2021 IL App (1st) 191918-U 

 FOURTH DIVISION

December 16, 2021 

No. 1-19-1918 

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the 

limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________ 

IN THE APPELLATE COURT

OF ILLINOIS

FIRST JUDICIAL DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE OF ILLINOIS, 

Plaintiff-Appellee, 

v.

ERIC VAUGHN, 

Defendant-Appellant. 

)

)

)

)

)

)

)

)

)

)

)

)

)

Appeal from the

Circuit Court of

Cook County

No. 14 CR 16372 02 

Honorable 

William G. Gamboney, 

Judge Presiding.

______________________________________________________________________________ 

PRESIDING JUSTICE REYES delivered the judgment of the court.

Justices Lampkin and Martin concurred in the judgment.

ORDER

¶ 1 Held: Affirming defendant’s conviction where (1) defendant forfeited his argument that 

the trial court abused its discretion by failing to question the jurors prior to ruling 

on defendant’s motion for mistrial, (2) the trial court did not abuse its discretion 

in denying defendant’s motion for mistrial, and (3) the prosecutor did not engage 

in misconduct. 

¶ 2 After a jury trial, defendant Eric Vaughn was found guilty of first-degree murder (720 

ILCS 5/9-1(a)(1), (2) (West 2014)) and attempted first-degree murder (id. §§ 8-4(a), 9-1(a)(1)). 
1-19-1918 

- 2 -

He was sentenced to 45 years’ imprisonment for first-degree murder and 21 years’ imprisonment 

for attempted first-degree murder, to be served consecutively. On appeal, defendant argues that

the trial court abused its discretion when, after the court received a jury note stating “we do not 

feel safe making a decision” and defense counsel moved for a mistrial, the court denied the 

motion prior to questioning the jurors. Defendant further argues that the trial court abused its 

discretion by denying the motion for mistrial. Finally, defendant contends that during closing 

arguments, the prosecutor engaged in misconduct by implying that defendant and his family 

intimidated two of the State’s witnesses. For the following reasons, we affirm. 

¶ 3 BACKGROUND

¶ 4 Defendant was charged by indictment with multiple counts of first-degree murder, 

attempted first-degree murder, aggravated discharge of a firearm, and mob action based on the 

allegation that on July 12, 2014, defendant, D.B.,

1 and Michael Phillips (Phillips) shot and killed 

William Lewis (Lewis) while attempting to shoot Shaquon Thomas (Thomas). The State 

proceeded to trial on two counts of first-degree murder (720 ILCS 5/9-1(a)(1), (2) (West 2014)) 

and one count of attempted first-degree murder (id. §§ 8-4(a), 9-1(a)(1)).

¶ 5 At trial, the State called Ashley Laiter (Laiter), who testified that she did not recall any of 

the alleged events on July 12, 2014. As evidence of prior inconsistent statements, the court 

admitted a transcript of an electronically recorded interview (ERI) conducted at the Chicago 

Police Department and a transcript of her grand jury testimony. During her ERI and grand jury 

testimony, Laiter asserted that on July 12, 2014, she was in a black vehicle with defendant, D.B., 

Phillips, and Nicolas Rivera (Rivera) and heard D.B. say that he wanted to shoot Thomas, who 

1 Prior to defendant’s jury trial, D.B. pleaded guilty to first-degree murder and received an 

indeterminate term of confinement in the Illinois Department of Juvenile Justice. 
1-19-1918 

- 3 -

was walking down the sidewalk. She observed defendant hand D.B. a firearm, then observed 

D.B. and Phillips exit the vehicle, and shortly thereafter heard gunshots and moaning. 

¶ 6 Next, Rivera testified that he did not recall most of the alleged events of July 12, 2014. 

As evidence of prior inconsistent statements, the trial court admitted a transcript of an ERI which 

was conducted at the Chicago Police Department and a transcript of his grand jury testimony. 

During his ERI and grand jury testimony, Rivera similarly asserted that while defendant, Laiter, 

D.B., Phillips, and Rivera were in a black vehicle, someone observed Thomas walking down the 

sidewalk. Rivera asserted that defendant handed D.B. a firearm, D.B. and Phillips left the 

vehicle, and he heard gunshots. 

¶ 7 D.B. testified that he was in a black vehicle with defendant, Laiter, Phillips, and Rivera. 

D.B. observed Thomas walking down the sidewalk and whispered to Phillips “help me get this 

guy.” D.B. testified that defendant did not hand D.B. a firearm. D.B. asserted that he already had 

a firearm in his waistband. D.B. further asserted that he and Phillips left the vehicle, and D.B. 

shot at Thomas. To protect himself from the gunshots, Thomas threw Lewis in front of D.B. as 

he was shooting, and consequently, D.B. shot Lewis. D.B. was arrested approximately two 

weeks after the incident and was adjudicated delinquent for first-degree murder after pleading 

guilty to shooting Lewis. 

¶ 8 Phillips testified that he was in a black vehicle with defendant, Laiter, D.B. and Rivera. 

Phillips observed Thomas walking down the sidewalk. Defendant then stopped the vehicle, 

handed D.B. a firearm, and before D.B. exited the vehicle, defendant motioned Phillips to exit 

the vehicle as well. Philips and D.B. approached Thomas, and when D.B. pointed the firearm at 

Thomas, Thomas threw Lewis in front of him and D.B. shot Lewis in the back. 

¶ 9 Denis Halilovic testified that he lived near where the incident occurred. On the day of the 
1-19-1918 

- 4 -

incident, Halilovic heard gunshots, looked through his window, and using his iPhone, took 

pictures of two young African Americans running through his neighbor’s yard. 

¶ 10 Jessica Albert testified that she was near where the incident occurred. Albert testified that 

she heard a loud bang and then observed a black vehicle speed down the street. Albert noticed a 

young African American male driving, a woman sitting in the passenger’s seat, and a young 

African American male in the backseat. 

¶ 11 Marcus Mudd testified that he was a police officer with the Chicago Police Department. 

Officer Mudd testified that while on patrol he observed defendant running from a gangway. He 

also noticed that the defendant appeared to be agitated, perspiring and slightly out of breath. 

Officer Mudd apprehended defendant. He then left, leaving defendant with several police 

officers at the scene. In court, Officer Mudd identified defendant as the person whom he 

observed running.

¶ 12 Victor Alcazar testified that he was a police officer with the Chicago Police Department. 

Officer Alcazar testified that he was on patrol with a partner when he heard over the radio a call 

of shots fired. Officer Alcazar observed Officer Mudd at the scene with defendant, who Officer 

Alcazar identified in court. Thereafter, Officer Alcazar and his partner placed defendant into 

custody. 

¶ 13 Benjamin Soriano, an expert in the field of pathology, testified that he conducted an 

autopsy of Lewis and concluded that Lewis’s cause of death was a gunshot wound to the back. 

Soriano asserted that the manner of Lewis’s death was homicide. 

¶ 14 Gregory Hickey, an expert in the field of firearm and toolmark identification, testified 

that all of the fired cartridge casings recovered from the scene had been discharged from the 

same firearm. 
1-19-1918 

- 5 -

¶ 15 Brian Schoon, an expert in the field of forensic biology and DNA analysis, testified that 

he received buccal swabs from Rivera, Phillips, D.B., and defendant. Schoon also received 

swabs from the steering wheel of defendant’s vehicle. After performing a DNA analysis, Schoon 

concluded that the DNA left on the steering wheel could have been left by defendant and could 

not have been left by Laiter, Rivera, Phillips, or D.B. 

¶ 16 The State rested, and defendant made a motion for a directed verdict, which was denied. 

Defendant did not present any evidence and rested. 

¶ 17 The parties proceeded to closing arguments. During the prosecutor’s closing remarks, she 

argued that “[i]n a perfect world,” Laiter and Rivera would have told “the ugly truth” about what 

they witnessed on July 12, 2014. The prosecutor continued, “But the law in the State of Illinois 

recognizes, that four years later, *** when they come into a courtroom like this, with a Judge 

sitting here, with the Defendant sitting there, with all these people in here *** the story changed, 

memories fade.” As the prosecutor asserted that “the story changed, memories fade,” defense 

counsel objected, but the trial court did not rule on the objection and the prosecutor continued 

her closing remarks. 

¶ 18 Following closing arguments and jury instructions, the jury retired to deliberate. During 

deliberations, and before all of the exhibits were sent back to the jurors, they submitted a note 

stating “we do not feel safe making a decision” and “explain how the Jurors are to be protected 

*** if we are [to] find the Defendant guilty.” Defense counsel argued that this note came out 

because, while the prosecutor during closing arguments was explaining why Laiter and Rivera’s 

“story changed,” the prosecutor had been pointing to the defense table and defendant’s family, 

who sat directly behind the defense table. Defense counsel argued that the prosecutor had 

insinuated that defendant intimidated the witnesses. 
1-19-1918 

- 6 -

¶ 19 Defendant moved for a mistrial, additionally arguing that the jurors “violated their 

charge, because they are more concerned with their personal safety, than doing what they were 

charged to do ***.” The trial court denied the motion without hearing argument from the State. 

After the denial, the State for the record responded to defense counsel’s arguments, maintaining 

that the prosecutor did not point to anyone or insinuate anything. The State argued that the 

prosecutor did not point at any individual and was gesturing to the entire courtroom. The trial 

court agreed with the State and asserted that the prosecutor was pointing to the gallery. The trial 

court then sent a note back to the jury, assuring it that the court was mindful of the jury’s safety 

and directing the jury to continue deliberating.

¶ 20 After deliberations, the jury found defendant guilty of first-degree murder and attempted 

first-degree murder. Defendant moved for a new trial. In his motion, defendant again argued that 

the trial court erred in denying defendant’s motion for mistrial and that the jurors were more 

concerned about their safety than reaching a fair and impartial verdict. Further, defendant argued 

that the prosecutor engaged in misconduct while explaining why Laiter and Rivera’s “story 

changed” by waving her hand in the direction of defendant and his family and insinuating they 

had intimidated the witnesses. 

¶ 21 Additionally, during argument on the motion for a new trial, defense counsel asserted that 

the jurors’ note demonstrated that the jurors were biased, stating that the jurors were concerned 

only with their safety. The trial court responded that the note could have demonstrated that the 

jurors were convinced of the overwhelming nature of the evidence. The trial court then denied 

defendant’s motion for a new trial, concluding that he did not read anything into the prosecutor’s 

hand gestures during closing arguments. 

¶ 22 The matter proceeded to a sentencing hearing where the trial court heard evidence in 
1-19-1918 

- 7 -

aggravation and mitigation. The trial court then sentenced defendant to 45 years’ imprisonment 

for first-degree murder and 21 years’ imprisonment for attempted first-degree murder, to be 

served consecutively. Defendant filed a motion to reconsider his sentence, which was denied. 

¶ 23 This appeal followed.

¶ 24 ANALYSIS

¶ 25 On appeal, defendant argues that the trial court abused its discretion when, after the jury 

submitted a note stating “we do not feel safe making a decision” and “explain how the Jurors are 

to be protected *** if we are [to] find the Defendant guilty,” the trial court failed to question the 

jury prior to denying defendant’s motion for mistrial. In addition, defendant argues that the trial 

court abused its discretion by denying his motion for mistrial. Finally, defendant argues that 

during closing arguments the prosecutor engaged in misconduct by implying that defendant and 

his family intimidated Laiter and Rivera. 

¶ 26 Forfeiture

¶ 27 Before addressing the merits of this appeal, we address the State’s forfeiture argument. 

The State asserts that defendant never asked the trial court to question the jurors and thus 

forfeited his argument that the court erred by denying defendant’s motion for mistrial prior to 

questioning the jurors. We agree.

¶ 28 To preserve an issue for appellate review, a defendant must raise the issue before the 

trial court and in a posttrial motion. People v. Colyar, 2013 IL 111835, ¶ 27. If a defendant fails 

to do so, he forfeits review of that issue. People v. Thompson, 238 Ill. 2d 598, 612 (2010). 

Raising an issue before the trial court and in a posttrial motion affords the trial court the 

opportunity to address and correct errors. People v. Jackson, 391 Ill. App. 3d 11, 37 (2009). “To 

abandon this requirement would allow appellate counsel to comb the record for every semblance 
1-19-1918 

- 8 -

of error and raise issues on appeal whether or not trial counsel considered them of any 

importance.” Id. 

¶ 29 Here, defendant never argued before the trial court or in a posttrial motion that the court 

should have questioned the jurors prior to denying the motion for mistrial. See Colyar, 2013 IL 

111835, ¶ 27. On the contrary, defendant’s position was that the jurors’ note provided sufficient 

information to find jury bias and declare a mistrial. During argument on the motion for a mistrial, 

defense counsel argued that the jurors’ note demonstrated that the jurors “violated their charge, 

because they are more concerned with their personal safety, than doing what they were charged 

to do ***.” Similarly, during argument on defendant’s motion for a new trial, defense counsel 

argued that the note demonstrated that the jurors were concerned only about their safety. Thus, 

the trial court never had the opportunity to address defendant’s alleged error that the trial court 

should have questioned the jurors (see Jackson, 391 Ill. App. 3d at 37), and defendant has 

forfeited this issue on appeal (see Thompson, 238 Ill. 2d at 612). In addition, as defendant does 

not request plain-error review in either his opening brief or reply brief, we decline to review the 

issue for plain error. See People v. Hillier, 237 Ill. 2d 539, 545-46 (2010). 

¶ 30 In reaching this conclusion, we find support in People v. Flores, 128 Ill. 2d 66 (1989). 

There, the jury submitted a note to the trial court asking about security, and the trial court 

brought the jurors into chambers to reassure them they were safe and ask them whether they had 

any other problems with security. Id. at 98. On appeal, the defendant argued that the trial court 

abused its discretion by failing to further question the jury. Id. Our supreme court, however, 

found the argument was forfeited since the defendant failed to raise the issue at trial or in a 

posttrial motion. Id. at 98-99. The supreme court thus made clear that a defendant must raise an 

objection regarding jury interrogations before the trial court and in a posttrial motion. See id. at 
1-19-1918 

- 9 -

98-99. 

¶ 31 Defendant nevertheless argues there was no forfeiture, citing People v. Taylor, 101 Ill. 2d 

377, 387 (1984), Smith v. Phillips, 455 U.S. 209, 217 (1982), and People v. Runge, 234 Ill. 2d 68 

(2009). These cases, however, fail to explain how defendant here preserved his argument that the 

trial court should have questioned the jurors when defendant never made this argument before 

the trial court or in a posttrial motion. See Taylor, 101 Ill. 2d at 387; Smith, 455 U.S. at 217; 

Runge, 234 Ill. 2d at 104-05. Thus, defendant has forfeited this issue on appeal.

¶ 32 Jury Bias 

¶ 33 Defendant also argues that the trial court abused its discretion by denying his motion for

mistrial after the jury submitted a note stating “we do not feel safe making a decision” and 

“explain how the Jurors are to be protected *** if we are [to] find the Defendant guilty.” 

Defendant contends that this note established that the jurors were less concerned in deciding the 

case fairly and impartially than their own safety. 

¶ 34 A trial court must declare a mistrial when it appears that the jury was so influenced and 

prejudiced that it could not have been fair and impartial. People v. Holliday, 2020 IL App (5th) 

160547, ¶ 37. We review the trial court’s determination as to whether the jurors had been so 

influenced and prejudiced that they could not have been fair and impartial under an abuse of 

discretion standard. Runge, 234 Ill. 2d at 104. Further, we also review the trial court’s denial of a 

motion for mistrial for abuse of discretion. People v. Bishop, 218 Ill. 2d 232, 251 (2006). A trial 

court abuses its discretion when its decision was “arbitrary, fanciful, or unreasonable or where no 

reasonable person would take the view adopted by the trial court.” People v. Melecio, 2017 IL 

App (1st) 141434, ¶ 41. 

¶ 35 First, defendant fails to cite any authority to support his contention that the jurors’ note 
1-19-1918 

- 10 -

established that the jurors were biased, violating Illinois Supreme Court Rule 341(h)(7) (eff. Oct. 

1, 2020). Even if we overlook this deficiency, however, defendant’s argument fails. 

¶ 36 In determining this issue, we find People v. Luellen, 2019 IL App (1st) 172019, to be 

instructive. In Luellen, a witness testified that he ignored a subpoena to appear for trial because 

he was scared to testify against the defendant. Id. ¶ 11. After the witness testified, the court 

received a jury note asking, “If the primary witness is so scared to testify ***, what are the safety 

concerns for us?” Id. ¶ 22. The trial court then received a second jury note which stated, “The 

judge said that our information is confidential. My concern is that the defendant has all our 

names on paper.” Id. ¶ 27. Finally, the trial court received a third note asking the trial court to

meet with the jury regarding the second note. Id. ¶ 28. Thereafter, defense counsel suggested that 

the trial court ask the jury whether it had deliberated before the close of evidence, but the court

did not ask that question. Id. ¶ 29. The defendant moved for a mistrial and the motion was 

denied. Id. ¶ 30. 

¶ 37 On appeal, the defendant argued that the trial court erred in denying the defendant’s 

motion for a mistrial because the trial court failed to ask the jurors whether they had begun 

deliberating before the close of evidence. Id. ¶ 35. We concluded that the trial court’s actions 

were sufficient, finding that the jury notes merely demonstrated the jurors’ safety concerns: “the 

jurors’ concerns were not with [the witness’s] fear as to the ultimate issue of [the defendant’s] 

guilt or innocence; they were with [the witness’s] fear as it related to the jurors’ own privacy.” 

Id. ¶¶ 41-42. In addition, we found that “[a]bsent from the record is any indication that the 

jurors’ minds had closed off to the possibility of [the defendant’s] innocence or that they had 

reached an ultimate conclusion” and asserted that the jury notes were “silent on possible 

discussion of the ultimate issues.” Id. ¶¶ 42-43 (citing Runge, 234 Ill. 2d at 125). 
1-19-1918 

- 11 -

¶ 38 Like the jurors’ notes in Luellen, the jurors’ note in this case appeared to have 

demonstrated nothing more than the jurors’ safety concerns. See id. ¶ 42. The note did not 

indicate that the jurors failed to keep an open mind as to the ultimate issues in the case, and the 

note was silent as to whether the jurors were more concerned with their safety than reaching a 

fair and impartial verdict. See id. ¶¶ 42-43. Moreover, as the trial court found below, a 

reasonable inference drawn from the note is that the jurors were convinced of the overwhelming 

nature of the evidence. Thus, we cannot find that it was arbitrary, fanciful, or unreasonable for 

the trial court to conclude that the note failed to demonstrate jury bias or to deny defendant’s 

motion for mistrial. See Melecio, 2017 IL App (1st) 141434, ¶ 41. Accordingly, we find that the 

trial court did not abuse its discretion. See Runge, 234 Ill. 2d at 104; Bishop, 218 Ill. 2d at 251. 

¶ 39 Prosecutorial Misconduct

¶ 40 Lastly, defendant argues that the prosecutor engaged in misconduct where the 

prosecutor’s closing remarks and alleged hand gestures towards defendant and his family implied 

that they had intimidated Laiter and Rivera. 

¶ 41 A prosecutor’s improper comments or conduct during closing arguments may warrant 

reversal. People v. Love, 377 Ill. App. 3d 306, 313 (2007); People v. Wolf, 178 Ill. App. 3d 1064, 

1067-68 (1989). During closing arguments, however, a prosecutor is given wide latitude. People 

v. Cruz, 2019 IL App (1st) 170886, ¶ 41. Further, the prosecutor has the right to comment on the 

evidence and draw all legitimate inferences from the evidence, even if they are unfavorable to 

the defendant. People v. Simms, 192 Ill. 2d 348, 396 (2000). The prosecutor’s comments or 

conduct warrants reversal only if it caused substantial prejudice to defendant. Love, 377 Ill. App. 

3d at 313; Wolf, 178 Ill. App. 3d at 1068. Defendant bears the burden of proof on a prosecutorial 

misconduct claim. People v. Hanson, 273 Ill. App. 3d 332, 338 (1995). 
1-19-1918 

- 12 -

¶ 42 This court has “noted confusion regarding the appropriate standard of review regarding 

alleged errors occurring during closing arguments.” People v. Johnson, 2015 IL App (1st) 

123249, ¶ 39. Such confusion “originates from our supreme court’s apparent conflicting 

holdings” in People v. Wheeler, 226 Ill. 2d 92, 121 (2007) (applying a de novo standard), and 

People v. Blue, 189 Ill. 2d 99, 128 (2000) (applying an abuse of discretion standard). Johnson, 

2015 IL App (1st) 123249, ¶ 39. We need not resolve the issue, however, because we reach the 

same conclusion under either standard.

¶ 43 During closing arguments, the prosecutor remarked that “[i]n a perfect world,” Laiter and 

Rivera would have told “the ugly truth” about what they witnessed. The prosecutor further 

remarked, “But the law in the State of Illinois recognizes, that four years later, *** when they 

come into a courtroom like this, with a Judge sitting here, with the Defendant sitting there, with 

all these people in here *** the story changed, memories fade.” Then, during argument on 

defendant’s posttrial motion for a mistrial, defense counsel asserted that the prosecutor waved

her hand in the direction of defendant and his family while making these remarks and insinuated 

they had intimidated Laiter and Rivera. The State denied that the prosecutor pointed at defendant 

and his family, and in denying the motion, the trial court agreed with the State, finding that the 

prosecutor was pointing towards the gallery. Additionally, in denying the defendant’s motion for 

a new trial, the trial court concluded that he did not read anything into the prosecutor’s hand 

gestures during closing arguments. 

¶ 44 With respect to the prosecutor’s hand gestures during closing arguments, defendant 

points to no evidence in the record, other than his defense counsel’s assertions, that the 

prosecutor gestured towards him or his family. On the other hand, the State denied this occurred, 

and the trial court twice observed that the prosecutor did not point at defendant or his family. 
1-19-1918 

- 13 -

Defendant bears the burden of proof on a prosecutorial misconduct claim, and he has failed to 

demonstrate that the prosecutor gestured towards him and his family during closing arguments. 

See Hanson, 273 Ill. App. 3d at 338. 

¶ 45 Additionally, we find that the prosecutor’s comments were proper. The evidence 

demonstrated that Laiter and Rivera both witnessed defendant hand D.B. a firearm, observed 

D.B. and Phillips leave the vehicle, and heard gunshots. The evidence further demonstrated that,

four years after the incident at defendant’s trial, the witnesses testified inconsistently with their 

ERIs and grand jury testimony. The prosecutor’s comment suggesting that Laiter and Rivera 

changed their testimony because they were testifying before a judge, the accused, and an 

audience, was a legitimate inference drawn from this evidence—even if it was unfavorable to 

defendant. See Simms, 192 Ill. 2d at 396. Furthermore, the prosecutor correctly noted that the law 

recognizes that witnesses’ memories fade over time (see, e.g., People v. Burris, 315 Ill. App. 3d 

615, 619 (2000)), and the prosecutor’s comment that Laiter and Rivera’s memories had faded 

was another legitimate inference drawn from the evidence (see Simms, 192 Ill. 2d at 396). 

Therefore, under either a de novo standard or abuse of discretion standard, we find that the 

prosecutor’s comments and conduct did not constitute prejudicial error. See Love, 377 Ill. App. 

3d at 313; Wolf, 178 Ill. App. 3d at 1068. 

¶ 46 We have also considered the cases defendant cites for the proposition that the 

prosecutor’s remarks were “highly prejudicial and inflammatory.” See People v. Mullen, 141 Ill. 

2d 394, 405 (1990); People v. Rivera, 277 Ill. App. 3d 811, 820-21 (1996); People v. Ray, 126 

Ill. App. 3d 656, 662 (1984). These cases are not applicable as in each case the prosecutor, 

without support in the record, suggested that the defendant intimidated the witness. See Mullen, 

141 Ill. 2d at 405; Rivera, 277 Ill. App. 3d at 820-22; Ray, 126 Ill. App. 3d at 662. On the other 
1-19-1918 

- 14 -

hand, the record in this case does not indicate that the prosecutor suggested defendant or his 

family intimidated Laiter and Rivera. Moreover, the prosecutor’s comments were based on the 

evidence in the record, and the prosecutor did not explicitly suggest that Laiter and Rivera’s 

story changed because defendant or his family had intimidated them. See People v. Green, 2017 

IL App (1st) 152513, ¶ 89 (finding that the prosecutor’s comments did not imply that the 

defendant threatened a witness since the comments were based on evidence and did not 

“explicitly suggest that [the witness] changed his story because defendant had threatened him.”). 

Thus, defendant’s argument fails.

¶ 47 CONCLUSION

¶ 48 For the reasons stated above, we affirm the judgment of the circuit court of Cook County. 

¶ 49 Affirmed.