                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0680
                             Filed October 10, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ELIAS WALTER WANATEE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Woodbury County, Duane E.

Hoffmeyer, Judge.



      A defendant appeals his conviction for murder in the second degree.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Theresa R. Wilson, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.



      Heard by Vogel, P.J., Tabor, J., and Blane, S.J.*

      *Senior judge assigned by order under Iowa Code section 602.9206 (2018).
                                          2


TABOR, Judge.

       Elias Wanatee appeals his conviction for second-degree murder in the

stabbing death of Vernon Mace. Wanatee claims his trial counsel was ineffective

in two ways: (1) by not effectively objecting to hearsay testimony relaying Mace’s

identification of “Eli” as his attacker, and (2) by not seeking to exclude testimony

from “a jailhouse snitch.” Relatedly, Wanatee argues the cumulative effect of

counsel’s errors prejudiced his chances of acquittal. Wanatee also faults the

district court for allowing the state medical examiner to describe two of Mace’s nine

cuts as “defensive wounds” and for admitting into evidence a diagram from a

forensic pathology textbook illustrating the concept of “defensive wounds.”

       To answer Wanatee’s first two claims, we find no shortfall in counsel’s

performance. Because the victim’s statements qualified as dying declarations,

counsel did not need to object. And because the informant’s testimony was

admissible, counsel did not breach a duty in choosing impeachment over

exclusion. Finally, Wanatee cannot show he was prejudiced by the references to

“defensive wounds.”

    I. Facts and Prior Proceedings

       “Tom, call an ambulance. I think Eli stabbed me in the lung.” Tom Abbe

and Anna Edwards recalled Mace uttering those words as he stood at Abbe’s front

door bleeding from a gaping head wound.1 Later in her trial testimony, Edwards

captured the severity of Mace’s condition: “He looked like someone dropped a


1
 Both Wanatee and Mace had been inside Abbe’s Sioux City residence earlier that night.
Wanatee slipped out the back sliding doors while Mace left by the front door. Abbe and
Edwards later heard “screaming and hollering” and went to the back deck to investigate.
Edwards recognized the raised voices as those of Wannatee and Mace.
                                          3


bucket of red paint on him. . . . It was like taking a pulse. I mean, it was like every

time his heart beat, you could see [blood] squirting out the side.”

       As Edwards dialed 911, Kim Stahle pulled up outside Abbe’s house in a Kia

Optima. Stahle saw Mace standing in the yard, holding his stomach. Mace ducked

into the residence for less than a minute, then stumbled toward Stahle’s car,

pleading: “Please take me to the hospital.” Stahle drove as fast as she could to

the ambulance bay at Mercy Hospital—arriving just after two in the morning. En

route, Stahle asked Mace “Who did this to you?” He responded: “Eli.” When

Stahle arrived at Mercy, she ran to the bay doors and said, “I think there’s a dead

guy in my car.”

       The emergency room nurse moved Mace from the Kia passenger seat into

a wheelchair.     The nurse remembered Mace was breathing, but “lethargic,

meaning slightly unresponsive.” When medical personnel removed Mace’s blood-

soaked clothes, they saw several lacerations. Doctor Suman Tandra noted stab

wounds to Mace’s scalp, face, abdomen, chest, and forearm. Mace was moaning

but generally unresponsive. Dr. Tandra believed Mace was in hemorrhagic shock,

a condition that occurs “when the body loses significant amount of blood, typically

over 20 percent, and the heart unfortunately cannot function efficiently and [pump]

enough blood to your vital organs.”

       Dr. Tandra called a trauma surgeon, but Mace went into cardiac respiratory

arrest and the trauma team’s efforts to resuscitate him were unsuccessful. Mace

died about an hour after arriving at the hospital.

       Called to investigate the fatal stabbing, Sioux City police officers

interviewed Abbe, Edwards, and Stahle. Those interviews exposed Wanatee as
                                         4


the prime suspect. Wanatee and Mace had a connection not just by their presence

at Abbe’s house the previous night, but through Wanatee’s marriage to Mace’s

niece, Nelitta Taylor.

       Officers located and arrested Wanatee at a nearby apartment building

around 11 a.m. After the arrest, a detective interviewed Wanatee, who denied

confronting Mace earlier that morning. Wanatee said witnesses might be blaming

him because he recently split up with Taylor. Wanatee acknowledged stopping by

Abbe’s house that night but said he left alone and saw “nobody else in the street.

Nobody else chased me down, nobody else said anything to me, and I just kept

going.”

       These statements to the detective differed from the story he told a fellow

inmate at the Woodbury County jail. According to Michael Bergin, Wanatee said

“he got in an altercation and stabbed somebody” five times. Bergin claimed

Wanatee told him the victim “died because he bled out because he didn’t seek

medical attention.”

       An autopsy by Dr. Thomas Carroll chronicled nine stab wounds. The doctor

believed two fatal wounds likely pierced the victim’s liver and chest cavity.

Dr. Carroll also described a “slashing laceration” and a “shallow stab laceration” to

Mace’s left forearm. Dr. Carroll opined the victim was facing his attacker when he

received those stab wounds.

       The State charged Wanatee with murder in the first degree. Wanatee filed

a notice of self defense. His first trial ended in a hung jury. The district court

granted a change of venue to Pottawattamie County for the second trial, which

began in February 2017. Defense counsel’s closing argument in the second trial
                                         5


emphasized the animosity between Mace and Wanatee stemming from their tense

encounter witnessed by Taylor. She testified to seeing her uncle pull a gun on

Wanatee during a contentious car ride about a month before the stabbing.

Counsel argued: “Mace pulls out a gun, puts it to the back of Eli’s head, and then

grabs the back of his neck while he’s driving the car with three other people in it.

You have to ask yourself: Where did that come from?”

       The jury found Wanatee guilty of murder in the second degree. For that

conviction, he received an indeterminate sentence of fifty years. Wanatee now

appeals.

   II. Scope and Standards of Review

       Because Wanatee’s complaints about counsel’s performance spring from

the Sixth Amendment of the U.S. Constitution and article I, section 10 of the Iowa

Constitution, we review them de novo. See State v. Canal, 773 N.W.2d 528, 530

(Iowa 2009).    We review evidentiary rulings, including decisions about the

admissibility of expert testimony, for an abuse of discretion. State v. Tyler, 867

N.W.2d 136, 152 (Iowa 2015).

   III. Legal Analysis

       A. Ineffective Assistance of Counsel

       In two key challenges to his second-degree murder conviction, Wanatee

alleges deficiencies in the performance of his trial attorney. First, Wanatee claims

counsel should have objected to the admission of hearsay evidence as failing to

satisfy the exception for statements made under the belief of imminent death. See

Iowa R. Evid. 5.804(b)(2). Second, he assails counsel for not seeking to exclude

testimony from a jailhouse informant as inherently unreliable, or alternatively, for
                                        6


not requesting an instruction to warn the jury about the unscrupulous motivation of

informant witnesses. On both claims, Wanatee bears the burden of showing his

attorney failed to perform an essential duty and prejudice resulting from counsel’s

failure. See State v. Button, 622 N.W.2d 480, 483 (Iowa 2001). If he cannot show

both prongs by a preponderance of the evidence, we will affirm. See id. We

preserve ineffective-assistance claims for postconviction-relief proceedings if the

record is inadequate to evaluate counsel’s performance, but we will address them

on direct appeal when the record allows. See State v. Neitzel, 801 N.W.2d 612,

624 (Iowa Ct. App. 2011).

       1. Hearsay Exception for Dying Declarations

       At issue are two statements by Mace identifying Wanatee as his attacker.

The State offered the first statement through the testimony of Abbe and Edwards.

Both witnesses recalled a bleeding Mace came to the door of Abbe’s house and

volunteered: “I think Eli stabbed me in the lung.”     Stahle shared the second

statement. While she raced Mace to the hospital, Stahle asked, “who did this to

you?” and he replied, “Eli.”

       During Abbe’s testimony, the prosecutor asked: “Did Vernon Mace say

anything when he came through the front door covered in blood?”           Defense

counsel objected on hearsay grounds. The prosecutor agreed the answer would

be hearsay, but asserted it was admissible under several exceptions: “Present

sense impression, excited utterance, then-existing physical condition, and also I

believe it would qualify as a statement impending death.” The court overruled the

objection and allowed Abbe to answer.
                                        7


      The defense did not renew the objection when the prosecutor elicited the

same hearsay statement from Edwards. The defense also lodged a hearsay

objection when the prosecutor asked Stahle what she said to Mace while driving

to the hospital. Although the court sustained the objection to the prosecutor’s

question, the defense did not object again when the prosecutor asked about

Mace’s response identifying “Eli.” Because Wanatee is critical of these anemic

efforts by his trial attorney to block the hearsay statements, Wanatee raises the

issue as ineffective assistance of counsel on appeal. He contends counsel should

have objected to statements by Mace identifying Wanatee as his assailant.

Wanatee insists the statements were not “true dying declarations and were

inadmissible hearsay.”

      Hearsay—defined as an out-of-court statement “offered in evidence to

prove the truth of the matter asserted”—is inadmissible unless it falls under an

exception allowed by the constitution, state law, or another rule of evidence. Iowa

R. Evid. 5.801(c), 5.802. One exception to the rule against hearsay is a dying

declaration, defined as “[a] statement that the declarant, while believing the

declarant’s death to be imminent, made about its cause or circumstances.” Id. r.

5.804(b)(2).

      For a declaration to be admissible under this exception, “it must be clear

from the circumstances that the declarant’s ‘sense of impending death was so

certain that he was without hope or expectation of recovery.’” State v. Harper, 770

N.W.2d 316, 320 (Iowa 2009) (quoting Bratton v. Bond, 408 N.W.2d 39, 45 (Iowa

1987)). A declarant’s realization he is in danger of death is insufficient—rather,

“[t]he words must be spoken under solemn conviction of impending dissolution.”
                                              8

State v. Brooks, 186 N.W. 46, 50 (Iowa 1922). But it is not “necessary to prove,

by expressions of the deceased, that he was apprehensive of immediate death,

nor that he was inarticulo mortis.”2 State v. Nash, 7 Iowa 347, 349 (1858).

       Wanatee contends his counsel should have argued Mace’s solicitation of a

ride to the hospital from Stahle demonstrated Mace was not without hope or

expectation of recovery. Wanatee argues Mace signaled his belief “treatment was

still an option.” The State counters that Mace’s request for a ride to the emergency

room did not mean he expected to survive—and “the sheer amount of blood, the

locations of his stab wounds, and his difficulty breathing all supported a clear

inference from his condition: Mace knew he would die without medical attention,

and knew that he could not expect to live until he received it.”

       We agree with the State’s position.            Wanatee’s desire for emergency

assistance did not defeat his conscious awareness of impending death from his

many stab wounds—one of which he believed to have pierced his lung. A similar

fact pattern emerged in State v. Drosos. 114 N.W.2d 526 (Iowa 1962), superseded

by statute on other grounds as recognized in State v. Lyman, 776 N.W.2d 865

(Iowa 2010). There, the victim identified Drosos as the person who stabbed him

in the stomach and then pleaded, “For God’s sake, hurry up and get a doctor’” as

he received assurance an ambulance was on the way. Id. at 532. Our supreme

court affirmed the trial court’s denial of the defense objection, contending the State

failed to lay proper foundation to show statement was dying declaration. Id.




2
 The Latin phrase “in articulo mortis” translates to “the article of death” or “at the point of
death.” In Articulo Mortis, Black’s Law Dictionary (7th ed. 1999).
                                         9


       Similarly, courts from other jurisdictions have held victim statements

qualified as dying declarations even when the victims called for an ambulance.

See, e.g., People v. Siler, 429 N.W.2d 865, 868 (Mich. Ct. App. 1988) (holding 911

recording reflected a dying declaration when victim called emergency),

superseded by rule on other grounds as stated in People v. Orr, 739 N.W.2d 385

(Mich. Ct. App. 2007); State v. Hamric, 151 S.E.2d 252, 265 (W. Va. 1966)

(upholding admission of decedent’s description of being shot in his own yard to the

driver of the ambulance he called); State v. Beauchamp, 781 N.W.2d 254, 258

(Wis. Ct. App. 2010) (finding no abuse of discretion in admitting victim’s assertions

about who shot him made during ambulance ride where victim expressed concern

when ambulance passed one hospital on its way to another).

       Mace told Abbe to call an ambulance because Mace believed he received

a stab wound to a vital organ. But rather than wait for the ambulance to arrive,

Mace asked Stahle, the nearest driver, for a ride to the hospital. When Stahle

brought Mace to the ambulance bay, she frantically told hospital staff: “I think I

have a dead guy in my car.” See Harper, 770 N.W.2d at 320 (noting witnesses

thought victim was dead upon her arrival at the hospital).

       Considering all these circumstances, we conclude Mace believed his death

was impending when he identified Wanatee as his attacker. Because Mace’s

hearsay statements were admissible under the exception at rule 5.804(b)(2), trial

counsel did not breach an essential duty in not urging more objections. See State

v. Rice, 543 N.W.2d 884, 888 (Iowa 1996) (holding counsel has no duty to raise

meritless objections).
                                          10


       2. Jailhouse Informant Testimony

       Wanatee next criticizes his trial attorney for not advocating to exclude

Bergin’s testimony. Bergin claimed Wanatee confessed to the stabbing while they

were both incarcerated in the Woodbury County jail. Wanatee characterizes

Bergin as a “jailhouse snitch” and contends, at minimum, counsel should have

sought a cautionary instruction to alert jurors to the “less-than-altruistic” motives of

such witnesses.

       Bergin did not testify at the first trial ending in a hung jury.        But the

prosecutor called Bergin for the retrial and provided the defense with a copy of his

plea agreement with the State. Defense counsel objected to a portion of Bergin’s

expected testimony about Wanatee’s alleged admissions but did not seek to

exclude his testimony in full. After an offer of proof, the district court overruled the

defense objection to Bergin’s testimony.

       Bergin told the jury Wanatee mentioned he had an “altercation” and “ended

up stabbing a guy.” On cross-examination, Bergin acknowledged his two prior

felony convictions. Defense counsel also highlighted Bergin’s persistence—he

sent two letters in attempt to notify jail staff about the incriminating statements

allegedly made by Wanatee. Bergin also admitted he had access to television and

newspapers at the jail. On redirect, Bergin said he received no benefit from the

State for supplying information about Wanatee.

       On appeal, Wanatee urges: “Trial counsel provided ineffective assistance

when he failed to challenge the admission of testimony by Bergin—a jailhouse

informant—or request other remedial measures.” Citing several law review articles

and academic studies, Wanatee claims “[t]he testimony of jailhouse informants has
                                         11


been labeled ‘inherently unreliable’ and a contributing factor in wrongful

convictions.”

       Wanatee asked our supreme court to retain this case to address his

contention Iowa “should adopt measures to address the inherent unreliability of

jailhouse informant testimony, including exclusion, disclosure, reliability hearings,

or the use of cautionary instructions.” Because the supreme court transferred the

case to us, we must apply existing law to counsel’s performance. Any expansion

of the duties placed on defense counsel when faced with the testimony of jailhouse

informants rests with our supreme court. See generally Rosauer Corp. v. Sapp

Dev., L.L.C., 856 N.W.2d 906, 907 (Iowa 2014) (finding it appropriate for court of

appeals to defer to supreme court on potential expansion of judicially created

doctrine).

       Our supreme court recently addressed the “problematic” use of jailhouse

informants “to obtain information from defendants represented by counsel.” State

v. Marshall, 882 N.W.2d 68, 81 (Iowa 2016). But even the Marshall majority

acknowledged “the State is not deprived of evidence because the defendant,

acting on his own, has exercised poor judgment.” Id. at 83. Counsel “need not be

a ‘crystal gazer’ who can predict future changes in established rules of law in order

to provide effective assistance to a criminal defendant.” State v. Effler, 769 N.W.2d

880, 889 (Iowa 2009) (quoting State v. Schoelerman, 315 N.W.2d 67, 72 (Iowa

1982)). Under existing case law, we find no breach of duty in trial counsel’s

handling of Bergin’s testimony.
                                          12


       3. No Cumulative Error

       On top of his two defined claims of ineffective assistance, Wanatee alleges

a cumulative impact from counsel’s errors. See State v. Clay, 824 N.W.2d 488,

500 (Iowa 2012). Because we detect no breach of duty by trial counsel, Wanatee’s

cumulative error argument fails. See Schrier v. State, 347 N.W.2d 657, 668 (Iowa

1984) (reviewing effect of various claims “both individually and cumulatively” and

finding the appellant did not establish he was denied a fair trial).

       B. Admissibility “Defensive Wound” Testimony and Diagram

       Wanatee next argues the district court abused its discretion in allowing an

expert witness to use the term “defensive wound” and in admitting a diagram from

the Handbook of Forensic Pathology showing “various ways in which ‘defensive

wounds’ may be received.” Dr. Carroll, who performed the autopsy, testified for

the State. The State also called State Medical Examiner Dennis Klein as an expert

witness. Dr. Klein did not examine Mace’s body, but reviewed the autopsy report

and photographs. Dr. Klein agreed the cause of death was multiple stab wounds.

But unlike Dr. Carroll, Dr. Klein characterized the lacerations to Mace’s left forearm

as “defensive wounds.”

       Before the first trial, Wanatee moved in limine to prevent Dr. Klein from

referring to any of Mace’s injuries as “defensive wounds.” After reviewing Tyler,

867 N.W.2d at 166, the district court found Dr. Klein was qualified to give an expert

opinion under Iowa Rule of Evidence 5.702 and “defensive wound” was a “term of

art” in forensic pathology that did not go to the ultimate issue the jury had to decide.

See Iowa R. Evid. 5.704. The district court reaffirmed its original limine ruling

before the second trial.
                                       13


      When Dr. Carroll testified at the retrial, defense counsel broached the

concept of “defensive wounds” on cross-examination. Dr. Carroll defined the term

as “wounds sustained on the hands or upper arms presumably in the defense of

someone attacking them with a sharp instrument such as a knife.” Dr. Carroll

explained he had not characterized any of Mace’s nine injuries as “defensive

wounds” because he believed use of the terminology would be “speculative”

without video documentation of the altercation.

      On redirect, the prosecutor introduced the following page from a forensic

pathology textbook depicting “defensive wounds.”
                                            14


       Defense counsel objected on relevance and foundation grounds.3 The

court overruled the objection but did not allow the prosecutor to impeach Dr. Carroll

with the depiction.

       The State later called Dr. Klein as an expert witness.               He explained

“defensive wound” was “a term used by forensic pathologists when a wound is

found usually on the upper extremities, so on the forearm or the hand.” When

asked how victims usually sustained defensive wounds, Dr. Klein responded:

       Usually defensive wounds are when a victim of a sharp force injury,
       when they are trying to protect usually their head or their body from
       the attack in a gesture. This is usually an instinctive type of behavior
       that people would have. And as a result, the person is going to
       receive an injury to that part of the body with the intent that they’re
       going to protect the more vital areas such as their face and chest.

Dr. Klein then characterized the two punctures to Mace’s forearm as defensive-

type wounds. On cross, Dr. Klein clarified he was not offering an opinion on who

was the aggressor in the attack.

       On appeal, Wanatee argues the court should have excluded Dr. Klein’s

testimony Mace received two “defensive wounds” to his forearm as irrelevant,

unfairly prejudicial, and not helpful as an expert opinion under Iowa Rules of

Evidence 5.401,4 5.403,5 and 5.702.6 Wanatee contends the terminology “has no


3
  On appeal, Wanatee contends counsel was ineffective in not also objecting under Iowa
Rule of Evidence 5.703. As with the other claims of ineffective assistance of counsel, we
find no breach of duty because the State did not offer the diagram to form a basis for
Dr. Carroll’s testimony.
4
  “Evidence is relevant if: a. It has any tendency to make a fact more or less probable than
it would be without the evidence; and b. The fact is of consequence in determining the
action.” Iowa R. Evid. 5.401.
5
   “The court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Iowa R. Evid. 5.403.
6
  Rule 5.702 provides:
                                            15


relevance” where justification is the noticed defense. He worries the words were

likely to confuse the jurors. And he argues the admission of the textbook diagram

would compound that confusion. He asserts the diagram was prejudicial because

it suggested how Mace may have sustained the injuries to his forearm “without any

basis in fact.”

       In the State’s view, Wanatee “opened the door” to evidence about

“defensive wounds” by asking Dr. Carroll about his classification of the injuries.

The State contends it had a right to respond to Dr. Carroll’s cross-examination

testimony that he declined to label Mace’s arm wounds as defensive.

       “A party opens the door by offering admissible evidence that in turn triggers

admissibility of responsive evidence by an opposing party.” State v. Huser, 894

N.W.2d 472, 507 (Iowa 2017). But here, the State did not intend to wait for the

defense to open the door before introducing Dr. Klein’s testimony. By the time of

Wanatee’s retrial, the district court had denied the defense motion to limit

Dr. Klein’s discussion of “defensive wounds.” Defense counsel tried to take the

sting out of the expected testimony by eliciting evidence from Dr. Carroll that he

did not use that classification in his autopsy report. We do not find the cross-

examination of Dr. Carroll waived the defense objection to this evidence.

       That point settled, we turn to Wanatee’s opposition to Dr. Klein’s description

of “defensive wounds” without direct knowledge of how the fight unfolded. This




       A witness who is qualified as an expert by knowledge, skill, experience,
       training, or education may testify in the form of an opinion or otherwise if
       the expert's scientific, technical, or other specialized knowledge will help
       the trier of fact to understand the evidence or to determine a fact in issue.
                                        16


same issue arose in a Tennessee postconviction case.          The Shelby County

medical examiner testified the victim suffered “some defensive wounds” and

explained “defensive wound” was “a term of art that was developed in forensics to

indicate the injuries occurred when a person was trying to protect themselves.”

Jones v. State, No. W2007-1086-CCA-R3-PC, 2008 WL 4489668, at *6 (Tenn.

Crim. App. Oct. 6, 2008). The medical examiner told the court he was reluctant to

use the term in front of a jury because, as a pathologist, “he was not present when

the wound was inflicted and could not definitively say how the wound occurred.”

Id.; accord People v. Paschall, 456 N.Y.S.2d 828, 830 (App. Div. 1982) (holding

question whether incision on victim’s arm occurred while “warding off a blow or by

some other means” was not a fact uniquely within knowledge of doctor performing

autopsy and by stating wound was defensive, expert usurped jury’s function); but

see Vergara-Martinez v. State, No. 65853, 2016 WL 1375648, at *2 (Nev. Apr. 5,

2016) (allowing expert testimony describing cuts to the victim’s wrist as

“defensive wounds” despite doctor’s absence from scene of attack because

opinion was based on his observations as treating physician in emergency room).

      Without reaching the underlying evidentiary question of whether a

pathologist may properly express an opinion on the “defensive” nature of a wound

without witnessing the altercation, we conclude Wanatee cannot show he was

prejudiced by the disputed testimony from Dr. Klein or the textbook diagram of

“defensive wounds.” See Jones, 2008 WL 4489668, at *10 (finding Jones failed

to prove how medical examiner’s use of the contested term prejudiced him).

      When presented with nonconstitutional error, as we are here, we ask:

“[D]oes it sufficiently appear the rights of the complaining party have been
                                         17


injuriously affected by the error [so] that he has suffered a miscarriage of justice?”

State v. Trudo, 253 N.W.2d 101, 107 (Iowa 1977). Error may only be predicated

on a ruling admitting or excluding evidence when a substantial right of the party is

affected. Iowa R. Evid. 5.103(a).

       Wanatee secured Dr. Carroll’s testimony that it would be “speculative” to

classify any of Mace’s nine wounds as “defensive.” Even Dr. Klein acknowledged

he had no opinion regarding the identity of the aggressor in the attack. And

Wanatee did not tell investigators Mace was the aggressor. Rather, Wanatee

denied fighting with Mace. Given the State’s evidence that (1) Mace received nine

stab wounds, several of which caused major damage to his head and torso, and

(2) Wanatee suffered no wounds at all, Dr. Klein’s use of the term “defensive

wounds” for two injuries to Mace’s arm did not substantially affect Wanatee’s

rights. Even if the court improperly allowed the references to “defensive wounds,”

the admission was harmless error.

       AFFIRMED.
