State v. Courtney

[Cite as State v. Courtney, 2012-Ohio-989.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SHELBY COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 17-10-26
v.
GREGORY M. COURTNEY, OPINION
DEFENDANT-APPELLANT.
Appeal from Shelby County Common Pleas Court
Trial Court No. 09CR000337
Judgment Affirmed
Date of Decision: March 12, 2012
APPEARANCES:
David M. Treadway for Appellant
Jeffrey J. Beigel for Appellee
Case No. 17-10-26
ROGERS, J.
{¶1} Defendant-Appellant, Gregory Courtney, appeals the judgment of the
Court of Common Pleas of Shelby County denying his motion to suppress. On
appeal, Courtney contends that the trial court’s denial of his motion to suppress was
against the manifest weight of the evidence; that the trial court erred when it
misapplied the facts to the appropriate legal analysis; and, that the trial court’s
denial of his motion to suppress inappropriately decided the ultimate issued raised
in the motion to suppress. Based on the following, we affirm the judgment of the
trial court.
{¶2} In November 2009, the Shelby County Grand Jury indicted Courtney
on ten counts of pandering sexually oriented material with a minor in violation of
R.C. 2907.322(A)(5), a felony of the fourth degree. The indictment arose
following the execution of a search warrant, during which law enforcement
discovered child pornography on Courtney’s personal computer. In that same
month, Courtney entered pleas of not guilty to all counts in the indictment.
{¶3} In April 2010, Courtney filed a motion to suppress all of the evidence
seized pursuant to the execution of the search warrant. Courtney argued that the
information within the affidavit was insufficient to establish probable cause. In the
alternative, Courtney argued that the search warrant affidavit was based on false
information provided by an informant whose reliability and veracity were not
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investigated or attested to by the affiant officer. As a result, Courtney argued that
those portions of the affidavit containing information supplied by the informant
should be redacted, resulting in an affidavit devoid of sufficient information to
establish probable cause.
{¶4} In May 2010, the matter proceeded to a suppression hearing, during
which the following testimony was adduced.
{¶5} Detective Warren Melerine testified that he has been employed with
the Sidney Police Department for eight (8) years. On October 27, 2009, at
approximately 7:30 p.m., a woman, who identified herself as Tara Cox (hereinafter
“Cox”), contacted the Sidney Police Department concerning her discovery of child
pornography. Detective Melerine, who was a patrolman at the time, was directed
to investigate the call. Detective Melerine contacted Cox via the telephone.
Detective Melerine testified that he had no knowledge of or contact with Cox prior
to their conversation on the phone.
{¶6} During their conversation, Cox informed Detective Melerine that
earlier that day she went to visit Courtney at his mother’s residence, where
Courtney resides. Courtney, however, was not home so Cox decided to wait until
he returned. Cox explained that while she waited she accessed Courtney’s personal
computer, located in his bedroom, to check her e-mail and use the internet. Upon
accessing the computer she observed a folder labeled “trailer.” Hearing Tr., p. 25.
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Believing that the file contained photographs of Courtney’s band, Cox opened the
file and discovered that it contained child pornography. Cox explained that the
pictures depicted children, ranging in ages from three (3) to sixteen (16), posing
nude and engaging in sexual acts.
{¶7} Upon concluding his conversation with Cox, Detective Melerine
contacted and conveyed the information to Detective Robert Jameson. Detective
Melerine testified that nothing about his conversation with Cox indicated that she
was providing false information.
{¶8} Detective Jameson testified that he has been employed with the Sidney
Police Department for thirteen (13) years. On October 27, 2009, at approximately
8:00 p.m., Detective Melerine informed Detective Jameson about the conversation
he had with Cox. Detective Jameson proceeded to contact Cox via telephone to
confirm the information conveyed by Detective Mereline and further inquire about
the circumstances surrounding her discovery. Detective Jameson testified that he
had no knowledge of or contact with Cox prior to their conversation on the phone,
and that he was not aware of Cox having worked as an informant for the Sidney
Police Department.
{¶9} Detective Jameson testified that “[Cox] was very specific and detailed
with me as to what she saw. Gave me very specific information about what kind of
computer it was and where the items were located within that computer.” Hearing
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Tr., p. 8. Specifically, Cox informed Detective Jameson that the computer
containing the child pornography was located at Courtney’s mother’s residence,
located at 846 Fielding; that she accessed the computer in Courtney’s bedroom;
that the computer was a “black HP laptop” (Hearing Tr., p. 23); and, that the
pornographic photographs were located in a folder labeled “trailer.” Hearing Tr., p.
11.
{¶10} After Detective Jameson spoke with Cox, he independently verified
that Courtney’s mother owned and resided at 846 Fielding. Detective Jameson
testified that he had no reason to question the reliability and veracity of the
information provided by Cox.
{¶11} Detective Jameson testified that based on his conversation with Cox,
he drafted an affidavit in support of a search warrant, which the magistrate granted
at approximately 9:10 p.m. Shortly thereafter, the search warrant was executed on
Courtney’s mother’s residence. Courtney was at the residence during the warrant’s
execution and retrieved a computer from his bedroom matching the description
given by Cox. Investigation of the computer’s contents revealed a file labeled
“trailer,” which was found to contain child pornography.
{¶12} Detective Jameson continued that six weeks after the search warrant
was executed he learned that Cox did not personally view the pornographic
photographs on Courtney’s computer. Instead, an individual by the name of Steve
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Helton (hereinafter “Helton”) had viewed the pornographic photographs.
Accordingly, Detective Jameson interviewed Helton who explained that he
remodeled a house with Courtney and during that time had occasion to use
Courtney’s computer which Courtney brought to the worksite.1 It was during this
time Helton discovered the pornographic photographs. Helton explained that he
was reluctant to contact law enforcement about the photographs because of an
outstanding warrant for his arrest. As a result, Helton relayed the information to
Cox, his girlfriend at the time, and asked her to notify law enforcement of the
photographs as though she had discovered them.
{¶13} In June 2010, the trial court filed its judgment entry denying
Courtney’s motion to suppress.
{¶14} In July 2010, the matter proceeded to a change of plea hearing.
Though the trial court’s sentencing judgment entry states that Courtney entered
pleas of guilty to all ten counts in the indictment, the record reveals that Courtney
entered pleas of no contest to all ten counts in the indictment. See Docket Entries
Nos. 74 & 75; see also Change of Plea Hearing Tr., p. 12. After Courtney entered
his pleas of no contest, the trial court proceeded to find him guilty on all ten counts
in the indictment.
1
At the time Detective Jameson interviewed Helton, Helton was incarcerated on felonies unrelated to the
present case.
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{¶15} In September 2010, the matter proceeded to sentencing. The trial
court sentenced Courtney to an eighteen-month prison term on each count. The
trial court further ordered that counts one through five be served concurrently and
counts six through ten be served concurrently, but consecutively to counts one
through five, for an aggregate prison term of three years.
{¶16} It is from this judgment Courtney appeals, presenting the following
assignments of error for our review.
Assignment of Error No. I
THE TRIAL COURT DECISION DENYING APPELLANT’S
MOTION TO SUPPRESS IS IN ERROR BASED ON THE
MANIFEST WEIGHT OF THE EVIDENCE.
Assignment of Error No. II
THE TRIAL COURT DECISION IS IN ERROR BECAUSE
THE COURT FAILED TO APPLY THE FACTS OF THIS
CASE TO THE APPROPRIATE TEST.
Assignment of Error No. III
THE TRIAL COURT DECISION DENYING APPELLANT’S
MOTION TO SUPPRESS IS IN ERROR BECAUSE IT
INCORRECTLY DECIDED THE ULTIMATE OR FINAL
ISSUE RAISED IN THE MOTION TO SUPPRESS.
{¶17} Due to the nature of Courtney’s assignments of error, we elect to
address them together.
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Assignments of Error Nos. I, II, & III
{¶18} Upon consideration of Courtney’s first, second, and third assignments
of error, we have identified two contentions challenging the trial court’s denial of
his motion to suppress. First, Courtney contends that the affidavit, as it was
presented to the magistrate, was insufficient to establish probable cause. In the
alternative, Courtney contends that Detective Jameson’s reliance on the
information provided by Cox was in reckless disregard of the truth as the
information was false and she, contrary to the trial court’s finding, was not an
identified citizen but an anonymous informant, whose reliability and veracity were
not investigated or attested to in the affidavit filed in support of the motion to
suppress. As a result, Courtney contends that the information supplied by Cox and
reproduced in the affidavit should have been redacted, pursuant to Franks v.
Delaware, 438 U.S. 154, 98 S.Ct. 2674 (1978), resulting in an affidavit devoid of
sufficient information to establish probable cause. We disagree with both
contentions.
Standard of Review
{¶19} “Appellate review of a decision on a motion to suppress presents a
mixed question of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-
Ohio-5372, ¶ 8. The trial court serves as the trier of fact and is the primary judge
of the credibility of the witnesses and the weight to be given to the evidence
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presented. State v. Johnson, 137 Ohio App.3d 847, 850 (12th Dist. 2000).
Therefore, when an appellate court reviews a trial court’s ruling on a motion to
suppress, it must accept the trial court’s findings of facts when supported by
competent, credible evidence. State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-
3665, ¶ 100, citing State v. Fanning, 1 Ohio St.3d 19, 20 (1982). The appellate
court must then review the application of the law to the facts de novo. Roberts,
citing Burnside at ¶ 8.
Sufficiency of the Search Warrant Affidavit2
{¶20} The Fourth Amendment to the United States Constitution, as applied
to the states through the Fourteenth Amendment, provides that “[t]he right of the
people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.” Article
I, Section 14 of the Ohio Constitution contains a nearly identical provision.
{¶21} Probable cause is a lesser standard of proof than that required for a
conviction, such as proof beyond a reasonable doubt or by a preponderance of the
evidence. State v. Young, 146 Ohio App.3d 245, 254 (11th Dist. 2001), citing State
v. George, 45 Ohio St.3d 325, 329 (1989); Illinois v. Gates, 462 U.S. 213, 235, 103
2
Note that we will address this contention without consideration of the fact that Cox lied about viewing the
pornographic photographs.
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S.Ct. 2317 (1983). Probable cause only requires the existence of circumstances
that warrant suspicion. Young at 254. Thus, “the standard for probable cause
requires only a showing that a probability of criminal activity exists, not a prima
facie showing of criminal activity.” Id., citing George at 329. “Hearsay may serve
as the basis for the issuance of a warrant as long as there is a substantial basis for
crediting the hearsay.” State v. Underwood, 4th Dist. No. 03CA2930, 2005-Ohio-
2309, ¶ 16, citing United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741(1965).
{¶22} When evaluating an affidavit for the sufficiency of probable cause,
the issuing magistrate must apply a “totality-of-the-circumstances” test. George at
paragraph one of the syllabus, following Gates at 238-239. The magistrate must
“make a practical, common-sense decision whether, given all the circumstances set
forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’
of persons supplying hearsay information, there is a fair probability that contraband
or evidence of a crime will be found in a particular place.” Id., quoting Gates at
238.
{¶23} On review, neither the trial court nor an appellate court should
substitute its judgment for that of the magistrate. George at paragraph two of the
syllabus, following Gates. Rather, the reviewing court should simply “ensure that
the magistrate had a substantial basis for concluding that probable cause existed.”
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Id. The reviewing court “should accord great deference to the magistrate’s
determination of probable cause, and doubtful or marginal cases in this area should
be resolved in favor of upholding the warrant.” Id.{¶24} In the present case, the only information supplied to the magistrate in
support of the search warrant was Detective Jameson’s affidavit. Consequently, we
must determine whether the information within Detective Jameson’s affidavit
provided the magistrate with a substantial basis to conclude that probable cause
existed. See State v. Graham, 3d Dist. No. 5-01-01, 2001-Ohio-2327 (magistrate
limited to the four corners of the affidavit when determining the existence of
probable cause). Accordingly, our review begins with the contents of Detective
Jameson’s affidavit, which, in its entirety, stated:
I, Robert M. Jameson, am (sic) member of the City of Sidney
Ohio Police Department. I have been an officer with the Sidney
Police Dept. since June 1997 and am currently assigned to the
Detective section of the department in the rank of Sergeant. I
have attended numerous hours of training relating to
investigations and hold an Associate Degree in Criminal Justice.
I have been the affiant on a number of search warrants in the
past and have been involved in countless felony investigations as
an Officer with the Sidney Police Dept.
On October 27, 2009 (sic) I was contacted by Officer Warren
Melerine who informed me that he had just talked with Tara
Cox who was reporting what she believed was child
pornography on a computer belonging to Gregory Courtney. I
personally contacted Tara by telephone and inquired about what
she observed. Tara stated to me that around 12 PM today she
stopped at Gregory’s residence on Fielding Rd. Tara said that
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Gregory shares the home with his mother Linda Browning. She
stated she was there to visit Gregory who was not home at the
time. Tara stated that she decided to check her e-mail and surf
the internet while waiting and got on Gregory’s laptop computer
that was located in his bedroom. Tara said while on the
computer she came across a folder titled “trailer” on the hard
drive of the computer. Tara stated that since she knew Gregory
was in a band she thought the folder might contain photos of the
band. Tara said she opened the folder and observed a number
of images that she described as nude children between the ages
of 3 and 16 performing various sexual acts on each other. Tara
went on to state that there were also images of adult men
engaged in sexual acts with what she described as 5 year old
girls. When asked how many images she saw she could not
answer but stated there were quite a few.
I am seeking this search warrant to search for and seize a laptop
computer that I believe holds evidence of Pandering sexually
oriented matter involving a minor.
{¶25} Courtney contends that the affidavit, as it appears above, is
insufficient to establish probable cause. In particular, Courtney contends that the
trial court erred when it found that Cox was an identified citizen informant.
Instead, Courtney argues that Cox was an anonymous informant, because neither
Detective Jameson nor Detective Melerine conducted a background check of Cox
prior to applying for the search warrant. As a result, Courtney contends that
Detective Jameson’s affidavit should have contained information establishing
Cox’s reliability and truthfulness. Because the affidavit contained no explicit
statements establishing Cox’s reliability and truthfulness, and testimony during the
suppression hearing revealed that neither Detective Jameson nor Detective
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Melerine conducted any independent investigation into Cox’s background,
Courtney contends that the affidavit did not provide the magistrate with a
substantial basis for concluding that probable cause existed.
{¶26} An informant’s tip can establish probable cause, depending on the
totality of the circumstances. Gates, 462 U.S. 213, 241-44, 103 S.Ct. 2317. Where
law enforcement seeks a search warrant based solely on an informant’s tip,
however, determination of the informant’s reliability and veracity is essential. In
Ohio, courts faced with the issue of determining an informant’s reliability and
veracity often consider whether the informant is a (known or unknown) criminal
informant, an anonymous informant, or an identified citizen informant. Maumee v.
Weisner, 87 Ohio St.3d 295, 300 (1999). “While the United States Supreme Court
discourages conclusory analysis based solely upon these categories, insisting
instead upon a totality of the circumstances review, it has acknowledged their
relevance to an informant’s reliability.” Id.{¶27} Under the facts of the present case, we find that the trial court did not
err when it found that Cox was an identified citizen informant. In Weisner, the
Ohio Supreme Court concluded that an informant who provided law enforcement
with his name, cell phone number, and home phone number, but never had face-to-
face contact with law enforcement, was properly classified as an identified citizen
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informant.3 Id. at 302. Like the informant in Weisner, Cox provided her name and
phone number to law enforcement, but never had face-to-face contact with either
Detective Jameson or Detective Melerine. Due to the similarity between the
present case and Weisner, we find that the trial court did not err when it determined
that Cox was an identified citizen informant.
{¶28} Having resolved this issue, we emphasize, as did the Weisner Court,
that categorization of Cox as an identified citizen informant is not itself
determinative of whether the magistrate had a substantial basis for concluding that
probable cause existed. Weisner at 302. Instead, the classification of an informant
as an identified citizen merely creates a presumption that the information he or she
provided is reliable and truthful. State v. Enyart, 10th Dist. Nos. 08AP-184, 08AP-
138, 2010-Ohio-5623, ¶ 34, citing State v. Garner, 74 Ohio St.3d 49, 63 (1995).
{¶29} Building on the presumption that the information Cox provided was
reliable and truthful is the fact that she willingly provided information to law
enforcement on two separate occasions. In Weisner, the Ohio Supreme Court
explained that “greater credibility may be due an informant such as this who
initiates and permits extended police contact rather than one who phones in a tip
3
Though Weisner is factually distinguishable from the present case, the Weisner Court’s finding
concerning the classification of the informant is applicable in the present case. The Weisner Court’s
determination that the informant was an identified citizen informant, as opposed to an anonymous
informant, was not predicated on the particular facts of the case, but rather was predicated on the
information conveyed by the informant to law enforcement.
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and retreats from any further police interaction.” Weisner, 87 Ohio St.3d at 302. It
is readily apparent from the affidavit that Cox initiated contact with law
enforcement, and willingly participated in extended police contact when she spoke
with Detective Jameson and Detective Melerine on separate occasions. Due to
Cox’s willing participation in extended police contact, the information provided by
Cox merits a higher degree of credibility.
{¶30} In addition to Cox’s willingness to interact with law enforcement,
Cox’s apparent basis of knowledge bolsters the presumption that the information
she provided was reliable and truthful. An “explicit and detailed description of
alleged wrongdoing, along with a statement that the event was observed first-hand,
entitles [a] tip to greater weight than might otherwise be the case.” Gates at 234;
see also United States v. Likins, 84 Fed.Appx. 504, 509 (6th Cir. 2003) (“As with
the issues of reliability and veracity * * * the more detail an informant may
provide, the better the basis of knowledge upon which a judicial officer may
rely.”). Here, it is readily apparent from the affidavit that the information Cox
provided to law enforcement was a first-hand account, rather than mere rumor or
speculation. Furthermore, the information provided by Cox was very detailed. In
particular, the affidavit detailed when Cox discovered the pornographic
photographs, how and why she accessed Courtney’s computer, where the
photographs were located in the computer, and a description of the photographs,
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which unmistakably described child pornography. In light of Cox’s detailed, first-
hand account, the information provided by Cox merits further credibility.
{¶31} In light of the foregoing, we find that the magistrate, based on the
information provided in the affidavit, had a substantial basis for concluding that
probable cause existed. Though Detective Jameson did not explicitly attest to
Cox’s reliability or truthfulness, the magistrate could have reasonably concluded
that the information provided by Cox was reliable and truthful, as it was readily
apparent from the affidavit that Cox was an identified citizen informant, who
willingly participated in the investigation, and provided a detailed, first-hand
account of child pornography on Courtney’s computer. See State v. Rader, 12th
Dist. No. CA2009-07-185, 2010-Ohio-1010 (determining that identified citizen
informant’s detailed, first-hand account of child pornography in defendant’s
residence provided magistrate a substantial basis for concluding that probable cause
existed). Even if there is doubt as to whether the magistrate had a substantial basis
for concluding that probable cause existed, “doubtful or marginal cases in this area
should be resolved in favor of upholding the warrant.” George, 45 Ohio St.3d at
paragraph two of the syllabus. Accordingly, we find that the affidavit provided the
magistrate with a substantial basis for concluding that probable cause existed.
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Application of Franks v. Delaware
{¶32} In the alternative, Courtney contends that Detective Jameson’s
reliance on the information provided by Cox was in reckless disregard of the truth
as the information was false and that Cox, contrary to the trial court’s finding, was
not an identified citizen informant but an anonymous informant, whose reliability
and veracity were not investigated or attested to in the search warrant affidavit. As
a result, Courtney contends that the information supplied by Cox and reproduced in
the affidavit should have been redacted, resulting in an affidavit devoid of
sufficient information to establish probable cause. We disagree.
{¶33} An affidavit filed in support of a search warrant is presumed valid.
See State v. Roberts, 62 Ohio St.2d 170, 178 (1980); Franks v. Delaware, 438 U.S.
154, 171, 98 S.Ct. 2674. To successfully attack the veracity of a facially sufficient
search warrant affidavit, a defendant must show by a preponderance of the
evidence that the affiant, not the informant, made a false statement, either
intentionally or with reckless disregard for the truth. State v. McKnight, 107 Ohio
St.3d 101, 2005-Ohio-6046, ¶ 31, citing Franks at 155-156; see also McCray v.
Illinois, 386 U.S. 300, 307, 87 S.Ct. 1056 (1967) (“the magistrate is concerned, not
with whether the informant lied, but with whether the affiant is truthful in his
recitation of what he was told.”). “Reckless disregard” means that the affiant had
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serious doubts about the truth of an allegation. McKnight at ¶ 31, citing United
States v. Williams, 737 F.2d 594, 602 (7th Cir. 1984).
{¶34} On appeal, Courtney contends that Detective Jameson acted in
reckless disregard of the truth when he incorporated Cox’s information in the
search warrant affidavit without investigating Cox’s background. We find this
argument to be unpersuasive.
{¶35} In light of our previous discussion, we are not persuaded that
Detective Jameson’s failure to investigate Cox’s background caused him to act in
reckless disregard of the truth.4 Detective Jameson testified that he had no reason
to doubt the veracity of the information provided by Cox, and the record contains
no evidence to rebut this testimony. Indeed, based on the facts that would have
been apparent to Detective Jameson during the investigation (i.e., Cox was an
identified citizen informant, Cox willingly participated in the investigation, and
Cox provided a detailed, first-hand account of the child pornography) it was
reasonable for him to not doubt the veracity of the information provided by Cox.
Additionally, Courtney’s suggestion that investigation of Cox’s background would
have revealed that Cox was lying is mere conjecture. There is no guarantee that
further investigation of Cox’s background or the information she provided would
have revealed the fact that Helton, not she, discovered the pornographic
4
We note that Courtney cites no authority in support of his argument. App.R. 16(A)(7).
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photographs, especially in light of the fact that Cox and Helton were in a
relationship at the time. Given the circumstances known to Detective Jameson at
the time of the investigation and Detective Jameson’s testimony during the
suppression hearing, there was no reason for Detective Jameson to doubt the
reliability and veracity of the information provided by Cox, and certainly no
evidence that suggests he actually harbored such doubts. Accordingly, we find that
Detective Jameson did not act with reckless disregard when he incorporated Cox’s
information in the search warrant affidavit.
{¶36} In light of the foregoing, we overrule Courtney’s first, second, and
third assignments of error.
{¶37} Having found no error prejudicial to Courtney herein, in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, J., concurs.
SHAW, P.J., concurs in Judgment Only.
/jlr
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