State v. Weimer

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[Cite as State v. Weimer, 2014-Ohio-2882.] IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO STATE OF OHIO, Plaintiff-Appellee, : OPINION : CASE NO. 2013-L-005 - vs - : DANNA WEIMER, : Defendant-Appellant. : Criminal Appeal from the Lake County Court of Common Pleas, Case No. 12 CR 000426. Judgment: Affirmed in part; reversed in part; vacated in part; and remanded. Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee). Russell S. Bensing, 1370 Ontario Street, 1350 Standard Building, Cleveland, OH 44113 (For Defendant-Appellant). COLLEEN MARY O TOOLE, J. {¶1} Appellant, Danna Weimer, appeals from the December 13, 2012 judgment of the Lake County Court of Common Pleas, sentencing her for receiving stolen property, possession of drugs, possession of heroin, possession of cocaine, possession of dangerous drugs, aggravated possession of drugs, tampering with evidence, aggravated burglary, aggravated murder, and engaging in a pattern of corrupt activity. {¶2} This case arises from the burglary of Eleanor Robertson s ( Robertson ) home and her death by homicide on June 12, 2012. On August 14, 2012, appellant was indicted by the Lake County Grand Jury on 17 counts involving Robertson and two other victims, Egidius Stroombeek ( Stroombeek ) and Paul Hatcher ( Hatcher ): counts 1 and 3, receiving stolen property, felonies of the fifth degree, in violation of R.C. 2913.51(A); counts 2 and 4, receiving stolen property, misdemeanors of the first degree, in violation of R.C. 2913.51(A); count 5, possession of drugs, a felony of the fourth degree, in violation of R.C. 2925.11; count 6, possession of drugs, a felony of the fifth degree, in violation of R.C. 2925.11; count 7, possession of heroin, a felony of the fifth degree, in violation of R.C. 2925.11; count 8, possession of cocaine, a felony of the fifth degree, in violation of R.C. 2925.11; count 9, possession of dangerous drugs, a misdemeanor of the first degree, in violation of R.C. 4729.51(C)(3); count 10, aggravated possession of drugs, a felony of the fifth degree, in violation of R.C. 2925.11; counts 11 and 12, receiving stolen property, felonies of the fourth degree, in violation of R.C. 2913.51(A); counts 13 and 14, tampering with evidence, felonies of the third degree, in violation of R.C. 2921.12(A)(1); count 15, aggravated burglary, a felony of the first degree, in violation of R.C. 2911.11(A)(1); count 16, aggravated murder, an unclassified felony, in violation of R.C. 2903.01(B); and count 17, engaging in a pattern of corrupt activity, a felony of the first degree, in violation of R.C. 2923.32(A)(1).1 Appellant was appointed counsel. She waived her right to be present at the arraignment and the trial court entered a not guilty plea on her behalf. 1. Appellant s co-defendant and son, Zachary R. Weimer ( Zachary ), was separately indicted, tried, and convicted. 2 {¶3} Discovery and motion practice ensued. In August 2012, appellant filed various motions, including a motion in limine seeking to exclude certain handwritten letters as well as two motions to suppress. Appellee, the state of Ohio, filed responses. Following a hearing, the trial court denied appellant s motions to suppress on September 26, 2012.2 {¶4} A jury trial commenced on October 1, 2012. presented 37 witnesses and nearly 300 exhibits. At the trial, the state The testimony revealed that Robertson was an active 77-year-old woman who lived alone on Canterbury Drive in Madison Township, Lake County, Ohio. She was known throughout her neighborhood for selling raffle tickets to raise money for various organizations and for paying kids in cash for helping her around her house. {¶5} In the early morning hours on June 13, 2012, two neighbors, Jerry Deel ( Deel ) and Christine Arnold ( Arnold ), noticed that Robertson s garage door was open and that her van was not inside. Both Deel and Arnold found this very unusual because Robertson always closed her garage door. Later that afternoon, the neighbors observed all of Robertson s curtains closed, another unusual sighting. The neighbors then noticed that Robertson s garage door was closed, and assumed that she was home. However, attempts to reach Roberston via telephone were unsuccessful. Thus, Deel and Arnold went to Robertson s house, knocked on the door, but received no answer. 2. The trial court docket does not reflect a ruling on appellant s motion in limine, however, a later objection to the introduction of the letters was overruled at trial. 3 {¶6} Thereafter, the neighbors contacted Robertson s family. Her son, Scott Robertson ( Scott ), arrived at his mother s home around 7:15 p.m. Scott tried to enter the home via the code to the garage door pad, but was unsuccessful. He found a small, unlocked window, which Arnold climbed through in order to gain access into the residence. Inside, they found Robertson s home in disarray. Numerous items were scattered all over the floor, candles were burning, the front door was barricaded from the inside, and there was a strong smell of cleaning supplies. They also noticed that Robertson s van was missing from the garage. Thus, Arnold called 9-1-1. {¶7} Sergeant Ralph Caswell ( Sergeant Caswell ) with the Madison Township Police Department ( MTPD ) was the first officer to arrive at Robertson s house. After determining that the home had been burglarized, Sergeant Caswell called for assistance to help him process the scene. He also issued a Silver Alert, i.e., a bulletin to notify the community when an elderly person is missing. Jamie Walsh ( Walsh ), a forensics examiner with the Lake County Crime Lab, and his team, later arrived at the residence and began processing the scene. Robertson s body was ultimately discovered in her bedroom, partially under her mattress and a pile of clothing. {¶8} The following day, Dr. Erica Armstrong ( Dr. Armstrong ) with the Cuyahoga County Coroner s Office performed an autopsy on Robertson s body. Dr. Armstrong determined that Robertson had sustained both blunt force and sharp force injuries to her head, trunk, arms, legs, abdomen, back, neck, and shoulders. Dr. Armstrong also determined that Robertson had been stabbed 94 times. Robertson s body also had some charring and some alteration by some type of chemical. It was not possible to narrow down the exact time of death. However, Dr. Armstrong indicated that 4 the time of death was consistent with information regarding when Robertson s friends last had contact with her and when her body was found. {¶9} In addition to the foregoing evidence, it was also revealed at trial that prior to the discovery of Robertson s dead body at her home, appellant and her son, Zachary, were involved in an incident with the Euclid Police Department ( EPD ). Around 5:30 p.m. on June 13, 2012, Patrolman Donald Ivory ( Patrolman Ivory ) with the EPD was on general patrol duty. He was patrolling a high drug activity area near Gold Werks, a local pawn shop. {¶10} Patrolman Ivory observed a woman slumped over in the front seat of her vehicle. When Patrolman Ivory approached the woman to see if she needed any assistance, he saw that she was actually leaning over into the passenger seat and touching a magnet to several pieces of jewelry. He also saw a large box of jewelry on the floor of her vehicle. The woman indicated that the jewelry belonged to her son who was inside the pawn shop. Patrolman Ivory asked the woman for her identification. As she was going through her purse, Patrolman Ivory observed a syringe. The car was full of belongings and a digital scale was also observed inside of her purse. The woman was identified as appellant. {¶11} Patrolman Ivory testified that after appellant s son exited Gold Werks, he told Patrolman Ivory that his name was Gregory, that he did not have any identification on him, and that the jewelry in the car belonged to his mother. However, a later search of his person revealed that he did in fact have an identification card and that his name was Zachary Weimer. Both appellant and Zachary were arrested. Appellant s vehicle 5 was searched and towed. A strongbox was found in appellant s car bearing the name, E. Robertson. {¶12} Shorty after the Euclid incident, the EPD learned of a Silver Alert for a missing elderly woman in Madison Township named Eleanor Robertson and contacted the MTPD. Lieutenant Tim Brown ( Lieutenant Brown ) with the MTPD testified that after speaking with Patrolman Ivory, he learned about the strongbox that was found in appellant s vehicle in Euclid with the name, E. Robertson. Because the victim s name in the Madison Township case was Eleanor Robertson, Lieutenant Brown and Detective Timothy Doyle ( Detective Doyle ), also with the MTPD, went to the EPD. They initially met with Patrolman Ivory and other EPD officers. Thereafter, Lieutenant Brown and Detective Doyle interviewed appellant and Zachary. Detective Doyle testified that appellant was not truthful when questioned by the officers. {¶13} Investigation on the case continued. At trial, Nestor Angulo ( Angulo ) and Patrick Finney ( Finney ), who both knew appellant and Zachary for a long time, along with Detective Elizabeth Kirk with the MTPD, collectively indicated that appellant and Zachary were drug abusers. To support their habits, appellant and Zachary would sell items at local pawn shops. Finney and Joseph Krizman ( Krizman ), who also knew appellant and Zachary, testified that appellant worked as a cleaning lady in exchange for drugs and money. {¶14} Appellant s other son, Greg Weimer ( Greg ), and his live-in girlfriend, Erin Perkins ( Perkins ), testified that appellant and Zachary were always together and that appellant drove Zachary everywhere because he did not have a car. Greg indicated that appellant had been Robertson s neighbor for many years when she lived on 6 Canterbury Drive. At the time of this case, appellant resided on Sexton Road in Geneva, Ashtabula County, Ohio, with her boyfriend, Joe Skilthorpe, who installed a video surveillance system on the property. Greg further indicated that Zachary was living with him on Canterbury Drive, across the street from Robertson s house. {¶15} Perkins and Megan Cool ( Cool ), another Canterbury Drive neighbor, saw appellant and Zachary at Greg s house shortly before noon on June 12, 2012. Cool observed appellant and Zachary outside of Greg s residence engaged in a loud argument with four or five people. According to Greg, appellant and Zachary subsequently left his home and went to Andover Bank to cash a forged check of Greg s for $100. Thereafter, Angulo testified that he received eight calls from Zachary. Angulo indicated that appellant and Zachary met with him because they wanted drugs. However, Angulo was unable to provide them with any. {¶16} Further, Greg testified that the day before the argument at his house, Zachary had cashed a forged check of Greg s for $150. Greg additionally indicated that he had recently loaned Zachary $200. After finding out from the bank about the forged checks, Greg became angry. He demanded that he be paid back. {¶17} Later on in the afternoon on June 12, 2012, Finney and Krizman indicated that appellant went to a house on Benjamin Road in Madison Township, which was occupied by several of Zachary s previous friends. Finney stated that Zachary briefly lived at that house until he was thrown out for stealing. According to Finney and Krizman, although Zachary was no longer welcome at the house, appellant was, and she would go there to cook and clean for the men in exchange for cash or drugs. Finney said that appellant did drugs every time she went there. During the afternoon at 7 issue, appellant went to buy drugs with two men from the Benjamin Road house, and later left the residence between 7:30 and 8:00 p.m. {¶18} After appellant left the Benjamin Road house, cell phone records and video from her Sexton Road home surveillance system, which were admitted at trial as state s exhibits, reveal her movements and contact with Zachary. Appellant s cell phone hit off a tower near Robertson s house at 8:30 p.m. Appellant did not return to her own home until 9:46 p.m. Appellant and Zachary had frequent communication throughout the night and early morning hours via cell phone and text messages. At 4:44 a.m., on June 13, 2012, Zachary arrived at appellant s home on Sexton Road in Robertson s van. Zachary unloaded Robertson s belongings near appellant s vehicle. When he was finished, Zachary left appellant s house in Robertson s van to purchase drugs from Charles McElroy ( McElroy ). McElroy testified that Zachary called him three times on June 12 and eight times on June 13, 2012. McElroy said that Zachary bought heroin and was driving a van that he had never seen before. {¶19} Zachary returned to appellant s home in Robertson s van at 10:56 a.m. Appellant helped Zachary dispose Robertson s van and sort through her property. They placed some of Robertson s belongings in appellant s car and some others in a safe in appellant s bedroom. Appellant and Zachary disposed some remaining items in a burn pile in appellant s backyard. Thereafter, appellant and Zachary took Robertson s property to Gold Werks in Euclid, where they were caught by Patrolman Ivory. {¶20} After their arrest, Robertson s family members positively identified over 50 pieces of Robertson s jewelry and other household items, which were found in appellant s vehicle as well as in a locked safe in appellant s bedroom. In addition, 8 Robertson s son, Scott, and Robertson s daughter, Penny Borton, testified that Nutrigrain bars were missing from their mother s home. They indicated that Robertson always kept a basket on her counter containing between 20 and 40 Nutrigrain bars. They stated that Robertson would use scissors to cut the end of the wrappers. Detective Doyle and forensics examiner Walsh testified that a Nutrigrain bar wrapper with the same lot number as those missing from Robertson s home was found on appellant s bed. They also indicated that other Nutrigrain bar wrappers with ripped off ends were found in garbage cans in both Robertson s and appellant s homes. {¶21} Further information concerning Robertson s murder was obtained from Richard Gould ( Gould ), a Lake County Jail inmate. Gould testified that he indicated to authorities that Zachary told him the following: Zachary and his buddy went to an elderly woman s home who had a safe with jewelry and cash; they knocked on the door and rushed into the house when she answered; Zachary stabbed the woman with a screw driver until he got tired, then moved her body to her bed; Zachary and his buddy barricaded the door, lit candles to make the death look accidental, rummaged through the home for anything they could sell, and cleaned the house with bleach to destroy any evidence; and they loaded up the woman s property into her van and left her house. According to Gould, Zachary did not reveal the identity of his buddy. {¶22} In addition to telling authorities about the foregoing information, Gould provided them with letters written by appellant and Zachary, which Gould stored for Zachary in Gould s jail cell. Additional letters were also recovered from appellant s and Zachary s cells. Collectively, the letters, which were admitted at trial as state s exhibits, 9 revealed an attempt to cover up the crimes. Appellant and Zachary discussed remaining silent and keeping their stories straight. {¶23} Lastly, during the investigation involving Robertson, two other victims, Hatcher and Stroombeek, were discovered. Hatcher s name was on prescription medication bottles found in appellant s safe. Hatcher testified that appellant did not have his permission to take his medications. Also found in appellant s safe was medication and jewelry belonging to Stroombeek. Lisa Ungers ( Ungers ) testified that Stroombeek is like a father to her. Ungers indicated that appellant had been Stroombeek s cleaning lady and caregiver. Ungers and Michael Cutler, a business associate of Stroombeek s, testified that appellant was fired after she made unauthorized purchases on Stroombeek s credit card, in addition to other behaviors and violations. {¶24} At the close of the state s case, defense counsel moved for a Crim.R. 29 judgment of acquittal, which was denied by the trial court. Defense counsel renewed its Crim.R. 29 motion after it rested, which was again denied. The trial judge instructed the jury on the law, both sides gave closing arguments, and the case was submitted to the jury. {¶25} Following deliberations, the jury returned guilty verdicts on all counts of the indictment. The trial court deferred sentencing and referred the matter to the Adult Probation Department for a pre-sentence investigation and report, a victim impact statement, and a drug and alcohol evaluation. 10 {¶26} On December 13, 2012, the trial court sentenced appellant to the following: count 1, 12 months in prison; count two, 120 days in jail (merged with all felony sentences); count three, 12 months in prison; count 4, 120 days in jail (merged with all felony sentences); count 5, 18 months in prison; count 6, 12 months in prison; count 7, 12 months in prison; count 8, 12 months in prison; count 9, 120 days in jail (merged with all felony sentences); count 10, 12 months in prison; count 11, 18 months in prison; count 12, 18 months in prison; count 13, 36 months in prison; count 14, 36 months in prison; count 15, 11 years in prison; count 16, a life sentence with parole eligibility after 30 years; and count 17, 11 years in prison. Counts 13, 16, and 17 are to be served consecutive to each other and concurrent to the sentences imposed on all other counts for a total of 44 years to life in prison. Appellant filed a timely appeal and asserts the following assignments of error: {¶27} [1.] The trial court erred by failing to grant a judgment of acquittal, pursuant to Crim.R. 29(A), on the charges of aggravated burglary and aggravated murder, and thereafter entering a judgment of conviction of those offenses which was not supported by sufficient evidence, in derogation of Defendant s right to due process of law, as protected by the Fourteenth Amendment to the United States Constitution. {¶28} [2.] The trial court erred by entering a judgment of conviction of aggravated burglary and aggravated murder that was against the manifest weight of the evidence, in derogation of Defendant s right to due process of law, as protected by the Fourteenth Amendment to the United States Constitution. 11 {¶29} [3.] The trial court erred by failing to grant a judgment of acquittal, pursuant to Crim.R. 29(A), on the charge of engaging in a pattern of corrupt activity, thereby entering a judgment of conviction of that offense which was not supported by sufficient evidence, in derogation of Defendant s right to due process of law, as protected by the Fourteenth Amendment to the United States Constitution. {¶30} [4.] The trial court erred by entering a judgment of conviction of engaging in a pattern of corrupt activity that was against the manifest weight of the evidence, in derogation of Defendant s right to due process of law, as protected by the Fourteenth Amendment to the United States Constitution. {¶31} [5.] The trial court erred in admitting hearsay evidence concerning statements made by a co-defendant, in violation of Defendant s right to confrontation, as protected by the Sixth Amendment to the United States Constitution. {¶32} Preliminarily, we note that appellant does not take issue with the suppression or her sentence. Rather, appellant s appeal centers around issues related to her trial. For ease of discussion, we will address appellant s assignments of error out of order. Appellant s first and fifth assignments are interrelated. Thus, we will discuss them in a consolidated fashion beginning with the fifth assignment. {¶33} In her fifth assignment of error, appellant argues that the trial court erred in admitting hearsay evidence concerning statements made by Zachary, her co-defendant, in violation of her right to confrontation, as protected by the Sixth Amendment to the United States Constitution. 12 {¶34} In her first assignment of error, appellant argues that the trial court erred in failing to grant her Crim.R. 29(A) judgment of acquittal on the charges of aggravated burglary and aggravated murder, against the sufficiency of the evidence. {¶35} The Sixth Amendment to the United States Constitution provides: In all criminal prosecutions, the accused shall enjoy the right (* * *) to be confronted with the witnesses against him (* * *). The United States Supreme Court, in Crawford v. Washington, 541 U.S. 36, 51 (2004), determined the Confrontation Clause applies to witnesses against the accused in other words, those who bear testimony. The Supreme Court held the right to confrontation applies to all testimonial statements. Id. at syllabus. To determine whether a statement is testimonial in nature, the proper inquiry is whether a reasonable person in the declarant s position would anticipate his statement being used against the accused in investigating and prosecuting the crime. State v. Metter, 11th Dist. Lake No. 2012-L-029, 2013-Ohio-2039, ¶35, quoting United States v. Cromer, 389 F.3d 662, 675 (6th Cir.2004). {¶36} Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers design to afford the States flexibility in their development of hearsay law as does [Ohio v. Roberts, 448 U.S. 56 (1980)], and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. (Emphasis added.) Crawford at 68. In Crawford, the Supreme Court noted that a statement made in furtherance of a conspiracy is an example of an inherently non-testimonial statement. Id. at 56. 13 {¶37} With regard to appellant s evidence argument, hearsay is defined as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Evid.R. 801(C). Hearsay is inadmissible at trial, unless it falls under an exception to the Rules of Evidence. Evid.R. 802. Evid.R. 801(D)(2)(e) provides that hearsay does not include a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy upon independent proof of the conspiracy. {¶38} While in jail awaiting trial, Zachary allegedly made statements to Gould, also a Lake County Jail inmate. Zachary told Gould that he went to Robertson s door, she answered, and he bum-rushed her and entered the home. Zachary also told Gould that him and his buddy were at Robertson s home; that after he stabbed Robertson, him and his buddy then put her in a bed and were going to cover-up the crime; and that his buddy cleaned the blood that was left around the house. Zachary never revealed the identity of his buddy. {¶39} Zachary s statements concerning the crime were not made for later use in a prosecution, and thus, the statements are inherently nontestimonial. Co-conspirator statements are inherently nontestimonial because the purpose for making the statements is not for later use at trial. See United States v. Mooneyham, 473 F.3d 280, 286 (6th Cir. 2007) (applying Crawford to co-conspirator statements). Moreover, as stated, the Crawford Court specifically identified statements in furtherance of a conspiracy as examples of statements that are inherently nontestimonial. See Crawford at 56. 14 {¶40} Here, statements made to Gould were admitted into evidence presumably under the theory that they were statements by a co-conspirator made in furtherance of the conspiracy, which are not hearsay statements. Again, Evid.R. 801(D)(2)(e) indicates that a statement is not hearsay if it is a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy upon independent proof of the conspiracy. Statements testified to by Gould were not made during the course of the conspiracy. Assuming however arguendo the statements were made during the course of the alleged conspiracy, the statements were not made in furtherance of the alleged conspiracy in an effort to conceal it. A conspiracy does not necessarily end with the commission of the crime. A statement made by a co-conspirator after the crime may be admissible under Evid.R. 801(D)(2)(e) if it was made in an effort to conceal the crime. State v. Braun, 8th Dist. Cuyahoga No. 91131, 2009-Ohio-4875, ¶109. (Citation omitted.) Appellant asserts the trial court erred in admitting Gould s testimony, as it is not excluded as hearsay by Evid.R. 801(D)(2)(e), because Zachary s statements to Gould were not made in an effort to conceal the crime. {¶41} In general, a co-conspirator s statements to a third party which simply describe the events that occurred are not made in furtherance of the conspiracy. Braun, supra, at ¶113. For example, in Braun, the Eighth Appellate District determined the trial court erred in its admission of statements made by a co-conspirator to an individual while they shared the same pod in the Cuyahoga County Jail. The co-conspirator bragged about the death of the victim, stating that he and the appellant called the victim for drugs and to set up a robbery. The co-conspirator relayed that he and the appellant robbed the victim, shot the victim, then disposed of the victim s body and the bloody 15 vehicle. The victim was found with two gunshots in the head in a burning vehicle. The Eighth Appellate District found that the aforementioned statements bragging about the murder were not made in furtherance of the conspiracy and thus inadmissible. {¶42} Akin to the statements in Braun, Zachary s statements to Gould were not made in furtherance of the conspiracy, but were a recitation of events that occurred prior to, during, and immediately following her murder. The admission of Gould s statements violated appellant s rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution. {¶43} Although the trial court committed constitutional error, such error can be harmless in certain circumstances. {¶44} A constitutional error can be held harmless if we determine that it was harmless beyond a reasonable doubt. Whether a Sixth Amendment error was harmless beyond a reasonable doubt is not simply an inquiry into the sufficiency of the remaining evidence. Instead, the question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction. State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, ¶78. (Citation omitted.) {¶45} Appellant was charged with aggravated burglary, a felony of the first degree, in violation of R.C. 2911.11(A)(1), which states: [n]o person, by force, stealth, or deception, shall trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, when another person other than an accomplice of the offender is present, with purpose to commit in the structure or in the separately secured or separately occupied portion of the structure any criminal 16 offense, if * * * [t]he offender inflicts, or attempts or threatens to inflict physical harm on another[.] {¶46} Appellant was also charged with aggravated murder, an unclassified felony, in violation of R.C. 2903.01(B), which states: [n]o person shall purposely cause the death of another * * * while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit, kidnapping, rape, aggravated arson, arson, aggravated robbery, robbery, aggravated burglary, burglary, trespass in a habitation when a person is present or likely to be present, terrorism, or escape. {¶47} In this case, appellant was prosecuted under a theory of complicity. To support a conviction for complicity by aiding and abetting * * *, the evidence must show that the defendant supported, assisted, encouraged, cooperated with, advised, or incited the principal in the commission of the crime, and that the defendant shared the criminal intent of the principal. State v. Johnson, 93 Ohio St.3d 240, syllabus (2001). Such intent may be inferred from the circumstances surrounding the crime. Id. Criminal intent * * * can be inferred from the presence, companionship and conduct of a criminal defendant both before and after the offense is committed, State v. Pruett (1971), 28 Ohio App.2d 29, 34, * * *, and may be proven by either direct or circumstantial evidence. See State v. Mootispaw (1996), 110 Ohio App.3d 566, 570, * * *; State v. Cartellone (1981), 3 Ohio App.3d 145, 150, * * *. State v. Nievas, 121 Ohio App.3d 451, 456-457 (8th Dist.1997). (Parallel citations omitted.) {¶48} At trial, the state s position was that appellant was apparently either waiting around to pick up Zachary or helping him at Robertson s house. The state argued at trial that appellant, who was Robertson s neighbor for many years, was the 17 mastermind behind the plan. As stated, on the day of the burglary and Robertson s murder, two neighbors, Perkins and Cool, saw appellant and Zachary shortly before noon at Greg s Canterbury Drive home, across the street from Robertson s house. Cool observed appellant and Zachary outside of Greg s residence engaged in a loud argument with four or five people. Finney and Krizman, along with Dustin May and Mark Pfouts, testified that Zachary would steal, use other people s drugs, and owed drug money. {¶49} According to Greg, appellant and Zachary subsequently left his home and went to Andover Bank to cash a forged check of Greg s, the second forged check in two days. After finding out from the bank about the forged checks, Greg became angry. He demanded that he be paid back. Zachary promised to pay Greg back for the money he took. Thereafter, Angulo testified that he received eight calls from Zachary. Angulo indicated that appellant and Zachary met with him because they wanted drugs. However, Angulo was unable to provide them with any. Appellant and Zachary were in desperate need for money to pay back Greg as well as for money to buy other drugs. {¶50} Around 2:30 that afternoon, appellant s cell phone hit off a cell tower near Robertson s house. The state theorized that one could reasonably conclude that appellant dropped off Zachary at or near Robertson s home. Finney and Krizman indicated that appellant later went to the Benjamin Road house to do drugs. While there, she and Zachary exchanged text messages. Appellant texted Zachary that she was going home and he responded that he would talk to her later. Appellant left the Benjamin Road residence between 7:30 and 8:00 p.m. Around 8:30 p.m., appellant s cell phone again hit off a cell tower near Robertson s house. 18 Around 9:15 p.m., appellant texted Zachary wondering if everything was okay between him and Greg. Zachary did not respond to her text. Appellant returned to her own home on Sexton Road at 9:46 p.m. {¶51} Shortly after 10:00 p.m., appellant sent a text message to Zachary for him to call her ASAP. At 10:18 p.m., appellant called Zachary. They spoke for 95 seconds. At 10:49 p.m., Zachary called her back. They conversed for 46 seconds. Between these calls, appellant was seen on the surveillance video exiting her house, looking at the cameras and different locations around the driveway near her vehicle. Appellant and Zachary exchanged six more phone calls between 11:16 p.m. and 11:25 p.m. {¶52} At 11:51 p.m., appellant texted Zachary indicating that she was tired and could not stay awake much longer. Zachary did not respond. Appellant sent two more texts shortly after midnight on June 13, 2012, indicating for him to let her know if he needed a ride because she was tired. Zachary did not respond. At 12:45 a.m., appellant texted Zachary that she was going to bed and asked if she should leave the door opened for him. He did not respond. {¶53} At 4:18 a.m., Zachary called appellant. They spoke for 23 seconds. Zachary called her again at 4:36 a.m. They talked for 377 seconds. At 4:44 a.m., Zachary arrived at appellant s home on Sexton Road in Robertson s van. Video surveillance showed Zachary unloading Robertson s belongings near appellant s vehicle and placing bags in a garbage can. While there, appellant called Zachary s cell phone. They conversed for 38 seconds. At 5:22 a.m., Zachary left appellant s house in Robertson s van to purchase drugs from McElroy with money stolen from Robertson. 19 Zachary called appellant at 5:32 a.m. They talked for 135 seconds. McElroy testified that Zachary called him three times on June 12 and eight times on June 13, 2012. McElroy said that Zachary bought heroin and was driving a van that he had never seen before. {¶54} At 9:04 a.m., Zachary called appellant. They spoke for 119 seconds. Between 10:13 a.m. and 10:56 a.m., they were in contact 10 more times. At 10:56 a.m., Zachary returned to appellant s home in Robertson s van. Around 11:15 a.m., appellant and Zachary left her house. Appellant drove her own vehicle and Zachary drove Robertson s van. For the next 13 minutes, they were in constant contact. In one text message, appellant provided Zachary with directions, telling him to take next left. After appellant helped Zachary dispose Robertson s van, they returned to appellant s Sexton Road residence at 12:07 p.m. in her vehicle. {¶55} As captured on video surveillance, appellant and Zachary then sorted through Robertson s property. They placed some of it in appellant s vehicle, some in her locked safe, and disposed the rest of it in a burn pile in her backyard. Thereafter, appellant and Zachary took Robertson s property to Gold Werks in Euclid, to sell for drug money, where they had an encounter with Patrolman Ivory. Appellant was caught at that time with some of Robertson s property in her car. Later, Robertson s other property was discovered in appellant s locked safe. Also, a half-eaten Nutrigrain bar from Robertson s house was discovered on appellant s bed. {¶56} After their arrests, appellant lied to police when asked if Zachary had a cell phone. Appellant also lied to police that she did not know Robertson, her neighbor of many years. 20 {¶57} The state also presented the testimony of Gould. To support the charge of aggravated burglary, the state emphasized Gould s testimony that Zachary informed Gould that he bum-rushed Robertson, forcibly entered her home, and murdered her. {¶58} Gould s testimony was also the only evidence that suggested another individual was, in fact, in Robertson s home prior to, during, and after the murder. Although Zachary never revealed the identity of his buddy, the state linked Zachary s use of the term buddy with the letters exchanged between Zachary and appellant while both were incarcerated. Specifically, in her closing argument, the prosecutor stated: Again, the tone of the letter, my bear cub forever, you re my best friend forever. You ll always be my buddy. Interesting use of the words, buddy. Especially when you listen to Gould s statement where Zac Weimer said me and my buddy committed this offense. {¶59} Additionally, the fact that these statements were the only evidence suggesting there was, in fact, a conspiracy also brings into focus the last phrase of Evid.R. 801(D)(2)(e): upon independent proof of the conspiracy. Even if the statements could be construed as being made in furtherance of the conspiracy, they would constitute hearsay, and therefore be inadmissible, unless there was independent proof that there was, in fact, a conspiracy. {¶60} Based on the evidence presented at trial, we conclude there was a reasonable possibility that Gould s testimony contributed to appellant s convictions for aggravated murder and aggravated burglary. As noted, the state presented other evidence as to these charges, but the evidence that placed appellant in the home prior to, during, and after the murder was impermissibly admitted. 21 {¶61} Accordingly, we remand the matter to the trial court to conduct a new trial with respect to the charges of aggravated murder and aggravated burglary. {¶62} Appellant s first assignment of error is overruled and her fifth assignment of error has merit. {¶63} In her second assignment of error, appellant contends that the trial court erred in entering a judgment of conviction for aggravated burglary and aggravated murder, against the manifest weight of the evidence. Based on the disposition of appellant s first and fifth assignments of error, her second assignment of error is moot. {¶64} In her third assignment of error, appellant alleges that the trial court erred in failing to grant her Crim.R. 29(A) motion for judgment of acquittal on the charge of engaging in a pattern of corrupt activity, against the sufficiency of the evidence. {¶65} With regard to sufficiency, in State v. Bridgeman, 55 Ohio St.2d 261 (1978), the Ohio Supreme Court established the test for determining whether a Crim.R. 29 motion for acquittal is properly denied. The Court stated that [p]ursuant to Crim.R. 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. Id. at syllabus. Thus, when an appellant makes a Crim.R. 29 motion, he or she is challenging the sufficiency of the evidence introduced by the state. State v. Patrick, 11th Dist. Trumbull Nos. 2003-T-0166 and 2003-T-0167, 2004-Ohio-6688, ¶18. 22 {¶66} As this court stated in State v. Schlee, 11th Dist. Lake No. 93-L-082, 1994 Ohio App. LEXIS 5862, *13-14 (Dec. 23, 1994): {¶67} Sufficiency challenges whether the prosecution has presented evidence on each element of the offense to allow the matter to go to the jury, while manifest weight contests the believability of the evidence presented. {¶68} The test (for sufficiency of the evidence) is whether after viewing the probative evidence and the inference[s] drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all of the elements of the offense beyond a reasonable doubt. The claim of insufficient evidence invokes an inquiry about due process. It raises a question of law, the resolution of which does not allow the court to weigh the evidence. {¶69} In other words, the standard to be applied on a question concerning sufficiency is: when viewing the evidence in a light most favorable to the prosecution, (a) reviewing court (should) not reverse a jury verdict where there is substantial evidence upon which the jury could reasonably conclude that all of the elements of an offense have been proven beyond a reasonable doubt. (Emphasis sic.) (Citations omitted.) {¶70} [A] reviewing court must look to the evidence presented * * * to assess whether the state offered evidence on each statutory element of the offense, so that a rational trier of fact may infer that the offense was committed beyond a reasonable doubt. State v. March, 11th Dist. Lake No. 98-L-065, 1999 Ohio App. LEXIS 3333, *8 (July 16, 1999). The evidence is to be viewed in a light most favorable to the prosecution when conducting this inquiry. State v. Jenks, 61 Ohio St.3d 259, paragraph 23 two of the syllabus (1991). Further, the verdict will not be disturbed on appeal unless the reviewing court finds that reasonable minds could not have arrived at the conclusion reached by the trier of fact. State v. Dennis, 79 Ohio St.3d 421, 430 (1997). {¶71} Appellant was charged with engaging in a pattern of corrupt activity, a felony of the first degree, in violation of R.C. 2923.32(A)(1), which states: [n]o person employed by, or associated with, any enterprise shall conduct or participate in, directly or indirectly, the affairs of the enterprise through a pattern of corrupt activity or the collection of an unlawful debt. {¶72} R.C. 2923.31(E) defines a pattern of corrupt activity as two or more incidents of corrupt activity, whether or not there has been a prior conviction, that are related to the affairs of the same enterprise, are not isolated, and are not so closely related to each other and connected in time and place that they constitute a single event. {¶73} R.C. 2923.31(C) defines enterprise to include any individual, sole proprietorship, partnership, limited partnership, corporation, trust, union, government agency, or other legal entity, or any organization, association, or group of persons associated in fact although not a legal entity. Enterprise includes illicit as well as licit enterprises. {¶74} In the instant matter, appellant challenges both the elements of enterprise and pattern of corrupt activity. She contends that these elements are separate and asserts that proof of one does not establish the other. Appellant also asserts that she and Zachary acted separately. 24 {¶75} Both appellant and the state cited in their briefs and argued during oral arguments to law regarding the Racketeering Influenced and Corrupt Organizations Act ( RICO ), the federal counterpart to the Ohio statute. In Boyle v. United States, 556 U.S. 938 (2009), the United States Supreme Court considered whether an associationin-fact enterprise * * * must have an ascertainable structure beyond that inherent in the pattern of racketeering activity in which it engages. Id. at 940-941 (citation omitted). The Supreme Court held there was no basis in the language of RICO for the structural requirements that petitioner asks us to recognize. Id. at 948. The Boyle Court stated the enterprise must have a structure that, under RICO s terms, has at least three features: a purpose, relationships among the associates, and longevity sufficient to permit the associates to pursue the enterprise s purpose. Id. at 939, citing United States v. Turkette, 452 U.S. 576, 583 (1981). The defendants must have conducted or participated in the conduct of the enterprise s affairs , not just their own affairs. Ouwinga v. Benistar 419 Plan Services, Inc., 694 F.3d 783, 792 (6th Cir.2012), quoting Reves v. Ernst & Young, 507 U.S. 170, 185 (1993) (emphasis omitted). {¶76} In State v. Elersic, 11th Dist. Lake Nos. 2000-L-062 and 2000-L-164, 2001 Ohio App. LEXIS 5210 (Nov. 21, 2001), this court noted that Ohio has not adopted the federal approach which required that the enterprise have an existence separate from the pattern of corrupt activity. Id. at *16, fn. 5. See, also, State v. Perry, 11th Dist. Lake No. 2011-L-125, 2012-Ohio-4888, ¶98 ( To better understand this statute, the Twelfth Appellate District recently analyzed the definition of enterprise and adopted a streamlined definition from the federal case of Boyle v. U.S., [supra], noting an association-in-fact enterprise is simply a continuing unit that functions with a common 25 purpose. State v. Barker, 12th Dist. No. CA2011-08-088, 2012-Ohio-887, ¶10, quoting Boyle at 2245-2246. ). {¶77} We note that the Ohio Supreme Court recently decided State v. Stevens, Slip Opinion No. 2014-Ohio-1932. The question before the Court was whether the threshold monetary amount stated in R.C. 2923.31(I)(2)(c) applies to the enterprise as a whole or to the individual actions of a person who is part of the enterprise. Id. at ¶3. The Court concluded that in order to obtain a conviction for engaging in a pattern of corrupt activity, R.C. 2923.31(I)(2)(c) and 2923.32(A) must be construed so that the stated threshold amount applies to each individual, and not to the enterprise as a whole. Id. at ¶18. {¶78} Although the parties in the case at bar do not argue the exact issue presented and decided in Stevens, the policy behind that case concerning RICO applies here. See Stevens, supra, at ¶15-16 ( The RICO laws were enacted to punish the enterprise and those controlling the enterprise, not the petty criminals. * * * There are already laws in place prohibiting the sale of illegal narcotics. * * * The obvious intent of the General Assembly in enacting the RICO statutes was to reduce the influence and power of organized crime in the state. ) {¶79} We further note that State v. Beverly, S. Ct Case No. 2013-0827, is currently pending before the Ohio Supreme Court and raises the issue of whether, in establishing the existence of the enterprise element in Ohio s Engaging in a Pattern of Corrupt Activity statute, the state is required to prove that the enterprise has an existence separate and distinct from the pattern of corrupt activity in which it engaged. 26 {¶80} Here, the state maintained that Zachary Weimer and appellant engaged in criminal behavior to secure money to buy drugs. The state presented evidence that Zachary used and bought drugs and that appellant used and bought drugs. The state presented evidence that appellant stole from Hatcher, Stroombeek, and Robertson and that Zachary stole from Finney, Weimer, and Robertson. Evidence was also presented that Zachary and appellant independently pawned items to acquire money to purchase drugs. Yet, the state failed to present evidence that appellant and Zachary formed an entity to earn money as an enterprise. Instead, the state s evidence demonstrated that Zachary and appellant committed crimes separately to acquire money and occasionally used drugs together; appellant also used drugs with other individuals. Occasional drug use together does not necessarily show the common purpose in the purported enterprise. {¶81} The state then attempted to argue that appellant and Zachary committed the offenses against Robertson to obtain property they could sell for money to purchase drugs. Yet, the acts surrounding Robertson are closely related to each other and connected in time and place and, thus, constitute a single event of conduct. R.C. 2923.31(E). In its brief, the state concedes that the aggravated murder and aggravated burglary are so closely related that they do not demonstrate a pattern of corrupt activity. The state contends, however, that because there are multiple victims - Hatcher, Stroombeek, and Robertson - a pattern of corrupt activity is present. {¶82} Essentially, the state presented evidence that two individuals, both with a drug habit, committed separate crimes to obtain money to support his or her drug habit. Then, the two engaged in the crimes against Robertson to acquire money for the 27 purchase of drugs. The state, however, failed to present any specific evidence linking Zachary s or appellant s individual predicate offenses to the purported enterprise, i.e., the acquisition of funds to purchase drugs. Prior to the commission of the crimes against Robertson, there is a gap in the evidential chain that their individual crimes were related to the purported enterprise. Therefore, upon review, the state failed to present sufficient evidence to support appellant s RICO conviction. {¶83} Accordingly, pursuant to Schlee, supra, there is not sufficient evidence upon which the jury could reasonably conclude beyond a reasonable doubt that the elements of enterprise and engaging in a pattern of corrupt activity were proven. Therefore, the trial court erred in overruling appellant s Crim.R. 29 motion. Appellant s engaging in a pattern of corrupt activity conviction must be reversed and vacated on grounds of insufficient evidence. {¶84} Appellant s third assignment of error is with merit. {¶85} In her fourth assignment of error, appellant maintains that the trial court erred in entering a judgment of conviction for engaging in a pattern of corrupt activity, against the manifest weight of the evidence. {¶86} Based on our foregoing analysis in appellant s third assignment of error, we find her fourth assignment of error to be moot. {¶87} For the foregoing reasons, the judgment of the Lake County Court of Common Pleas is affirmed in part, reversed in part, vacated in part, and remanded for further proceedings. Specifically, the judgment is affirmed with respect to Counts 1 through 14. The matter is remanded to the trial court for a new trial with respect to Counts 15 and 16, aggravated burglary and aggravated murder, respectively. 28 Appellant s conviction for Count 17, engaging in a pattern of corrupt activity conviction, is hereby reversed and vacated. TIMOTHY P. CANNON, P.J., concurs, DIANE V. GRENDELL, J., concurs in part and dissents in part, with a Dissenting Opinion. ______________________ DIANE V. GRENDELL, J., concurs in part and dissents in part, with a Dissenting Opinion. {¶88} I concur with the majority s conclusion that Danna s convictions on counts 1-14 remain valid, since no assignments of error were raised in relation to these counts. I dissent as to the majority s analysis and decision on each of the assignments of error, the decision to vacate Danna s conviction for Engaging in a Pattern of Corrupt Activity, and to order a new trial on the Aggravated Burglary and Aggravated Murder charges. There was sufficient evidence to support these convictions and any error related to the admission of testimony in this case was harmless. {¶89} Danna was convicted of Engaging in a Pattern of Corrupt Activity based on her ongoing and dangerous course of criminal conduct with her son, Zachary Weimer, which included theft, the sale of stolen goods, the use of such money to purchase drugs, and the murder of the victim in this case. {¶90} A pattern of corrupt activity is one that involves two or more incidents related to affairs of the same enterprise. R.C. 2923.31(E). The majority mainly takes 29 issue with the fact that the State failed to prove that Danna and Zachary formed an enterprise. {¶91} An enterprise includes any individual, * * * or group of persons associated in fact although not a legal entity, encompassing illicit as well as licit enterprises. R.C. 2923.31(C). [A]n association-in-fact enterprise is simply a continuing unit that functions with a common purpose. State v. Perry, 11th Dist. Lake No. 2011-L-125, 2012-Ohio4888, ¶ 98. The facts of the present case fall under this definition of an enterprise. {¶92} Danna and Zachary worked together in the murder of the victim, enabling them to commit the theft of an extensive amount of items in her home, which they planned to sell, presumably to obtain money for the purchase of drugs. There was testimony that Danna and Zachary use drugs with each other, are frequently seen together, and had pooled money in the past in order to purchase drugs. Both individuals had stolen items from multiple victims, and the two stole jointly from the murder victim. They went to the same pawn shop, both together and separately, to sell stolen items to facilitate their drug use. This activity is properly classified as an association-in-fact, given that the two worked together and independently to obtain drug money through criminal means, furthering a common purpose over a continuing period of time. While the majority attempts to characterize the crimes as separately committed and insufficient to connect them to a common enterprise, the testimony regarding their joint activities, the common goals of their offenses, and the ultimate commission of the murder and related crimes, creates the necessary link. The murder in this case solidifies this association and establishes the link between their activities. 30 {¶93} The majority cites to no specific case law prohibiting a conviction for Engaging in a Pattern of Corrupt Activity in circumstances similar to the present case. Courts have upheld convictions when a pattern of theft occurred and two individuals were working together for the purposes of perpetrating the crimes. For example, this court has found that a pattern of corrupt activity can occur when two individuals were known to work jointly in at least one burglary and were found together, in the same car, with stolen items and burglary tools. Perry at ¶ 111-112. See also State v. Elersic, 11th Dist. Lake Nos. 2000-L-062 and 2000-L-164, 2001 Ohio App. LEXIS 5210, 15-16 (Nov. 21, 2001), citing State v. Grimm, 102 Ohio App.3d 356, 657 N.E.2d 318 (2nd Dist.1995) (two parties working together to steal items in the course of multiple thefts were associated in an enterprise). While Danna and Zachary may have committed some separate thefts, they still utilized those thefts to support their common goal of selling the items to purchase drugs. {¶94} Further, while charges under this statute often involve large criminal enterprises, it does not follow that the facts of this case do not also fall under the statutory requirements and warrant such a conviction. State v. Gregg, 11th Dist. Ashtabula No. 2006-A-0013, 2007-Ohio-1201, ¶ 29 ( there is no requirement that an enterprise must be a formal, structured organization ). {¶95} The majority cites Stevens, supra, for the proposition that Engaging in a Pattern of Corrupt Activity is not applicable to petty criminals or those who engage in the sale of narcotics. In addition to the fact that the court in that case was considering an issue different from the one raised in the present matter, it is clear that Danna and Zachary s behavior cannot be characterized as that of a petty criminal. While drug use 31 and thefts were part of Danna and Zachary s illegal activities, these ultimately culminated in a violent murder. Such activity is properly classified as Engaging in a Pattern of Corrupt Activity. {¶96} Regarding the first and fifth assignments of error, I disagree with the conclusion that a new trial should be held on the Aggravated Burglary and Aggravated Robbery charges. The majority s determination is based on the conclusion that the testimony of a witness, Richard Gould, that Zachary had a buddy present at the scene of the murder was impermissibly admitted and contributed to Danna s convictions. {¶97} The majority concludes that Gould s testimony regarding Zachary s statements was inadmissible and did not fall under the co-conspirator hearsay exception, since the statements were not made in furtherance of a conspiracy. Regardless of this, the admission of the statements amounted to harmless error and a new trial is not warranted. {¶98} Regarding the assertion that these statements harmed Danna, since they placed her at the victim s home, there was already evidence in the record to place her at or near the victim s house on the date of the crimes. This evidence includes cell phone records and testimony that she was at a neighboring home. Testimony about the extensive number of items taken from the victim s home and the lack of physical evidence provide support for the State s theory that Zachary received assistance in cleaning and potentially removing items from the home. This is reinforced by video evidence showing Danna retrieving cleaning supplies from her home on the date of the murder. 32 {¶99} It must also be emphasized that Gould never actually identified Danna as being the second person present with Zachary at the home and he repeatedly testified that Zachary never implicated Danna. The majority contends that Gould identified the second individual as Zachary s buddy and that this is significant since Danna referred to Zachary as her buddy. However, Gould used the term buddy to identify other individuals in his testimony, so it is unclear whether Zachary himself used this term when describing the second individual. In either case, the use of this term did not provide additional support for a conclusion that it was Danna in the home. {¶100} Importantly, the State was not required to prove that Danna was at the scene at the time of the murder. The murder charge was based on a theory of complicity, in which Danna aided and abetted and/or solicited the crimes. R.C. 2923.03. A conviction on such grounds is appropriate when the evidence * * * show[s] that the defendant supported, assisted, encouraged, cooperated with, advised, or incited the principal in the commission of the crime, and that the defendant shared the criminal intent of the principal. (Citation omitted.) In re T.K., 109 Ohio St.3d 512, 2006-Ohio3056, 849 N.E.2d 286, ¶ 13. Intent can be inferred from the presence, companionship, and conduct of the defendant before and after the offense is committed. Id. {¶101} The jury had a multitude of evidence tying Danna to the Aggravated Robbery and Aggravated Murder convictions, rendering the admitted statements harmless. See State v. Boles, 11th Dist. Ashtabula No. 2013-A-0026, 2014-Ohio-744, ¶ 35 (where there is an abundant amount of evidence of guilt, the improper admission of evidence is harmless error). Danna was seen repeatedly with Zachary on the date of the murder, and provided him with a ride on that day. Testimony showed that Zachary 33 did not have a car and used Danna for transportation. Danna was in continued communication with Zachary on that date, supporting a conclusion that the two worked together to carry out the murder and the theft. Danna had been the victim s neighbor for a period of years, which would lead to a conclusion that she had participated in planning the robbery. Much of the victim s stolen property was taken to Danna s home and she participated in the selling or disposal of many items. With all of this evidence, regardless of whether the testimony placed Danna at the scene of the crime, the convictions for Aggravated Burglary and Aggravated Murder were still supported by sufficient evidence. {¶102} For the foregoing reasons, I respectfully dissent from the majority s decision to vacate Danna s conviction for Engaging in a Pattern of Corrupt Activity, and to order a new trial for the Aggravated Burglary and Aggravated Murder counts. I agree, however, that there is no basis for reversing the other 14 convictions. 34

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