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SJC-11680

                     COMMONWEALTH   vs.   ALEX RAMOS.



           Essex.     November 4, 2014. - February 26, 2015.

Present:    Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines,
                                   JJ.


Motor Vehicle, Receiving stolen motor vehicle. Receiving Stolen
     Goods. Search and Seizure, Exigent circumstances. Practice,
     Criminal, Motion to suppress. Evidence, Telephone
     conversation. Telephone.



     Indictment found and returned in the Superior Court Department
on May 2, 2007.

     A pretrial motion to suppress evidence was heard by Howard J.
Whitehead, J., and the case was tried before David A. Lowy, J.

     The Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.


     Todd C. Pomerleau for the defendant.
     Quentin Weld, Assistant District Attorney (Elin H. Graydon,
Assistant District Attorney, with him) for the Commonwealth.


     DUFFLY, J.     The defendant was indicted on a charge of receiving

a stolen motor vehicle, G. L. c. 266, § 28; a codefendant was indicted

on charges of receiving a stolen motor vehicle and of receiving stolen
                                                                    2

property with a value exceeding $250.    The defendant sought to

suppress evidence seized as a result of a warrantless search of his

garage.   A Superior Court judge, who was not the trial judge, denied

the motion, concluding that the warrantless search of the defendant's

garage was permissible due to exigent circumstances, and also that the

search was permissible under what he termed an "accomplice sweep"

exception to the warrant requirement, a concept that has not been

adopted in the Commonwealth.   Following a joint trial, a Superior

Court jury convicted the defendant and acquitted the codefendant.   The

defendant appealed, and we transferred the case to this court on our

own motion.

     On appeal, the defendant claims error in the denial of his motion

to suppress evidence seized during the warrantless search of his

garage, and the admission in evidence of inculpatory statements made

during recorded telephone conversations between the defendant and the

codefendant.   Additionally, the defendant argues that the

Commonwealth's evidence was insufficient to support his conviction.

We conclude that there was no error in the denial of the defendant's

motion to suppress because police entry into the garage was justified

based on exigent circumstances, there was no error in the admission

of recordings of the jailhouse telephone calls, and the evidence was

sufficient to support the defendant's conviction.

     Evidence at trial.   We summarize the facts the jury could have
                                                                     3

found, reserving additional facts for our discussion of the issues.

On the morning of April 8, 2007, Derek Lam noticed that his blue Honda

Civic automobile was missing from the driveway of his fiancée's house

in Natick.   He contacted police to have the LoJack transmitter1 in

the vehicle activated.   Officer Robert Avery of the Lynn police

department was on patrol in his police cruiser when, shortly after

noon, he received a LoJack signal.   Other officers used their LoJack

units to assist him in pinpointing the location of the signal, a

detached garage behind a house located at the corner of Gardiner and

Florence Streets in Lynn.   The house fronted on Gardiner Street, and

the two-bay garage doors opened onto Florence Street.     The yard

between the house and the garage was enclosed by a stockade fence.

Along the Florence Street side of the yard, the fence ran from the

garage to the back of the house; on the other side of the yard, a

stockade fence ran from Gardiner Street to Florence Street along the

property line between the defendant's house and the house next door.


     1
       Officers Robert Avery and Josh Hilton of the Lynn police
department testified that the LoJack motor vehicle recovery system
assists police in locating a stolen vehicle. When a vehicle equipped
with a LoJack system is stolen, police activate the LoJack signal;
a police vehicle equipped with a receiver will receive the signal
if the two vehicles are in close proximity. The LoJack unit in the
cruiser has a small display screen that shows the strength of the
signal and a directional grid indicating the general direction of
the stolen vehicle in relation to the cruiser. The receiver emits
a beeping noise that increases in volume as the cruiser approaches
the stolen vehicle.
                                                                      4

     Avery parked his cruiser on Florence Street near the two-bay

garage doors.    When he got out of his cruiser, he could hear noises,

like metal tools being used, coming from behind one of the garage

doors.   One of the overhead garage doors was open about three inches

at the bottom.    Avery approached the garage door and, after knocking

and announcing "Lynn Police," he could hear the sound of tools dropping

and people running.      Avery saw three men run from the back of the

garage and through the back yard to the rear porch of the house; they

were taken into custody immediately.    After surrounding the property

and obtaining a search warrant, officers found the defendant hiding

inside the house.    Police found the blue Honda Civic inside the

garage, where the defendant, the codefendant, and two other men had

been stripping its engine and various other parts.

     Discussion.    1.    Motion to suppress.   Prior to trial, the

defendant moved to suppress all evidence found during the warrantless

search, and all evidence seized and statements made following

execution of a warrant obtained as a result of that search.2     After

conducting an evidentiary hearing over two days at which three members

of the Lynn police department testified, a Superior Court judge denied

the motion.     In reviewing a decision on a motion to suppress, "we

accept the judge's subsidiary findings of fact absent clear error 'but

     2
       On appeal, the defendant does not pursue any claim regarding
statements he made to police after his arrest.
                                                                      5

conduct an independent review of [the] ultimate findings and

conclusions of law.'"   Commonwealth v. Colon, 449 Mass. 207, 214,

cert. denied, 552 U.S. 1079 (2007), quoting Commonwealth v. Scott,

440 Mass. 642, 646 (2004).

     a.   Evidence at motion hearing.      We recite the facts found by

the motion judge, supplemented by additional, undisputed facts where

they do not detract from the judge's ultimate findings and were

implicitly credited by the judge.   See Commonwealth v. Isaiah I., 448

Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008), and cases cited

(court "may supplement judge's findings of fact if the evidence is

uncontroverted and undisputed and where the judge explicitly or

implicitly credited the witness's testimony").

     On April 8, 2007, Avery detected a LoJack signal while driving

his cruiser on Park Lane Avenue in Lynn.    He confirmed the signal with

a police dispatcher and was informed that the signal was coming from

a Honda Civic reported stolen in Natick.      Avery followed the signal

to a location at the corner of Florence and Gardiner Streets in Lynn.

The house at that address fronted on Gardiner Street.      The doors to

a two-bay detached garage located behind the house opened onto

Florence Street.   Avery parked his police cruiser in the middle of

Florence Street, near the garage bay doors.    The garage was separated

from the house by a yard which was surrounded by a stockade fence.

     Officer Josh Hilton of the Lynn police department, who also had
                                                                      6

followed the LoJack signal, arrived at about the same time as Avery.

Hilton parked his cruiser, walked over to the fence, and looked over

it to see if the Honda Civic was inside the yard.      He saw three

automobile doors and other motor vehicle parts in the yard, but did

not see an automobile.    Hilton broadcast this information over his

police radio.   Hilton and Avery learned from another officer who heard

Hilton's broadcast that the defendant lived at the Gardiner Street

address; he was under investigation for running a "chop-shop"3; he

previously had pleaded guilty to charges related to the theft of motor

vehicles and stripping parts from stolen vehicles; and a resident of

Chelsea whose vehicle had been stolen had located the vehicle's engine

at the Gardiner Street address.    Based on this, the officers were

advised that the Gardiner Street address might be a "chop shop."

     Avery approached the garage bay door, where he could hear the

sound of metal tools and what sounded to him like work being done on

automobiles.    He knocked on the door and announced, "Lynn Police."

At that point, Avery heard tools being dropped and people running.

He told Hilton what he had heard; Hilton looked over the fence and

saw two people running out of the garage toward the house.   Avery also

     3
       Officer Steven Withrow of the Lynn police department testified
that a "chop shop" is a "building or garage" where vehicles, stolen
or otherwise, "are brought [and] stripped of their parts." See
United States v. Fuentes, 107 F.3d 1515, 1517 n.1 (11th Cir. 1997)
("'chop shop' operation involves dismantling stolen automobiles and
selling their parts").
                                                                       7

looked over the fence and saw three men running out of a regular door

at the back of the garage, into the yard, and toward the house.      When

Avery ran around to the driveway side of the house, he saw only two

men.

       By that time, a third officer had arrived.     The officers

persuaded the two men to stop running and to jump over the fence, where

the officers placed the men in handcuffs "for officer safety."         A

neighbor signaled to the officers that a third person was hiding under

a large pile of trash bags on the porch.       Avery and Hilton entered

the yard.     Hilton located the codefendant, Warlin Santiago, under the

pile of trash bags, and noted that his hands were covered in black

grease.      Avery then walked through the yard, back to the garage door

from which the men had emerged, and looked inside.      Avery could see

a stripped, blue Honda Civic; he entered the garage, looked at the

vehicle identification number (VIN), and confirmed that the VIN was

that of the stolen vehicle the officers had been tracking.

       After other officers arrived, police secured the area by

surrounding the property while they sought a search warrant for the

garage and the house; they believed that the defendant was inside the

house.      The warrant was obtained a few hours later and the defendant

was arrested after he was found hiding inside the house.

       b.    Justification for warrantless entry.   The defendant

contends that the warrantless search of the garage violated his rights
                                                                       8

under the Fourth Amendment to the United States Constitution and art.

14 of the Massachusetts Declaration of Rights.     "In the absence of

a warrant, two conditions must be met in order for a nonconsensual

entry to be valid:     there must be probable cause and there must be

exigent circumstances" (footnote omitted).    Commonwealth v. DeJesus,

439 Mass. 616, 619 (2003).     The defendant does not challenge the

judge's finding that "the police had probable cause to believe that

the stolen car was in the garage, was being dismantled and that the

people fleeing were involved in the theft and dismantling."      The

defendant argues, however, that the warrantless entry into the garage

was not justified by exigent circumstances, because there were no

exigent circumstances, and that the motion judge's reliance on the

"accomplice sweep" exception was erroneous, because no such exception

has been adopted in Massachusetts.

     The Fourth Amendment requires that "all searches and seizures

must be reasonable," and that "a warrant may not be issued unless

probable cause is properly established and the scope of the authorized

search is set out with particularity."    Kentucky v. King, 131 S. Ct.

1849, 1856 (2011).     Generally, a warrant must be secured before a

search is conducted, and warrantless searches "are presumptively

unreasonable."   Id.    Because the touchstone of the Fourth Amendment

is reasonableness, however, "the warrant requirement is subject to

certain reasonable exceptions."    Id., citing Brigham City v. Stuart,
                                                                       9

547 U.S. 398, 403 (2006).    Although "searches and seizures inside a

home without a warrant are presumptively unreasonable," id., this

presumption may be overcome when "'the exigencies of the situation'

make the needs of law enforcement so compelling that [a] warrantless

search is objectively reasonable under the Fourth Amendment."

Kentucky v. King, supra, quoting Mincey v. Arizona, 437 U.S. 385, 394

(1978).

     "Exigencies which may justify a procedure without warrant are

a narrow category and must be established by the Commonwealth which

bears the burden of proof."     Commonwealth v. Young, 382 Mass. 448,

456 (1981).   Among the exigencies providing justification for a

warrantless entry into a home is an officer's reasonable belief that

the entry is necessary to prevent "the potential loss or destruction

of evidence."   Commonwealth v. DeJesus, supra at 620.       See

Commonwealth v. Molina, 439 Mass. 206, 209 (2003); Commonwealth v.

Huffman, 385 Mass. 122, 125 (1982).    "[W]hether an exigency existed,

and whether the response of the police was reasonable and therefore

lawful, are matters to be evaluated in relation to the scene as it

could appear to the officers at the time, not as it may seem to a scholar

after the event with the benefit of leisured retrospective analysis."

Commonwealth v. Young, supra.

     Here, two officers used LoJack receivers to identify the garage

as the probable location of the stolen vehicle.    They knew by the time
                                                                    10

they had arrived at the garage that it was suspected of being a "chop

shop" where stolen vehicles would be dismantled and their VIN numbers

destroyed.   Avery heard the sounds of ratchets and wrenches from

inside the garage, and after he knocked and announced his presence,

he heard the sound of tools being dropped and people yelling.       The

officers did not know how many people were inside the garage.   Before

searching the garage, they had learned that the defendant, who lived

at that address and who had been involved in previous motor vehicle

thefts, was not among the men apprehended in the yard.    One of the

men who had been apprehended initially had attempted to conceal

himself from police and was found hiding under a pile of trash bags.

The rapidly unfolding events occurred at a point when only three

officers were on the scene, although others continued to arrive.4    In

these circumstances, it would have been objectively reasonable for

an officer to believe that he needed to enter the garage and conduct

a limited search in order to prevent further destruction of the

vehicle, or the removal of the stolen vehicle's parts, license plate,


     4
       The defendant suggests that "[t]here were approximately seven
to eight officers on the scene" by this point. Avery testified that
he was not certain if there were four officers in the yard by the
time the three fleeing men had been captured and he turned his
attention to the garage. Officers continued to arrive as events
unfolded, and Hilton testified that, at some point, there were at
least seven or eight officers present, four of them in the yard. The
judge made no finding as to the number of officers who ultimately
arrived on the scene.
                                                                     11

or VIN number, by any individual who might have remained in the garage.

Cf. Commonwealth v. Grundy, 859 A.2d 485, 488-489 (Pa. Super. Ct. 2004)

(probable cause and exigent circumstances existed where police

officers followed LoJack signal to garage suspected of being "chop

shop" and, upon arrival, heard sound of power saw).     "If the police

had taken the time to first seek a warrant," they reasonably could

have believed that "the [vehicle] would have been in parts and junk

by the time they got back . . . [because] a car can be disassembled

in a matter of minutes."    Id.

     The defendant argues that even if there were a risk that evidence

would be destroyed when the officers first arrived, the exigency had

been extinguished by the time Avery knocked and announced his

presence, because it could be inferred from the sounds of running that

anyone who had been inside had fled the premises.     We do not agree

that a reasonable police officer was required to have relied on such

an inference.   At that point, it was not clear how many individuals

were involved in the activities inside the garage, or whether any of

them had remained to destroy or remove evidence that might provide

a link to the stolen vehicle.     An officer reasonably could have

believed that evidence, including license plates or VIN number plates,

was being destroyed, or that such identifying information or other

evidence such as automobile parts was being removed from the garage

through the partially open bay doors that faced away from the yard
                                                                     12

where police were actively engaged in apprehending other suspects.

     There were also other factors present that reasonably may be

considered in determining whether an exigency justifies an entry,

among them "a clear demonstration of probable cause, strong reason

to believe that the suspect was in the dwelling, and a likelihood that

the suspect would escape if not apprehended."     See Commonwealth v.

Viriyahiranpaiboon, 412 Mass. 224, 227 (1992).     Here, the officers

had probable cause to believe that a chop shop operation was being

conducted in the defendant's garage that involved the disassembly of

stolen motor vehicles.    Because the defendant, who lived at the

address and previously had pleaded guilty to charges of stealing a

motor vehicle, was not among the men who had been apprehended in his

yard, the officers had reason to believe that he might still be in

the garage destroying evidence.    As the garage bay doors faced away

from the yard and the house and onto the street, the defendant had

a route of escape if he was not apprehended.     The judge made no

finding, and the record does not show clearly, that at the time Avery

made his entry into the garage, there were officers who were not

engaged in securing the residence or detaining the other three

suspects, who would have been available to secure the garage while

a warrant was obtained.

     The warrantless entry into the garage was therefore justified

by reason of exigency.    Once inside, Avery's observation of the blue
                                                                     13

Honda, the license plate on its seat, and the VIN number plate numbers,

permitted him "on that basis to make a selective seizure."

Commonwealth v. Young, supra at 459.   Accordingly, there was no error

in the judge's decision to deny the motion to suppress.5

     2.   Jailhouse telephone calls.    The defendant maintains that

the admission in evidence of two recorded telephone conversations

between himself and Santiago, his codefendant, while the defendant

was in custody awaiting trial, denied him a fair trial as guaranteed

by the Sixth and Fourteenth Amendments to the United States

Constitution and art. 12 of the Massachusetts Declaration of Rights.

We do not agree.

     On cross-examination, Santiago stated that he had never met the

defendant before the day they were arrested, he had not seen the

defendant in the garage, and he first spoke with the defendant while

they were both in custody as a result of that incident.   The prosecutor

asked if Santiago was angry at Jorge Orozco, one of the men caught

running out of the garage, who testified under a plea agreement

providing that, in return for his cooperation, he would receive no

     5
       Because we conclude that exigent circumstances justified the
warrantless search, we need not address the issue of the so-called
"accomplice sweep" exception to searches conducted without a
warrant. We note that the United States Supreme Court has not
adopted such an exception, and there appears to be no consensus as
to the precise scope of such an exception in other States that have
considered it in some form. See 3 W.R. LaFave, Search and Seizure
§ 6.4(b) (5th ed. 2012).
                                                                     14

jail time.   Santiago replied, "a little, yes."    The prosecutor then

inquired about a number of statements Santiago made to the defendant

during recorded jailhouse telephone calls, after Santiago had been

released on bail.    Santiago denied having made any of the statements,

including, inter alia, calling Orozco a "snitch"; saying that the

defendant had told Santiago to say Orozco would pay him to remove the

engine; saying that Santiago told the defendant to "bring [Orozco]

some money"; and that the defendant told Santiago to "[s]ink [Orozco]

so that [he] can't get out [of it]."

     The prosecutor then told the judge that she intended to introduce

recordings of the two jailhouse calls between Santiago and the

defendant to impeach Santiago.    The defendant's counsel requested a

mistrial, stating first that he had only just "got wind that there's

a possibility, yesterday, that some jail tapes are coming into

evidence."   Counsel added that, after examining the only computer

disk he had, he determined that it did not contain copies of the

recorded calls.     The prosecutor noted that the Commonwealth had

provided a copy of a compact disk of the jailhouse calls during

discovery, two years before trial, to which counsel replied that, if

the disk had been supplied, he no longer had it.      The judge then

inquired as to counsel's grounds for seeking a mistrial.      Counsel

first replied that the evidence was being introduced due to a

codefendant testifying at trial, and that he would have filed a motion
                                                                    15

pursuant to Commonwealth v. Moran, 387 Mass. 644 (1982) (Moran), had

he been aware that the prosecution intended to introduce that

evidence.    He also argued that allowing the Commonwealth to introduce

the jailhouse calls would create a disparity with his motion to exclude

uncharged criminal acts, which had been allowed.     The judge allowed

the prosecutor to introduce the recorded statements.

     The defendant maintains that the admission of inculpatory

statements he made during the recorded telephone calls was improper

under Bruton v. United States, 391 U.S. 123 (1968) (Bruton), and Moran,

supra at 655, and that a new trial is therefore required.      Neither

case, however, is applicable here.     In Bruton, supra at 126, the

United States Supreme Court concluded that the admission in a joint

trial of a nontestifying codefendant's inculpatory statement violated

the defendant's right to confrontation.     Here, as in Moran, supra,

the codefendant testified, so there was no denial of the defendant's

right to confrontation.    Instead, the court determined in that case

that severance of the defendants' joint trial was necessary because

the defendants put forth mutually antagonistic defenses.     Id. at 659

("The only realistic escape for either defendant was to blame the

other").    "Such 'mutual antagonism' only exists where the acceptance

of one party's defense will preclude the acquittal of the other."   Id.

at 657.

     Here, by contrast, the defendant's and Santiago's defenses were
                                                                     16

not mutually inconsistent.     Both the defendant and his codefendant

relied on a defense that they were being framed and that Orozco

fabricated his testimony implicating each of them.    They both argued

that Orozco's statements were false, and that Orozco was not

believable because he was testifying in exchange for no jail time,

and that his testimony had changed over time.     In addition, the

defendant argued that he was not present in the garage, and therefore

could not have been in possession of the stolen vehicle.        Santiago

also argued that he did not know the vehicle was stolen.

     In Moran, supra at 652, the codefendant's defense implied that

the defendant had committed the crime alone.     There, accepting the

codefendant's defense would have precluded the acquittal of the

defendant.   See id. at 659.    Acceptance of Santiago's defense,

however, would not have precluded acquittal of the defendant.

Indeed, acceptance of Santiago's defense could have led to the

conclusion that the defendant, too, should be acquitted, because

Orozco was lying about both of their actions.     The fact that the

defendant was convicted while Santiago was acquitted does not render

their defenses antagonistic.     Santiago's acquittal and the

defendant's conviction shows that the jury credited Santiago's

defense that he did not know the vehicle was stolen, and did not credit

the shared defense that Orozco was fabricating his testimony.    In sum,

there was no error in the admission of the recorded jailhouse telephone
                                                                     17

calls.

     3.    Sufficiency of the evidence.    The defendant's motions for

a required finding of not guilty, presented at the close of the

Commonwealth's case and again at the close of all the evidence, were

denied.    On appeal, the defendant continues to press his argument that

the evidence was insufficient to support his conviction because it

did not establish that he possessed the stolen motor vehicle.

     In reviewing the denial of a motion for a required finding, we

consider "whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt."

Commonwealth v. Latimore, 378 Mass. 671, 677, quoting Jackson v.

Virginia, 443 U.S. 307, 318-319 (1979).

     The offense of receiving a stolen motor vehicle requires the

Commonwealth establish that (1) the motor vehicle was stolen; (2) the

defendant received the motor vehicle; and (3) the defendant knew that

the motor vehicle was stolen.     See G. L. c. 266, § 28 (a).6


     6
         General Laws c. 266, § 28 (a), provides, in relevant part:

          "Whoever steals a motor vehicle or trailer, whoever
     maliciously damages a motor vehicle or trailer, whoever buys,
     receives, possesses, conceals, or obtains control of a motor
     vehicle or trailer, knowing or having reason to know the same
     to have been stolen, or whoever takes a motor vehicle without
     the authority of the owner and steals from it any of its parts
     or accessories, shall be punished . . . .
                                                                    18

"'Receiving' [stolen property] means acquiring possession" or control

of it.    Commonwealth v. Cromwell, 53 Mass. App. Ct. 662, 666 n.6

(2002), quoting American Law Institute, Model Penal Code and

Commentaries § 223.6 (1985).   See Commonwealth v. Aponte, 71 Mass.

App. Ct. 758, 760 (2008).   "[P]ossession need not be exclusive.    It

may be joint and constructive, and it may be proven by circumstantial

evidence."   Commonwealth v. Namey, 67 Mass. App. Ct. 94, 98 n.7

(2006), quoting Commonwealth v. Brown, 50 Mass. App. Ct. 253, 257

(2000).    "Actual and constructive possession, however, require

'knowledge plus ability and intention to control.'"    Commonwealth v.

Namey, supra, quoting Commonwealth v. Fernandez, 48 Mass. App. Ct.

530, 532 (2000).

     The defendant argues, in reliance on Commonwealth v. Campbell,

60 Mass. App. Ct. 215, 217 (2003), that his mere presence in the

vicinity of the stolen vehicle was not sufficient to establish that

he possessed it, given the absence of evidence indicating how and for

how long he had been associated with the vehicle.     In that case, the

Appeals Court held that a defendant's presence without more did not

prove possession.    Contrary to the defendant's arguments, the


          "Evidence that an identifying number or numbers of a motor
     vehicle . . . or part thereof has been intentionally and
     maliciously removed, defaced, altered, changed, destroyed,
     obliterated, or mutilated, shall be prima facie evidence that
     the defendant knew or had reason to know that the motor vehicle,
     or trailer or part thereof had been stolen."
                                                                     19

circumstances in this case are very different.      Here, beyond mere

presence in the vicinity of the vehicle, there was substantial

additional evidence from which a jury could conclude that the

defendant had possession of the stolen vehicle.

     The jury could have found that the blue Honda Civic was located

at the defendant's residence when police knocked on the garage door.

Orozco testified that the defendant, Santiago, and a third man, who

was a mutual friend of Orozco and the defendant, were all inside the

garage stripping the vehicle of its engine and various parts when the

officer knocked.   The defendant had called Orozco to ask him to

deliver a jack and to help remove an engine from a motor vehicle; Orozco

drove to the garage, and brought the jack that the defendant had

requested.   At the defendant's direction, Orozco began disconnecting

the engine inside a blue Honda, and removing bolts from the hood so

it would be easier to take out the engine.     At the same time, other

men were removing the doors and other parts from the vehicle.       The

defendant told the men to "look for the LoJack."      Just before the

police arrived, Orozco had used the jack to lift up the vehicle so

that the engine could be removed from underneath, and all of the men,

including the defendant, were pulling the engine from the vehicle.

Orozco heard the squeal of tires outside the garage doors; the

defendant yelled, "Five-O!" and ran out the back door leading to the

yard and the house, and the others followed.     There was no error in
                                                        20

the denial of the motions for a required finding.

                                   Judgment affirmed.
