COURT OF APPEALS OF VIRGINIA
Present: Judges Haley, Alston and Senior Judge Clements
Argued by teleconference
JOHN BRIAN REDMOND
OPINION BY
v. Record No. 2443-09-4 JUDGE ROSSIE D. ALSTON, JR.
NOVEMBER 16, 2010
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SHENANDOAH COUNTY
Dennis L. Hupp, Judge
Roger A. Inger (Inger & Collins, P.C., on brief), for appellant.
Eugene Murphy, Senior Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
John Brian Redmond (appellant) appeals his conviction of violating Code § 18.2-308.2
by possessing a firearm after having been convicted of a felony. Appellant contends the trial
court erred in denying his motion to suppress the evidence. Appellant also argues the evidence
was insufficient to sustain his conviction. Finding no error, we affirm appellant’s conviction.
I. BACKGROUND
Applying well-established principles of review on appeal, we state the evidence in the
light most favorable to the party prevailing below, the Commonwealth in this instance. Haskins
v. Commonwealth, 31 Va. App. 145, 148, 521 S.E.2d 777, 778 (1999).
The evidence showed that Eric Flagg, a special agent with the Bureau of Alcohol,
Tobacco and Firearms, received information that appellant, who had a prior felony conviction,
possessed firearms at his residence on Middle Road in Shenandoah County. Flagg also learned
that the property had been listed for sale through a real estate company. In response, Flagg
contacted the real estate agent for the property and said he was interested in looking at the house.
On August 3, 2008, Flagg and Investigator Laura Clutz met the realtor at the Middle
Road residence. The realtor showed Flagg and Clutz the home, which had three levels of living
space. In a den located in the basement was a wooden gun cabinet with glass panels. Several
long guns were visible in the case. Flagg also saw several rounds of ammunition in the case.
The realtor did not ask if Flagg and Clutz were police officers, and the officers did not volunteer
this information.
Subsequently, the police filed an affidavit to obtain a warrant to search the Middle Road
residence for illegal firearms, ammunition, and related evidence. The search warrant affidavit
stated that Flagg had visited the residence with a realtor on August 3, 2008. The affidavit further
stated,
During the walk through with the realtor, SA Flagg observed a
pawn ticket on the refrigerator door. The pawn ticket was recent
and showed that Tonya [sic] Henry had pawned three firearms at
Bear’s Trading Post, a pawn broker in Winchester, Virginia.
Additionally, while walking through the den located on the first
floor, SA Flagg observed a glass and oak gun cabinet, which
contained several firearms [including] modern rifles and black
powder rifles. SA Flagg also observed a box of rifle ammunition.
A magistrate issued a search warrant for the entirety of the Middle Road residence on
August 11, 2008, and police officers executed the warrant that same day. When the officers
arrived, appellant was not present, but Tanya Henry and two young children were there. 1 The
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police advised Henry about the search warrant. Henry started making telephone calls in an
attempt to locate appellant.
In the search, the police recovered several long guns from the unlocked gun cabinet in the
basement den. During the search, police also observed on the walls of the residence’s den
photographs of appellant posing with deer that had been killed. In addition, miscellaneous items
1
Henry married appellant on February 26, 2009, and changed her name to Tanya
Redmond. However, for purposes of consistency, we refer to her in this opinion as “Henry.”
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related to guns and hunting were present in the den. The police also found a pistol in a shed
adjacent to the residence. Two boxes of ammunition, a gun magazine, and some loose bullets
were found in a kitchen cabinet. In the foyer, the police found a box of ammunition on top of a
periodical published in January 2007. The periodical was addressed to appellant at the Middle
Road residence. Men’s clothing, boots, hunting equipment, and a firearm were found in the
closet of the master bedroom in the house.
At trial, Henry testified that the property at Middle Road was titled in her name alone.
She had moved into the residence in 2004, when appellant was renting the home. According to
Henry, appellant subsequently bought the home and then sold it to her. She said appellant had
moved out of the residence in June 2008 because she and appellant had been arguing. However,
appellant would return to the house periodically to see the children and get clothes. Henry
testified that after appellant left in June 2008, her nineteen-year-old son moved in to help her
around the house. Henry said the guns the police found during the search belonged to her son
and that the firearms were not present in the house when appellant was living there. Henry did
acknowledge, however, that the male clothing in the master bedroom closet belonged to
appellant.
The Commonwealth introduced documents proving that appellant deeded the property to
himself and Henry as joint tenants in 2006. When the house was listed for sale in 2008,
“Redmond” was indicated as the name of the owner of the property. At the time a bank
foreclosed upon the property in March 2009, the listed owners were Henry and appellant.
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II. SUPPRESSION
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Appellant argues the police unlawfully entered the home and made the observations that
provided the predicate for the items that were referenced in the search warrant affidavit. 2 Thus, F F
he argues, the warrant was invalid and the trial court erred in refusing to suppress the evidence
seized during the search. Essentially, appellant claims that the original entry into the residence
by the police under the guise of being a potential buyer of the real estate was an illegal
subterfuge, thus invalidating the basis for the search warrant. Where the defendant challenges
the seizure of evidence by the police pursuant to a search warrant, he bears the burden of proving
2
Appellant also contends that, even if the police officers lawfully entered the property
pursuant to consent, they exceeded the boundary of that consent by closely examining the pawn
ticket that was on the refrigerator. Appellant did not make this argument in the trial court. “The
Court of Appeals will not consider an argument on appeal which was not presented to the trial
court.” Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998) (citing
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Deal v. Commonwealth, 15 Va. App. 157, 161, 421 S.E.2d 897, 900 (1992); Jacques v.
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Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991) (noting that Rule 5A:18 bars
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even constitutional claims)); see Rule 5A:18. Accordingly, Rule 5A:18 bars our consideration of
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this question on appeal.
Although Rule 5A:18 allows exceptions for good cause or
to meet the ends of justice, appellant does not argue that we should
invoke these exceptions. See[,] e.g., Redman v. Commonwealth,
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25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997) (“In order to
avail oneself of the exception, a defendant must affirmatively show
that a miscarriage of justice has occurred, not that a miscarriage
might have occurred.” (emphasis added)). We will not consider,
sua sponte, a “miscarriage of justice” argument under Rule 5A:18.
Edwards v. Commonwealth, 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) (en banc). As of
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July 1, 2010, Rule 5A:18 was revised to state that “[n]o ruling of the trial court . . . will be
considered as a basis for reversal unless an objection was stated with reasonable certainty at the
time of the ruling . . . .” Because the proceedings below were completed prior to this revision
taking effect, we will rely on the language of Rule 5A:18 that was then in effect. See Fails v. Va.
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State Bar, 265 Va. 3, 5 n.1, 574 S.E.2d 530, 531 n.1 (2003) (applying the Rule of Court in effect
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at the time of the proceedings below).
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the search warrant invalid. 3 See Lebedun v. Commonwealth, 27 Va. App. 697, 710-11, 501
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S.E.2d 427, 433-34 (1998) (citations omitted).
The Fourth Amendment
“protects people, not places.” Katz v. United States, 389 U.S. 347, U U
351 (1967). In order to effectuate the fourth amendment
guarantees, the Supreme Court established the “exclusionary rule”
which prevents evidence obtained in violation of the fourth
amendment from being used against an accused. Reynolds v. U
Commonwealth, 9 Va. App. 430, 435, 388 S.E.2d 659, 662-63
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(1990); see also Walls v. Commonwealth, 2 Va. App. 639, 651,
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347 S.E.2d 175, 182 (1986). Yet, the protections of the
exclusionary rule are only available to individuals whose fourth
amendment rights have been violated. Rakas [v. Illinois], 439 U.S. U U U U
[128,] 134 [(1978)]; accord United States v. Salvucci, 448 U.S. 83,
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85 (1980); McCoy v. Commonwealth, 2 Va. App. 309, 311, 343
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S.E.2d 383, 385 (1986). Thus, before affording the exclusionary
rule protections to a defendant, a court must determine whether,
based on the totality of the circumstances, the defendant
“objectively had a reasonable expectation of privacy at the time
and place of the disputed search.” McCoy, 2 Va. App. at 311, 343 U U
S.E.2d at 385. The party asserting fourth amendment rights has the
burden of proving the government conducted an illegal search of a
place where that party had a legitimate expectation of privacy.
Rawlings v. Kentucky, 448 U.S. 98, 104 (1980).
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3
Similarly, appellant bears the burden of establishing standing to challenge the search of
the Middle Road residence. Jones v. United States, 362 U.S. 257 (1960) (one who seeks to
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challenge the legality of a search as the basis for suppressing relevant evidence must allege, and
if the allegation is disputed, establish that he himself was the victim of an invasion of privacy);
Shearer v. Commonwealth, 9 Va. App. 394, 404, 388 S.E.2d 828, 833 (1990). A defendant’s
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“‘Fourth Amendment rights are violated only when the challenged conduct invaded his
legitimate expectation of privacy rather than that of a third party.’” Parks v. Commonwealth, U U
221 Va. 492, 497, 270 S.E.2d 755, 758 (1980). To the extent that appellant argues that he was
not the owner of the Middle Road residence, nor did he reside there, keep property there, or have
permission to exclude others from the premises, these arguments are inconsistent with
appellant’s standing to challenge the search of the Middle Road residence. Barnes v. U
Commonwealth, 234 Va. 130, 135, 360 S.E.2d 196, 200 (1987). However, because the
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Commonwealth did not raise the issue of appellant’s standing to challenge the search of the
Middle Road residence at trial or on appeal, we decline to consider the issue here. Appalachian U
Voices v. State Corp. Comm’n, 277 Va. 509, 515, 675 S.E.2d 458, 460 (2009) (stating that the
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Court “will not entertain a standing challenge made for the first time on appeal”).
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Commonwealth v. Ealy, 12 Va. App. 744, 750-51, 407 S.E.2d 681, 685 (1991). “What a person
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knowingly exposes to the public, even in his own home . . . , is not a subject of Fourth
Amendment protection.” Katz, 389 U.S. at 351 (citations omitted).
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In Lewis v. United States, 385 U.S. 206 (1966), the United States Supreme Court
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considered whether the exclusionary rule prohibited the use of evidence obtained by a federal
narcotics agent who gained entry to a defendant’s home through subterfuge. In Lewis, a federal
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narcotics agent disguised his identity and was invited into the defendant’s home, where the
officer purchased drugs from the defendant. Id. at 206. The Court found that
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when, as here, the home is converted into a commercial center to
which outsiders are invited for purposes of transacting unlawful
business, that business is entitled to no greater sanctity than if it
were carried on in a store, a garage, a car, or on the street. A
government agent, in the same manner as a private person, may
accept an invitation to do business and may enter upon the
premises for the very purposes contemplated by the occupant.
Id. at 211. The Court noted that the officer, while in the defendant’s home, did not “see, hear, or
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take anything that was not contemplated, and in fact intended, by [the defendant] as a necessary
part of his illegal business.” Id. at 210.
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We find no Virginia appellate decisions where a police officer, posing as a potential
buyer of real property, entered a defendant’s home that was listed for sale and thereby either
viewed or obtained evidence against him. However, we find cases from other jurisdictions
instructive.
In People v. Lucatero, 83 Cal. Rptr. 3d 364, 366 (Cal. Ct. App. 2008), a police officer
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contacted a real estate agent and feigned interest in a house listed for sale. The officer,
accompanied by the real estate agent, then toured the home. Id. During the viewing, the officer
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confirmed information a source previously had provided to him. Id. The officer included those
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confirmed facts in an affidavit and obtained a search warrant for the property. Id. The
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California Court of Appeal found the officer’s entry to the home and the later search lawful,
concluding that
an investigating officer may pose as a potential buyer and enter a
home under this misrepresentation, assuming the officer’s actions
do not exceed the scope of the consent. The officer must act as a
potential buyer and do nothing that would violate the homeowner’s
legitimately held privacy expectations, as defined in the context of
the homeowner’s general invitation to members of the public to
view the interior of the home for purposes of marketing the home.
Id. at 370.
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Similarly, in State v. Ferrari, 731 A.2d 1225, 1226 (N.J. Super. Ct. App. Div. 1999),
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neighbors alerted police officers to suspicious happenings at the condominium unit the defendant
rented. Noting the condominium unit was listed for sale, police officers contacted the listing
agent and indicated interest in purchasing the property. Id. When the officers toured the
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property with the agent, they observed marijuana in plain view. Id. This information was
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included in the affidavit for the search warrant the police subsequently obtained. Id. The court
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found the defendant had sustained no violation of his Fourth Amendment rights, noting that
“[t]he actions of [the officers] . . . did not exceed what one would expect of a prospective
purchaser. . . . Their actions violated no reasonable expectation of privacy possessed by
defendant.” Id. at 1228; see also State v. Poland, 645 P.2d 784, 792 (Ariz. 1982) (observing that
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it is lawful for government agents to conceal their identities and “pose as potential buyers [of real
estate] to investigate illegal firearms”).
We find the analysis of the Lucatero and Ferrari decisions compelling. In this instance,
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Flagg accepted the offer to enter and view the home at Middle Road when he contacted the real
estate agent and indicated interest in the property. There was no evidence Flagg or Clutz made
any representation to the realtor regarding their reason for wanting to tour the house. Moreover,
the police officers’ actions while inside the property did not exceed what one would expect of a
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prospective purchaser. Flagg and Clutz did not conduct an exhaustive search of the home when
they visited it with the realtor. The firearms, ammunition, and pawn ticket all were in the
officers’ plain view and were readily observable on August 3, 2008. Thus, the officers’ actions
violated no reasonable expectation of privacy possessed by appellant.
Finding that the officers did not violate any reasonable expectation of privacy of
appellant by entering the home as prospective buyers, we conclude the trial court did not err in
denying appellant’s motion to suppress the evidence.
III. SUFFICIENCY
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Appellant was charged with possessing a firearm unlawfully on or about August 11,
2008, the date the police searched the Middle Road residence. Appellant contends the evidence
was insufficient to support his conviction of the offense.
Under well-settled principles of appellate review, we
consider the evidence presented at trial in the light most favorable
to the Commonwealth, the prevailing party below. Baldwin v.U
Commonwealth, 274 Va. 276, 278, 645 S.E.2d 433, 433 (2007);
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Robinson v. Commonwealth, 273 Va. 26, 30, 639 S.E.2d 217, 219
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(2007). “We also accord the Commonwealth the benefit of all
inferences fairly deducible from the evidence.” Riner v.
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Commonwealth, 268 Va. 296, 303, 601 S.E.2d 555, 558 (2004).
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When reviewing the sufficiency of the evidence to support a
conviction, the Court will affirm the judgment unless the judgment
is plainly wrong or without evidence to support it. Coles [v.
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Commonwealth], 270 Va. [585,] 587, 621 S.E.2d [109,] 110
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[(2005)]; Burns v. Commonwealth, 261 Va. 307, 337, 541 S.E.2d
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872, 892 (2001).
Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008).
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Code § 18.2-308.2 provides that “[i]t shall be unlawful for . . . any person who has been
convicted of a felony . . . to knowingly and intentionally possess . . . any firearm.”
“A conviction for the unlawful possession of a firearm can be
supported exclusively by evidence of constructive possession;
evidence of actual possession is not necessary. To establish
constructive possession of the firearm by a defendant, the
Commonwealth must present evidence of acts, statements, or
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conduct by the defendant or other facts and circumstances proving
that the defendant was aware of the presence and character of the
firearm and that the firearm was subject to his dominion and
control.”
Smallwood v. Commonwealth, 278 Va. 625, 630, 688 S.E.2d 154, 156 (2009) (quoting Bolden,
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275 Va. at 148, 654 S.E.2d at 586). Moreover,
[o]wnership or occupancy . . . of premises where [contraband is]
. . . found is a circumstance that may be considered together with
other evidence tending to prove that the owner or occupant
exercised dominion and control over items . . . on the premises in
order to prove that the owner or occupant constructively possessed
the contraband . . . .
Burchette v. Commonwealth, 15 Va. App. 432, 435, 425 S.E.2d 81, 83 (1992) (citing Code
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§ 18.2-250; Behrens v. Commonwealth, 3 Va. App. 131, 135, 348 S.E.2d 430, 432 (1986)). To
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support an inference that the owner or occupant of property also possesses contraband located on
the premises, “the owner or occupant must be shown to have exercised dominion and control
over the premises and to have known of the presence, nature and character of the contraband at
the time of such ownership or occupancy.” Id. at 435, 425 S.E.2d at 84 (citation omitted).
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There was credible evidence to show that appellant was the owner of the Middle Road
residence at the time the search warrant was executed. Although Henry testified that she was the
sole owner of the Middle Road residence in August 2008, this testimony was discredited by the
Commonwealth’s evidence. “The credibility of the witnesses and the weight accorded the
evidence are matters solely for the fact finder who has the opportunity to see and hear that
evidence as it is presented.” Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d
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730, 732 (1995) (citations omitted). The Commonwealth’s evidence was sufficient to prove that
appellant owned the property at Middle Road jointly with Henry on the date of the search.
Appellant’s name, not Henry’s, was provided when the property was listed for sale in 2008. In
addition, Henry made attempts to alert appellant when the police arrived to execute the search
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warrant. As the owner of the Middle Road residence, appellant exercised dominion and control
over the premises where the guns were found.
The evidence was also sufficient to show that appellant knew of the presence, nature, and
character of the guns found on the premises. Henry claimed that appellant moved from the
residence in June 2008, the guns the police found belonged to her son, and the guns were not in
the home while appellant was living there. In making its credibility determination, the trial court
was free to reject Henry’s testimony. Moreover, Henry testified that, even after June 2008,
appellant returned to the Middle Road residence periodically to see the children and to obtain
clothing. The police found a firearm placed on top of appellant’s clothing in the master bedroom
closet. Furthermore, the firearms in the unlocked glass and oak gun cabinet and the ammunition
in the foyer were readily observable to anyone in the home. Just as Flagg and Clutz could
observe the firearms in plain sight during their walk-through of the house, so could appellant.
Because several firearms were in plain view, the evidence was sufficient to show that appellant
knew of their presence, nature, and character. Regardless of Henry’s claim that appellant had
moved out prior to the search, appellant clearly had access to the firearms, which were openly
present in the home he owned.
Considering all the facts and circumstances, the evidence was sufficient for the fact finder
to conclude, beyond a reasonable doubt, that in August 2008 appellant constructively possessed
the firearms. Accordingly, the evidence was sufficient to support appellant’s conviction, and we
do not disturb it on appeal.
IV. CONCLUSION
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For the foregoing reasons, we affirm appellant’s conviction.
Affirmed.
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