LAWRENCE ELMER PATE V. COMMONWEALTH OF KENTUCKY
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CORRECTED : JANUARY 23, 2008
AS MODIFIED : NOVEMBER 1, 2007
RENDERED: MAY 24, 2007
TO BE PUBLISHED
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2005-SC-000654-MR
LAWRENCE ELMER PATE
APPELLANT
ON APPEAL FROM BRACKEN CIRCUIT COURT
HONORABLE JOHN W. McNEILL, III, JUDGE
NO. 03-CR-00008-002
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE SCOTT
AFFIRMIN G
Appellant, Lawrence Elmer Pate, was convicted of manufacturing
methamphetamine (second or subsequent offense) and sentenced to twenty
years' imprisonment. Appellant now appeals to this Court as a matter of right.
Ky. Const. ยง 110(2)(b) . For the reasons set forth herein, we affirm Appellant's
conviction.
On September 17, 2002, Kentucky State Police Sergeant Thomas Lilly
was tasked to execute an arrest warrant on Appellant. When Sergeant Lilly went
to Appellant's residence, he observed a black pressure tank sitting outside
Appellant's door with what appeared to be a green corroded fitting on the top and
a section of pipe with a valve welded to the bottom. Sergeant Lilly testified that
he had been trained to look for green corrosion on the outside of pressure tanks
since it is a sign that the tank has been used to hold anhydrous ammonia (a
component of methamphetamine manufacture) .
When Lilly knocked on the door, Appellant's wife, Kathy Pate, answered.
Sergeant Lilly told Mrs. Pate that he had a warrant for Appellant's arrest and
inquired if Appellant was home . Mrs. Pate answered that Appellant was not in
the apartment. Sergeant Lilly then asked Mrs. Pate if she minded if he came in
and looked around to make sure Appellant was not in the apartment. Mrs. Pate
consented . When Sergeant Lilly entered the apartment he observed numerous
items in plain view. These items included : buckets with pressure fittings hooked
to it and tubing attached, miscellaneous tubing, pipe fittings, a metal dish filled
with metal fittings that was boiling on the stove, and two grey Tupperware bins
that were filled with similar items. From his experience, Lilly believed that he had
observed all of the equipment, utensils, and tubing necessary to manufacture
methamphetamine in and around Appellant's residence. In fact, as Sergeant Lilly
entered the apartment, he asked Mrs. Pate, "What is all this stuff?" She
answered that Lilly knew what it was, and then stated that it was the equipment
that her husband, Appellant, used to make methamphetamine . Because he was
concerned with the possible health hazard located in the apartment, Sergeant
Lilly immediately called for backup . The evidence was subsequently seized and
used against Appellant at trial.
After securing the evidence, Sergeant Lilly eventually found Appellant .
Appellant was watching the seizure from a nearby apartment. When Lilly told
Appellant he had a warrant for his arrest, Appellant complained that the items
seized from the apartment were his and that they were being taken illegally. He
also blurted out that the officers would find no methamphetamine residue on the
items.
Appellant and Mrs. Pate were indicted jointly for complicity to manufacture
methamphetamine. Mrs. Pate pled guilty to facilitation and agreed to testify
against Appellant at trial . Appellant was subsequently found guilty by jury of
manufacturing methamphetamine . He now appeals to this Court and we affirm.
1.
There were no unreasonable searches and seizures within
Appellant's apartment .
Appellant claims that the seizure of the items at his apartment violated his
right to be free from unreasonable searches and seizures . Citing Bumper v.
North Carolina , 391 . U .S. 543, 88 S .Ct. 1788, 20 L.Ed .2d 797 (1968), he first
claims there is not substantial evidence in the record to support the trial court's
ruling that Mrs . Pate's consent to search was valid. We disagree .
"Whether consent is the result of express or implied coercion is a question .
of fact . . . and thus, we must defer to the trial court's finding if it is supported by
substantial evidence." Krause v. Commonwealth, 206 S.W.3d 922, 924 (Ky.
2006). Appellant claims that since Sergeant Lilly told Mrs. Pate that he had an
arrest warrant, Mrs . Pate's consent to search was nothing more than mere
"acquiescence to a claim of lawful authority." Bumper, sOva, at 549 .
However, the facts supporting the holding in Bumper, supra , differ
significantly from the facts supporting the trial court's ruling in this case. In
Bumper , the law enforcement officer claimed "authority to search [the] home
under a warrant, [and] announce[d] in effect that the occupant ha[d] no right to
resist the search." Id. at 550. Here, Sergeant Lilly did no such thing . While he
did tell Mrs. Pate that he had a warrant for Appellant's arrest, he did not claim
authority to search under the warrant or imply in anyway that Mrs. Pate had no
right to resist a search of her home.
Sergeant Lilly simply asked whether Mrs. Pate minded if he looked around
the apartment to confirm that Appellant was not there . The trial court specifically
found "no threats, no force, no assertion of custody over, or a deception
practiced upon Mrs. Pate or any other circumstances which would vitiate the
voluntariness of her consent." Merely stating that one has a warrant for another's
arrest, without any further implication that the government actor is asserting
lawful authority to search pursuant to that warrant, does not amount to coercion
pursuant to the holding in Bumper, supra . There is substantial evidence in 'the
record to support the trial court's ruling that Mrs. Pate's consent was voluntary
and not coerced.
Once inside the apartment, Appellant next alleges that Sergeant Lilly had
no right to seize the items without a search warrant . He contends the plain view
exception to the warrant requirement is inapplicable since the incriminating
character of the items was not "immediately apparent ." See Hazel v.
Commonwealth , 833 S.W.2d 831, 833 (Ky. 1992)(citing Coolidge v. New
Hampshire , 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)) . We find such
a contention to be without merit .
Sergeant Lilly testified that from his experience, he recognized the
equipment in and around Appellant's residence as the type which is commonly
used during the manufacture of methamphetamine . Moreover, when Lilly asked
Mrs. Pate what all of it was, she admitted that it was equipment used to make
methamphetamine . Under these circumstances, there is no doubt that probable
cause existed to believe that the items were associated with criminal activity and
thus, subject to immediate seizure. See Texas v. Brown, 460 U .S. 730, 741-
742, 103 S.Ct. 1535,1543, 75 L.Ed .2d 502 (1983) ("[t]he seizure of property in
plain view involves no invasion of privacy and is presumptively reasonable,
assuming that there is probable cause to associate the property with criminal
activity") .
Finally, Appellant alleges that even if the items in plain view were
immediately incriminating, items contained in two grey Tupperware bins were not
in plain view, and therefore, the plain view exception to the warrant requirement
could not have applied to those items. Citing United States v. McLevain, 310
F.3d 434 (6th Cir. 2002), he additionally argues that the plain view exception to
the warrant requirement cannot be utilized to justify a warrantless seizure in the
absence of exigent circumstances. Id. at 443 ("this requirement of a lawful right
of access means generally an officer should get a warrant if possible before he
seizes an item in plain view") .
Without addressing whether Appellant's interpretation of McLevain , supra,
is correct, it is enough for us to simply state that exigent circumstances did exist
to justify the warrantless seizure of the equipment in Appellant's apartment.
Another exception to the warrant requirement arises when, considering the
totality of the circumstances, an officer reasonably believes that an immediate
search or seizure is necessary in order to avoid a "risk of danger to police or
others." United States v. Atchley , 474 F.3d 840; 850 (6th Cir. 2007) (citing
United States v. Plavcak, 411 F.3d 655, 661 (6th Cir. 2005)), see also, United
States v. Bishop, 338 F.3d 623, 628-629 (6th Cir. 2003)(police may seize objects
of inherently dangerous nature if there are articulable facts demonstrating that it
poses a danger to police or others).
In this case, Sergeant Lilly walked into what he believed to be a
methamphetamine lab. There was equipment everywhere,
a pot containing
metal fixtures actively boiling on the stove, and a resident who confirmed that the
equipment was used to manufacture methamphetamine. In light of these
circumstances, it was objectively reasonable for Sergeant Lilly to believe that
immediate seizure of any and all items associated with the illegal activity,
including the items in the Tupperware bins, was necessary in order to avoid a
"risk of danger to police or others ." Atchley, 474 F .3d at 850 ("cases involving
methamphetamine labs where other people are in the vicinity . . . [pose] dangers
associated with the cooking of methamphetamine and the storage of chemicals
used to make methamphetamine") ; see also United States v. Layne, 324 F.3d
464, 470-71 (6th Cir. 2003)(noting the "inherent dangers of methamphetamine
manufacturing"); United States v. Rhiger, 315 F.3d 1283,1290-1291 (10th Cir.
2003) ("reasonable grounds existed for the agents to believe there was an
immediate need to protect the public by entering the home and discontinuing the
lab's production") ; United States v. Spinellii , 848 F .2d 26, 30 (2d Cir. 1988) (due
to flammable and explosive nature of chemicals used to manufacture
methamphetamine, officers were justified in violating knock and announce rule to
enter residence alleged to contain methamphetamine lab) .
It is irrelevant that no toxic chemicals or methamphetamine residue were
ultimately found in the apartment or on the equipment. Sergeant Lilly had no way
of ascertaining this at the moment of his initial discovery and accordingly, his
decision to seize the equipment should not be evaluated in light of this after-thefact discovery.
II.
There was sufficient evidence to support Appellant's conviction for
manufacturing methamphetamine .
Appellant next alleges that Kotila v. Commonwealth, 114 S.W.3d. 226 (Ky.
2003) required a directed verdict on the charge of manufacturing
methamphetamine since Appellant did not possess all of the equipment
necessary to manufacture methamphetamine . In Kotila , this Court held that a
defendant cannot be convicted of manufacturing methamp hetamine pursuant to
KRS 218A.1432(1)(b) l unless he possesses either all the equipment or all the
chemicals necessary for manufacture . Id. at 236. However, as noted by the
Commonwealth, this interpretation of the. statute was abrogated by Matheney v.
Commonwealth , 191 S.W.3d 599 (Ky. 2006), which interpreted KRS
218A.1432(1)(b) to require "that one must possess two or more chemicals or
items of equipment with the intent to manufacture methamphetamine to fall within
the statute ." Id . at 604. Accordingly, Appellant's argument that he was entitled to
a directed verdict pursuant to Kotila , supra, is without merit.
Citing Haves v. Commonwealth , 175 S.W.3d 574 (Ky. 2005), Appellant
further claims that there was insufficient evidence to support a finding that he
intended to manufacture methamphetamine . Specifically, he notes that no
This statute has since been amended by the legislature .
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chemicals were found in the apartment, some of the equipment needed to be
modified prior to manufacture, and the equipment was not found in his
possession, but in his wife's possession .
First, the facts in Haves, supra, are clearly distinguishable from the facts in
this case. Unlike in Hayes, the evidence in this case was more than sufficient to
support an inference that Appellant possessed the equipment found in his
apartment . Mrs. Pate testified that Appellant actually lived in the apartment and
his clothing and legal documents (e .g.' social security card) were located in the
apartment . When he was arrested, Appellant told police that the equipment they
were seizing was his and that they were seizing it illegally. In light of this
evidence, we reject Appellant's argument that he did not possess, constructively
or otherwise, the equipment found in the apartment. See Pate v.
Commonwealth , 134 S.W.3d 593, 598-99 (Ky. 2004) ("To prove constructive
possession, the Commonwealth must present evidence which establishes that
the contraband was subject to the defendant's dominion and control.").
Second, the fact that no chemicals were found in the apartment is not
dispositive . If it were, then the statute would not permit a finding of intent where
only equipment is found in the possession of the defendant. See KRS
218A.1432(1)(b)("A person is guilty of manufacturing methamphetamine when he
knowingly and unlawfully . . . [w]ith intent to manufacture methamphetamine
possesses two (2) or more chemicals or two (2) or more items of equipment for
the manufacture of methamphetam,ine.")(Emphasis added) .
In this case, Mrs. Pate testified that Appellant intended to use the
equipment to manufacture methamphetamine . She explained that Appellant
intended to modify the equipment to make it portable so that he could travel into
the woods during the actual manufacturing process . Expert testimony further
opined that the specialized modifications found on much of the equipment
indicated that the equipment was intended to be used for the manufacture of
methamphetamine . Finally, it was established at trial that Appellant had
previously been found in possession of the chemicals and equipment necessary
to manufacture methamphetamine . When all this evidence is coupled with
Appellant's own statements to police, we find sufficient evidence to support the
jury's finding that Appellant intended to manufacture methamphetamine . See
Anastasi v. Commonwealth, 754 S .W.2d 860, 862 (Ky. 1988) ("Intent can be
inferred from the actions of an accused and the surrounding circumstances . The
jury has wide latitude in inferring intent from the evidence.").
III .
Prior bad acts evidence was admissible .
In his next assignment of error, Appellant claims the trial court erred in
admitting evidence regarding the fact that Appellant had previously been found in
possession with chemicals and equipment necessary to manufacture
methamphetamine .2 Even if the evidence was relevant, Appellant claims it was
excessive and that any probative value was outweighed by undue prejudice .
KRE 404(b) permits evidence of other bad acts for the purpose of showing
"motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake
or accident ."
In this case, the prior possession of equipment and
chemicals necessary to manufacture methamphetamine was relevant to prove
intent and knowledge regarding methamphetamine manufacture . Appellant
2 Apparently, it was never mentioned that this encounter eventually led to
Appellant being convicted of manufacturing methamphetamine . See Pate, supra .
9
concedes this evidence was relevant to prove these purposes, but argues that its
probative value was outweighed by its prejudicial effect. See KRE 403 . We
disagree .
In this case, an officer testified that he stopped Appellant in Pendleton
County with the following items in his possession : Sudafed, plastic spoons,
plastic containers,_ lithium batteries, drain cleaner, salt, propane torch, tubing, and
a tank of anhydrous ammonia . The officer stated that these items were
necessary for manufacturing methamphetamine . Appellant claims this detail was
excessive and unnecessary to prove intent since Mrs . Pate already testified that
Appellant intended to manufacture methamphetamine .
Appellant's arguments are undermined by his claim at trial that the
equipment found in the apartment was nothing more than common household
items. He further disclaimed any knowledge or ownership of the items.
Accordingly, it was necessary for the Commonwealth to establish Appellant's
intent to use the items for illicit purposes and his corresponding knowledge of
methamphetamine manufacture . When the circumstances are viewed in their
totality, we do not believe the evidence was excessive; nor do we find any abuse
of discretion in the trial court's finding that the probative value of the evidence
was outweighed by its prejudicial effect. Cook v. Commonwealth, 129 S.W.3d
351, 361-362 (Ky. 2004) ("The outcome of a KRE 403 balancing test is within the
sound discretion of the trial judge, and that decision will only be overturned if
there has been an abuse of discretion, i.e., if the trial judge's ruling was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.").
IV.
Appellant was not entitled to assert marital privilege pursuant to KRE
504.
Appellant next alleges the trial court erred when it permitted Mrs. Pate to
testify against her husband . He argues that marital privilege prohibited her from
testifying against his wishes . See KRE 504. The Commonwealth argued, and
the trial court ruled, that the exception set forth in KRE 504(c)(1) permitted the
testimony. For the reasons set forth herein, we agree.
KRE 504(c)(1) states that there is no marital privilege "[i]n any criminal
proceeding in which sufficient evidence is introduced to support a finding that the
spouses conspired or acted jointly in the commission of the crime charged ." In
this case, both Mrs. Pate and Appellant were indicted jointly for complicity to
manufacture methamphetamine . Mrs. Pate agreed to plead guilty to facilitation in
exchange for her testimony against Appellant. At trial, Mrs . Pate was well-versed
about methamphetamine manufacturing in general, however, she denied
_entering into an agreement to manufacture methamphetamine with Appellant .
Appellant claims that Mrs. Pate's plea to facilitation in addition to her
assertion that she did not enter into an agreement with Appellant to manufacture
methamphetamine is determinative in proving that there was no conspiracy or
joint action between the spouses . The Commonwealth notes that the equipment
was found in the apartment shared by Mrs. Pate and Appellant, that Mrs. Pate
was very knowledgeable about the equipment, its purpose, and what Appellant
was doing with it, and that she was actively boiling metal fixtures on the stove
when Trooper Lilly walked into the apartment. Moreover, the fact that Mrs. Pate
pled to a lesser included offense could be utilized to infer the inverse of what
Appellant is arguing - that Mrs. Pate pled to the lesser offense to avoid being
convicted of the greater offense, i.e. conspiracy. When all this evidence is
considered in its entirety, we agree with the Commonwealth that the evidence
was sufficient to support a finding of joint action in the commission of the crime
by the spouses. Neither the jury nor the judge was required to believe the whole
of Mrs. Pate's testimony.
V.
Complicity instruction was proper.
.
Appellant next argues that the trial court erred by giving the jury an
alternative instruction whereby they could find him guilty either of intending to
manufacture methamphetamine or, of complicity, citing Parks v. Commonwealth,
192 S .W.3d 318 (Ky. 2006). He further claims that: 1) since Mrs . Pate denied
entering into an agreement with Appellant to manufacture methamphetamine and
pled guilty to facilitation ; and 2) since no one else was charged with aiding him in
his intent to manufacture methamphetamine, he should have been granted a
directed verdict on the complicity charge. We find the instruction proper and the
present case distinguishable from Parks .
Parks states that "to convict a defendant of guilt by complicity, the jury
must find beyond a reasonable doubt that the offense was, in fact, committed by
the person being aided or abetted by the defendant." Id. at 327. In Parks, we
noted that the evidence showed the person the appellant allegedly aided and
abetted could not have committed the underlying crime . Although Mrs. Pate's
guilty plea to facilitation in the instant case did not conclusively establish that she
actually committed the underlying offense of methamphetamine manufacturing,
there was sufficient evidence at trial for the jury to find (1) that Mrs. Pate
12
committed the offense and Pate acted in complicity with her or (2) that Pate
acted as a principal in commission of the crime . Case law predating Parks holds
that where evidence is sufficient to support a conviction as either an accomplice
or as a principal, an instruction in the alternative is proper. Campbell v.
Commonwealth, 732 S.W.2d 878, 880 (Ky. 1987) .
The alternative instruction on complicity in Parks , supra , was not improper
solely because some co-defendants in that case entered guilty pleas to
facilitation. In fact, we did not consider in Parks whether there was sufficient
evidence to conclude that Parks may have acted as an accomplice to Blakeman
and Morris, the co-defendants who entered guilty pleas to facilitation . See id . at
326-27 . Rather, we determined that there was no evidence to support a finding
that Parks acted as an accomplice to Barnes in committing an underlying
offense . See id. at 327. Since we noted that there was no evidence that Barnes
ever possessed certain items; such as anhydrous ammonia and starting fluid, we
found that Barnes could not have committed the offense of possessing these
items with the intent to manufacture methamphetamine . Thus, since the
evidence showed that Barnes could not have actually committed this underlying
offense, there was no evidence to support a finding that Parks was guilty of
complicity in aiding and abetting Barnes in such an offense . Given the lack of
any evidence to support a finding of complicity, we held in Parks that alternative
instructions on complicity and intent deprived Parks of his right to a unanimous
verdict.
In contrast to the appellant in Parks, not only did Mrs . Pate enter a guilty
plea to facilitation but evidence presented at trial could support a finding that she
13
together with her husband actually committed the underlying offense. Sergeant
Lilly testified to finding Mrs. Pate with a variety of equipment that he recognized
as commonly used to manufacture methamphetamine, to hearing her admit to
him that it was used to make methamphetamine, and to seeing metal fixtures
boiling on the stove when Mrs. Pate allowed the officers into the apartment.
Importantly, Mrs. Pate was the only person in the apartment when Sergeant Lilly
arrived . Again, the jury was not required to believe her testimony that she did not
make an agreement with Appellant to manufacture methamphetamine. The jury
could reasonably have found that either Appellant acted in complicity with her or
that Appellant was principally liable for intent to manufacture methamphetamine,
especially given his statements to police that the seized equipment belonged to
him. Thus, the trial court committed no error.
For the reasons set forth herein, the judgment and sentence of the
Bracken Circuit Court is affirmed .
Lambert, C.J.; McAnulty, Minton, Noble, and Schroder, JJ ., concur.
Cunningham, J ., concurs by separate opinion .
COUNSEL FOR APPELLANT,
Barbara Anderson
F. J. Anderson
100 Security Trust Building
271 West Short Street
Lexington, KY 40507
COUNSEL FOR APPELLEE
Gregory D. Stumbo
Attorney General
Ken W . Riggs
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601
CORRECTED: JANUARY 23, 2008
AS MODIFIED : NOVEMBER 1, 2007
RENDERED : MAY 24, 2007
TO BE PUBLISHED
uprtrar Courf of ~irnfurhv
2005-SC-000654-MR
LAWRENCE ELMER PATE
V.
APPELLANT
ON APPEAL FROM BRACKEN CIRCUIT COURT
HONORABLE JOHN W. MCNEILL, III, JUDGE
NO. 03-CR-00008-002
COMMONWEALTH OF KENTUCKY
APPELLEE
CONCURRING OPINIO N BY JUSTICE CUNNINGHAM
I concur in the result but disagree with the majority's analysis of the validity of
Mrs. Pate's consent. An inquiry into the issue of consent is unnecessary because here,
unlike in Bumper v. North Carolina , Sergeant Lily possessed a valid arrest warrant at
the time he entered the Pate home . "(F]or Fourth Amendment purposes, an arrest
warrant founded on probable cause implicitly carries with it the limited authority to enter
a dwelling in which the suspect lives when there is reason to believe the suspect is
within." Payton v. New York, 445 U.S. 573, 603, 100 S .Ct. 1371, 1 388, 63 L.Ed. 2d 639
- (1980). A "reasonable belief is established by looking at common sense factors and
evaluating the totality of the circumstances ." United States v. Pruitt, 458 F.3d 477, 482
(6th Cir. 2006). Common sense alone provides an officer a sufficient basis to believe
that a suspect might be present in his own residence . Furthermore, when Mrs. Pate
made the bare assertion that Appellant was not home, Officer Lilly expressed his desire
to check the apartment "himself", thus evidencing his belief that Appellant might be
present. Absent some indication on the record that Officer Lilly had reason to believe
that Appellant was not present, other than Mrs . Pate's assertion, the arrest warrant
provided sufficient authority to enter the home . Moreover, the scope of Officer Lilly's
search did not exceed that permitted to effectuate an in-home arrest pursuant to a valid
arrest warrant . Chimel v. California , 395 U .S. 752, 89 S .Ct. 2034, 23 L .Ed 2d. 685
(1969).
,;vuyrrmr avrurf of ~firufurhV
2005-SC-000654-MR
LAWRENCE ELMER PATE
. APPELLANT
ON APPEAL FROM BRACKEN CIRCUIT COURT
HONORABLE JOHN W. McNEILL, III, JUDGE
NO . 03-CR-00008-002
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
ORDER DENYING PETITION FOR REHEARING AND
MODIFYING _OPINION ON THE COURT'S OWN MOTION
The petition for rehearing filed by Appellant, Lawrence Elmer Pate, is
DENIED. The Memorandum Opinion of the Court, rendered on May 24, 2007, is
MODIFIED on its face by substitution of pages 1 and 12 through 15 in lieu of the
original pages 1 and 12 through 14 . Said modification does not affect the
holding.
All sitting . All concur .
ENTERED: November 1, 2007.
,Suprau Itaurf of ~6nfurhij'
2005-SC-000654-MR
LAWRENCE ELMER PATE
V.
APPELLANT
ON APPEAL FROM BRACKEN CIRCUIT COURT
HONORABLE JOHN W. McNEILL, III, JUDGE
NO. 03-CR-00008-002
COMMONWEALTH OF KENTUCKY
APPELLEE
ORDER OF CORRECTION
The Memorandum Opinion of the Court, rendered May 24, 2007, and
modified November 1, 2007, is CORRECTED on its face by substitution of
pages 1 and 14 of the Opinion of the Court by Justice Scott and the first page of
the Concurring Opinion by Justice Cunningham to reflect that the opinions are
TO BE PUBLISHED . Said corrections do not affect the holding.
ENTERED: January 23, 2008 .
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