STATE OF NEW JERSEY v. KEVIN WATKINS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5805-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN WATKINS,

Defendant-Appellant.

___________________________________________________

November 28, 2011

 

Submitted September 27, 2011 - Decided

 

Before Judges Carchman and Fisher.

 

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-03-0293.

 

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

 

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Jason M. Cieri, Assistant Prosecutor, on the brief).

 

Appellant filed a pro se supplemental brief.

 

PER CURIAM

In this appeal, defendant argues, among other things, that he was erroneously convicted of various drug and weapons offenses based on his contentions that: (1) the trial judge failed to give adequate jury instructions regarding identification evidence; and (2) there was insufficient evidence to support, and the judge erroneously instructed the jury about, his alleged unlawful purpose in possessing a weapon. We find no merit in these or defendant's other arguments and affirm.

The record developed during the course of a fifteen-day trial revealed that at approximately 6:30 p.m., on November 29, 2004, Officer Raymond Weber commenced surveillance of an apartment complex at 320 Duncan Avenue, Jersey City, as a result of numerous complaints of drug dealing at that location. Officer Weber parked his surveillance van twenty to twenty-five feet east of the front door of 320 Duncan. Seven other officers acted as perimeter units.

Officer Weber testified about his observations of two individuals standing in front of 320 Duncan. One of these individuals, later identified as defendant, was standing on the top of the front steps, wearing a black jacket and a yellow tee shirt; the other, Raheem Tramel, was standing on the sidewalk, wearing a camouflage jacket and baseball cap.

Officer Weber observed a third individual, Ronald Tadulla, walk toward the premises. Before Tadulla reached the front steps, Tramel walked toward him and they conversed as they walked together toward the front steps of 320 Duncan. When they arrived at the steps, Tramel gestured to defendant, who approached. Tadulla removed money from his pocket and gave it to defendant, who then removed a large, clear sandwich bag from his left coat pocket, and took from the bag some objects, which he handed to Tadulla. Defendant and Tramel returned to where they had previously been standing and Tadulla walked quickly away.

Officer Weber informed the perimeter units that he thought he had observed a narcotics transaction and gave them a description of Tadulla's clothing and the direction in which he was walking. Two officers exited their vehicle and approached Tadulla on foot. Upon observing Tadulla reach into his pocket, one of the officers -- concerned that Tadulla might be reaching for a weapon -- grabbed him. Tadulla resisted, striking one officer and biting another before being arrested. Tadulla was searched and two glassine bags containing heroin were seized.

A few minutes later, Officer Weber watched another drug transaction. This time, a man later identified as Benny Counsel exited a vehicle parked in front of the surveillance van and conversed with Tramel. Tramel then motioned to defendant, who walked down from the steps and approached Counsel. Officer Weber observed as Counsel handed money to defendant, who removed a clear sandwich bag from his coat pocket and took some objects from the bag, which he handed to Counsel, who then re-entered his vehicle and drove away. Officer Weber informed the perimeter units, providing the license plate number and the make and color of the vehicle, as well as a description of Counsel. One of the units activated its lights and sirens and stopped the vehicle; Counsel opened a window, discarded what were referred to in testimony as two "jars" of cocaine and drove away. Officers from one perimeter unit secured the discarded items; officers from another stopped Counsel's vehicle and arrested him.

Following Counsel's arrest, Officer Weber directed the perimeter units to 320 Duncan to apprehend defendant and Tramel, both of whom he described to the other officers. Moments later, at approximately 7:15 p.m., Detective James Wilde and another officer arrived in an unmarked vehicle, saw the two men Officer Weber had described standing in front of 320 Duncan, and exited their vehicle. Seeing the officers, defendant and Tramel ran into the house and shut the door. The officers pursued them into the building and apprehended Tramel.

Officer Joseph Stelze, who had also responded to Officer Weber's radio transmission, arrived at approximately the same time and ran to the rear of the building to "avoid anybody running out the back or up into the stairwells." He was joined by Officer John Traynor. Upon entering the rear of the building, Officer Stelze "collided" with an individual he recognized as fitting the description of defendant provided by Officer Weber. He "put [defendant] in a bear hug and took him to the ground" and, with Officer Traynor's assistance, handcuffed defendant and patted him down, finding a .32 caliber revolver in defendant's right front pants pocket.

Before being searched at police headquarters, defendant told Officer Stelze he was in possession of narcotics; the officer obtained from defendant a clear sandwich bag containing seventeen jars of cocaine and twelve glassine bags of heroin.

Most of the police officers involved in the investigation and apprehension of defendant and Tramel testified, providing detailed versions of the events briefly outlined above. Defendant called witnesses and also testified on his own behalf, asserting that at the times Officer Weber observed the transactions in front of 320 Duncan, defendant was in a nearby bodega purchasing lottery tickets.

The jury found defendant guilty of: two counts of possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (counts one and eight); two counts of possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5a(1) (counts two and nine); two counts of possession of CDS with the intent to distribute while within 1,000 feet of a school, N.J.S.A. 2C:35-7 (counts three and ten); two counts of possession of CDS with the intent to distribute while within 500 feet of a public housing facility, public park or public building, N.J.S.A. 2C:35-7.1 (counts four and eleven); two counts of dispensing or distributing CDS, N.J.S.A. 2C:35-5a(1) and 35-5b(3) (counts five and twelve); two counts of dispensing or distributing CDS while within 1,000 feet of a school, N.J.S.A. 2C:35-7 (counts six and thirteen); two counts of dispensing or distributing CDS while within 500 feet of a public housing facility, public park or public building, N.J.S.A. 2C:35-7.1 (counts seven and fourteen); one count of unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count fifteen); one count of possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a (count sixteen); two counts of possession of a firearm while in the course of committing, attempting to commit, or conspiring to commit a CDS offense, N.J.S.A. 2C:39-4.1a (counts seventeen and eighteen); and two counts of conspiracy to distribute CDS, N.J.S.A. 2C:5-2 (counts twenty and twenty-one).

The trial judge found defendant to be a persistent offender and eligible for an extended prison term. For sentencing purposes, the judge merged many of the CDS convictions: counts one, two and three merged with count four; counts five, six and twenty with count seven; counts eight, nine and ten with count eleven; and counts twelve, thirteen and twenty-one with count fourteen. The judge then sentenced defendant to a fifteen-year prison term with a seven-year period of parole ineligibility on count seven, as well as five-year concurrent prison terms on counts four, eleven and fourteen.

On count seventeen -- possession of a firearm while in the course of committing a CDS offense -- the judge imposed a ten-year prison term subject to a five-year period of parole ineligibility; the judge directed that this term run consecutive to the term imposed on count seven. For the other weapons offense, the judge imposed terms, ordered to run concurrently with the term imposed on count seventeen; specifically: a five-year prison term on count fifteen; a ten-year prison term on count sixteen; and a ten-year prison term subject to a five-year period of parole ineligibility on count eighteen. In short, the judge imposed an aggregate prison term of twenty-five years with a twelve-year period of parole ineligibility on all these CDS and weapons convictions.

Defendant appealed, presenting the following arguments for our consideration:

I. THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY REGARDING THE ISSUE OF IDENTIFICATION (NOT RAISED BELOW).

 

II. THE JURY'S VERDICT FINDING THE DEFENDANT GUILTY OF COUNT XVI CHARGING POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE WAS AGAINST THE WEIGHT OF THE EVIDENCE.

 

III. THE TRIAL COURT'S CHARGE TO THE JURY REGARDING COUNT XVI INVOLVING POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE WAS INADEQUATE AS WELL AS INACCURATE, NECESSARILY TAINTING THE JURY'S VERDICT AS A RESULT (NOT RAISED BELOW).

 

IV. THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A JUDGMENT OF ACQUITTAL WITH RESPECT TO COUNTS IV, VII, XI AND XIV CHARGING POSSESSION WITH INTENT TO DISTRIBUTE AND DISTRIBUTION OF A CONTROLLED DANGEROUS SUBSTANCE WITHIN 500 FEET OF A PUBLIC HOUSING FACILITY OR PUBLIC PARK.

 

V. THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY (NOT RAISED BELOW).

 

VI. THE TRIAL COURT ERRED IN RULING THE DEFENDANT'S PRIOR CONVICTIONS WERE ADMISSIBLE TO ATTACK CREDIBILITY.

 

VII. THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

 

By way of a pro se supplemental brief, defendant also asserted the following arguments, which we have renumbered:

VIII. THE TRIAL COURT READBACK WAS PREJUDICIALLY INADEQUATE DEPRIVING THE DEFENDANT OF A FAIR TRIAL IN VIOLATION OF HIS 6TH AMENDMENT RIGHT UNDER BOTH STATE AND FEDERAL CONSTITUTION[S].

 

IX. DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO CONFRONTATION UNDER BOTH STATE AND FEDERAL CONSTITUTION[S], WHEN THE TRIAL COURT DENIED DEFENSE COUNSEL['S] REQUEST TO PRESENT LIVE TESTIMONY DURING SUPPRESSION HEARING.

 

X. [DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO CONFRONTATION UNDER BOTH STATE AND FEDERAL CONSTITUTIONS IN THE] LIMITATION OF DEFENSE CROSS-EXAMINATION OF STATE WITNESS, OFFICER WEBER.

 

XI. DEFENDANT WAS DENIED HIS 6TH AMENDMENT RIGHT TO TRIAL BY A FAIR AND IMPARTIAL JURY, AS WELL AS DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW AS CONTEMPLATED UNDER STATE AND FEDERAL CONSTITUTION.

 

We find insufficient merit in Points IV, V, VI, VII, VIII, IX, X and XI to warrant discussion in a written opinion. R. 2:11-3(e)(2). We reject defendant's remaining arguments for the following reasons.

I

In arguing that the trial judge erred in failing to instruct the jury regarding identification evidence, defendant acknowledges his trial attorney made no such request. Notwithstanding, defendant contends that "the trial court's failure to provide any instruction whatsoever to the jury regarding the issue of identification denied to the defendant his right to a fair trial."

To be sure, appropriate and proper jury instructions are essential to a fair trial. State v. Savage, 172 N.J. 374, 387 (2002). A judge's charge "is a road map to guide the jury and without an appropriate charge a jury can take a wrong turn in its deliberations." State v. Martin, 119 N.J. 2, 15 (1990). Accordingly, a trial judge "must explain the controlling legal principles and the questions the jury is to decide." Ibid.

Because jury instructions play such an important role in the process, our Supreme Court has recognized that erroneous instructions are "poor candidates for rehabilitation under the harmless error philosophy." State v. Simon, 79 N.J. 191, 206 (1979); see also State v. Rodriguez, 195 N.J. 165, 175 (2008); State v. Jordan, 147 N.J. 409, 422 (1997). By the same token, not every unobjected misstatement or omission in a court's jury charge warrants reversal. In fashioning the proper scope of review, the Supreme Court "has defined plain error as 'legal impropriety in the charge, prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court [which convinces] the court that of itself[,] the error possessed a clear capacity to bring about an unjust result.'" State v. Viera, 346 N.J. Super. 198, 210 (App. Div. 2001) (quoting State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970)).

Defendant argues that identification was a key issue in this case and that the jury may have been provided with less than adequate guidance about how to consider identification testimony. Although it certainly would have been appropriate for the trial judge to provide additional instructions regarding how the jury might weigh evidence offered to identify defendant as the drug dealer in front of 320 Duncan, the judge did provide the following instructions:

Mere presence at or near the scene does not make one a participant in the crime nor does the failure of a spectator to interfere make him or her a participant in the crime.

 

It is, however, a circumstance to be considered with all other evidence in determining whether he was present as an . . . accomplice. Presence is not itself conclusive evidence of that fact. Whether presence has any probative value depends upon the total circumstances.

 

To constitute guilt, there must exist a community of purpose and actual partici-pation in the crimes committed. While mere presence at the scene of the perpetration . . . of a crime does not render a participant in it, proof that one is present at the scene of the commission of the crime without disproving or opposing it is evidence from which in connection with all other circumstances it is . . . possible for the jury to infer that he . . . assented thereto, lent to it his countenance and approval and was thereby aiding the same. It depends upon the totality of the circumstances as those circumstances appear from the evidence.

 

This instruction does not precisely educate the jury as to how it might weigh identification evidence in the manner suggested in the Model Jury Charges; nor did this instruction precisely outline for the jury the factors it might consider when determining the credibility of the testimony linking defendant, who was arrested in the rear of 320 Duncan, to the individual Officer Weber observed selling drugs in the front of 320 Duncan.

We have recognized that the better practice in any case in which identification is at issue is for trial judges to provide juries with some instruction, even when a claim of misidentification is thin or remote. See, e.g., State v. Davis, 363 N.J. Super. 556 (App. Div. 2003); State v. Copling, 326 N.J. Super. 417, 434 (App. Div. 1999), certif. denied, 164 N.J. 189 (2000). But we are not required to reverse where there has been no objection in the trial court unless it has been shown that the absence of such instructions "prejudicially affect[ed] the substantial rights of the defendant," was "sufficiently grievous" to justify our taking notice, and "possessed a clear capacity to bring about an unjust result." Hock, supra, 54 N.J. at 538; see also State v. Nero, 195 N.J. 397, 407 (2008).

Even now, defendant has not been clear about the instruction he claims the judge should have given notwithstanding his trial counsel's failure to object. Indeed, defendant concedes he was not entitled to "any of the various comprehensive model jury charges on identification," referring to Model Jury Charge (Criminal), "Identification: Out-of-Court Identification Only" (1999) and Model Jury Charge (Criminal), "Identification: In-Court and Out-of-Court Identifications" (1999). Instead, defendant repeatedly asserts an entitlement, absent a request, to "a shortened, generalized charge on identification." Notwithstanding his forceful contentions on this point, defendant has not suggested what that charge might include. At best, we might discern from defendant's brief an argument that he was entitled to that part of a model jury charge on identification we referred to in Davis:

The defendant as part of [his/her] general denial of guilt contends that the State has not presented sufficient reliable evidence to establish beyond a reasonable doubt that [he/she] is the person who committed the alleged offense. The burden of proving the identity of the person who committed the crime is upon the State. For you to find this defendant guilty, the State must prove beyond a reasonable doubt that this defendant is the person who committed the crime. The defendant has neither the burden nor the duty to show that the crime, if committed, was committed by someone else, or to prove the identity of that other person. You must determine, therefore, not only whether the State has proved each and every element of the offense charged beyond a reasonable doubt, but also whether the State has proved beyond a reasonable doubt that this defendant is the person who committed it.

 

[363 N.J. Super. at 562.]

 

We should not be put to the burden of guessing what it is that defendant believes should have been charged. Indeed, had the matter been raised at trial, defendant would have been obligated upon request to provide the judge with the precise language he would have had the judge charge to the jury; no less should be expected here. On the assumption that the language crafted in Davis is what defendant has in mind, we conclude that the absence of this language from the jury charge did not result in prejudice. The jury was thoroughly instructed, among other things, about the State's burden of proving defendant's guilt beyond a reasonable doubt, the manner in which the jury could find whether or not a witness was credible, the elements of the offenses charged, and as quoted at length earlier, that defendant's mere presence at the scene of the crime did not necessarily make him a participant in the crime. In addition, after describing the elements of each of the offenses charged, the judge reminded the jury of the State's burden to prove each of those elements beyond a reasonable doubt. The additional instruction never sought by defendant -- the content of which we may only surmise from defendant's brief -- would have added very little additional guidance for the jury in this case.

The record reveals no equivocation from Officer Weber in identifying defendant as the person who was dealing narcotics in front of 320 Duncan when he approached defendant immediately after he was apprehended. In addition, the record contains "overwhelming corroborative evidence" of defendant's identity. State v. Cotto, 182 N.J. 316, 326 (2005). When apprehended, as noted earlier, defendant was in possession of a firearm, seventeen jars of cocaine and twelve glassine bags of heroin. We, thus, conclude that the judge's failure to sua sponte provide an identification charge was not capable of producing an unjust result.

II

Defendant unsuccessfully moved at trial for dismissal of the charge that he was in possession of a weapon for an unlawful purpose, and argues in Point II of his appellate brief that there was no evidence of an unlawful purpose. Dovetailing with that argument is defendant's contention in Point III of his appellate brief that the judge's instructions regarding the unlawful purpose element of the offense were erroneous.

Both these arguments require consideration of the elements of the offense in question. We start with the legislature's declaration that "[a]ny person who has in his possession any firearm with a purpose to use it unlawfully against the person or property of another is guilty of a crime of the second degree." N.J.S.A. 2C:39-4a(1). The Supreme Court has recognized that to sustain such a charge, the State must prove beyond a reasonable doubt the following four elements:

(1) the object possessed was a "firearm" within the meaning of N.J.S.A. 2C:39-1(f); (2) the firearm was possessed by defendant as defined in N.J.S.A. 2C:2-1c; (3) the defendant's purpose in possessing the firearm was to use it against the person or property of another; and (4) the defendant intended to use the firearm in a manner that was unlawful.

 

[State v. Diaz, 144 N.J. 628, 635 (1996)]

 

N.J.S.A. 2C:39-4a, as the Court has held, creates "an inchoate offense in the sense that it seeks to prevent incipient crime by prohibiting the commission of some act, however equivocal[,] . . . when such conduct is accompanied by criminal intent." State v. Harmon, 104 N.J. 189, 203 (1986). In short, "[t]he legislative objective . . . is to punish someone for possessing a firearm for an unlawful purpose before the conduct escalates to the stage of an attempt"; as a result, "the focus is on a defendant's purpose for possessing a weapon, not the possession itself or the actual use." State v. Brims, 168 N.J. 297, 304 (2001).

Defendant claims error only with respect to the fourth element of the offense, i.e., that part of the offense that required the State to prove defendant intended to use the firearm in a manner that was not lawful. In Point II defendant argues there was inadequate evidence to support such a finding and in Point III he contends the judge incorrectly instructed the jury on this element.

Defendant is correct that the jury was not "qualified to say without guidance which purposes for possessing a weapon are unlawful and which are not," State v. Villar, 150 N.J. 503, 511 (1997), and that the judge was obligated to identify for the jury the unlawful purpose or purposes suggested by the evidence, so that the jurors "'may not convict based on their own notion of the unlawfulness of some other undescribed purpose,'" ibid. (quoting State v. Jenkins, 234 N.J. Super. 311, 316 (App. Div. 1989)).

We analyze the sufficiency of the evidence and the content of the jury instruction with the State's description of what it claimed was defendant's unlawful purpose. Somewhat ambiguously in his summation, the prosecutor asserted that defendant's unlawful purpose was

having a weapon on him while he's out there committing other illegal activities; selling drugs, possessing drugs to sell. He had this on him to . . . protect him if he felt he needed it or whatever reason he had. But he possessed this weapon for an unlawful purpose to commit illegal crimes.

 

[(Emphasis added).]

 

The State's argument was problematic because it was overly broad, suggesting defendant had multiple unlawful purposes, one of which was, in fact, not unlawful. That is, according to the State, defendant either possessed the weapon for self-defense purposes ("to . . . protect him if he felt he needed it") or that the purpose may be inferred from possession during the course of the commission of other offenses ("or whatever reason he had").

With respect to the State's former contention, the law is clear that acting in self-defense does not constitute an unlawful purpose. See Harmon, supra, 104 N.J. at 207. The Supreme Court has held that "[i]f an individual's possession of a firearm is motivated honestly by a self-protective purpose, then his conscious object and design may remain not to do an unlawful act, and a material element of a [N.J.S.A. 2C:]39-4(a) violation has not been met." State v. Williams, 168 N.J. 323, 335 (2001) (quoting Harmon, supra, 104 N.J. at 207).

The second aspect of the State's claim of an unlawful purpose, however, was sufficient regardless of how unartfully the prosecutor may have expressed it. That is, an unlawful purpose "may be inferred from the circumstances," Villar, supra, 150 N.J. at 510, and jurisprudence that has developed on this point supports the State's apparent contention that an unlawful purpose may be inferred from the commission of other offenses while in possession of a firearm. For example, in Brims, the Court considered this specific question in a situation where defendant was apprehended and found to be in possession of, among other suspicious things, a firearm. The circumstances, which are briefly recounted in the Court's opinion and need not be repeated here, suggested that defendant and another were preparing to commit a robbery. Brims, supra, 168 N.J. at 301-02, 304-05. Although the defendant was apprehended before the commission of a robbery, the jury was instructed that it could find the defendant's unlawful purpose in possessing the weapon from defendant's intent to commit a robbery or burglary. Id. at 302. That is, the Court found the judge's charge to be appropriate, holding that the State "was only required to prove that defendant's unlawful purpose was to commit a robbery or a burglary," and the firearm was intended to be used in that connection without any need to prove the details of the intended use. Id. at 305. So, too, it was enough here for the State to prove defendant's unlawful purpose was the weapon's potential use in connection with defendant's conducting of his CDS distribution business. The State was not required to show how defendant may have intended to utilize the handgun in that regard; as the Court held in Brims, "the State was not obligated to prove the exact details of the intended crime, such as when it would occur or the identity of the person or property targeted." Ibid. We, thus, conclude that the evidence of the CDS violations was sufficient to generate an inference that defendant, in possessing the handgun while committing the drug trafficking crimes, possessed it with an unlawful purpose.

The only remaining questions, then, are whether the jury was properly charged on this point and if not, whether any inadequacy in the charge constituted plain error, since defendant did not object at trial. In instructing the jury on the precise point now in question, the judge advised that the State contended defendant's "unlawful purpose in possessing the firearm was to facilitate the dispensing of drugs." The judge did not instruct the jury about the prosecutor's suggestion that defendant may have possessed the weapon in self-defense. She neither told the jury that self-defense was an unlawful purpose nor that it was not.

We discern from defendant's brief that he contends the judge should have affirmatively advised the jury that the State's contention about self-defense was wrong. Perhaps it would have been better had the judge dealt with it but defendant made no such argument at trial. When the prosecutor briefly propounded the self-defense argument as we quoted earlier, defendant did not object. And, when the judge said nothing about self-defense in her charge, defendant remained silent. That silence undoubtedly "suggest[ed] that [defense] counsel perceived the alleged error to be of no moment." State v. Swint, 328 N.J. Super. 236, 257 (App. Div.), certif. denied, 165 N.J. 492 (2000).

We would further observe that defendant may have actually benefited from, or at least was not prejudiced by, the charge as given because, by not including self-defense as part of the State's claim of an unlawful purpose, the judge implicitly excluded it from the jury's consideration. Indeed, not only did the judge not mention self-defense but she also immediately instructed, after describing the State's claim of an unlawful purpose, that the jury "must not rely upon your own notions of the unlawfulness of some other undescribed purpose of the [d]efendant." Thus, the jury was given a more limited understanding of an unlawful purpose than what the State had argued together with the admonition that the jury was not free to expand beyond the purpose she described. In short, defendant was not prejudiced by the charge; the State's claim of an unlawful purpose was confined to only those circumstances that permissibly suggested its presence. Accordingly, we cannot conclude that the judge erred in instructing the jury on this point, let alone accept the contention that the judge committed an error that was clearly capable of producing an unjust result.

Affirmed.