2020 IL App (1st) 161327-U No. 1-16-1327 Order filed March 6, 2020 Fifth Division
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 11 CR 6530 ) ANTHONY TYSON, ) Honorable ) James B. Linn, Defendant-Appellant. ) Judge, presiding.
JUSTICE DELORT delivered the judgment of the court. Presiding Justice Hoffman and Justice Rochford concurred in the judgment.
ORDER
¶1 Held: We affirm defendant’s convictions for aggravated discharge of a firearm in the direction of a police officer over his contention that there was insufficient evidence of his accountability for his co-offender’s actions and of his co-offender’s knowledge that he was discharging a firearm at police officers.
¶2 Following a bench trial, defendant Anthony Tyson was found guilty, under a theory of
accountability, of three counts of aggravated discharge of a firearm in the direction of three
separate police officers (720 ILCS 5/24-1.2(a)(3) (West 2010)) and sentenced to concurrent terms No. 1-16-1327
of 11 years’ imprisonment. 1 On appeal, defendant contends that his convictions should be reversed
because the State failed to prove beyond a reasonable doubt that he was accountable for co-
offender Anthony Gardner’s conduct. He also contends that his convictions should be reduced to
aggravated discharge of a firearm and the matter remanded for resentencing because the State
failed to prove beyond a reasonable doubt that Gardner knew the individuals at whom he fired his
gun were police officers. We affirm.
¶3 Defendant was charged by indictment with 8 counts of first degree murder, 8 counts of
attempt first degree murder, 13 counts of aggravated discharge of a firearm, and 1 count of
aggravated unlawful restraint. He waived his right to a jury trial and the case proceeded to a bench
trial.
¶4 Chicago police officer James McNichols testified that on March 27, 2011, he was
conducting a narcotics investigation near Lexington Street and Pulaski Street with his partners
Patrick Kelly and Thomas Hanrahan. McNichols was the driver in an unmarked vehicle with his
two partners. He was “civilian dressed, plain clothes” with a duty belt, “vest and star.” His badge
was displayed on his outer belt buckle. McNichols heard a single gunshot, and an older man ran
from Lexington to McNichols’ vehicle screaming for help. McNichols learned the man’s name
was Lee Edmonds. Edmonds got in the vehicle and directed McNichols westbound through the
south alley of Lexington and directed him to stop near 4035 West Lexington.
Although the court orally found defendant guilty of three counts of aggravated discharge of a 1
firearm and sentenced him to concurrent terms, the written sentencing order reflects only one count and one sentence. “When the oral pronouncement of the court and the written order conflict, the oral pronouncement of the court controls.” People v. Roberson, 401 Ill. App. 3d 758, 774 (2010). Accordingly, we will consider all three convictions.
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¶5 There, Kelly exited the vehicle from the front passenger seat and approached a man
working on a car parked in the alley. Edmonds yelled, “That’s not him. That’s not him. He is one
of us.” At that point, McNichols was exiting the vehicle and saw two other men, with guns in their
hands, running through an empty lot just west of him. Edmonds, still in the backseat, yelled, “There
they are,” and McNichols again saw the two men running at him. When McNichols first saw the
men, they were 50 to 60 feet away running southbound alongside a fence. McNichols notified
Kelly about the men and then started yelling to them, “Police. Drop your weapons.” The two men
ran to the edge of the alley along the fence, and the man in front raised his weapon and started
shooting at McNichols. In court, McNichols identified the man who shot at him as Gardner and
identified defendant as the man standing behind Gardner. McNichols and Kelly returned fire.
McNichols was directly across the alley from Gardner, approximately 10 to 15 feet away, and
Kelly was 7 feet away from McNichols. McNichols saw defendant turn around, start running
northbound and throw his gun “over his head behind his back.”
¶6 Gardner ran and hid behind a beige colored vehicle in the same empty lot. McNichols
approached Gardner from a position where he was able to see Gardner, but Gardner could not see
him. McNichols commanded Gardner “to drop his weapon and let [McNichols] see his hands.”
Gardner did not comply and McNichols stepped towards him. McNichols could see Gardner was
kneeling next to the passenger side of the car with his head down and his gun in his hand.
McNichols again commanded Gardner “to drop the weapon,” but Gardner instead lifted his head,
looked directly at McNichols, and raised his weapon. McNichols shot Gardner in the head, killing
him. Gardner fell forward with his gun on the ground in front of him, and Kelly handcuffed his
hands.
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¶7 McNichols explained that, prior to the second round of shooting, he radioed, “[h]e’s
running northbound,” in reference to defendant. Officers Camarillo, Perez, and Murphy arrived on
the scene and McNichols provided Camarillo with a description of defendant that was relayed on
the radio. That same night, McNichols viewed a lineup and identified defendant as the man who
ran with a gun on Lexington.
¶8 On cross-examination, McNichols stated he did not see defendant do anything to encourage
or aid Gardner besides running next to him. He stated he did not remember telling detectives on
the night of the shooting that he yelled “[d]rop your weapon.” He also did not recall telling
detectives that he did not say “[p]olice” until after the first shot.
¶9 Kelly’s testimony was substantially similar to that of McNichols. Kelly added that he was
in “civilian dress,” wearing a duty belt, vest and a gun, with his badge displayed on his belt. When
Kelly observed the other man standing in the alley, he got out of the squad car and performed a
pat-down on the man, who told Kelly, “I am not the one you are looking for.” Kelly then heard
Edmonds yell, “The ones you want are in the vacant lot over there.” Edmonds pointed to a vacant
lot to the west, and Kelly saw defendant and Gardner approaching. Kelly identified defendant in
court as the second man approaching. Kelly saw Gardner fire a round in his direction. Kelly
returned fire but did not know if McNichols did or where McNichols was at the time. Kelly did
not see where defendant went, but observed Gardner take cover behind a beige car. Kelly heard
McNichols yelling “drop the gun,” before McNichols fired his gun. Kelly surrendered his gun to
a forensic investigator at the hospital. That night, Kelly identified defendant in a lineup as the man
with a gun who accompanied Gardner.
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¶ 10 On cross-examination, Kelly stated that the squad car the officers were in did not have
sirens or emergency lights on it. Kelly saw defendant and Gardner running towards him with guns
after other people had alerted him that defendant and Gardner were in the lot. Kelly explained that
he did not “even have a chance to” announce he was a police officer before Gardner fired. He did
not see defendant after the first shot and did not see defendant hand Gardner his gun or the two
speak together.
¶ 11 Hanrahan’s testimony was similar to that of McNichols and Kelly. Hanrahan added that he
saw Edmonds run up to the officers and state, “there were two men with guns down the alley
shooting” and point to the south alley of Lexington, west of the officers. Hanrahan, his partners,
and Edmonds entered the squad car with Hanrahan sitting behind McNichols, the driver. They
drove westbound into an alley, and Hanrahan saw a man standing in front of a garage. Hanrahan
learned the man’s name was Gregory Bryant. Edmonds and Bryant both pointed to the west, and
Hanrahan exited the vehicle and observed two men in a vacant lot. Hanrahan saw Gardner fire a
shot in his and his partner’s direction and identified defendant in court as the man who followed
Gardner. McNichols and Kelly discharged their guns simultaneously. Hanrahan stated that when
McNichols and Kelly fired their guns, he and the other officers were all screaming, “Police, drop
your gun. Police, drop your gun.” Hanrahan later identified defendant in a lineup as the man who
ran from the shootout. Hanrahan did not fire because his partners were in his line of fire.
¶ 12 On cross-examination, Hanrahan stated the vehicle they were in was unmarked with an
“M” plate. There were no sirens or emergency lights on the vehicle when it went into the alley.
Hanrahan did not yell anything before Gardner fired his gun. Hanrahan did not see defendant with
a weapon. He did not see defendant signal or speak to Gardner before the shooting. Upon further
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questioning by the court, Hanrahan stated he was in plain clothes, wearing a bullet proof vest, with
a duty belt and his “star” on his belt.
¶ 13 Chicago police officer Roberto Ramirez testified that on March 27, 2011, he responded to
a shooting near the alley of Lexington and Pulaski. Ramirez and his partner searched the scene and
found a Chevrolet minivan less than a block north of the shooting. The van’s engine was running,
and it appeared empty. Upon closer inspection, the officers saw a woman sitting in the driver’s
seat fully reclined and a man, who matched the description given over the radio, lying between the
front and middle row of seats in the aisle. Ramirez identified this man as defendant in court.
Defendant and the woman, Dominque Ashford, were taken into custody. On cross-examination,
Ramirez testified he did not recover any weapons in the minivan or from defendant.
¶ 14 Chicago police detective Adrian Garcia testified that on March 28, 2011, defendant spoke
with Garcia and Assistant State’s Attorney Jose Villarreal. This interview was video recorded, and
Garcia testified that the video was a true and accurate copy of their conversation. The video was
published for the court and a transcript was made for the court to review.
¶ 15 In the video, defendant, after being advised of his constitutional rights, stated that he knew
Gardner “from the streets.” On March 27, 2011, defendant and Gardner planned to rob Cecil, a
“Vice Lord” drug dealer, who had “a lot of money.” 2 The first time defendant went to Lexington
that day, he, Gardner, and Scotty, were “getting high” and saw a man, who had shot at them earlier,
get into an SUV that was followed by a gold Regal. 3 Later, “[o]ne of [Cecil’s] people,” shot at the
group, but defendant did not see Cecil. The group left the area, and for about an hour, defendant,
2 The record shows that Cecil is referred to as “Cecil Lord” but his last name is unknown. 3 Scotty’s last name does not appear in the record.
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Ashford, Gardner, and “another guy” drove around and got high. After they dropped off the
unidentified man, defendant and Gardner procured guns. Defendant received his gun from
Gardner, who got it from Scotty. Gardner received his gun from another man. Defendant explained
that he and Gardner armed themselves for protection and to rob Cecil. Defendant, Ashford, and
Gardner then drove to 5th Avenue and Pulaski Street. Defendant and Gardner exited the “van” and
returned to the Regal because they thought Cecil may be there. Gardner told defendant to “just
look out,” and defendant stood in the alley while Gardner walked into a nearby garage. Gardner
pointed the gun at the back of a man fixing a car and asked for Cecil’s whereabouts. The man
responded he did not know, and that Cecil was “somewhere in the building.” Defendant then heard
a gunshot. Defendant did not see anyone else with a weapon.
¶ 16 Defendant stated he did not see anything and “[w]hen [he] saw the police pulled up, they
[sic] guns drawn, [he] just ran.” He explained that he could tell the men were police. After being
asked if they said they were police, defendant responded “yeah” and confirmed it once more.
Defendant then heard shots and did not see what happened or what Gardner did. As defendant ran
away, his gun fell somewhere. He ran to the minivan and hid there with Ashford until they were
caught. He denied having any intentions of shooting Cecil. He stated he had the gun to protect
himself and to shoot back.
¶ 17 Chicago police forensic investigator Brian Smith processed the scene of the shooting with
his partner Nicholas Ribaudo. They took photographs of the scene and of the minivan. They also
recovered the guns McNichols and Kelly had used in the shooting. Ribaudo administered a gunshot
residue test (“GSR”) to Gardner, who was deceased at the time. They then collected the firearm
evidence at the scene of the shooting. The gun recovered from Gardner was a six-chamber
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revolver, which contained two spent cartridges and four live rounds. Smith received six live rounds
that were in Gardner’s possession. There also a fully loaded revolver recovered in the vacant lot.
Smith identified multiple areas of apparent gunshot damage on the driver’s rear side in
photographs of the minivan.
¶ 18 The parties stipulated that Gardner died of multiple gunshot wounds and his blood
contained ethanol alcohol at a level of 55 milligrams per deciliter. The parties also stipulated that
if called, Illinois State Police forensic scientist Mary Wong would testify as an expert in the area
of trace evidence identification testing. Wong received the gun residue kits collected from
defendant and Gardner. She analyzed the kits and found that defendant may have discharged a
firearm, may have been in the environment of a discharged firearm, may have contacted a primer
gunshot residue (“PGSR”) related item with his left hand, or may have received the particles from
an environmental source. She found that Gardner discharged a firearm, contacted a PGSR-related
item, or had his right hand in the environment of a discharged firearm.
¶ 19 The parties further stipulated that Chicago police officer Mark Harvey recovered 10
fingerprint lifts from the minivan, and that Illinois State Police forensic scientist Elanor
Giacometti, an expert in the area of fingerprint identification and analysis, received the fingerprint
lifts collected. One fingerprint recovered from the interior front passenger window was made by a
person “whose fingerprints appear on the copy of the fingerprint card marked Antoine Gardner.”
¶ 20 Finally, the parties stipulated that Illinois State Police forensic scientist Mark Pomerance,
an expert in firearms and tool mark identification, determined that of the fired bullets recovered
from the scene of the shooting, there was one that “could not be identified or eliminated as having
been fired from” the gun recovered near Gardner but could not have been fired by the guns
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recovered from McNichols and Kelly. He also concluded that a bullet recovered from Gardner’s
head, was fired by McNichols’ gun. Another bullet recovered from Gardner “could not be
identified or eliminated as being fired from” Kelly’s gun.
¶ 21 The court found defendant guilty of aggravated discharge of a firearm pertaining to the
victims McNichols, Kelly, and Hanrahan, and not guilty of all counts of first degree murder,
attempt first degree murder, aggravated unlawful restraint, and the remaining count of aggravated
discharge of a firearm. In finding defendant guilty, the court determined that defendant and
Gardner were shot at and believed the person responsible answered to Cecil, so they planned to
rob Cecil in retaliation. As defendant and Gardner looked for Cecil, defendant acted as a lookout
while Gardner confronted a man and a shot was fired. Furthermore, the court found that police
responded, “indicating clearly to anyone who would see them they’re obviously police officers,”
and Gardner fired a shot and defendant fled before police returned fire.
¶ 22 Defendant filed a motion for new trial, arguing, in part, that the evidence was insufficient
to sustain his convictions. The court denied the motion. Following a sentencing hearing, the court
sentenced defendant to concurrent terms of 11 years’ imprisonment. Defendant did not file a
motion to reduce his sentence.
¶ 23 On appeal, we first consider defendant’s argument that the State did not prove beyond a
reasonable doubt that he was accountable for Gardner’s aggravated discharge of a firearm at a
police officer.
¶ 24 The standard of review when considering the question of accountability is whether “after
viewing 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.” People v. Fernandez,
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2014 IL 115527, ¶ 13. Under section 5-2 of the Criminal Code of 1961, a person is legally
accountable for the criminal conduct of another if “either before or during the commission of an
offense, and with the intent to promote or facilitate that commission, he or she solicits, aids, abets,
agrees, or attempts to aid that other person in the planning or commission of the offense.” 720
ILCS 5/5-2(c) (West 2010). To establish a defendant possessed the intent to promote or facilitate
the crime, the State may present evidence of a shared criminal intent between the principal and
defendant, or evidence of a common criminal design. Fernandez, 2014 IL 115527, ¶ 13. Where
the defendant and another “engage in a common criminal design or agreement any acts in the
furtherance of that common design committed by one party are considered to be the acts of all
parties to the common design or agreement and all are equally responsible for the consequences
of those further acts.” 720 ILCS 5/5-2(c) (West 2010). When there is a common design to do a
criminal act, the defendant is guilty of any act done in furtherance of the common design. See
People v. Nelson, 2017 IL 120198, ¶ 40.
¶ 25 Here, the State presented evidence of a common design between defendant and Gardner to
commit a robbery. Defendant stated several times during his interview that he and Gardner
intended to rob Cecil. To do so, they procured guns and went to the area where they believed they
would find Cecil. There, defendant functioned as a lookout for Gardner, who pointed a gun at a
man and asked for Cecil’s whereabouts. McNichols and Kelly testified that when the officers
arrived, Gardner and defendant approached them armed with guns, and then Gardner discharged a
gun in their direction.
¶ 26 On appeal, defendant does not contest that he intended to rob Cecil with Gardner but argues
that Gardner was caught off guard and the shooting of a single shot was not in furtherance of a
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common criminal design. However, this court has previously explained that just because an
officer’s appearance at a crime in progress is unexpected, it does not mean a companion shooting
at the officer is unrelated to a previous common criminal design. People v. Johnson, 2014 IL App
(1st) 120701, ¶¶ 26-28 (finding defendant guilty of aggravated discharge of a firearm where
defendant argued that the shooting was not in furtherance of common design as no one anticipated
officer’s presence and defendant had no advanced knowledge of the shooting).
¶ 27 People v. Kessler, 57 Ill. 2d 493 (1974) involved a “textbook application of the common-
design rule.” Fernandez, 2014 IL 115527, ¶ 14. In Kessler, the defendant and two companions
planned a burglary. 57 Ill. 2d at 494. The companions attempted the burglary, were surprised by a
man inside the building, and, after finding a gun in the tavern, shot the man and fled to the car
where the defendant had remained. Id. at 494-95. Afterwards, one companion drove them from the
scene and, after getting forced off the road, the companions fled the car. Id. at 495. During the foot
chase, one started shooting at a police officer. Id. During this time, the defendant remained in the
car, and, after being arrested, denied any knowledge of the companions and stated he was
hitchhiking. Id. In affirming the defendant’s conviction for attempted murder of a police officer,
our supreme court found that as the defendant jointly committed the attempted robbery, he was
legally accountable for the other actions of his companions. Id. at 499-500. The supreme court
affirmed the convictions under the common-design rule and explained that section 5–2(c) of the
Code “as it reads, means that where one aids another in the planning or commission of an offense,
he is legally accountable for the conduct of the person he aids; and that the word ‘conduct’
encompasses any criminal act done in furtherance of the planned and intended act.” Id. at 497;
accord People v. Phillips, 2014 IL App (4th) 120695, ¶ 26.
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¶ 28 Here, defendant does not dispute that he and Gardner were engaged in a common criminal
design to rob Cecil. That being the case, defendant is legally accountable for any criminal act that
Gardner did in furtherance of the robbery. Fernandez, 2014 IL 115527, ¶ 18. The evidence that
the discharge of the firearm was in furtherance of defendant’s and Gardner’s common criminal
design is even more compelling than in Kessler. In Kessler, after the initial planning the defendant
remained in the car. Kessler, 57 Ill. 2d at 494-95. Here, defendant and Gardner planned to rob
Cecil, and then defendant obtained guns with Gardner, acted as lookout and physically approached
the officers with Gardner directly up to the time of the shooting. As such we find the evidence
presented was sufficient to show that defendant was guilty by accountability of discharge of a
firearm towards a police officer.
¶ 29 Next, defendant claims that his flight during the shooting sufficiently separated him from
Gardner’s actions. A defendant is not accountable if before the commission of the offense he or
she terminates his effort to promote or facilitate the commission and does one of the following:
“(i) wholly deprives his or her prior efforts of effectiveness in that commission, (ii) gives timely
warning to the proper law enforcement authorities, or (iii) otherwise makes proper effort to prevent
the commission of the offense.” 720 ILCS 5/5-2 (West 2010). In this case, defendant’s flight does
not constitute withdrawal for accountability purposes.
¶ 30 We next consider defendant’s argument that this court should remand the matter for
resentencing because the State failed to prove beyond a reasonable doubt that Gardner knew the
individuals at whom he fired his gun were police officers, an essential element of the offense.
¶ 31 A challenge to the sufficiency of the evidence supporting a conviction requires the
reviewing court to determine whether, after viewing the evidence in the light most favorable to the
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State, any rational trier of fact could have found the elements of the crime beyond a reasonable
doubt. People v. Harris, 2018 IL 121932, ¶ 26. “All reasonable inferences from the evidence must
be drawn in favor of the prosecution.” People v. Hardman, 2017 IL 121453, ¶ 37. A reviewing
court may not retry the defendant or substitute its own judgment for the trier of fact on issues of
witness credibility, the resolution of conflicts in the evidence, and which inferences to draw from
the evidence. Id. Instead, a reviewing court will reverse a conviction only if the evidence is so
“unreasonable, improbable, or so unsatisfactory” that there remains a reasonable doubt as to the
defendant’s guilt. Id. (quoting People v. Campbell, 146 Ill. 2d 363, 375 (1992))
¶ 32 In this case, defendant was found guilty, under a theory of accountability, of aggravated
discharge of a firearm in the direction of a peace officer. In order to support the finding of guilt,
the State was required to prove beyond a reasonable doubt that “defendant [or one for who he is
accountable] intentionally or knowingly discharged a firearm in the direction of a person he knew
to be a peace officer while that officer was executing his official duties.” People v. Meyers, 2018
IL App (1st) 140891, ¶ 25; accord 720 ILCS 5/24-1.2(a)(3) (West 2010).
¶ 33 In this court, defendant disputes whether the evidence presented was sufficient to show that
Gardner knew he was shooting at police officers. A person knows something when he is
consciously aware that those circumstances exist. 720 ILCS 5/4-5 (West 2010). “Knowledge of a
material fact includes awareness of the substantial probability that the fact exists.” Id. Direct proof
of a defendant’s knowledge is unnecessary, because it can be informed from surrounding facts and
circumstances and “ ‘[k]nowledge may be, and ordinarily is, proven circumstantially.’ ” People v.
Monteleone, 2018 IL App (2d) 170150, ¶ 26, (quoting People v. Ortiz, 196 Ill. 2d 236, 260 (2001)).
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¶ 34 After viewing the evidence in the light most favorable to the State, we find that a rational
trier of fact could conclude that Gardner knew he was shooting at police officers. The record shows
that the officers arrived on the scene in an unmarked police vehicle with an “M” license plate.
Although the officers were not in uniform, they were wearing bulletproof vests and duty belts,
with their police stars visible on their belts. McNichols testified that he first saw Gardner and
defendant 50 to 60 feet away and that they continued to approach even after he said “[p]olice, drop
your weapons.” When Gardner fired and the officers returned fire, McNichols estimated Gardner
was only 10 to 15 feet away. Hanrahan stated that after Gardner fired, he and the other officers
screamed, “[p]olice, drop your gun. Police, drop your gun.” Kelly testified that he did not have a
chance to announce he was an officer before Gardner fired. In his videotaped statement, defendant,
who was standing behind Gardner, acknowledged that he recognized the approaching men as
police officers and heard them say they were police.
¶ 35 In finding defendant guilty, the court expressly noted that the officers’ actions “indicat[ed]
clearly to anyone who would see them that they were police officers.” As mentioned, this court
will not substitute its own judgment for the trier of fact on which inferences to draw from the
evidence. Although defendant asks us to disregard his own recognition of the men as officers and
focus on the sudden nature of the encounter, we decline to do so where “the trier of fact is not
required to disregard inferences which flow normally from the evidence before it, nor need it
search out all possible explanations consistent with innocence and raise them to a level of
reasonable doubt.” People v. Jackson, 232 Ill.2d 246, 281 (2009). Given the record before us, we
cannot say that the evidence, taken in the light most favorable to the State, was so unreasonable,
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improbable or unsatisfactory that there remains a reasonable doubt as to Gardner’s knowledge that
he was shooting at police officers. Hardman, 2017 IL 121453, ¶ 37.
¶ 36 Accordingly, the judgment of the circuit court of Cook County is affirmed.
¶ 37 Affirmed.
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