FILED
MEMORANDUM DECISION Jun 17 2016, 8:44 am
Pursuant to Ind. Appellate Rule 65(D), this CLERK
Indiana Supreme Court
Memorandum Decision shall not be regarded as Court of Appeals
and Tax Court
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Clay M. Patton Gregory F. Zoeller
Osan & Patton, LLP Attorney General of Indiana
Valparaiso, Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Larry Shawn Martin, June 17, 2016
Appellant-Defendant, Court of Appeals Case No.
64A05-1511-CR-1907
v. Appeal from the Porter Superior
Court.
The Honorable Roger V. Bradford,
State of Indiana, Judge.
Appellee-Plaintiff. Cause No. 64D01-1309-FA-8687
Sharpnack, Senior Judge
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Statement of the Case
[1] Following a jury trial, Larry Shawn Martin was convicted of five counts of
1
Class A felony child molesting. He was sentenced to forty-eight years in the
Indiana Department of Correction for each count, with the sentences to be
served concurrently. He appeals the sentence and challenges the sufficiency of
the evidence to support his convictions. We affirm.
Issues
[2] Martin presents the following restated issues for our review:
I. Whether the State presented sufficient evidence to sustain his
convictions;
II. Whether the trial court abused its discretion when it sentenced
him; and
III. Whether his sentence is inappropriate in light of the nature of
his offenses and his character.
Facts and Procedural History
[3] The victim, K.H., is the daughter of Eleena Haag (n/k/a Eleena Escalante). In
October 2012, Eleena and Martin began dating. Shortly thereafter, Eleena,
K.H., and S.H. (Eleena’s son and K.H.’s younger brother) moved in with
1
Ind. Code § 35-42-4-3(a)(1) (2007).
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Martin. They first lived in an RV camper located on the property of Martin’s
employer, but soon moved to a house in Hebron, Indiana (the Hebron house),
shortly before Halloween.
[4] Eleena and Martin’s relationship deteriorated, and Eleena and her children
moved from the Hebron house a few days before Christmas 2012. Eleena and
her children moved to an apartment in Valparaiso, Indiana. She enrolled K.H.
in school on January 7, 2013. K.H. was in the 7th grade. Eleena told the school
counselor that K.H. was not to have access to the internet “because there were
some concerns with regard to communication that [K.H.] might have with
someone.” Tr. p. 331. At some point, Eleena obtained a no contact order
against Martin that covered Eleena and her children. The school counselor was
aware of the order.
[5] The school counselor began meeting with K.H. approximately weekly
regarding various matters. During the meetings, K.H. would discuss an adult
man she identified “as her mom’s ex-boyfriend.” Id. at 333. The adult man
was Martin. The counselor “became concerned that [K.H.] seemed . . . very
attached to him and missed him very much.” Id. According to the counselor,
“a lot of the ways [K.H.] talked about [Martin] sounded more like a
boyfriend/girlfriend type relationship than a father figure.” Id. One of K.H.’s
teachers provided the counselor with a hand-written note from K.H. wherein
K.H. professed her love for Martin. On January 30, 2013, the school counselor
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met with Eleena about the relationship between K.H. and Martin. Eleena then
spoke with K.H. about the matter and instructed K.H. not to talk to Martin.
[6] K.H. and S.H.’s father, John Haag, lived with his girlfriend, Thora Vitalone,
and his friend, Kevin Keesler, in Keesler’s home in South Haven (Porter
County), Indiana. Between October 2012 and March 2013, K.H. and S.H.
enjoyed overnight visits with their father approximately twice a month. On one
occasion, while K.H. was visiting, Vitalone noticed that K.H. was
communicating with someone on Facebook. Vitalone saw parts of the
conversation and testified to seeing the following on the laptop screen: “I miss
you. I try to be with you. . . . How have you been? . . . Oh, I wish [I] was
there, too.” Id. at 361-62. This information was relayed to Eleena. Eleena
assumed K.H. was communicating with Martin, and she, again, instructed
K.H. not to communicate with Martin.
[7] On March 2, 2013, Robin Shultman (n/k/a Robin Bilbrey), Martin’s ex-wife,
received a picture by text message from Martin. Martin told Shultman the
picture was of K.H.’s buttocks, while wearing underwear. Shultman sent the
picture to Eleena and Eleena confronted K.H. about the picture. K.H.
explained that she sent Martin the picture “[b]ecause he asked [her] to send him
one.” Id. at 230. K.H. then began crying and told her mother that Martin was
having sex with her and that “[Martin] had done horrible things to her.” Id. at
298.
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[8] Eleena contacted the Valparaiso Police Department, and she and K.H. travelled
to the police station to report the sexual contact between K.H. and Martin.
K.H. reported that sometime in November 2012, at the Hebron house, Martin
asked K.H. to come down into the basement and help him install a washer and
dryer. K.H.’s brother, S.H., and Martin’s son from another relationship, S.,
remained upstairs in one of the bedrooms. While in the basement, Martin
removed K.H.’s clothes, bent her over, “put his wiener in [her] vagina,”
covered her mouth, and had sexual intercourse with her. Id. at 185. K.H.
testified that Martin told her not to tell anyone about the incident or “he would
hurt [K.H.] and [her] family.” Id. at 186. While K.H. resided in the Hebron
house, Martin had sexual intercourse with K.H. “either every day or every
other day; sometimes more than one time a day.” Id. at 191. The encounters
occurred in the basement, the dining room, the hallway, the living room, the
garage, and the bathroom. K.H. testified that during the encounters, Martin
would sometimes have her sit on top of him and he would move her underwear
to the side to have intercourse with her. K.H. testified that Martin has a tattoo
on his penis that reads, “Your Name.” Id. at 200.
[9] Martin also had sex with K.H. when they drove places in his car. He would
either have K.H. sit on top of him while he drove or he would pull his vehicle to
the side of the road and have sex with K.H. outside of the vehicle. K.H.
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indicated at trial that Martin had sex with her approximately eighty to ninety
times while she lived at the Hebron house. Id. at 253.
[10] Martin also had sex with K.H. when K.H. was visiting her father in South
Haven. Martin would communicate with K.H. via Facebook and tell her when
he wanted to meet with her. One night, Martin told K.H. he wanted to see her,
and a short time later K.H. walked out of the South Haven house to Martin’s
car, which was parked in the driveway. Martin had sex with K.H. near the car.
On other occasions, Martin would have sex with K.H. in the middle of the
night in the South Haven house garage and behind a shed located in the
backyard of the South Haven house. On one particular occasion, Martin and
K.H. walked to his car, which was parked in the lot of a nearby apartment
complex, and Martin had sex with K.H. in the backseat of his car.
[11] K.H. testified that in total Martin had sex with her over 100 times between
November 2012 and February 2013. At the time of the encounters, K.H. was
thirteen years old and Martin was thirty-eight years old.
[12] On September 30, 2013, Martin was charged with five counts of Class A felony
child molesting. Following a jury trial, he was found guilty as charged. On
October 6, 2015, Martin was sentenced to forty-eight years for each of the
counts, with the sentences to be served concurrently. At sentencing, the trial
court stated:
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In looking at the sentence to impose, the Court is required to start
with the advisory sentence of 30 years, look at aggravating and
mitigating circumstances. The Court finds, as an aggravating
circumstance, the Defendant’s history of criminal behavior and
the fact that he was on parole at the time these offenses were
committed. I specifically do not find the position of trust
aggravator because I don’t think it applies in this case.
The Court finds no mitigating circumstances. The reference to
mental health problems in the presentence report is just the
Defendant alleges that, [sic] there’s no information on diagnosis
or treatment or anything else; so, I specifically do not find any
mitigating circumstances.
Based on the aggravating circumstances outweighing the
mitigating, the Court is going to add 18 years to the 30-year
advisory sentence, for a total of 48 years in the Indiana
Department of Correction on each count. I think that although
the Court could run these consecutive, this is just one long
episode of the same conduct. The cases cited by [defense
counsel] are on point on this so I’m going to order the five
sentences to run concurrently. So, the total sentence will be 48
years with none suspended. That will be served consecutive to
the [sic] whatever sentence ultimately is imposed on the parole
violation, [sic] we’re not quite sure what that is, but that will
come first, and then the sentence would get started.
Sentencing Tr. pp. 15-16.
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Discussion and Decision
I. Sufficiency of Evidence
[13] Martin maintains there was insufficient evidence to support his convictions.
When reviewing the sufficiency of evidence to support a conviction, we
consider only the probative evidence and reasonable inferences supporting the
trial court’s decision. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the
factfinder’s role, and not ours, to assess witness credibility and weigh the
evidence to determine whether it is sufficient to support a conviction. Id. To
preserve this structure, when we are confronted with conflicting evidence, we
consider it most favorably to the trial court’s ruling. Id. We affirm a conviction
unless no reasonable factfinder could find the elements of the crime proven
beyond a reasonable doubt. Id. It is therefore not necessary that the evidence
overcome every reasonable hypothesis of innocence; rather, the evidence is
sufficient if an inference reasonably may be drawn from it to support the trial
court’s decision. Id. at 147.
[14] Martin invokes the “incredible dubiosity rule” under which we may impinge on
the jury’s responsibility to judge the credibility of the witness only when it has
confronted “‘inherently improbable’ testimony . . . or coerced, equivocal,
wholly uncorroborated testimony of ‘incredible dubiosity.’” Rodgers v. State,
422 N.E.2d 1211, 1213 (Ind. 1981) (citations omitted). We may reverse a
conviction if the sole witness presents inherently improbable testimony and
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there is no circumstantial evidence of the defendant’s guilt. White v. State, 706
N.E.2d 1078, 1079 (Ind. 1999). Application of this rule is rare and the standard
to be applied is whether the testimony is so incredibly dubious or inherently
improbable that no reasonable person could believe it. Stephenson v. State, 742
N.E.2d 463, 498 (Ind. 2001) (citations omitted), cert. denied.
[15] Martin maintains K.H. presented inconsistent testimony at trial and testimony
that was inherently improbable. Specifically, Martin argues: (1) K.H. did not
testify clearly to when Martin first engaged in sexual intercourse with her and
when Martin last had sexual intercourse with her; (2) there were inconsistencies
in K.H.’s testimony regarding whether Martin placed his hand over her mouth
when he engaged her in sex in the basement of the Hebron house; (3) K.H.
recanted statements allegedly made to Martin that Eleena was beating K.H.; (4)
her testimony that there were at least 100 sexual encounters with Martin was
improbable because K.H. lived in the Hebron house for only eight weeks and
she spent even fewer days at her father’s residence in South Haven; (5) her
testimony regarding the sexual encounter that occurred while Martin was
driving was “incredible” (Appellant’s Br. p. 10); and (6) when Martin informed
K.H. that Eleena was making allegations that Martin touched K.H., K.H.’s
reaction was one of shock and surprise.
[16] Martin’s arguments do not persuade us that K.H.’s testimony was inherently
improbable. We acknowledge that K.H.’s testimony concerning dates when
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Martin first and last had sex with her was unclear, that there were
inconsistencies regarding whether Martin had his hand over K.H.’s mouth
when he engaged her in sex, and that she denied telling Martin her mother was
beating her. However, “[t]he fact that a witness gives trial testimony that
contradicts earlier pre-trial statements does not necessarily render the trial
testimony incredibly dubious.” Murray v. State, 761 N.E.2d 406, 409 (Ind.
2002). Furthermore, it is the province of the jury to weigh the evidence and
resolve inconsistencies. See Johnson v. State, 671 N.E.2d 1203, 1209 (Ind. Ct.
App. 1996) (it is the jury’s province to resolve any inconsistencies in the
evidence), trans. denied. The jury found K.H.’s testimony to be credible.
[17] Regarding the number of sexual encounters and how they occurred, and K.H.’s
reaction to learning her mother made allegations against Martin, the jury heard
the evidence, weighed the evidence, and judged the credibility of the witnesses.
Martin was convicted as charged. This Court cannot reweigh this evidence or
question the credibility of witnesses. Weis v. State, 825 N.E.2d 896, 905 (Ind.
Ct. App. 2005).
[18] Martin further argues K.H.’s “story” is “utterly impossible to believe.”
Appellant’s Br. p. 12. His specific argument seems to be that it is unlikely that
the sexual encounters could have occurred in the Hebron house because it was
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2
a 1,000 square foot house and four adults and three children lived in the house.
Martin also questions K.H.’s testimony that he engaged in sex with her every
day while living in the Hebron house, implying that he would have been too
tired to engage in such activity because he was nearly forty years old; he worked
a ten-hour workday that required physical labor; and, he and Eleena were
engaging in sex every day.
[19] K.H.’s testimony was not incredibly dubious. K.H. testified in detail regarding
multiple incidents during which Martin forced her to engage in sexual
intercourse with him. She testified that if other individuals were in the Hebron
house when Martin wanted to engage in sex, he would have sex with her in
isolated areas of the house, such as the basement or the garage. K.H. testified
to a tattoo that Martin has on his penis. Eleena confirmed the presence of the
tattoo when she testified at trial. Other witnesses corroborated K.H.’s
testimony regarding Martin’s attempts to visit her for sex. For example, K.H.
testified that Martin rode a bike to her father’s residence in South Haven and
parked the bike in the driveway so that K.H.’s father would not hear Martin’s
vehicle. At trial, K.H.’s father testified he saw a bike parked in his driveway
2
Carrie Kuehl (a friend of Eleena and Martin) and her young son also lived in the house, along with Martin’s
adult son Kyle Ehlers. Martin’s young son, S., lived in an adjacent apartment complex and would visit the
Hebron house.
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one night; he was unable to locate K.H. inside or outside of the house; K.H.
eventually came out from behind the shed located in the backyard; and, he
heard movement coming from near the fence that enclosed the backyard.
[20] Circumstantial evidence was presented to support K.H.’s allegations. Evidence
was presented at trial indicating Martin had an improper relationship with K.H.
Several witnesses testified that Martin and K.H. seemed to have a relationship
akin to that of boyfriend and girlfriend. In their communications via Facebook,
Martin and K.H. used the word “love” approximately ninety times. There were
subjects that Martin told K.H. not to discuss when communicating with him via
Facebook, such as “sex or pregnancy tests or panties.” Tr. p. 228. K.H. was
asked why she could not discuss these subjects and she testified at trial,
“Because it would be easier to get caught.” Id. Martin insisted that K.H.
provide a password when communicating with him on Facebook to ensure that
he did not unwittingly discuss matters with someone other than K.H.
[21] We do not find any of K.H.’s testimony to be inherently improbable,
contradictory, or equivocal. Martin’s arguments are an invitation to reweigh
the evidence and judge the credibility of the witness, which we cannot do. See
Drane, 867 N.E.2d at 146. The jury believed K.H.’s testimony. Martin has not
shown her testimony was so inherently improbable that no reasonable trier of
fact could believe it, and there is probative evidence from which the jury could
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have found Martin guilty beyond a reasonable doubt. We affirm his
convictions.
II. Challenge to Sentence
[22] Martin contends that his forty-eight year sentence is inappropriate in light of the
nature of the offense and his character. Martin also contends the trial court
abused its discretion at sentencing because it failed to consider all of the
mitigating circumstances Martin presented at his sentencing hearing. Martin
blends his inappropriateness argument with his abuse of discretion argument. It
is well settled that inappropriate sentence claims and abuse of discretion claims
are to be analyzed separately. See King v. State, 894 N.E.2d 265, 266 (Ind. Ct.
App. 2008).
A. Abuse of Discretion
[23] Martin argues the trial court abused its discretion when it sentenced him to
forty-eight years. He maintains the trial court’s failure to find mitigating
circumstances “[that were] clearly supported by the record[] gives rise to the
belief . . . the trial court . . . did not [properly] consider the same.” Appellant’s
Br. p. 14.
[24] Sentencing decisions rest within the sound discretion of the trial court and will
be disturbed only on a showing of abuse of discretion. Anglemyer v. State, 868
N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). An
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abuse of discretion occurs when the decision is clearly against the logic and
effect of the evidence before the court or the reasonable inferences to be drawn
therefrom. Id. A trial court abuses its discretion if it: (1) fails to enter a
sentencing statement; (2) enters “a sentencing statement that explains reasons
for imposing a sentence – including a finding of aggravating and mitigating
factors if any – but the record does not support the reasons;” (3) enters a
sentencing statement that “omits reasons that are clearly supported by the
record and advanced for consideration;” or (4) considers reasons that “are
improper as a matter of law.” Id. at 490-91.
[25] A trial court is not obligated to accept a defendant’s claim as to what constitutes
a mitigating circumstance. Rascoe v. State, 736 N.E.2d 246, 249 (Ind. 2000). A
claim that the trial court failed to find a mitigating circumstance requires the
defendant to establish that the mitigating evidence is both significant and clearly
supported by the record. Anglemyer, 868 N.E.2d at 493. “‘If the trial court does
not find the existence of a mitigating factor after it has been argued by counsel,
the trial court is not obligated to explain why it has found that the factor does
not exist.’” Id. (quoting Fugate v. State, 608 N.E.2d 1370, 1374 (Ind. 1993)).
[26] At sentencing, Martin presented the following as mitigating circumstances:
Martin’s father was the victim of murder, Martin’s mental health issues of
bipolar disorder and schizophrenia, and the fact that Martin has not previously
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been convicted of a sex crime. Defense counsel presented the following
argument to the trial court at the sentencing hearing:
I would suggest to the Court as far as mitigators for Mr. Martin,
as was news to me and I believe [the prosecutor] as well, I think
the fact that the Defendant's father was murdered while he –
while this Defendant was incarcerated the last time should be
viewed as a mitigator. He obviously did not have a chance,
albeit by his own actions, to be with his father. But I think that
can certainly have a negative effect on any person to have a
parent murdered.
Additionally, the [presentence investigation report] indicates that
the Defendant suffers from bipolar disorder and schizophrenia as
well, and I would suggest to the Court that that also be
considered by this Court as a mitigator.
...
In looking at the – Mr. Martin's [presentence investigation
report], his offenses largely have to [sic] deal with theft and
drugs; this is the first ever sexual allegation offense/conviction
for Mr. Martin.
[27] Sentencing Tr. pp. 13-14. In making its sentencing determination, the trial
court referenced Martin’s mental health problems, but found Martin presented
“no information on diagnosis or treatment or anything else.” Id. at 15. The
trial court then stated it “specifically [did] not find any mitigating
circumstances.” Id.
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[28] As noted by the trial court, Martin presented no evidence at sentencing
regarding his mental health problems. To establish mental health issues as a
mitigating circumstance, the defendant must show a nexus between the mental
health and the crime in question. Weedman v. State, 21 N.E.3d 873, 894 (Ind.
Ct. App. 2014) (citing Steinberg v. State, 941 N.E.2d 515, 534 (Ind. Ct. App.
2011), trans. denied). Martin also presented no evidence regarding how the
murder of his father affected him.
[29] The trial court found as aggravating circumstances Martin’s criminal history
and the fact that he was on parole at the time the offenses were committed. But
the court specifically found no mitigating circumstances. The trial court was
not obligated to explain why it did not find a factor to be significantly
mitigating, and it was not required to agree with Martin’s assessment as to the
weight or value to be given to a mitigating factor. See Creekmore v. State, 853
N.E.2d 523, 530 (Ind. Ct. App. 2006), clarified on denial of reh’g, 858 N.E.2d 230
(Ind. Ct. App. 2006). We find no error.
B. Appropriateness of Martin’s Sentence
[30] Martin next contends in light of the nature of his offenses and his character, his
“near-maximum sentence of [forty-eight years] is inappropriate.” Appellant’s
Br. p. 15. This Court “may revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, [we find] the sentence is
inappropriate in light of the nature of the offense and the character of the
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offender.” Ind. Appellate Rule 7(B). “We must and should exercise deference
to a trial court’s sentencing decision, both because Rule 7(B) requires us to give
‘due consideration’ to that decision and because we understand and recognize
the unique perspective a trial court brings to its sentencing decisions.” Stewart v.
State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). A defendant bears the burden
of persuading the appellate court that his sentence has met the
inappropriateness standard of review. Anglemyer, 868 N.E.2d at 494.
[31] According to Martin, the nature of his offenses is outside of his “criminal
character;” thus, the forty-eight-year sentence is inappropriate. Appellant’s Br.
p. 15. Martin argues his offenses are “wholly outside the realm of [his] prior . .
. criminal history” which includes “drug [dealing]/[drug] user and thief, not
[child molesting];” the current offenses are “[his] first convictions (and even
allegations) of any type of sex crime and/or crime of violence;” and the pre-
sentence investigation report recommended a sentence of forty years. Id.
[32] We first look to the statutory range established for the class of the offenses.
Martin was convicted of five Class A felonies. The statutory range for a Class
A felony was between twenty and fifty years, with the advisory sentence being
thirty years. Ind. Code § 35-50-2-4 (2005). Martin received concurrent forty-
eight-year terms. The trial court’s sentence was entirely within the range
allowed by statute. The court noted it could have ordered the sentence for each
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count served consecutively, but ultimately determined the sentences should be
served concurrently.
[33] We next look to the nature of the offenses and Martin’s character. As to the
nature of Martin’s offenses, evidence was presented indicating Martin engaged
in sex with thirteen-year-old K.H. “too many times to count” within the span of
approximately three months. Appellant’s App., Vol. I, p. 14. He indicated that
he would hurt her and her family if she told anyone about the sexual
encounters. He communicated with her secretly on Facebook and manipulated
her into believing she and Martin had a “boyfriend/girlfriend” relationship. He
asked K.H. to send him a picture of her buttocks. Even after a no contact order
was served on Martin, Martin continued to communicate with K.H.
[34] As to Martin’s character, he has a criminal history that began when he was a
juvenile and continues to present. He has been convicted of Class B felony
delivery of a schedule I controlled substance, Class B felony burglary, Class C
felony burglary, and Class D felony receiving stolen property. Martin was on
parole when he committed the instant offenses. Additionally, the frequency of
the molestations, Martin’s manipulation of K.H., his threats against K.H., and
the measures he took to keep his improper relationship with K.H. secret show
his poor character. Martin has not met his burden of persuading us that his
sentence is inappropriate in light of the nature of the offenses and his character.
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Conclusion
[35] For the reasons stated, we conclude the State presented sufficient evidence to
support Martin’s convictions for Class A felony child molesting, the trial court
did not abuse its discretion when it sentenced Martin, and Martin’s forty-eight-
year sentence is not inappropriate given the nature of the offenses and his
character.
[36] Affirmed.
[37] Mathias, J., and Crone, J., concur.
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