PEOPLE OF MI V PATRICIA ANN MALONE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
March 30, 2010
9:00 a.m.
Plaintiff-Appellee,
v
No. 286958
Wayne Circuit Court
LC No. 08-003077-FH
PATRICIA ANN MALONE,
Defendant-Appellant.
Before: DAVIS, P.J., and FORT HOOD and SERVITTO, JJ.
PER CURIAM.
Defendant was convicted, following a jury trial, of three counts of stealing or retaining a
financial transaction device without consent, MCL 750.157n(1). She was sentenced to one year
of probation. Defendant appeals as of right, and we affirm.
Carla Sledge, Wayne County’s chief financial officer, contacted the Wayne County
Sheriff’s Department after learning that several high-ranking employees were the victims of
identity theft. Specifically, the credit card information for several employees was now being
mailed to the same address. With regard to Sledge, an individual named Terry Lewis had
attempted to change the mailing address and approved users for her credit card. Detective Eric
Catner investigated the case and found that Terry Lewis had attempted to change the account
information of other employees who worked in the financial offices of Wayne County
government. When Lewis was located, he identified DeJuan Whitehead as the source of the
personal identification information belonging to Wayne County employees. Whitehead
reportedly obtained the information from a female employee who worked for Wayne County.
Through the use of the “auto track” system, Detective Catner learned that, at one time,
Whitehead lived with defendant. The auto track system reveals connections between individuals
using references, mailing addresses, credit applications, and other information.
As a result of the investigation, a search warrant was executed at defendant’s residence in
Oakland County. Under some clothing, a blue notebook was recovered from a dresser in
defendant’s bedroom. The blue notebook contained “post-it” self-stick notes with personal
information relating to four Wayne County employees written on them. A dietician employed by
the county identified a post-it note containing her social security number, driver’s license
number, date of birth, phone number, and bank account number. She had provided bank account
information to allow her checks to be deposited directly in her bank account. The dietician did
not know defendant and never authorized her to have this information. A former summer law
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clerk identified a post-it note containing her social security number, date of birth, and driver’s
license number. She did not know defendant and did not authorize her to have this information.
An assistant prosecuting attorney identified a post-it note containing her social security number,
driver’s license number, date of birth, home address, telephone numbers, and bank account
number. The bank account number was provided to the county to allow for direct deposits. The
prosecutor did not know defendant and did not authorize defendant to have that information at
her home.1
Wayne County employees testified that a recently enacted federal law required that the
government protect the social security numbers of employees. Thereafter, employees were given
identification numbers when hired and were identified by this number. Additionally, payroll
department employees had no use for all of the information found on the post-it notes.
Specifically, the payroll department did not maintain records containing driver’s license
numbers. The human resources department would maintain records containing driver’s license
numbers. An employee’s work password limited their access to information dealing with their
department.2 An employee could not log onto the system and obtain information retained for
other departments.
Defendant testified that she was assigned to the management and budget office, but
worked in payroll when necessary. She testified that she was not assigned a password to access
the payroll division information, rather payroll employee Alyse Cade would log onto the system
under her identification and allow defendant to work under her password. Defendant testified
that Cade had to leave early one day and needed to lock up all of the forms. Therefore,
defendant wrote all of the information that she may need for data entry on post-it notes and
placed it in a notebook she used at work.3 Defendant forgot that she had this information and did
not realize that she had taken it home. She learned about the post-it notes after the police
executed a search warrant at her home when she was not present. Defendant testified that she
never utilized the information and did not intend to use the information. She testified that she
did not live extravagantly. However, on cross-examination, defendant admitted that she declared
bankruptcy in 2005. Despite her testimony, defendant was convicted of three counts of stealing
or retaining a financial transaction device without consent.
1
The fourth employee was out of state and did not testify at trial. The trial court granted
defendant’s motion for a directed verdict with regard to the charge concerning this individual.
2
The testimony at trial indicated that file cabinets containing personal information were kept
near the payroll department. The payroll manager testified that defendant had access to the keys,
but defendant denied this assertion.
3
Cade denied the assertion that she had ever allowed defendant to access the computer through
the use of Cade’s password. She also denied the assertion that defendant needed to write
information on post-it notes to allow Cade to leave early. Cade testified that the processing of
direct deposits was not crucial and could wait until the next day if she needed to leave early.
Cade also testified that the information compiled on the post-it notes was not necessary in the
course of the payroll work.
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I. SUFFICIENCY AND GREAT WEIGHT OF THE EVIDENCE
Defendant contends that there was insufficient evidence to support the convictions for
stealing or retaining a financial transaction device without consent, MCL 750.157n(1), or, in the
alternative, that the verdict was against the great weight of the evidence. We disagree. MCL
750.157n(1) provides:
A person who steals, knowingly takes, or knowingly removes a financial
transaction device from the person or possession of a deviceholder, or who
knowingly retains, knowingly possesses, knowingly secretes, or knowingly uses a
financial transaction device without the consent of the deviceholder, is guilty of a
felony.
MCL 750.157m(f) defines “[f]inancial transaction device” as any of the following:
(i) An electronic funds transfer card.
(ii) A credit card.
(iii) A debit card.
(iv) A point-of-sale card.
(v) Any instrument, device, card, plate, code, account number, personal
identification number, or a record or copy of a code, account number, or personal
identification number or other means of access to a credit account or deposit
account, or a driver’s license or state identification card used to access a
proprietary account, other than access originated solely by a paper instrument,
that can be used alone or in conjunction with another access device, for any of the
following purposes:
(A) Obtaining money, cash refund or credit account credit, goods,
services, or any other thing of value.
(B) Certifying or guaranteeing to a person or business the availability to
the deviceholder of funds on deposit to honor a draft or check payable to the order
of that person or business.
(C) Providing the deviceholder access to a deposit account for the purpose
of making deposits, withdrawing funds, transferring funds between deposit
accounts, obtaining information pertaining to a deposit account, or making an
electronic funds transfer as defined in section 3(4) of Act No. 322 of the Public
Acts of 1978, being section 488.3 of the Michigan Compiled Laws.
A challenge to the sufficiency of the evidence is reviewed de novo. People v Martin, 271
Mich App 280, 340; 721 NW2d 815 (2006). When reviewing a claim of insufficient evidence,
this Court reviews the record in a light most favorable to the prosecution to determine whether a
rational trier of fact could find that the essential elements of the crime were proven beyond a
reasonable doubt. In re Contempt of Henry, 282 Mich App 656, 677; 765 NW2d 44 (2009).
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Appellate review of a challenge to the sufficiency of the evidence is deferential. People v
Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000). The reviewing court must draw all
reasonable inferences and examine credibility issues in support of the jury verdict. Id. When
assessing a challenge to the sufficiency of evidence, the trier of fact, not the appellate court,
determines what inferences may be fairly drawn from the evidence and the weight to be accorded
those inferences. People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002). This Court
must not interfere with the jury’s role as the sole judge of the facts when reviewing the evidence.
People v Meshell, 265 Mich App 616, 619; 696 NW2d 754 (2005).
Statutory construction issues present questions of law subject to review de novo. People
v Keller, 479 Mich 467, 473-474; 739 NW2d 505 (2007). When the manifest intention of the
Legislature is derived from the language of a clear statute, nothing will be read into the clear
statute. Bay Co Prosecutor v Nugent, 276 Mich App 183, 189; 740 NW2d 678 (2007). The
Legislature is presumed to intend the meaning it plainly expressed. People v Petty, 469 Mich
108, 114; 665 NW2d 443 (2003), and courts may not speculate as to the intent of the Legislature
beyond the language plainly expressed in the statute. People v Hock Shop, Inc, 261 Mich App
521, 528; 681 NW2d 669 (2004). The function of a reviewing court resolving disputed
interpretations of statutory language is to effectuate the legislative intent. People v Valentin, 457
Mich 1, 5; 577 NW2d 73 (1998). When the statutory language is clear, the courts must enforce
the statute as written. Id. The application of the law to the facts is reviewed de novo. People v
Barrera, 451 Mich 261, 269 n 7; 547 NW2d 280 (1996).
Defendant contends that there was insufficient evidence to convict her because she did
not have a physical card belonging to any of the complainants. That is, she merely “innocently
possessed some personal information/account numbers.” Defendant argues that the possession
of another’s “social security number alone does not qualify as a ‘financial transaction device,’”
and that defendant did not use the information found on the post-it notes to “access a proprietary
account.” Defendant posits that when an intent to defraud has not been shown to exist, there has
been no violation of the statute and insufficient evidence to convict has been presented. We
disagree.
Review of the plain language of the statute at issue reveals that defendant was not
required to possess the physical cards that allow access to proprietary accounts and the
complainants did not need to suffer an actual loss to support the convictions. As previously
stated, MCL 750.157m(f)(v) addresses the conduct at issue by providing:
(v) Any instrument, device, card, plate, code, account number, personal
identification number, or a record or copy of a code, account number, or personal
identification number or other means of access to a credit account or deposit
account, or a driver’s license or state identification card used to access a
proprietary account, other than access originated solely by a paper instrument,
that can be used alone or in conjunction with another access device, for any of the
following purposes:
(A) Obtaining money, cash refund or credit account credit, goods,
services, or any other thing of value.
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(B) Certifying or guaranteeing to a person or business the availability to
the deviceholder of funds on deposit to honor a draft or check payable to the order
of that person or business.
(C) Providing the deviceholder access to a deposit account for the purpose
of making deposits, withdrawing funds, transferring funds between deposit
accounts, obtaining information pertaining to a deposit account, or making an
electronic funds transfer as defined in section 3(4) of Act No. 322 of the Public
Acts of 1978, being section 488.3 of the Michigan Compiled Laws. [MCL
750.157m(f)(v).]
MCL 750.157m(f)(v) does not require actual physical possession of identification numbers that
can be used to access a proprietary account, and an attempt to access a proprietary account need
not occur.4 Rather, a “record or copy” of information that “can be used” to obtain access to
money, credit accounts, or anything of value is sufficient. MCL 750.157m(f)(v)(A) and (C).
Therefore, defendant’s decision to copy the driver’s license numbers, social security numbers,
and bank account numbers without the authorization of the employees is conduct prohibited by
the plain language of the statute. MCL 750.157n; Valentin, 457 Mich at 5. The statute at issue
does not require an actual attempt to gain access to the accounts by the possessor of the copy of
the proprietary information.
Defendant contends that her possession of the information was inadvertent and innocent,
and therefore, there was insufficient evidence to support the convictions. We disagree.
Although defendant testified that she copied the information in the course of her employment,
payroll employee Cade contradicted defendant’s testimony. Cade testified that she did not allow
defendant to access the programs through the use of her password, and the information copied by
defendant was not necessary to complete direct deposits. Additionally, other employees testified
that the information compiled by defendant was not gathered in one location and was not
necessary for the completion of defendant’s work. Although defendant testified that she
gathered the information in the course of her employment and innocently took the information
home, the jury rejected the credibility of those assertions. Nowack, 462 Mich at 400. Therefore,
the challenge to the sufficiency of the evidence to support the convictions is without merit.5
4
The dietician and the assistant prosecuting attorney testified that the information provided was
necessary to allow for the direct deposit of their paychecks into their bank accounts. Therefore,
this testimony demonstrated that this information could access a proprietary account. Moreover,
driver’s license numbers and social security numbers are commonly provided to verify
identification on existing bank or credit accounts and to create new accounts.
5
Defendant contends that the innocent possession and the failure to acquire and use the actual
account numbers also demonstrate that the verdict was against the great weight of the evidence.
In light of the application of the law to the facts of the case, the inferences from the evidence,
and the assessment of the credibility of the witnesses, this challenge is without merit. Nowack,
462 Mich at 400; Barrera, 451 Mich at 269 n 7. In a Standard Four brief, defendant asserted that
the information provided that the crime occurred in 2007, but trial testimony demonstrated that
the information was gathered in 2005. MCL 750.157n(1) criminalizes the knowing retention and
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II. CONSTITUTIONAL CHALLENGE
Next, defendant challenges the constitutionality of the statute as vague and overbroad
both on its face and as applied to defendant. We disagree. Statutes are presumed to be
constitutional. People v Harper, 479 Mich 599, 621; 739 NW2d 523 (2007). To overcome this
presumption, the unconstitutionality must be readily apparent. In re McEvoy, 267 Mich App 55,
68; 704 NW2d 78 (2005). “The party challenging a statute’s constitutionality cannot merely
claim unconstitutionality, but has the burden of proving its invalidity.” Id. “The presumption of
constitutionality may justify a narrow construction or even a construction against the natural
interpretation of the statutory language.” People v Lueth, 253 Mich App 670, 675; 660 NW2d
322 (2002). In People v Hrlic, 277 Mich App 260, 263; 744 NW2d 221 (2007), this Court
delineated the rules applicable to a statute challenged as unconstitutionally vague:
A statute may be unconstitutionally vague on any of three grounds: (1) it
is overbroad, impinging on First Amendment freedoms, (2) it fails to provide fair
notice of the conduct proscribed, or (3) it is so indefinite that it confers unlimited
and unstructured discretion on the trier of fact to determine whether an offense
has occurred. To evaluate a vagueness challenge, this Court must examine the
entire text of the statute and give the words of the statute their ordinary meanings.
“To afford proper notice of the conduct proscribed, a statute must give a person of
ordinary intelligence a reasonable opportunity to know what is prohibited.” A
term that requires persons of ordinary intelligence to speculate about its meaning
and differ on its application may not be used. To be sufficiently definite, the
meaning of a term must be “fairly ascertainable by reference to judicial
interpretations, the common law, dictionaries, treatises, or the commonly accepted
meanings of words.” Vagueness challenges must be considered in light of the
facts at issue. [Citations omitted.]
A defendant may not challenge a statute as unconstitutionally vague when the defendant’s own
conduct is fairly within the constitutional scope of the statute. People v Hill, 269 Mich App 505,
525; 715 NW2d 301 (2006). The fact that a hypothetical may be posed that would cast doubt
upon the statute does not render it unconstitutionally vague. People v Derror, 475 Mich 316,
337; 715 NW2d 822 (2006). Rather, the analysis must center on whether the statute, as applied
to the actions of the individual defendant, is constitutional. Id.
The statute at issue, MCL 750.157n(1) criminalizes the knowing retention and possession
of a financial transaction device without the consent of the deviceholder. A financial transaction
device refers to any record or copy of an account number or personal identification number that
can be used to access money, credit, a deposit account, or any other thing of value. MCL
750.157m(f)(v)(A) and (C). In the present case, defendant copied account numbers belonging to
the complainants and had that information in her personal possession without their consent.
Defendant was entitled to access some of the information in the course of her employment, but
nonetheless, took the information to her home. The jury rejected defendant’s testimony that her
possession of the information was inadvertent and the result of a mistake. Although the
possession of a financial transaction device. Therefore, the challenge to the timeframe is without
merit.
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monetary and credit accounts of the complainants had not yet been compromised, the statute at
issue punishes retention or possession of a financial transaction device that can be used to access
proprietary accounts. Accordingly, defendant’s challenge to the constitutionality of the statute
with regard to her conduct is without merit.6
III. VENUE
Defendant argues that she was wrongfully convicted because the action was tried in
Wayne County, but the evidence introduced at trial was recovered in Oakland County. We
disagree. “A trial court’s determination regarding the existence of venue in a criminal
prosecution is reviewed de novo.” People v Fisher, 220 Mich App 133, 145; 559 NW2d 318
(1996).
Generally, a defendant must be tried in the county where the crime is committed. People
v Jendrzejewski, 455 Mich 495, 499; 566 NW2d 530 (1997). Jurisdiction addresses the judicial
power to hear and determine a criminal prosecution whereas venue relates to and defines where
the prosecution is to be brought or tried. People v Gayheart, 285 Mich App 202, 215-216; 776
NW2d 330 (2009). Although venue is not an essential element of a crime, it must be proven
beyond a reasonable doubt, and the determination regarding venue presents a factual issue for the
jury. Id. at 216. Venue may be proven by circumstantial evidence and reasonable inferences
drawn from the evidence. Id.
“Whenever a felony consists or is the culmination of 2 or more acts done in the
perpetration thereof, said felony may be prosecuted in any county in which any 1 of said acts was
committed.” MCL 762.8. When applying MCL 762.8, the location of the commission of an act
is not limited to the place of the defendant’s physical presence. Fisher, 220 Mich App at 151152. Rather, when an act has effects elsewhere that are essential to the offense, the offense is
effectively committed in the place where the act has its effects. Id. Although evidence was
retrieved from defendant’s Oakland County residence, the personal information was taken in the
course of defendant’s employment in Wayne County. Contrary to the argument raised by the
defense, the date of the offense as stated in the information is not the test for determining venue.
Accordingly, this claim of error is without merit.
6
Defendant contends that the statute is impermissibly vague because it does not identify the
specific types of information, such as social security number or driver’s license number, which is
improper to possess. In the present case, defendant gained access to the driver’s license number,
social security number, and bank account information of employees in the course of her
employment. This information allowed access to proprietary accounts because it allowed direct
deposits of paychecks into the account of the employee. Because defendant’s conduct falls
squarely within the terms of the statute, her challenge fails. Derror, 475 Mich at 337. Defendant
also posits that the statute criminalizes the gathering of account information by bank employees
and Secretary of State employees. The presentation of hypothetical scenarios does not alter the
conclusion that defendant’s conduct falls within the scope of the statute. Id. Moreover, there is a
distinction between the provision of account information to an employee with the consent of the
deviceholder for purposes of engaging in a transaction and the subsequent, nonconsensual
appropriation by an employee outside the scope of one’s employment.
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IV. BAD ACTS EVIDENCE
Defendant asserts that her convictions must be reversed or vacated because the trial court
improperly admitted other prior bad acts evidence that was more prejudicial than probative
particularly when other persons committed the improper acts. We disagree. A trial court’s
decision to admit evidence is reviewed for an abuse of discretion. People v Katt, 468 Mich 272,
278; 662 NW2d 12 (2003). When the decision to admit evidence involves a preliminary
question of law, such as whether an evidentiary rule precludes admission of the evidence, this
issue of law is reviewed de novo. Id. An abuse of discretion occurs when the trial court selects
an outcome that falls outside the range of reasonable and principled outcomes. People v
Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).
Defendant’s assertion of error is simply without merit. The prosecution did not seek
permission to present other acts evidence in accordance with MRE 404(b). Rather, the evidence
was offered to show that the investigation was initiated by the report of identity theft of a number
of Wayne County employees and how investigators came to focus on defendant. It is proper to
provide background information to the jury to allow them to examine the full transaction. “The
more the jurors kn[ow] about the full transaction, the better equipped they [are] to perform their
sworn duty.” People v Sholl, 453 Mich 730, 742; 556 NW2d 851 (1996).
It is the nature of things that an event often does not occur singly and
independently, isolated from all others, but, instead, is connected with some
antecedent event from which the fact or event in question follows as an effect
from a cause. When such is the case and the antecedent event incidentally
involves the commission of another crime, the principle that the jury is entitled to
hear the “complete story” ordinarily supports the admission of such evidence.
State v Villavicencio, 95 Ariz 199; 388 P2d 245 (1964); People v Wardwell, 167
Cal App 2d 560; 334 P2d 641 (1959); McCormick on Evidence (2d ed), § 190.
[People v Delgado, 404 Mich 76, 83; 273 NW2d 395 (1978).]
Evidence of other criminal acts is admissible when it explains the circumstances of the crime.
Sholl, 453 Mich at 742 (citations omitted). In light of the limited purpose for the evidence, the
prosecution was not required to file a motion to admit prior bad acts evidence. Thus, this issue
does not entitle defendant to appellate relief.
V. MOTION TO SUPPRESS
Lastly, defendant contends that the trial court erred by denying the motion to suppress
evidence because the search warrant lacked probable cause and the affidavit contained false
information. We disagree. On appeal, the trial court’s findings of fact on a motion to suppress
evidence are reviewed for clear error, but the trial court’s ultimate decision on the motion is
reviewed de novo. People v Williams, 472 Mich 308, 313; 696 NW2d 636 (2005). “A finding is
clearly erroneous when, although there is evidence to support it, the reviewing court is left with a
definite and firm conviction that a mistake has been made.” People v Lanzo Constr Co, 272
Mich App 470, 473; 726 NW2d 746 (2006).
A search warrant may only be issued upon a showing of probable cause. US Const, Am
IV; Const 1963, art 1, § 11; MCL 780.651(1). Probable cause for issuance of a search warrant
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exists if there is a substantial basis for inferring a fair probability that contraband or evidence of
a crime exists in the location to be searched. People v Unger, 278 Mich App 210, 244; 749
NW2d 272 (2008). When reviewing a magistrate’s decision to issue a search warrant, this Court
must examine the search warrant and underlying affidavit in a common-sense and realistic
manner. People v Darwich, 226 Mich App 635, 636-637; 575 NW2d 44 (1997). Under the
totality of the circumstances, this Court must then determine whether a reasonably cautious
person could have concluded that there was a substantial basis for the magistrate’s finding of
probable cause. Id. at 637. When a person of reasonable caution would conclude that
contraband or evidence of criminal conduct will be found in the place to be searched, probable
cause for a search exists. Id.
Defendant contends that probable cause was lacking because defendant’s name was never
mentioned in the search warrant, there was no nexus to defendant’s home, the search warrant
contained untrue statements, and the information was stale.7 The trial court held an evidentiary
hearing and rejected defendant’s challenges to the search warrant.
Review of the search warrant and affidavit in a common-sense and realistic manner,
Darwich, 226 Mich App at 636-637, reveals that the trial court did not err by denying the motion
to suppress. Review of the affidavit reveals that the detective set forth the reason for the
investigation into identity theft, the complaint from a county official regarding employee targets
of identify theft, the initial person suspected in the crimes, and the information provided by the
first suspect regarding associates. Defendant contends that deliberate falsehoods were placed
into the affidavit. Specifically, it was asserted that the county employee allegedly involved in
the crimes was the aunt of a suspect. However, the detective deliberately omitted this
information and merely indicated that a female employee was involved. Defendant also asserts
that the specific county building involved was never delineated, but the detective chose the
building located on Randolph Street. When questioned regarding these challenges, the detective
testified that defendant was identified as an “aunt” of a suspect, but she was not a blood relative,
but merely a close friend. Additionally, the detective noted that the primary complainants and
the financial division were housed in the Randolph building. The trial court concluded that the
factual challenges did not constitute falsehoods that would invalidate the search warrant, and we
cannot conclude that the factual findings are clearly erroneous. Williams, 472 Mich at 313.
Finally, with regard to the staleness of the information, defense counsel did not question the
detective regarding the timeframe between the interviews with the suspects and the execution of
the search warrant. Because a factual record to support defendant’s claim was never developed,
the issue has been abandoned. People v Howard, 226 Mich App 528, 537; 575 NW2d 16
(1997).8
7
At the evidentiary hearing, defendant did not argue that the information was stale, and the trial
court did not rule on the issue.
8
We note that defendant filed a Standard Four brief that challenges the scope of MCL 750.157n
and the great weight of the evidence. These issues were raised in the brief on appeal filed by
counsel. Defendant contends that there was no testimony that post-it notes would allow access to
proprietary accounts. Detective Catner testified that an investigation was triggered because of
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Affirmed.
/s/ Alton Thomas Davis
/s/ Karen Fort Hood
/s/ Deborah A. Servitto
the dissemination of personal information belonging to Wayne County employees. This
dissemination had resulted in changes to credit card information and attempts by other
individuals to be added to legitimate accounts. As previously stated, these issues are without
merit.
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