Griffin v. the State

SECOND DIVISION
ANDREWS, P. J.,
MCFADDEN and RAY, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/

February 11, 2015

In the Court of Appeals of Georgia
A14A1614. GRIFFIN v. THE STATE.

MCFADDEN, Judge.

After a jury trial, Patrick Griffin was convicted of cocaine trafficking and

possession of marijuana with intent to distribute. He appeals, raising six claims of

ineffective assistance of counsel and four other enumerations of error.

He argues that trial counsel rendered ineffective assistance by failing to object

to a question about Griffin’s invocation of his right to counsel and his right to remain

silent; by failing to object when lab reports, evidence labels, and evidence tags listing

his name went out with the jury; by allowing an imperfectly redacted affidavit and

search warrant to go out with the jury; by failing to show that a woman, not Griffin,

was the lessee of the apartment in which the contraband was found; by failing to

object to a jury charge on the presumption of possession; and by failing to request a
jury charge on sole constructive possession. None of these claims of ineffective

assistance of trial counsel has merit.

Griffin also argues that the trial court expressed an opinion on a witness’s

credibility in violation of OCGA § 17-8-57. But the trial court’s comments were part

of a brief, friendly exchange that did not express an opinion on the witness’s

credibility. Griffin argues that the trial court erred by excluding references to two

codefendants’ earlier acquittals. But Griffin was not entitled to present evidence of

the acquittals. Griffin argues that the trial court wrongly excluded certain relevant

evidence and wrongly included certain irrelevant evidence, but he has not shown an

abuse of discretion. Finally, contrary to Griffin’s argument, circumstantial evidence

was sufficient to show that he knowingly possessed more than 28 grams of cocaine,

and the evidence generally supports the convictions. We therefore affirm.

1. Sufficiency of the evidence.

Although it is Griffin’s final argument, we begin with the sufficiency of the

evidence. On appeal from a criminal conviction,

the evidence must be viewed in the light most favorable to the
verdict, and the defendant no longer enjoys the presumption of
innocence; moreover, an appellate court does not weigh the
evidence or determine witness credibility but only determines

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 whether the evidence is sufficient under the standard of Jackson
v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

Morris v. State, 322 Ga. App. 682 (1) (746 SE2d 162) (2013) (citation

omitted). Viewed in this light, the evidence shows that on January 13, 2011,

officers executed a search warrant at an apartment in Clayton County. Griffin

and at least ten other people were inside the apartment. The officers found

cocaine, marijuana, large sums of cash, digital scales, drug distribution

paraphernalia, and guns throughout the apartment. Cocaine was being cooked

into crack on the stove top. A bale of marijuana was in the open pantry.

Officers found $4,335 on Griffin. In total, close to $30,000 in cash was found

on the men who were present in the apartment. A codefendant testified that,

shortly before the police executed the warrant, Griffin asked someone to go

buy some batteries, ostensibly for one of the digital scales, and Griffin

provided the funds for the batteries.

A chemist with the Georgia Bureau of Investigation testified about the

results of her testing of several of the multiple bags of contraband seized from

the apartment, including one bag that contained a chunky, solid material that

was 24.7 percent pure cocaine and weighed 61.45 grams and several bags of

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a powdered material that was 49.4 percent pure cocaine and together weighed

235.83 grams.

The state presented as similar transaction evidence Griffin’s prior

convictions for cocaine possession and marijuana possession The state also

admitted a statement Griffin made in connection with an incident in which he

was not charged. Griffin admitted driving another person to a location where

that person was intending to sell cocaine and watching that person weigh the

cocaine in the back seat of his car.

Griffin’s defense was that he was merely at the apartment to attend a

party. But evidence, including Griffin’s distinctively large clothing scattered

in one of the bedrooms, a photograph of Griffin and his girlfriend found in that

bedroom, and Griffin’s admission that he “stayed” at that apartment with his

girlfriend, linked Griffin to the apartment.

At the time of the crimes in 2011 and Griffin’s trial June 11-15, 2012,

former OCGA § 16-13-31 (a) (1) provided, in relevant part:

Any person who knowingly sells, manufactures, delivers, or
brings into this state or who is knowingly in possession of 28
grams or more of cocaine or of any mixture with a purity of 10
percent or more of cocaine, as described in Schedule II, in

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 violation of this article commits the felony offense of trafficking
in cocaine.

(The statute has since been amended to delete the word “knowingly.” See Scott

v. State, 295 Ga. 39, 40-41 & n. 1 (1), (2) (757 SE2d 106) (2014).) OCGA §

16-13-30 (j) (1) provides, “[i]t shall be unlawful for any person to possess,

have under his or her control, manufacture, deliver, distribute, dispense,

administer, purchase, sell, or possess with intent to distribute marijuana.” The

evidence described above supports the jury’s determination that Griffin

committed the offenses of cocaine trafficking and possession of marijuana with

intent to distribute.

Griffin argues that there was insufficient evidence that he had

knowledge of the weight of the cocaine. See Scott, 295 Ga. at 42 (3). But such

knowledge may be proved by circumstantial evidence. Freeman v. State, 329

Ga. App. 429, 432 (1) (__ SE2d __) (2014). “Because the trafficking

conviction in this case is based on the possession of a cocaine mixture that

weighed far more than 28 grams, and because the evidence was overwhelming

that [Griffin] had enough experience handling cocaine to know that the cocaine

[ ] which, the jury evidently believed, was in his possession – weighed more

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than 28 grams,” the evidence was sufficient to establish that Griffin knew the

weight of the cocaine in his possession exceeded 28 grams. Harrison v. State,

309 Ga. App. 454, 459 (2) (b) (711 SE2d 35) (2011).

2. Griffin received effective assistance of counsel.

Griffin argues that he received ineffective assistance of counsel in six

regards. To prevail on his claim of ineffective assistance of counsel, Griffin

must show both deficient performance by trial counsel and actual prejudice.

Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d

674) (1984); Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985).

If he “fails to meet his burden of proving either prong, then we do not need to

examine the other prong.” Works v. State, 301 Ga. App. 108, 114 (7) (686

SE2d 863) (2009) (citation omitted). We “give[] deference to the trial court’s

factual findings, which are to be upheld unless clearly erroneous, and

examine[] the lower court’s legal conclusions de novo.” Dulcio v. State, 292

Ga. 645, 650 (3) (740 SE2d 574) (2013).

(a) State’s question to a detective.

Griffin argues that counsel rendered deficient performance during the

state’s examination of one of the detectives. The detective testified that after

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he read Griffin his Miranda rights, he questioned Griffin about where he lived,

and they briefly discussed the investigation. The assistant district attorney next

asked, “And then at that point in time did the defendant then request for an

attorney and not wish to talk to you any further?” The detective responded,

“Yes.”

Griffin argues that trial counsel rendered deficient performance by

failing to object to this question, which, he contends, impermissibly

commented on his invocation of his right to counsel and his right to remain

silent. To its credit, the state concedes that the question was improper and

objectionable. But not all references to a defendant’s invoking his right to

remain silent require reversal: “In fact, to reverse a conviction, the evidence of

the defendant’s election to remain silent must point directly at the substance of

the defendant’s defense or otherwise substantially prejudice the defendant in

the eyes of the jury.” Taylor v. State, 272 Ga. 559, 561 (2) (d) (532 SE2d 395)

(2000) (citation and punctuation omitted).

Here the state’s question and the witness’s answer did not “point directly

at the substance of” Griffin’s defense that he was at the apartment for a party.

And the reference could not have “otherwise substantially prejudiced” Griffin

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in the eyes of the jury. The state’s violation consisted of only a single reference

to Griffin’s invocation of his rights and the reference was isolated. See Qureshi

v. State, 291 Ga. App. 708, 710 (662 SE2d 806) (2008). The assistant district

attorney did not comment on Griffin’s invocation of his rights in closing

argument. Id. “[I]t appears that [the reference] was not intended to reflect on

[Griffin’s] guilt and it was not probative on that issue. Thus, the remark was

not so fundamentally unfair as to deny him due process.” Hardy v. State, 301

Ga. App. 115, 116 (2) (686 SE2d 789) (2009) (citations omitted).

And counsel had a reasonable explanation for his failure to object. At the

motion for new trial hearing, counsel explained that:

Sometimes during the course of a trial when a question has been
asked and the witness has already answered it, it does more harm
than good to jump up and draw more, it does more harm than
good to jump up and draw attention to a question that really
didn’t hurt your client to begin with.

Griffin has not shown that trial counsel’s failure to object was deficient

assistance of counsel. Taylor, supra, 272 Ga. at 562 (2) (d). See also Martin v.

State, 290 Ga. 901, 902-903 (1) (a) (725 SE2d 313) (2012) (trial counsel was

not ineffective for failing to redact portion of videotaped statement where

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defendant invoked his right to counsel because videotape merely showed that

defendant invoked his right to an attorney after giving a lengthy statement to

police, and that the interview was then properly terminated, and did not purport

to be evidence of his guilt nor was it directed to undermining any of his

defenses).

(b) Evidence labeled with Griffin’s name.

Griffin argues that trial counsel was ineffective because he allowed

evidence labeled with his name to be sent out with the jury. Specifically, he

points to four evidence bags: one in which digital scales were sealed, one in

which 14 bags of suspected powdered cocaine were sealed, one in which

plastic bags of crack cocaine were sealed, and one in which four cell phones

were sealed. Listed on the front of each bag were the notations, “Offense:

VGCSA 16 13 30,” or “Offense: VGCSA,” and “Suspect: Griffin, Patrick.”

Griffin also points to an evidence tag that was attached to state’s exhibit 28, a

handgun. That tag included the notation: “POSSESSOR INFORMATION:

LAST NAME Griffin FIRST NAME Patrick.” Griffin points to a Georgia

Bureau of Investigations lab report that identified cocaine seized from the

scene and listed Griffin as one of four “Case Individual Subjects.” He also

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points to a Clayton County Police Department report that identified marijuana

seized from the scene and listed Griffin as one of eight defendants. (He also

mentions an evidence bag in which 163 tablets of MDMA were sealed and

which listed Griffin’s name as one of four suspects, but he does not indicate

where the MDMA was admitted or went out with the jury, and an evidence tag

attached to another handgun that stated, “Stolen out of Henry Co Police” but

did not even list his name.)

At the motion for new trial hearing, trial counsel testified that he did not

recall that the bags and tags went out with the jury. And the judge believed that

they did not go out with the jury. Nonetheless, in the order denying Griffin’s

motion for new trial, the trial court did not make a finding of fact on this issue.

Therefore, for purposes of this appeal, we will assume that the evidence bags,

tags and labels did go out with the jury. Even so, Griffin has not shown that

trial counsel was ineffective for failing to object because listing his name was

not prejudicial, and the cases he cites in support are distinguishable.

The information that went out with the juries in the cases cited by Griffin

was highly prejudicial – unlike the mere listing of Griffin’s name as a suspect

or defendant on the bags, tags and reports at issue. In Morris v. State, 161 Ga.

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App. 141, 142 (1) (288 SE2d 102) (1982), we reversed Morris’s drug

convictions, holding that “it was erroneous for the trial court to allow to go to

the jury room a tag which read ‘residence of L. D. Morris’ and was affixed by

a police officer to a set of scales discovered in [an] apartment,” given that

whether Morris resided there was a hotly disputed issue of fact. We held that

“[t]he tag embodied a conclusion which was solely within the jury’s province

to make, and its presence within the jury room constituted reversible error.” Id.

In Spence v. State, 96 Ga. App. 19 (99 SE2d 309) (1957), the defendant

was convicted of driving under the influence of intoxicants. We reversed his

conviction, holding that allowing the defendant’s arrest ticket to go out with

the jury was prejudicial error, given that it “contain[ed] the statement: ‘Check,

found as checked, admits drinking quart of beer.’”Id. at 21 (3). See also Jinks

v. State, 229 Ga. App. 18, 19-20 (2) (493 SE2d 214) (1997) (marijuana

possession conviction reversed where trial court admitted fingerprint card that

was unredacted and listed defendant’s name and, under the heading “Charge,”

stated “Driving Under Influence” and “Too Fast For Conditions”).

In contrast, the listing of Griffin’s name as a suspect or defendant on the

evidence bags, tags, and reports “hardly amounted to written testimony that

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could work any prejudice against [Griffin].” Brown v. State, 195 Ga. App. 389,

390 (393 SE2d 514) (1990). See also Stokes v. State, 206 Ga. App. 781 (2)

(426 SE2d 573) (1992) (trial court did not err by admitting into evidence bag

containing contraband to which tags were attached bearing defendants’ names).

Obviously, the jury knew that Griffin was a suspect and a defendant, given that

he was currently on trial. Consequently, trial counsel was not ineffective in this

regard.

And to the extent that Griffin challenges listing him as the “possessor”

of the handgun, given that he was charged with possession of a firearm as a

convicted felon, any error was harmless as the jury returned a not guilty verdict

on this charge.

(c) Griffin has not shown that trial counsel allowed an imperfectly

redacted search warrant and affidavit to go out with the jury.

Griffin argues that counsel was ineffective for allowing an imperfectly

redacted search warrant and affidavit to go out with the jury in violation of the

continuing witness rule. But trial counsel testified that the imperfect redaction

was corrected, so that Griffin’s name was no longer visible, the trial court

found that only a redacted search warrant went out with the jury, and Griffin

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has not shown that the trial court’s factual finding is clearly erroneous.

Consequently, this claim lacks merit.

(d) Trial counsel was not ineffective for failing to show that a woman,

not Griffin, was the lessee of the apartment in which the contraband was

found.

Griffin argues that trial counsel was ineffective for failing to pursue and

present to the jury the identity of the lessee of the apartment. However, trial

counsel’s trial strategy for failing to pursue this issue was reasonable. At the

motion for new trial hearing, trial counsel testified that he did not pursue the

issue because their theory of the case was that Griffin was simply at the

apartment to attend a party. Consequently, the identity of the lessee was

irrelevant. Moreover, counsel testified, there was some evidence that Griffin

lived at the apartment. Trial counsel’s strategic decision did not amount to

ineffective assistance of counsel. Copeland v. State, 327 Ga. App. 520, 528-

529 (3) (b) (759 SE2d 593) (2014).

(e) Trial counsel was not ineffective for failing to object to the

presumption of possession jury charge.

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 Griffin argues that trial counsel was ineffective for failing to object to

the presumption of possession jury charge because such a presumption is

limited to owners and tenants of property and Griffin was neither an owner nor

a tenant. On the contrary, “[u]nder Georgia law, a presumption of possession

and control arises when the defendant owns or resides in the premises.”

Kirchner v. State, 322 Ga. App. 275, 282 (1) (c) (744 SE2d 802) (2013)

(emphasis supplied; citations omitted). The state presented some evidence that

Griffin resided at the apartment. Consequently, Griffin has not shown that

counsel was ineffective for failing to object to this jury charge on this ground.

(f) Trial counsel was not ineffective for failing to request a charge on

sole constructive possession.

Griffin argues that trial counsel should have requested a jury charge to

the effect that the state was required to prove that Griffin was in sole

constructive possession of the contraband, given that not all of those arrested

with Griffin were indicted. He relies on cases in which we have held that when

more than one occupant has equal access to contraband, but only one occupant

is prosecuted for possession of the contraband, the state has the burden of

proving that the prosecuted occupant was in sole constructive possession of the

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contraband. See, e.g., Benitez v. State, 295 Ga. App. 658, 660 (673 SE2d 46)

(2009), overruled in part by Maddox v. State, 322 Ga. App. 811, 814-816 (2)

(746 SE2d 280) (2013); Turner v. State, 276 Ga. App. 381, 383-384 (623 SE2d

216) (2005), overruled in part by Maddox, supra; Warren v. State, 254 Ga.

App. 52, 54 (561 SE2d 190) (2002), overruled in part by Maddox, supra.

But in Maddox, 322 Ga. App. at 814-816 (2), we ruled that there was no

reasonable basis for such a holding and overruled in part those cases restating

that holding. Accordingly, we rejected Maddox’s argument that the trial court

erred by refusing to instruct the jury on the state’s burden to prove sole

constructive possession.

Although Maddox was decided after Griffin’s 2012 trial, its holding

applies to Griffin’s case. See Lewis v. State, 291 Ga. 273, 278 (4) (731 SE2d

51) (2012). As Griffin was not entitled to a jury charge on sole constructive

possession, he cannot show that counsel’s failure to request such a charge was

ineffective assistance. See McClure v. Kemp, 285 Ga. 801, 803 (684 SE2d 255)

(2009).

3. The trial court did not improperly express an opinion on the

credibility of a witness.

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 Griffin argues that the trial court judge violated OCGA § 17-8-57 by

expressing a favorable opinion about the credibility of a state’s witness,

Kenneth Chappell, a crime scene investigator. OCGA § 17-8-57 prohibits “any

judge in any criminal case, during its progress or in his charge to the jury, to

express or intimate his opinion as to what has or has not been proved or as to

the guilt of the accused.” “[A]ny violation of OCGA § 17-8-57 requires a new

trial regardless of whether there has been any showing of actual prejudice to

the defendant” or whether the defendant objected. Rouse v. State, __ Ga. __,

__ (2) (__ SE2d __) (Case No. S14A1165, decided Nov. 21, 2014). We

conclude, however, that the colloquy at issue was permissible: it was a “brief,

friendly exchange” that “did not rise to the level of advocacy or imply the

court’s approval of the investigator’s testimony” – notwithstanding that it “did

seem to suggest approval of this investigator.” See Jordan v. State, 259 Ga.

App. 551, 552 (578 SE2d 217) (2003), overruled in part on other grounds by

Patel v. State, 282 Ga. 412 (651 SE2d 55) (2007).

The trial court made the comments in question after Chappell completed

his testimony. After the court informed Chappell that he was excused, the

following transpired:

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CHAPPELL: Thank you, Your Honor. Thank you, jury, for your
time and attention.

THE COURT: The state may call their next witness.

THE ASSISTANT DISTRICT ATTORNEY: Thank you, Judge.
The state would call Detective Williams.

THE COURT: All right. To my knowledge Mr. Chappell is not
running for elective office. Maybe he should.

CHAPPELL: Your Honor, I’ve learned one thing, what sustained
means.

THE COURT: Just keep coming back, just keep coming back.

Detective Williams was called as a witness.

THE COURT: Come on up, please, sir, if you would, to the seat
to my right. Good afternoon.

WILLIAMS: How you doing?

THE COURT: Good. You have a hard act to follow, I’m just
warning you.

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 Both this court and our Supreme Court have held that such brief, friendly

exchanges between courts and witnesses do not impermissibly comment on a

witness’s credibility. For example, in Watson v. State, 278 Ga. 763, 769-770

(5) (604 SE2d 804) (2004), the Supreme Court ruled that the jury would not

have interpreted as a comment on the witness’s credibility a remark made by

the trial court that “simply follow[ed] up on the humor that the entire

courtroom felt” when an animal behaviorist testified as an expert witness on

cat scratches. Similarly, in O’Hara v. State, 241 Ga. App. 855, 859-860 (3)

(528 SE 2d 296) (2000), we found no violation where, in a “brief, friendly”

exchange, the trial court told a testifying police officer, “I’ve told you, you

can’t [retire] unless I [do].” In Jordan, supra, 259 Ga. App. at 553, we found

no violation from the trial court’s “brief, friendly remarks” at the conclusion

of an investigator’s testimony “that the judge was ‘mad’ at her for not taking

a job offered by the judge some years earlier and that she now had a better job

than what the judge had offered her.” Compare Jones v. State, 189 Ga. App.

232, 232-234 (1) (375 SE2d 648) (1988) (comment “I don’t believe this

witness is biased” clearly violated OCGA § 17-8-57).

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 We therefore conclude that the exchange at issue here did not amount to

a comment on Chappell’s credibility and consequently that the trial court’s

comments did not violate OCGA § 17-8-57. We note however, as we did in

Jordan and O’Hara, that “[s]uch personal remarks by a court should be

avoided to prevent even the slightest intimation of partiality.” Jordan, supra,

259 Ga. App. at 552; O’Hara, supra, 241 Ga. App. at 859 (3).

4. The trial court did not err by excluding references to two

codefendants’ acquittals.

Relying primarily on White v. State, 257 Ga. 236 (356 SE2d 875) (1987),

Griffin argues that the trial court erred by refusing to admit as evidence the fact

that two codefendants had been acquitted at an earlier trial. But this case is

controlled by one in which our Supreme Court distinguished White:

In White, [our Supreme] Court held that one charged distinctly as
an accessory to a crime may be entitled under Georgia law to
present evidence of the acquittal of another charged distinctly as
the principal. . . . Unlike White, it was not essential in the case
against [Griffin] for the [s]tate to prove that [the codefendants]
also [were] guilty. In the indictment, [Griffin] was not charged
distinctly as having aided or abetted [the codefendants] in the
commission of the [crimes],

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Davis v. State, __ Ga. __, __ (2) (__ SE2d __) (Case No. S14A1179, decided

Nov. 3, 2014) (footnotes omitted). Accordingly, Griffin was not entitled to

present this evidence.

5. Griffin has not shown the trial court abused her discretion in

evidentiary rulings.

Griffin challenges two of the trial court’s relevancy-based evidentiary

rulings. Griffin argues that the trial court abused her discretion in allowing an

officer to explain no-knock warrants because the matter was irrelevant. But

Griffin was arrested pursuant to the execution of a no-knock warrant. And “all

the circumstances attending his arrest, [were] admissible to be considered by

the trier of fact for what they [were] worth.” Blake v. State, 272 Ga. App. 181,

182 (2) (612 SE2d 33) (2005) (citation and punctuation omitted).

Griffin next argues that the trial court erred by refusing to allow him to

question a witness about a relevant matter during re-cross examination. The

witness had been indicted with the others but was granted immunity for

testifying. The witness testified that she had been at the apartment ten minutes

when the police arrived. Defense counsel asked her, “What was your purpose

for going there?” The trial court sustained an objection to the question on

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relevancy grounds. Counsel did not make a proffer of what he expected the

witness to answer. Nor did he make any response other than to state that he

believed the question was relevant.

“Although a defendant is entitled to a thorough and sifting

cross-examination as to all relevant issues, the trial court, in determining the

scope of relevant cross-examination, has a broad discretion.” Johnson v. State,

270 Ga. 234, 235 (2) (507 SE2d 737) (1998). Here, Griffin “failed to make any

response or proffer to the [s]tate’s relevancy objection to the evidence at trial.”

Ogletree v. State, 211 Ga. App. 845, 847 (3) (440 SE2d 732) (1994). Griffin

has not shown that the trial court abused her broad discretion.

Judgment affirmed. Andrews, P. J., and Ray, J., concur.

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