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State v. Erick L.

Court of Appeals of Connecticut

September 20, 2016

STATE OF CONNECTICUT
v.
ERICK L.[*]

          Argued February 3, 2016

         Appeal from Superior Court, judicial district of Waterbury, Cremins, J. [motions to admit evidence]; Agati, J. [judgment].

          Adele V. Patterson, senior assistant public defender, for the appellant (defendant).

          Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Elena Palermo, assistant state's attorney, for the appellee (state).

          Gruendel, Alvord and Prescott, Js. [**]

          OPINION

          GRUENDEL, J.

         The defendant, Erick L., appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A), and two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2).[1] On appeal, the defendant raises two claims: (1) the trial court violated his rights under the sixth amendment to confront the witnesses against him and to present a defense by holding that the rape shield statute, General Statutes § 54-86f, prohibited him from introducing evidence of the sexual nature of the victim's prior relationship with her boyfriend; and (2) the court violated the defendant's right to trial by an impartial jury under the sixth amendment when it seated a juror who believed that children were less likely to lie than adults. We affirm the judgment of the trial court.

         The jury reasonably could have found the following facts after the conclusion of the evidence. The victim was born in 1997; the defendant was born in 1984. In 2004, the victim's mother met and began dating the defendant. He eventually moved in with the victim's mother, and they lived together at various addresses between then and 2010. Initially, the victim got along well with the defendant, but, beginning in 2007, he began touching the victim inappropriately. One day, in the kitchen of the apartment where they were then living, he grabbed the victim's buttocks. The victim told her mother about the incident, and her mother asked the defendant if this was true. The defendant denied it, and the victim's mother did not pursue the matter further. The defendant confronted the victim once she was alone in her room and angrily demanded to know why she was lying to her mother. Although the victim knew that what the defendant had done was wrong, she felt as if her mother did not believe her, and so she later told her mother that maybe she had ‘‘take[n] it the wrong way.''

         The family moved to a new apartment at the end of 2008. A few months after the move, the defendant resumed touching the victim inappropriately. The abuse escalated, with the defendant touching the victim's buttocks, breasts, and vagina. He forced the victim to touch his penis, on one occasion ejaculating on her hand. He told the victim that one day he was going to rape her. At the time, the victim was eleven years old.

         The victim began cutting her legs with her fingernails and taking pills to cope with the abuse. She grew sullen and would lash out at people. Although the victim had a good relationship with her mother, she did not discuss the abuse with her mother because her mother had not believed her the first time, and she did not think her mother would believe her the second time. Eventually, in November, 2009, the victim-then twelve years old- told her boyfriend that the defendant was touching her. Her boyfriend told his mother, who did not do anything. Her boyfriend also stopped asking the defendant for rides home when he visited the victim, so that the victim would not have to be alone with the defendant on the ride back.

         Finally, in January, 2010, the victim told her grandmother about the defendant touching her. She had called her grandmother because she was angry at the defendant for taking a space heater out of her room during the winter while the apartment's heating system was broken. She testified that at the time she was frustrated and angry, and had been holding those emotions inside for almost one year. During the phone call to her grandmother, ‘‘[i]t just all came out, '' and she told her grandmother about how the defendant had been touching her. The grandmother drove over and picked the victim up the next day, and the victim's cousin had her write down in a notebook what the defendant had done to her. The grandmother then called the victim's mother over to talk about it with several other family members and friends there for support. They called the police. The defendant moved out that day. He was later arrested and charged with one count of attempt to commit sexual assault in the first degree, as well as multiple counts of sexual assault in the fourth degree and risk of injury to a child.

         A jury found the defendant guilty of two counts of sexual assault in the fourth degree and two counts of risk of injury to a child. The jury found him not guilty of one count of attempted sexual assault in the first degree, one count of sexual assault in the fourth degree, and one count of risk of injury to a child. The court imposed a sentence of fifteen years incarceration, suspended after ten years of mandatory minimum time, [2]with ten years of probation. This appeal followed.

         I

         The defendant's first claim is that the court violated his rights under the sixth amendment to confront the witnesses against him and to present a defense when, pursuant to the rape shield statute, § 54-86f, it excluded evidence of the sexual nature of the victim's prior relationship with her boyfriend. We disagree.

         A

         Before trial, the state moved to exclude any evidence of the victim's prior sexual conduct, pursuant to § 54-86f.[3] The defendant, however, moved to admit evidence that the victim was having sex with her boyfriend before she brought sexual abuse allegations against the defendant, on the ground that such evidence was admissible under the fourth exception to § 54-86f because it was ‘‘otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant's constitutional rights. . . .'' General Statutes § 54-86f (4).

         When the court decided these two motions in limine at a pretrial hearing, the court had before it only the factual representations and arguments made by the parties at that hearing. As for the defendant, defense counsel represented the following to the court at that hearing. Shortly before the victim's sexual abuse allegations, the defendant had found a series of letters that the victim's boyfriend had written to her. In the letters, the victim's boyfriend talked about losing his virginity with the victim, her concern that she might be pregnant, and their desire to be together forever. When the defendant found the letters, he confronted the victim and spoke with her mother. As a result, the victim was grounded and forbidden from seeing her boyfriend again, which ultimately led to their separation. Defense counsel further represented that the victim's relationship with the defendant deteriorated after her grounding, with the two arguing often, until one month later when she called her grandmother and falsely accused the defendant of sexual abuse so that the Department of Children and Families would remove him from the home. Defense counsel submitted the letters at issue to the court after the hearing.

         The defense argued that evidence of the sexual nature of the victim's relationship with her boyfriend was material on two distinct grounds: (1) to rebut an inference that the victim's allegations must be true because a child her age otherwise would lack the sexual knowledge necessary to make up the allegations; and (2) to show that the victim had a strong motive to falsely accuse the defendant as retaliation against him for ending her sexual relationship with her boyfriend.

         As to the sexual knowledge ground, the defense argued that, if the state submitted evidence conforming to its allegations that the victim accused the defendant of making her ‘‘hold his penis and go up and down on his penis, '' until the point of ‘‘ejaculation, '' and of asking her, ‘‘are you going to suck my penis, '' then the jury would naturally question where the victim learned how sex works such that she would be able to make allegations accurately describing sexual mechanics. The defense argued that, because the victim was only twelve years old when she first reported the defendant's sexual abuse, a jury would naturally presume that she had no ordinary sources of sexual knowledge, and so the only way she would know enough to describe sex was if she had learned about it from the defendant's sexual abuse. The defense argued that evidence of an alternative source of sexual knowledge-i.e., the victim's sexual relationship with her boyfriend-was necessary to rebut that presumption.

         As to the motive ground, the defense argued that, in presenting the jury with the defense theory that the victim accused the defendant of sexually abusing her in retaliation for his grounding her and ending her relationship with her boyfriend, the sexual nature of that relationship was relevant to the ‘‘emotional state of the parties'' and explained why the victim became ‘‘so angry her emotions rose to the point'' of falsely accusing the defendant of sexual abuse.

         The state opposed the defendant's motion, arguing that (1) a jury would not presume that someone the victim's age was sexually nave, especially given that ‘‘[c]hildren at an early age are taught . . . what's a good touch and what's a bad touch, '' so there was no need to rebut such a presumption with evidence of an alternative source of sexual knowledge, and (2) the defendant could submit evidence that he punished the victim and ended her relationship with her boyfriend shortly before she made the allegations against him, suggesting a possible motive, but whether the victim was having sex with her boyfriend was immaterial. The state did not dispute that the letters showed that the victim and her boyfriend were sexually active.

         The court granted the state's motion to exclude the evidence and denied the defendant's motions to admit it. The court ruled that the defendant could ‘‘say there was an issue, it was a very substantial issue, you know, that I'm going to allow, but not the specifics of what it was. You can't go there.'' When the defendant asked for further clarity the next day, the court replied: ‘‘Let me see if I can make this absolutely clear. There is to be no questioning, no inquiry based on my ruling yesterday with respect to any relationship-specific relationship between [the boyfriend] and the [victim]. I want that to be absolutely clearly understood, and- is that clear?. Is there any-any question about that area? Because if there is, I'd like to hear it now. . . .

         ‘‘You can't go into any area where an inference of a sexual relationship between [the boyfriend] and the [victim] could be inferred by the jury. I'm cautioning you, don't go there. . . . If you want to say there were letters . . . and the content of those letters caused an argument, that's fine, but nothing about what the content is. . . . I don't know how much clearer I can make this.''

         B

         We begin with the standard of review. ‘‘This court has consistently recognized that it will set aside an evidentiary ruling only when there has been a clear abuse of discretion. . . .

         The trial court has wide discretion in determining the relevancy of evidence and the scope of cross-examination and [e]very reasonable presumption should be made in favor of the correctness of the court's ruling in determining whether there has been an abuse of discretion State v. Santos, 318 Conn 412, 423, 121 A3d 697 (2015) Generally, a trial court abuses its discretion when the court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided it based on improper or irrelevant factors State v. O'Brien-Veader, 318 Conn 514, 555, 122 A3d 555 (2015) When this court reviews a decision of the trial court for abuse of discretion, the question is not whether any one of us, had we been sitting as the trial judge, would have exercised our discretion differently Rather, our inquiry is limited to whether the trial court's ruling was arbitrary or unreasonable State v. Cancel, 275 Conn 1, 18, 878 A.2d 1103 (2005) Accordingly, the abuse of discretion standard reflects the context specific nature of evidentiary rulings, which are made in the heat of battle by the trial judge, who is in a unique position to [observe] the context in which particular evidentiary issues arise and who is therefore in the best position to weigh the potential benefits and harms accompanying the admission of particular evidence State v. Collins, 299 Conn 567, 593 n24, 10 A3d 1005, cert denied, 565 U.S. 908, 132 S.Ct. 314, 181 L.Ed.2d 193 (2011)'' (Citations omitted; internal quotation marks omitted) State v. Wright, 320 Conn 781, 831-32, 135 A3d 1 (2016) (Espinosa, J, concurring); see also id., 823 (reviewing for abuse of discretion defendant's sixth amendment claims that he was denied right to confrontation and right to present defense); State v. Cecil J., 291 Conn. 813, 819 n.7, 970 A.2d 710 (2009) (‘‘[w]e review the trial court's decision to [exclude] evidence, if premised on a correct view of the law . . . for an abuse of discretion'' [internal quotation marks omitted]).

         ‘‘Prosecutions for sexual assault are governed by special rules of evidence, including § 54-86f. That statute was enacted specifically to bar or limit the use of prior sexual conduct of an alleged victim of a sexual assault because it is such highly prejudicial material. . . . In enacting § 54-86f, the legislature intended to [protect] the victim's sexual privacy and [shield the victim] from undue harassment, [encourage] reports of sexual assault, and [enable] the victim to testify in court with less fear of embarrassment. . . . Other policies promoted by the law include avoiding prejudice to the victim, jury confusion and waste of time on collateral matters. . . .

         ‘‘Thus, to determine whether the [sexual conduct] evidence [at issue] was properly excluded, we must begin our analysis with the relevant language of the rape shield statute.'' (Citations omitted; internal quotation marks omitted.) State v. Wright, supra, 320 Conn. 798. The rape shield statute generally bars evidence of a victim's prior sexual conduct, subject to four exceptions, only the fourth of which is at issue here. Section 54-86f provides in relevant part: ‘‘In any prosecution for sexual assault . . . no evidence of the sexual conduct of the victim may be admissible unless such evidence is . . . (4) otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant's constitutional rights . . . [and] the probative value of the evidence outweighs its prejudicial effect on the victim . . . .''

         Our Supreme Court has interpreted this language to require that a defendant show that the proffered evidence is (1) material, (2) relevant, and (3) so relevant and so material to a critical issue in the case that excluding it would violate the defendant's constitutional rights. See State v. Wright, supra, 320 Conn. 812-23.[4]Here, the proffered evidence was a series of letters, and presumably related cross-examination, that would have revealed the sexual nature of the victim's relationship with her boyfriend. We address each of the three requirements in turn.

         1

         First, we conclude that the proffered evidence was material, but only on the theory that it spoke to the victim's motive, not on the theory that it rebutted a presumption of sexual naivete. ‘‘[E]vidence is material when it has an influence, effect, or bearing on a fact in dispute at trial.'' Id., 810. Materiality is often contrasted with relevance. The classic distinction between materiality and relevance is that (1) materiality pertains to whether the evidence tends to prove a fact that bears on an element of or defense to the action, and (2) relevance pertains to whether the evidence actually tends to prove that fact. See Conn. Code Evid. § 4-1, commentary; C. Tait & E. Prescott, Connecticut Evidence (5th Ed. 2014) §§ 4.1 through 4.1.4, pp. 153-55. In a strict sense, then, evidence is relevant to facts, and facts are material to legal elements. See Conn. Code Evid. § 4-1, commentary. In a more general sense, evidence is ‘‘material'' if it is offered to prove facts that are themselves material, either directly or indirectly, to a legal element. See State v. Wright, supra, 320 Conn. 810; C. Tait & E. Prescott, supra, § 4.1.3, p. 154.

         Here, the defendant offered two theories as to why the evidence was material. First, he argued that the sexual nature of the victim's relationship with her boyfriend would rebut an inference that the defendant must have sexually abused the victim because a child her age otherwise would lack the sexual knowledge necessary to make such allegations, and, thus, was material to whether the defendant sexually abused the victim. Second, he argued that the sexual nature of the victim's relationship with her boyfriend gave her a stronger motive to falsely accuse the defendant as payback for his role in ending it, which was material to whether her allegations of sexual abuse were true. We address each theory in turn.

         As to the sexual knowledge theory of materiality, the defendant argues that the sexual nature of the victim's relationship with her boyfriend was material to whether the defendant sexually abused the victim, insofar as it rebutted an inference that he must have sexually abused her because otherwise a child of the victim's age presumably would lack the sexual knowledge necessary to fabricate such allegations. This theory of materiality is essentially defensive and responds to the presumption that a child of the victim's age would have no source of sexual knowledge other than the abuse alleged. The seminal case on this issue is State v. Rolon, 257 Conn. 156, 158-59, 167 n.19, 777 A.2d 604 (2001), in which a trial court excluded evidence that a different relative had sexually abused a six year old victim before the victim disclosed that the defendant abused her, and our Supreme Court held that this violated the defendant's constitutional rights. According to the court, the six year old victim in Rolon exhibited sexualized ‘‘behavior indicative of sexual abuse'' and ‘‘highly age-inappropriate sexual knowledge, '' which a jury would ‘‘inevitably conclude . . . [came] from [the] defendant having committed such acts, '' if the defendant were not given the chance to rebut that presumption with evidence of an alternative source of the victim's sexual knowledge. (Emphasis in original; internal quotation marks omitted.) Id., 185.

         Although, in Rolon, evidence of the six year old victim's prior sexual abuse may have been necessary to rebut the ‘‘jury's natural presumption of [the] child victim's sexual naivete''; id., 184 n.29; we cannot conclude that a similar rebuttal was required here. In the present case, the victim was twelve years old when she first came forward, and she was sixteen years old when she testified before the jury at trial.[5] The sexual knowledge displayed in her allegations against the defendant was not unusual and was consistent with what middle schoolers and high schoolers are commonly taught about sex.[6] We, thus, cannot conclude that the jury naturally would have presumed that the victim had no source of sexual knowledge other than the defendant's abuse, such that evidence rebutting that presumption with an alternative source of sexual knowledge was material. Cf. State v. Talton, 197 Conn. 280, 285-86, 497 A.2d 35 (1985) (where state never contended that baby born roughly nine months after sexual assault was defendant's child, evidence rebutting defendant's paternity was irrelevant). The court properly rejected the defendant's sexual knowledge theory of admissibility.[7]

         As to the motive theory of materiality, the defendant argues that the sexual nature of the victim's relationship with her boyfriend was material to the issue of whether the defendant sexually abused the victim because it established a stronger motive for the victim to falsely accuse the defendant. According to the defendant, the victim's motive was her desire to get back at him for ending her relationship with her boyfriend, so the closeness of that relationship would affect the strength of her motive, and the strength of her motive would affect the credibility of her allegations.

         Because the victim was a fact witness to the acts of sexual abuse alleged, her credibility was material to whether the defendant in fact ‘‘subject[ed] [the victim] to sexual contact'' or ‘‘ha[d] contact with the intimate parts [of the victim] . . . in a sexual and indecent manner likely to impair the health or morals of such child, '' which were required elements of the crimes charged. See General Statutes §§ 53a-73a (a) (1) (A) and 53-21 (a) (2). Thus, to the extent that the defendant offered evidence of the sexual nature of the victim's relationship with her boyfriend to prove that she had a strong motive to falsely accuse the defendant as retaliation for ending that relationship, the evidence was material for purposes of the rape shield statute.[8]

         2

         We next conclude that the proffered evidence was relevant. ‘‘Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter.'' (Internal quotation marks omitted.) State v. Wright, supra, 320 Conn. 812. Similarly, the Code of Evidence defines relevant evidence as ‘‘evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence.'' Conn. Code Evid. § 4-1. ‘‘[E]vidence need not exclude all other possibilities [to be relevant]; it is sufficient if it tends to support the conclusion [for which it is offered], even to a slight degree. . . . [T]he fact that evidence is susceptible of different explanations or would support various inferences does not affect its admissibility, although it obviously bears upon its weight.'' (Internal quotation marks omitted.) United Technologies Corp. v. East Windsor, 262 Conn. 11, 29, 807 A.2d 955 (2002).

         Here, the proffered evidence-i.e., the letters and the victim's testimony-is relevant if each factual link in the chain connecting that evidence to the legal elements of the crime tends to support the next factual link, even to a slight degree. See id. Here, the defendant argues that (1) the letters and the victim's testimony would establish that she and her boyfriend had sexual intercourse; (2) which was relevant to whether the defendant broke off a particularly close relationship between the victim and her boyfriend; (3) which was relevant to whether the victim had a strong motive to seek revenge against the defendant; (4) which was relevant to the victim's credibility; (5) which was relevant to whether the victim's testimony that the defendant sexually abused her was true. We conclude that each factual link does tend to support the next, at least to a slight degree. On the first link, the state does not dispute that the letters showed that the victim and her boyfriend were sexually active. On the second and third links, our Supreme Court previously has held that, for purposes of evidentiary relevance, ‘‘a sexual relationship differs substantially from a nonsexual one in the level of emotional intensity and potential animus resulting from its termination.'' State v. Cortes, 276 Conn. 241, 256, 885 A.2d 153 (2005). On the fourth and fifth links, the United States Supreme Court has held that the ‘‘ulterior motives of [a] witness . . . [are] always relevant as discrediting the witness and affecting the weight of [her] testimony.'' (Internal quotation marks omitted.) Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Accordingly, the proffered evidence is relevant for purposes of the rape shield statute.

         3

         Although evidence of the sexual nature of the victim's relationship with her boyfriend was both material and relevant to prove the strength of the victim's motive to falsely accuse the defendant, we conclude that it was not so material and so relevant that its exclusion violated the defendant's constitutional rights.

         ‘‘It is fundamental that the defendant's rights to confront the witnesses against him and to present a defense are guaranteed by the sixth amendment to the United States constitution. The sixth amendment provides in relevant part: In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him; [and] to have compulsory process for obtaining witnesses in his favor . . . . A defendant's right to present a defense is rooted in the compulsory process and confrontation clauses of the sixth amendment . . . . Furthermore, the sixth amendment rights to confrontation and to compulsory process are made applicable to state prosecutions through the due process clause of the fourteenth amendment. . . .

         ‘‘In plain terms, the defendant's right to present a defense is the right to present the defendant's version of the facts as well as the prosecution's to the jury so that it may decide where the truth lies. . . . It guarantees the right to offer the testimony of witnesses, and to compel their attendance, if necessary . . . . Therefore, exclusion of evidence offered by the defense may result in the denial of the defendant's right to present a defense. . . .

         ‘‘The right of confrontation is the right of an accused in a criminal prosecution to confront the witnesses against him. . . . The primary interest secured by confrontation is the right to cross-examination . . . and an important function of cross-examination is the exposure of a witness' motivation in testifying. . . . Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. . . .

         ‘‘Impeachment of a witness for motive, bias and interest may also be accomplished by the introduction of extrinsic evidence. . . . The same rule that applies to the right to cross-examine applies with respect to extrinsic evidence to show motive, bias and interest; proof of the main facts is a matter of right, but the extent of the proof of details lies in the court's discretion. . . . The right of confrontation is preserved if defense counsel is permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. . . .

         ‘‘Although it is within the trial court's discretion to determine the extent of cross-examination and the admissibility of evidence, the preclusion of sufficient inquiry into a particular matter tending to show motive, bias and interest may result in a violation of the constitutional requirements [of the confrontation clause] of the sixth amendment. . . .

         ‘‘These sixth amendment rights, although substantial, do not suspend the rules of evidence . . . . A court is not required to admit all evidence presented by a defendant; nor is a court required to allow a defendant to engage in unrestricted cross-examination. . . . Instead, [a] defendant is . . . bound by the rules of evidence in presenting a defense . . . . Nevertheless, exclusionary rules of evidence cannot be applied mechanistically to deprive a defendant of his rights . . . . Thus, [i]f the proffered evidence is not relevant [or constitutes inadmissible hearsay], the defendant's right[s] to confrontation [and to present a defense are] not affected, and the evidence was properly excluded. . . . The defendant's right to confront witnesses against him is not absolute, but must bow to other legitimate interests in the criminal trial process. . . . Such interests are implicit in a trial court's accepted right, indeed, duty, to exclude irrelevant evidence ....

         ‘‘There are special considerations in sexual assault prosecutions that trial courts must keep in mind when ruling on the admissibility of evidence, such as shielding an alleged victim from embarrassing or harassing questions regarding his or her prior sexual conduct. . . . Although the state's interests in limiting the admissibility of this type of evidence are substantial, they cannot by themselves outweigh [a] defendant's competing constitutional interests. . . . As we previously have observed, evidentiary rules cannot be applied mechanistically to deprive a defendant of his constitutional rights. . . .

         ‘‘We must remember that [t]he determination of whether the state's interests in excluding evidence must yield to those interests of the defendant is determined by the facts and circumstances of the particular case. . . . In every criminal case, the defendant has an important interest in being permitted to introduce evidence relevant to his defense. Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, [as] long as it is not prejudicial or merely cumulative. . . . Whenever the rape shield statute's preclusion of prior sexual conduct is invoked, a question of relevancy arises. If the evidence is probative, the statute's protection yields to constitutional rights that assure a full and fair defense. . . . If the defendant's offer of proof is . . . more probative to the defense than prejudicial to the victim, it must be deemed admissible at trial. . . . When the trial court excludes defense evidence that provides the defendant with a basis for cross-examination of the state's witnesses, [despite what might be considered a sufficient offer of proof] such exclusion may give rise to a claim of denial of the right[s] to confrontation and to present a defense.'' (Citations omitted; internal quotation marks omitted.) State v. Wright, supra, 320 Conn. 816-20.

         ‘‘In determining whether a defendant's right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at ...


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