the car. The court found Avalos' use of the car was outside the intent of the loan; therefore, a conviction for aggravated robbery was not precluded.
Aggravated robbery is a robbery committed by a person who is armed with a dangerous weapon or who inflicts bodily harm on any person in the course of the robbery. K.S.A. 21-3427. A robbery is the taking of property from the person or presence of another by force or by threat of bodily harm to any person. K.S.A. 21-3426. To constitute the crime of robbery, it is necessary that the violence to the owner of property must either precede or be contemporaneous with the taking of the property. Robbery is not committed where the thief has gained peaceable possession of the property and uses no violence except to resist arrest or to effect escape. State v. Hays, 256 Kan. 48, 64, 883 P.2d 1093 (1994).
We have previously observed that a thief takes possession of the property of another when he exercises dominion and control over the property. Ayon had possession of the keys, but not the car. If the possession of the taker is imperfect in any degree, or his control of the thing desired is qualified by any circumstance, however slight, the taking of possession is incomplete. State v. Dean, 250 Kan. 257, Syl. ¶ 3, 824 P.2d 978 (1992).
's person or presence by the use of force or threatened force. On this analysis, a robbery often, but not always, consists of a battery plus larceny or an assault plus larceny. By definition, then, robbery may be classified not only as an offense against property but also as an offense against the person." 4 Wharton's Criminal Law § 454 (15th ed. 1996).
Commission of robbery is complete when the robber takes possession of property; the element of asportation is not required to complete theft or robbery. See K.S.A. 21-3426; State v. Long, 234 Kan. 580, Syl. ¶ 2, 675 P.2d 832 (1984), disapproved in part on other grounds State v. Keeler, 238 Kan. 356, 365, 710 P.2d 1279 (1985). We have determined that the test of whether a robbery has occurred should be whether the taking of the property has been completed at the time the force or threat is used by the defendant. In order to constitute a taking, the prospective robber must have obtained at some particular moment the complete, independent, and absolute possession and control of the thing desired adverse to the rights of the owner therein.
Ayon gave his keys to Avalos prior to the taking and the turn of events which ultimately resulted in his demise. Avalos and Valdez did not obtain possession of Ayon's car prior to the violence to Ayon and the subsequent agreement to transport and kill him. They actually took possession of Ayon's car when they put Ayon, nearly unconscious and bleeding, in the back seat of Ayon's car. After taking forceful possession of Ayon's car, Valdez and Avalos then drove Ayon to a secluded area, dragged him out of the car, and ran over him repeatedly with the car. They then departed the area, and later vandalized and abandoned the car. This evidence is sufficient for a jury to find Valdez was guilty of aggravated robbery.
AGGRAVATED KIDNAPPING AND
CONSPIRACY TO COMMIT AGGRAVATED KIDNAPPING
Aggravated kidnapping is the taking or confining of a person, accomplished by force, threat, or deception, with the intent to hold the person to facilitate the commission of any crime or to inflict bodily injury on the person where the person kidnapped sustained bodily harm. See K.S.A. 21-3420(b), (c); K.S.A. 21-3421.
Valdez contends that the only evidence that Ayon was kidnapped was Jose Avalos' testimony that after the party broke up, Valdez and Avalos drove away in Ayon's car with Ayon lying in the back seat asleep or unconscious. He argues that kidnapping requires proof of confinement, and there was no evidence that the badly beaten victim requested to leave the car, attempted to leave the car, or ever was restrained or confined.
Although some of the evidence is circumstantial, a conviction of even the gravest offense may be sustained by circumstantial evidence. See State v. Smith, 245 Kan. 381, 393, 781 P.2d 666 (1989). Without reciting all the testimony, there was sufficient evidence from witnesses from which reasonable minds might fairly decide Valdez was guilty of aggravated kidnapping and a conspiracy to commit aggravated kidnapping without a reasonable doubt.
ADMISSION OF RESULTS OF DNA TEST
Julie Kempton, a molecular biologist for Cellmark Diagnostics, testified at trial regarding DNA testing she performed on various fabric and blood samples, including cuttings from blood-stained Nike tennis shoes and a blue denim Dickies jacket. These items had been removed from the Valdez home during execution of the search warrant.
Kempton had performed PCR testing on the fabric samples. She testified that, using the database Cellmark subscribed to, 1 in every 7,600 individuals in the Hispanic population would have genetic markers consistent with those found on the evidence. She concluded that Valdez could not have been the source of the DNA that was extracted from the evidence material, and the victim could not be excluded as a source. Valdez objected to Kempton's qualifications as a statistician and a mathematician and the chain of custody. The court overruled both objections.
FOUNDATION
Kempton testified that Cellmark Diagnostics is a private DNA testing company that conducts DNA analysis in paternity and criminal cases. For criminal testing, Cellmark has been accredited by the American Society of Crime Laboratory Directors (ASCLAD). Cellmark is the only private laboratory that has received accreditation by ASCLAD.
Valdez contends that the trial court erred in admitting the statistical probabilities because the State failed to provide an adequate foundation for Kempton to testify as an expert as to the formulation and accuracy of Cellmark's database and its acceptance as a database for DNA testing.
The general acceptance test governing the admissibility of scientific evidence in Kansas where a test or standard is required is set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). DNA testing has met the Frye test in Kansas. See State v. Isley, 262 Kan. 281, 285, 936 P.2d 275 (1997).
In Isley, this court addressed a similar challenge to the admission of DNA evidence. As in this case, the testing laboratory in Isley was Cellmark, and the testifying expert was not a population geneticist. The Cellmark expert testified concerning statistical probabilities based on her chemical analysis, and the defendant contended that the expert's conclusion lacked the foundation required for scientific evidence. The Isley court held that statistics based on population studies are admissible and challenges to the reliability of the testimony goes to its weight, not its admissibility. Population percentages on the po