IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-381
Filed: 17 March 2020
Catawba County, No. 15 CRS 52717
STATE OF NORTH CAROLINA
v.
TOBY JAY WILES
Appeal by defendant from order entered 31 August 2017 by Judge W. Robert
Bell, and judgment entered 21 December 2018 by Judge Nathaniel J. Poovey in
Catawba County Superior Court. Heard in the Court of Appeals 30 October 2019.
Attorney General Joshua H. Stein, by Assistant Attorney General Matthew E. Buckner, for the State.
Arnold & Smith, PLLC, by Paul A. Tharp, for defendant-appellant.
ZACHARY, Judge.
Defendant Toby Jay Wiles appeals from an order denying his motion to
suppress and a judgment entered upon a jury’s verdict finding him guilty of driving
while impaired. After careful review, we affirm the trial court’s denial of Defendant’s
motion to suppress, and conclude that he received a fair trial, free from error.
Background
At around 8:00 p.m. on 23 May 2015, Defendant drove past State Trooper Kelly
Stewart, who was parked along the side of the road. Believing that the passenger in
the front seat of Defendant’s truck was not wearing a seatbelt, Trooper Stewart STATE V. WILES
Opinion of the Court
signaled for Defendant to pull over. As Trooper Stewart approached the passenger’s
side of Defendant’s parked truck, he “[a]lmost instantaneously” noticed an odor of
alcohol “coming through th[e] passenger window.” Upon reaching the passenger-side
window, Trooper Stewart saw the passenger wearing his seatbelt. The passenger
stated he had worn his seatbelt the entire time, and Trooper Stewart realized that
the gray seatbelt had blended into the passenger’s gray shirt. Accordingly, Trooper
Stewart decided not to issue a citation to Defendant.
Trooper Stewart explained why he had stopped the vehicle, and the passenger
responded that he had been wearing his seatbelt prior to Trooper Stewart’s initiation
of the stop. Trooper Stewart, noting the strong odor of alcohol emanating from the
vehicle, asked whether either man had been drinking. Both answered in the
affirmative. Trooper Stewart asked the men to exit the truck, and he observed that
Defendant’s “eyes were red, glassy and bloodshot.” Trooper Stewart administered a
roadside Alco-Sensor test to Defendant, which detected the presence of alcohol on
Defendant’s breath. Trooper Stewart next conducted a horizontal gaze nystagmus
(“HGN”) test on Defendant, which indicated that Defendant was impaired. Trooper
Stewart arrested Defendant and charged him with driving while impaired.
Defendant filed a motion to suppress “all evidence and statements obtained as
a result of the stop” by Trooper Stewart, which came on for hearing before the
Honorable W. Robert Bell in Catawba County Superior Court on 31 August 2017.
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Trooper Stewart testified that, but for the seatbelt issue, Defendant appeared to abide
by “all the normal rules of the road.” In its order denying Defendant’s motion to
suppress, the trial court found that Trooper Stewart “[b]eliev[ed] it would be a
dereliction of duty to ignore the smell of alcohol coming from the automobile.” Thus,
the trial court concluded that “[d]uring the ‘mission of’ the valid traffic stop and prior
to the completion of its initial purpose Trooper Stewart obtained information that
provided reasonable suspicion of criminal activity to warrant an extension of the
initial traffic stop.”
On 17 December 2018, Defendant was tried before a jury in Catawba County
Superior Court, the Honorable Nathaniel J. Poovey presiding. The jury found
Defendant guilty of driving while impaired, and Defendant gave notice of appeal in
open court.
Discussion
Defendant raises six issues on appeal: three arising from the hearing on his
motion to suppress, and three from his trial. We address each issue in turn.
I. Motion to Suppress
Defendant contends that the trial court erred in denying his motion to suppress
because Trooper Stewart (1) lacked reasonable suspicion to stop Defendant’s truck;
(2) unconstitutionally extended the length of the stop; and (3) lacked probable cause
to arrest Defendant.
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A. Standard of Review
It is well settled that
[t]he standard of review for a motion to suppress is whether the trial court’s findings of fact are supported by the evidence and whether the findings of fact support the conclusions of law. The court’s findings are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting. The trial court’s ruling on a motion to suppress is afforded great deference upon appellate review as it has the duty to hear testimony and weigh the evidence.
State v. Wainwright, 240 N.C. App. 77, 83-84, 770 S.E.2d 99, 104 (2015) (internal
citations and quotation marks omitted). “Conclusions of law are reviewed de novo
and are subject to full review.” State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878
(2011) (citation omitted).
B. The Stop of Defendant’s Vehicle1
From the order denying his motion to suppress, Defendant challenges findings
of fact 6, 7, and 8 as not being supported by competent evidence, as well as conclusion
of law 2, which stated that the traffic stop was valid. We address each in turn.
1. Findings of Fact
Defendant challenges the following findings:
6. [Trooper Stewart] observed the Defendant driving towards his position. There was a passenger in the front passenger seat of the vehicle that Trooper Stewart believed 100% was not wearing a seat belt.
1 Defendant properly objected to this issue at both the suppression hearing and the subsequent trial.
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7. [Trooper] Stewart stopped the truck being driven by the Defendant and approached the passenger side to investigate. Standing at the open passenger side window [Trooper Stewart] smelled a strong odor of alcohol emanating from the passenger compartment of the vehicle. He also noticed that the passenger was wearing a seatbelt.
8. The passenger stated that he had been wearing a seatbelt the entire time. Despite his certainty that the passenger had not been wearing a seatbelt, Trooper Stewart gave the benefit of the doubt to the passenger since he was wearing a [gray] shirt and the seatbelt was [gray] also.
Defendant offers no particular evidence of the insufficiency of the evidence to
support the findings of fact. However, each of these findings is directly traceable to
Trooper Stewart’s testimony on direct examination at the suppression hearing,
during which he recounted the events of the night in question. Trooper Stewart
explained that he “did truly, 100 percent believe that [Defendant] wasn’t wearing his
seat belt.” He also said that he “approached the passenger side and . . . . [w]hile [he]
was at the vehicle [he] was getting an odor of alcohol from the vehicle.” Lastly, he
noted that, “If [he is] giving [the passenger] the benefit of the doubt, [he] couldn’t say
with a gray shirt, gray seat belt, that clear-cut, [he] couldn’t have testified 100 percent
that [the passenger] wasn’t wearing [a seat belt].”
“The court’s findings are conclusive on appeal if supported by competent
evidence[.]” Wainwright, 240 N.C. App. at 84, 770 S.E.2d at 104. Competent evidence
is defined as “evidence that a reasonable mind might accept as adequate to support
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the finding.” State v. Ashworth, 248 N.C. App. 649, 651, 790 S.E.2d 173, 176 (citation
omitted), disc. review denied, 369 N.C. 190, 793 S.E.2d 694 (2016). Because Trooper
Stewart’s testimony concerning the stop provided “evidence that a reasonable mind
might accept as adequate,” these findings are supported by competent evidence and
are conclusive on appeal. Ashworth, 248 N.C. App. at 651, 790 S.E.2d at 176.
2. Conclusion of Law
Defendant also challenges conclusion of law 2, which states:
Trooper Stewart’s view of and belief that the passenger in Defendant’s car was not wearing a seatbelt provided him more than an unparticularized suspicion or hunch that a law was being broken and gave him the minimal level of objective justification for making the traffic stop. The traffic stop was valid.
The Fourth Amendment guarantees that “[t]he right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated[.]” U.S. Const. amend. IV. As applied through the
Fourteenth Amendment, the Fourth Amendment “impose[s] a standard of
reasonableness upon the exercise of discretion by government officials, including law
enforcement agents, in order to safeguard the privacy and security of individuals
against arbitrary invasions.” Delaware v. Prouse, 440 U.S. 648, 653-54, 59 L. Ed. 2d
660, 667 (1979) (internal quotation marks omitted). Accordingly, “[t]he touchstone of
the Fourth Amendment is reasonableness.” Florida v. Jimeno, 500 U.S. 248, 250, 114
L. Ed. 2d 297, 302 (1991).
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“[R]easonable suspicion is the necessary standard for traffic stops, regardless
of whether the traffic violation was readily observed or merely suspected.” State v.
Styles, 362 N.C. 412, 415, 665 S.E.2d 438, 440 (2008). With regard to an officer’s
authority to lawfully stop a vehicle, our Supreme Court has held that “[t]he stop must
be based on specific and articulable facts, as well as the rational inferences from those
facts, as viewed through the eyes of a reasonable, cautious officer, guided by his
experience and training.” State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70
(1994). To assess the validity of a stop, “[a] court must consider the totality of the
circumstances—the whole picture in determining whether a reasonable suspicion to
make an investigatory stop exists.” Id. at 441, 446 S.E.2d at 70 (internal quotation
marks omitted); see also State v. Nicholson, 371 N.C. 284, 290, 813 S.E.2d 840, 844
(2018) (“Assessments of reasonable suspicion are often fact intensive, and courts must
always view facts offered to support reasonable suspicion in their totality rather than
in isolation.”).
Here, Defendant argues that “[a] subjective and admittedly mistaken
observation that a passenger is not wearing a seatbelt cannot, logically, serve as the
objectively reasonable basis for performing an investigative stop of a vehicle.” We
disagree.
It is manifest that “[t]he Fourth Amendment tolerates only reasonable
mistakes, and those mistakes–whether of fact or of law–must be objectively
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reasonable.” State v. Eldridge, 249 N.C. App. 493, 498, 790 S.E.2d 740, 743 (2016)
(citation omitted). The issue in this case is whether Trooper Stewart’s mistake of
fact—i.e., his mistaken belief that Defendant’s passenger was not wearing a
seatbelt—could provide reasonable suspicion to justify the stop.
It is well established that a law enforcement officer may stop a vehicle for a
seatbelt infraction, and during the mission of the stop determine that probable cause
exists to arrest a person for the commission of a separate offense. See, e.g., State v.
Salinas, 214 N.C. App. 408, 409, 715 S.E.2d 262, 263 (2011) (concluding that it was
constitutional for police officers to stop the suspect on belief that he was not wearing
his seatbelt, and then, “[b]ased upon [the d]efendant’s physical appearance, conduct,
and a strong odor of burnt marijuana, . . . eventually search[ ] the vehicle and
discover[ ] drug paraphernalia”), aff’d and modified, 366 N.C. 119, 729 S.E.2d 63
(2012); State v. Brewington, 170 N.C. App. 264, 268-69, 612 S.E.2d 648, 651 (affirming
a defendant’s conviction where the car was stopped due to a seatbelt violation, only
to discover drugs on the defendant’s person upon reaching the car), disc. review
denied, 360 N.C. 67, 621 S.E.2d 881 (2005).
Further, it is clear that a law enforcement officer’s mistaken belief that a
defendant has violated the law may nevertheless provide the reasonable suspicion
required for a lawful stop. In State v. Kincaid, 147 N.C. App. 94, 96, 555 S.E.2d 294,
297 (2001), the defendant held up his hand to cover his face as he drove by the officer.
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The officer recognized the defendant, and believed that the defendant’s license had
been revoked for several years. Kincaid, 147 N.C. App. at 96, 555 S.E.2d at 297.
Upon stopping the defendant, however, the officer discovered that the driver’s license
was, in fact, valid. Id. Despite his mistake regarding the license, the officer
proceeded to ask the defendant whether he could search the car for drugs, because he
had previously heard that the defendant was a drug dealer. Id. The defendant
consented to the search, which yielded the discovery of marijuana, and the defendant
was arrested. Id. At a pretrial suppression hearing, the trial court found that “the
officer had reasonable suspicion to stop [the] defendant, even though the suspicion
proved to be wrong[,]” and concluded that the search was not unreasonable. Id. at
97, 555 S.E.2d at 297. On appeal, this Court held that “[a]lthough the officer’s
suspicion turned out to be incorrect,” the officer had reasonable suspicion to stop the
defendant in light of the totality of the circumstances. Id. at 98, 555 S.E.2d at 298.
In the present case, as in Kincaid, Trooper Stewart initially stopped Defendant
based on a purported seatbelt infraction, not a reasonable suspicion that Defendant
was driving while impaired. Trooper Stewart’s mistake—failing to see a gray seatbelt
atop a gray shirt—is one a reasonable officer could make. As Trooper Stewart
explained:
[T]he only reason I didn’t cite him is not because I still didn’t believe my initial suspicion but because I couldn’t say 100 percent testifying with my hand on the Bible with him having a gray shirt that it could [sic] have been the
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other way. But I did truly, 100 percent believe that he wasn’t wearing his seat belt.
However, this reasonable mistake of fact did not divest Trooper Stewart of the
authority to investigate the source of the odor of alcohol.
Trooper Stewart testified that he smelled alcohol “instantaneously.” He
explained that while he inquired into the seatbelt issue, he noted the smell of alcohol.
Trooper Stewart asked whether Defendant and his passenger had been drinking:
[i]mmediately following my initial giving the reason for why I stopped and listening to the passenger’s articulation about him actually having his seat belt on. I did say, well, I appreciate that; however, right now I’m smelling alcohol coming out of your vehicle. And I said I understand it has nothing to do with your seat belt but I can’t just ignore what I’m smelling.
In sum, Trooper Stewart’s stop of Defendant’s car was constitutional despite
his mistake of fact regarding the passenger’s seatbelt infraction. Trooper Stewart
had a reasonable suspicion to justify his stop based on his “100 percent” belief that
the passenger was not wearing a seatbelt. Furthermore, Trooper Stewart’s inquiry
into whether Defendant had been drinking was appropriate. See Salinas, 214 N.C.
App. at 409, 715 S.E.2d at 263; Kincaid, 147 N.C. App. at 96, 555 S.E.2d at 297.
C. Extension of the Traffic Stop and Probable Cause to Arrest
In his next two arguments, Defendant asserts that (1) Trooper Stewart
unconstitutionally extended the traffic stop “in order to smell something”; and (2)
there was no probable cause to arrest Defendant. However, because Defendant failed
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to object to these purported errors at trial, we need not reach the merits of these
arguments.
“In order to preserve an issue for appellate review, a party must have
presented to the trial court a timely request, objection, or motion, stating the specific
grounds for the ruling the party desired the court to make if the specific grounds were
not apparent from the context.” N.C.R. App. P. 10(a)(1). However, an objection
during “a trial court’s evidentiary ruling on a pretrial motion [to suppress] is not
sufficient to preserve the issue of admissibility for appeal unless a defendant renews
the objection during trial.” State v. Oglesby, 361 N.C. 550, 554, 648 S.E.2d 819, 821
(2007).
After careful review of the transcript, we cannot find—and Defendant does not
identify—specific objections at trial concerning the issues raised on appeal. Instead,
in his brief to this Court, Defendant directs our attention to a short colloquy with the
trial court, which occurred at the beginning of the second day of trial:
[Defense Counsel]: Judge, just for the record, I had just three objections that were just to preserve the record for appellate purposes. I don’t know if the Court – I think the Court heard the last one but I don’t know. I didn’t say them entirely loud because they were just for, you know, for purposes of preserving those issues. But I would object to the stop at a point that the trooper said he was activating his blue lights to pull over [Defendant].
The Court: I heard that objection. I think I overruled it, but I didn’t hear any others.
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[Defense Counsel]: And then I objected to the arrest and then just to – out of an abundance of caution objected to the – before the intoxilyzer reading.
The Court: You’re saying that – you did object to before the intoxilyzer reading but I don’t remember you objecting to the arrest. Your saying it is so now doesn’t make it so, so I don’t think you objected before the actual arrest.
[Defense Counsel]: Well, did the Court hear my objection before the intoxilyzer reading?
The Court: I did.
Plainly, Defendant never objected to either (1) the extension of the stop, or (2)
whether there was probable cause to arrest Defendant. Because these arguments are
constitutional in nature, and because “[c]onstitutional issues not raised and passed
upon at trial will not be considered for the first time on appeal,” State v. Lloyd, 354
N.C. 76, 86-87, 552 S.E.2d 596, 607 (2001), we dismiss this portion of Defendant’s
appeal.2
II. Trial
2 In his reply brief to this Court, Defendant requests in the alternative that this Court invoke Appellate Rule 2 so that we may reach the merits of these arguments. Rule 2 provides that, “[t]o prevent manifest injustice to a party, or to expedite decision in the public interest, either court of the appellate division may, except as otherwise expressly provided by these rules, suspend or vary the requirements or provisions of any of these rules[.]” N.C.R. App. P. 2. However, a reply brief should be “limited to a concise rebuttal to arguments set out in the brief of the appellee which were not addressed in the appellant’s principal brief,” N.C.R. App. P. 28(h)(3), and Defendant may not assert new grounds for appellate review in the reply brief. See State v. Triplett, 258 N.C. App. 144, 147, 810 S.E.2d 404, 407 (2018).
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From his jury trial, Defendant argues that the trial court erred in (1) denying
his motion to dismiss; (2) admitting into evidence the results of portable breath tests
under Evidentiary Rule 403; and (3) qualifying Trooper Stewart as an expert in HGN
administration under Evidentiary Rule 702.
A. Denial of Defendant’s Motion to Dismiss
Defendant posits that the trial court erred in denying his motions to dismiss
at the close of the State’s evidence and all evidence. However, in his brief to this
Court, Defendant offers a perfunctory argument, fewer than 100 words in length,
asking this Court to reach a different outcome from that of the trial court. His
argument consists of a few conclusory assertions that the trial court should have
granted the motion to dismiss. More importantly, Defendant neglects to include any
legal authority or references to the transcript upon which to base these assertions.
Our Rules of Appellate Procedure make clear that “[i]ssues not presented in a party’s
brief, or in support of which no reason or argument is stated, will be taken as
abandoned.” N.C.R. App. P. 28(b)(6). Having failed to cite any authority or make a
proper argument to this Court, this portion of Defendant’s appeal is “taken as
abandoned.” N.C.R. App. P. 28(b)(6).
B. Admission of Breath Tests
Defendant next argues that the trial court “abused its discretion when it
allowed the State to introduce evidence regarding two portable breath tests.”
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Defendant maintains that these “positive test results, as along with the prosecutor’s
description of alcohol circulating through Defendant’s system, unduly prejudiced his
defense.”
1. Standard of Review
Admissions under Rule 403 are reviewed by this Court for an abuse of
discretion. State v. Adams, 220 N.C. App. 319, 328, 727 S.E.2d 577, 584 (2012).
“Abuse of discretion results where the court’s ruling is manifestly unsupported by
reason or is so arbitrary that it could not have been the result of a reasoned decision.”
State v. Elliott, 360 N.C. 400, 419, 628 S.E.2d 735, 748 (quotation marks omitted),
cert. denied, 549 U.S. 1000, 166 L. Ed. 2d 378 (2006).
2. Evidentiary Rule 403
“Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” N.C. Gen. Stat. § 8C-1, Rule 403 (2019). The
official comment to Rule 403 provides that “unfair prejudice” is “an undue tendency
to suggest decision on an improper basis, commonly, though not necessarily, as an
emotional one.” Id. cmt.
Admissibility of evidence in driving-while-impaired cases is covered under
Chapter 20 of our General Statutes. Where the suspect has been stopped, “[a] law-
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enforcement officer may require the driver of a vehicle to submit to an alcohol
screening test.” Id. § 20-16.3(a). “The fact that a driver showed a positive or negative
result on an alcohol screening test, but not the actual alcohol concentration result . .
. is admissible in a court.” Id. § 20-16.3(d).
In the present case, Defendant first asserts that “the admission of positive
results . . . unduly prejudiced his defense.” However, Trooper Stewart only testified
to the positive test results, without revealing the actual alcohol concentration. The
testimony was therefore in accordance with § 20-16.3(d), and was not erroneously
admitted.
Defendant next contends that the State’s reference in its closing argument to
alcohol “circulating in [Defendant’s] system” was prejudicial. A prosecutor is afforded
a generous latitude in argument. State v. Covington, 290 N.C. 313, 327, 226 S.E.2d
629, 640 (1976). Counsel “may argue to the jury the facts in evidence and all
reasonable inferences to be drawn therefrom together with the relevant law so as to
present his side of the case.” Id. at 327-28, 226 S.E.2d at 640.
Here, the State’s closing argument was aptly based on facts in evidence, as well
as reasonable inferences drawn from those facts. The State recounted (1) the strong
odor of alcohol coming from the car; (2) Defendant’s admission to having consumed
alcohol; and (3) the positive results from the portable breath tests conducted at the
scene of the stop. Taken together, and in light of the wide discretion prosecutors are
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permitted in closing arguments, we conclude that the trial court did not err in
allowing the prosecutor to assert that alcohol was “circulating in [Defendant’s]
system,” and that Defendant did not suffer any resultant prejudice.
C. Trooper Stewart’s Qualification as an Expert
Finally, Defendant argues that the trial court “abused its discretion in granting
the State’s motion to qualify [Trooper Stewart] as an expert, and thereafter admitting
testimony regarding HGN testing.” We disagree.
This Court reviews the admissibility of expert testimony for abuse of
discretion. State v. Barker, 257 N.C. App. 173, 176, 809 S.E.2d 171, 174 (2017).
2. HGN Testing
Evidentiary Rule 702 provides, in pertinent part, that “a witness qualified as
an expert by knowledge, skill, experience, training, or education, may testify thereto
in the form of an opinion[.]” N.C. Gen. Stat. § 8C-1, Rule 702(a). Expert testimony
is appropriate where (1) it is based upon sufficient facts or data, (2) it is based upon
reliable principles and methods, and (3) the witness has applied the principles and
methods reliably to the facts of the case. Id. Although our General Statutes broadly
characterize admissible expert testimony as “scientific, technical or other specialized
knowledge,” the statute specifically provides that:
(a1) Notwithstanding any other provision of law, a witness may give expert testimony solely on the issue of
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impairment and not on the issue of specific alcohol concentration level relating to the following:
(1) The results of a Horizontal Gaze Nystagmus (HGN) Test when the test is administered in accordance with the person’s training by a person who has successfully completed training in HGN.
Id. § 8C-1, Rule 702(a1)(1).
In the case at bar, Trooper Stewart testified to his successful completion of
HGN training with the North Carolina State Highway Patrol, and the State tendered
him as an expert in “the administration and interpretation of horizontal gaze and
nystagmus testing.” Accordingly, pursuant to N.C. Gen. Stat. § 8C-1, Rule 702(a1)(1),
the trial court did not err in qualifying Trooper Stewart as an expert based on his
training and professional experience administering the test, or in admitting his
testimony regarding HGN testing.
Conclusion
We affirm the trial court’s denial of Defendant’s motion to suppress, and
dismiss Defendant’s unpreserved arguments found in Parts I(C) and II(A) of this
opinion. Our examination of Defendant’s remaining arguments and our review of the
record lead us to conclude that Defendant received a fair trial, free from error.
AFFIRMED IN PART; DISMISSED IN PART; NO ERROR IN PART.
Judges STROUD and MURPHY concur.
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