              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA17-1188

                               Filed: 2 October 2018

Wayne County, No. 15CRS054071

STATE OF NORTH CAROLINA

             v.

JOSHUA A. BICE, Defendant.


      Appeal by defendant from judgment entered 17 November 2016 by Judge

Reuben F. Young in Wayne County Superior Court. Heard in the Court of Appeals

20 June 2018.


      Attorney General Joshua H. Stein, by Assistant Attorney General Cathy Pope,
      for the State.

      Ward, Smith & Norris, P.A., by Kirby H. Smith III, for defendant.


      BERGER, Judge.


      On November 17, 2016, a Wayne County jury convicted Joshua A. Bice

(“Defendant”) of possession of marijuana and trafficking opium by possession.

Defendant alleges (1) error in the trial court’s admission of hearsay; (2) a fatal

variance between Defendant’s indictment for trafficking opium by possession and the

State’s evidence; (3) error in the trial court’s failure to instruct the jury on the

statutory ultimate user exemption; and (4) ineffective assistance of counsel. We find

no error.
                                    STATE V. BICE

                                  Opinion of the Court



                        Factual and Procedural Background

      On the evening of September 18, 2015, Goldsboro Police Officer Donnie Head

(“Officer Head”) and North Carolina Alcohol Law Enforcement Agent Brian White

(“Agent White”) were parked in an unmarked police car at a Kangaroo gas station in

Goldsboro, North Carolina, where they observed a Ford pick-up truck parked at the

gas pumps. Rather than pumping gas, the driver of the pick-up truck, later identified

to be Jason Hyland (“Hyland”), remained in his vehicle until Defendant’s silver

Honda pulled into the parking lot. Hyland immediately exited his vehicle and walked

to Defendant’s parked car.

      Officer Head testified at trial that when Hyland reached Defendant’s car, they

“transfer[red] something between their hands.” Hyland immediately returned to his

vehicle. Based upon their training and experience, Officer Head and Agent White

believed they had witnessed a drug transaction and decided to investigate further.

Officer Head approached Defendant while Agent White approached Hyland.

      When Officer Head approached Defendant, he observed “[Defendant] sitting in

the driver’s seat. There [were] no other occupants in the vehicle. [Defendant] was

holding a pill bottle in his hand.” After Officer Head identified himself and informed

Defendant why he was there, Officer Head witnessed Defendant “quickly hid[e] the

pill bottle down between his leg[s].” At Officer Head’s direction, Defendant identified

himself and handed Officer Head the pill bottle, which contained fifty-four oxycodone



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pills prescribed to Grover Bice.

      After Officer Head asked Defendant to step out of his car, Defendant told him

that the pills belonged to Defendant’s father, who was receiving cancer treatment.

Officer Head then searched Defendant and found $190.00 in cash in Defendant’s

wallet and a clear bag of marijuana in the pocket of his pants. Defendant was placed

under arrest and read his Miranda rights, which Defendant expressly waived by

signing and initialing a written waiver.

      When Defendant was interviewed, he admitted he went to the gas station to

buy marijuana. Defendant also claimed the oxycodone pills belonged to his father,

who often rode in Defendant’s car. Defendant signed and initialed each line of a

written confession, which stated:

             I made a mistake. I was trying to help my parents out
             because my dad has cancer. I was selling the pills to make
             money to pay bills. I don’t get a profit off it. I just started
             selling them today. I have never sold them before. I don’t
             sell any other drugs. It was stupid of me. He just got them
             filled today. There was 100 pills. My dad kept 5. I sold
             Jason Hyland 41 earlier today for $250.00 cash. Tonight
             he was going to buy 12 pills for $100 cash approximately.
             I looked on Google to see how much they sold on the street
             for. I saw they sold for $5-$15 each.

      Defendant was indicted for trafficking opium by possession, possession with

intent to sell or deliver opium, and possession of marijuana. Prior to trial, the State

dismissed the charge of possession with intent to sell or deliver opium.

      At trial, Defendant testified that he had never seen the confession bearing his


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signature and initials. However, when asked to review the confession, Defendant

admitted that he signed and initialed each line of the statement. Defendant also

testified that he recognized the specific content of his Miranda rights waiver and

remembered reviewing, signing, and initialing each line of this waiver during the

same interrogation. Defendant also admitted that he understood “quite well” that he

was “in a very serious situation” when he was being interrogated, and also

acknowledged that he had conducted internet research of his father’s medication.

      Officer Head testified that Defendant’s confession reflected an exact

transcription of Defendant’s responses to Officer Head’s interview questions. Officer

Head also testified that he read the statement to Defendant, and handed the

statement to Defendant. Defendant then “read over the statement, he initialed each

line, that this—these were his words and this was a correct statement, and then at

the very end of it I had him draw a line from the bottom of his statement to the bottom

of the page so I couldn’t write or change anything in this statement where he signed

and put the date.” Officer Head also stated that he gave Defendant the opportunity

to make any changes to the written confession, but Defendant did not “indicate he

wanted to add anything, or change anything.”

      Neither Agent White nor Hyland testified at trial. However, Officer Head

testified that Agent White found several $20.00 bills in Hyland’s possession, but no

pills or other contraband. Because Agent White was not present at trial, Officer Head



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was allowed to read into evidence a hand-written statement that Hyland had given

to Agent White. Defendant did not object to the admission of Hyland’s statement,

which said: “I, Jason Hyland, met with [Defendant] at Bojangles’ in Princeton to buy

oxycodone [and] an hour later at the Kangaroo on 70 where I was about to purchase

more and the cops saw us about to do a hand-to-hand and approached us.” The

statement was signed by Hyland; dated September 18, 2015, at 11:12 p.m.; and was

corroborated by Defendant’s testimony that he had met with Hyland at Bojangles’

earlier on September 18, 2015 to purchase more than three grams of marijuana.

      After the statement was read into evidence, the State offered a copy of Hyland’s

hand-written statement into evidence. The trial court specifically asked if there were

any objections to the admission of Hyland’s statement, and Defendant replied that

he had no objection to its admission.

      Defendant was convicted of trafficking opium by possession and possession of

marijuana. He was sentenced to seventy to ninety-three months in prison, fined

$50,000.00, and placed on probation upon his release from prison. Defendant timely

appeals, alleging the trial court erred by admitting Hyland’s hearsay statement,

denying his motion to dismiss on fatal variance grounds, and by not instructing the

jury on the statutory ultimate user exemption. Defendant also asserts he received

ineffective assistance of counsel.

                                         Analysis



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                                   Opinion of the Court



I. Hearsay

      Defendant first challenges the trial court’s admission of Hyland’s written

statement into evidence, arguing that it was inadmissible hearsay.           Defendant

concedes he failed to object to the admission of the statement, and thus, did not

preserve this issue for review. Instead, Defendant requests this Court review the

admission of Hyland’s statement for plain error. We find that Defendant is not

entitled to appellate review on this issue.

      “In criminal cases, an issue that was not preserved by objection noted at trial

and that is not deemed preserved by rule or law without any such action nevertheless

may be made the basis of an issue presented on appeal when the judicial action

questioned is specifically and distinctly contended to amount to plain error.” N.C.R.

App. P. 10(a)(4); see also State v. Goss, 361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007),

cert. denied, 555 U.S. 835, 172 L. Ed. 2d 58 (2008). The Supreme Court of North

Carolina “has elected to review unpreserved issues for plain error when they involve

either (1) errors in the judge’s instructions to the jury, or (2) rulings on the

admissibility of evidence.” State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31

(1996), cert. denied, 525 U.S. 952, 142 L. Ed. 2d 315 (1998).

      Plain error arises when the error is “so basic, so prejudicial, so lacking in its

elements that justice cannot have been done.” State v. Odom, 307 N.C. 655, 660, 300

S.E.2d 375, 378 (1983) (citation and quotation marks omitted), cert. denied, 459 U.S.



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1018, 74 L. Ed. 2d 513 (1982)). “Under the plain error rule, defendant must convince

this Court not only that there was error, but that absent the error, the jury probably

would have reached a different result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d

692, 697 (1993).

      Here, Defendant has failed to demonstrate that any “judicial action” by the

trial court amounted to error. N.C.R. App. P. 10(a)(4). Defendant not only failed to

object to the entry of Hyland’s statement, but he also expressly consented to the

admission of the same.     Defendant now argues that the admission of Hyland’s

statement was an error by the trial court.

      When the State introduced Hyland’s written statement at trial, the following

exchange took place:

                   THE COURT: All right. Any objection to State’s
                   Exhibit No. 7?

                   [Defense Counsel:] No, sir, Judge.

                   THE COURT: All right. Then State’s Exhibit No. 7
                   is hereby admitted into evidence.


      This action by defense counsel to consent to the admission of Hyland’s

statement may have been the result of strategic decisions made by Defendant and

trial counsel, or Hyland’s statement may have been admitted because of questionable

performance by counsel. Whatever the reason, a trial court is not required to second

guess every decision, action, or inaction by defense counsel. Imposing such a


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                                   Opinion of the Court



requirement on our trial courts is neither desirable nor workable.

      While the trial court should “see that the essential rights of an accused are

preserved, the judge should not interfere in the attorney-client relationship in the

absence of such gross incompetence or faithlessness of counsel as should be apparent

to the trial judge and thus call for action by him.” State v. Blackwood, 60 N.C. App.

150, 153, 298 S.E.2d 196, 199 (1982) (citation and quotation marks omitted). Even

though Defendant has argued that his counsel’s assistance was deficient, he has not

alleged his trial counsel was grossly incompetent or faithless in his duties, and the

record does not reflect gross deficiencies.

      In State v. Lashley, the defendant alleged on appeal, among other things, that

the trial court erred in admitting certain evidence despite the lack of objection by a

pro se defendant. This Court stated that pro se defendants were not wards or clients

of the court, and they could not “expect the trial judge to relinquish his role as

impartial arbiter in exchange for the dual capacity of judge and guardian angel of

defendant.” State v. Lashley, 21 N.C. App. 83, 85, 203 S.E.2d 71, 72 (1974).

Defendants who are represented by counsel are not entitled to greater protections by

the trial court than those afforded to pro se defendants.

      Thus, because Defendant not only failed to object but also expressly consented

to the admission of Hyland’s statement, we cannot conclude the trial court erred by

permitting the admission of such evidence per both parties’ agreement.



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      Even if Defendant could correctly assert the trial court somehow erred, “[a]

defendant is not prejudiced by the granting of relief which he has sought or by error

resulting from his own conduct.” N.C. Gen. Stat. § 15A-1443(c) (2017). “Thus, a

defendant who invites error has waived his right to all appellate review concerning

the invited error, including plain error review.” State v. Barber, 147 N.C. App. 69,

74, 554 S.E.2d 413, 416 (2001), disc. review dismissed, 355 N.C. 216, 560 S.E.2d 142

(2002).

      Where a defendant “posed a question that incorporated inadmissible material

[during cross-examination], [d]efendant is simply not entitled to seek appellate relief

on the grounds that the challenged testimony should have been excluded.” State v.

Dew, 225 N.C. App. 750, 758, 738 S.E.2d 215, 221, disc. review denied, 366 N.C. 595,

743 S.E.2d 187 (2013). This is because “[s]tatements elicited by a defendant on cross-

examination are, even if error, invited error, by which a defendant cannot be

prejudiced as a matter of law.” State v. Global, 186 N.C. App. 308, 319, 651 S.E.2d

279, 287 (2007) (citations omitted), affirmed, 362 N.C. 342, 661 S.E.2d 732 (2008).

      Here, although neither Agent White nor Hyland were present to testify at trial,

Officer Head read Hyland’s statement into evidence and the written statement was

admitted without objection and with Defendant’s consent. However, the State did

not elicit the introduction of Hyland’s statement during Officer Head’s direct




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examination. In fact, neither the State nor Officer Head referenced Hyland by name

nor mentioned his statement during direct examination.

      Rather, during Officer Head’s cross examination, Defendant elicited the

following testimony regarding Hyland and his statement:

            [Defense Counsel:] Okay. And the other gentleman was
            released.

            [Officer Head:] Yes.

            [Defense Counsel:] Okay. Now, was he released there at
            the scene?

            [Officer Head:] He was.

            [Defense Counsel:] He was? Well, if he was released at the
            scene, um . . . if he was released at the scene, how did the
            statement become or how did they—how was a statement
            obtained from him at 11:12 that evening . . . in this case?

            [Officer Head:] The ALE agent, Special Agent White, took
            the statement on-scene, and then released him.

            [Defense Counsel:] He took the statement on-scene?

            [Officer Head:] Correct.

            [Defense Counsel:] Okay. And where—did he handwrite
            it out or what?

            [Officer Head:] I’m not sure, I was not—I didn’t see him
            write the statement; I was dealing with [Defendant] while
            Special Agent White was dealing with [Hyland].

            [Defense Counsel:] Okay. So he got it—he obtained a
            statement from the other individual that a drug transaction
            didn’t take place and released him at the scene.


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             [Officer Head:] I can read that statement if you wish me
             to.

             [Defense Counsel:] No, I just—I was just wondering where
             the statement came—did you see him do that with the
             other gentleman?

             [Officer Head:] Special Agent White took the statement. I
             was not right there when the statement was being given,
             so I can’t testify of who wrote the statement or.

             [Defense Counsel:] Okay. . . .

(Emphasis added.)

      Defendant’s questions concerning the content of Hyland’s statement opened

the door to the State’s subsequent questions concerning the statement and

introduction of the written statement. In response to Defendant’s questions on cross

examination, the State then asked Officer Head to identify and read Hyland’s

statement to the jury for the first time during re-direct examination. The State then

offered a copy of Hyland’s written statement into evidence as State’s Exhibit 7.

      Not only did Defendant open the door to the introduction of Hyland’s

statement, but, again, Defendant explicitly consented to its admission into evidence.

Accordingly, we find no error in the introduction of Hyland’s statement.

II. Fatal Variance

      Defendant next argues that the trial court erred in denying his motion to

dismiss his trafficking opium by possession charge as there was a fatal variance

between the allegations contained in the indictment and the evidence offered at trial.


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However, Defendant failed to properly preserve this argument for review because he

raises this issue for the first time on appeal.

                      A fatal variance between the indictment and proof is
               properly raised by a motion for judgment as of nonsuit or a
               motion to dismiss, since there is not sufficient evidence to
               support the charge laid in the indictment. A motion to
               dismiss for a variance is in order when the prosecution fails
               to offer sufficient evidence the defendant committed the
               offense charged. A variance between the criminal offense
               charged and the offense established by the evidence is in
               essence a failure of the State to establish the offense
               charged.

State v. Glenn, 221 N.C. App. 143, 147, 726 S.E.2d 185, 188 (2012) (purgandum1).

       “In order to preserve a fatal variance argument for appellate review, a

defendant must specifically state at trial that a fatal variance is the basis for his

motion to dismiss.” State v. Scaturro, ___ N.C. App. ___, ___, 802 S.E.2d 500, 505

(citations omitted), disc. review dismissed as moot, 370 N.C. 217, 804 S.E.2d 530

(2017).    For example, in State v. Hooks, this Court dismissed defendant’s fatal

variance argument because defendant “based his motion to dismiss solely on

insufficiency of the evidence . . . [and] did not allege the existence of a fatal variance

between the indictment and the jury instructions” at trial. State v. Hooks, 243 N.C.



       1  Our shortening of the Latin phrase “Lex purgandum est.” This phrase, which roughly
translates “that which is superfluous must be removed from the law,” was used by Dr. Martin Luther
during the Heidelberg Disputation on April 26, 1518 in which Dr. Luther elaborated on his theology
of sovereign grace. Here, we use purgandum to simply mean that there has been the removal of
superfluous items, such as quotation marks, ellipses, brackets, citations, and the like, for ease of
reading.


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                                   Opinion of the Court



App. 435, 442, 777 S.E.2d 133, 139, disc. review denied, cert. denied, 368 N.C. 605,

780 S.E.2d 561 (2015).

      Here, a review of the trial transcript reveals that Defendant never alleged a

fatal variance when he moved to dismiss his trafficking opium by possession charge

at trial. Instead, as in Hooks, Defendant moved for dismissal based on insufficiency

of the evidence rather than a fatal variance. Defendant has waived his right to

appellate review of this issue, and it is dismissed.

III. Jury Instruction

      Defendant asserts that the trial court erred in failing to instruct the jury on an

exemption to his trafficking opium by possession charge.            More specifically,

Defendant contends that he is exempt from prosecution for violating Section 90-

95(h)(4) of North Carolina’s Controlled Substances Act (“the Controlled Substances

Act”) because he is an “ultimate user” pursuant to Section 90-101(c) of the Controlled

Substances Act. Defendant concedes that he did not request an instruction on the

ultimate user exemption at trial nor did he object to the trial court’s omission of this

instruction. Defendant therefore requests for this Court to review for plain error. We

find no plain error.

      In order to establish plain error, Defendant “must demonstrate that a

fundamental error occurred at trial. To show that an error was fundamental, a

defendant must establish prejudice—that, after examination of the entire record, the



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error had a probable impact on the jury’s finding that defendant was guilty.” State v.

Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (purgandum).

      Our Supreme Court has held “on numerous occasions that it is the duty of the

trial court to instruct the jury on all of the substantive features of a case.” State v.

Loftin, 322 N.C. 375, 381, 368 S.E.2d 613, 617 (1998) (citations omitted).          “All

defenses arising from the evidence presented during the trial constitute substantive

features of a case and therefore warrant the trial court’s instruction thereon.” Id.

(citations omitted).

      “Failure to instruct upon all substantive or material features of the crime

charged is error.” State v. Bogle, 324 N.C. 190, 195, 376 S.E.2d 745, 748 (1989). The

trial court’s duty to instruct the jury “arises notwithstanding the absence of a request

by one of the parties for a particular instruction.” Loftin, 322 N.C. at 381, 368 S.E.2d

at 617 (citations omitted).

                    For a jury instruction to be required on a particular
             defense, there must be substantial evidence of each
             element of the defense when the evidence is viewed in the
             light most favorable to the defendant.          Substantial
             evidence is evidence that a reasonable person would find
             sufficient to support a conclusion. Whether the evidence
             presented constitutes substantial evidence is a question of
             law.

State v. Hudgins, 167 N.C. App. 705, 709, 606 S.E.2d 443, 446 (2005) (purgandum).

      Section 90-95 of the Controlled Substances Act “makes the possession,

transportation[,] or delivery of a controlled substance a crime.” State v. Beam, 201


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N.C. App. 643, 649, 688 S.E.2d 40, 44 (2010). Any person who possesses more than

four but less than fourteen grams of opium can be found guilty of the Class F felony

of trafficking opium by possession. N.C. Gen. Stat. § 90-95(h)(4)(a) (2017). The

defendant “unlawfully possesses” opium if he or she knowingly possesses it with “both

the power and intent to control the disposition or use of that substance.” State v.

Galaviz-Torres, 368 N.C. 44, 50, 772 S.E.2d 434, 438 (2015).

      However, Section 90-101(c) dictates that some individuals are deemed lawful

possessors of certain controlled substances. N.C. Gen. Stat. § 90-101(c) (2017). One

such individual is “[a]n ultimate user or a person in possession of any controlled

substance pursuant to a lawful order of a practitioner.” N.C. Gen. Stat. § 90-101(c)(3).

The Controlled Substances Act defines an “ultimate user” as “a person who lawfully

possesses a controlled substance for his own use, or for the use of a member of his

household.” N.C. Gen. Stat. § 90-87(27) (2017).

      Defendant does not contest that he was found in possession of “54 dosage units

of Oxycodone weighing 6.89 grams.” Rather, Defendant contends that the trial court

erred in not instructing the jury sua sponte on the ultimate user exemption. However,

we find that the record lacks substantial evidence by which a jury instruction on the

ultimate user exemption would have been required.

      The evidence tended to show that Defendant did not lawfully possess fifty-four

of his father’s oxycodone pills solely for his father’s prescribed use, as required to fall



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within the ultimate user exemption.        Rather, the record reflects overwhelming

evidence demonstrating that Defendant possessed his father’s oxycodone for his own

purpose of unlawfully selling his father’s pills.

      While Defendant presented evidence that the oxycodone found in his

possession was prescribed to his father, that Defendant would drive his father to and

from appointments related to his care, and that Defendant lived with and cared for

his father, no reasonable person could conclude that Defendant was in lawful

possession of his father’s oxycodone at the time of his arrest.

      Defendant signed and initialed each line of a written confession in which

Defendant admitted that he “was selling the pills to make money to pay bills . . . [and

had] sold Jason Hyland 41 [pills] earlier [that day] for $250.00 cash.” Defendant’s

written confession also stated that Defendant “looked on Google to see how much

money [the oxycodone pills] sold on the street for” and that Defendant was planning

to sell twelve more pills to Hyland later that night. Defendant’s written confession

was corroborated by Defendant’s trial testimony, in which Defendant conceded that

he recently researched oxycodone.

       Moreover, although Defendant testified that he had never seen his signed

confession before trial, he later admitted under oath that he signed and initialed each

line of his written confession. Defendant also testified that he recognized the specific

content of his Miranda rights waiver and remembered reviewing, signing, and



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initialing each line of this waiver during the same interrogation. Defendant further

admitted that he understood “quite well” that he was “in a very serious situation”

when he was being interrogated.

       Because Defendant failed to present substantial evidence that he possessed

the fifty-four oxycodone pills solely for his father’s lawful use, he was not entitled to

an instruction under Section 90-87(27), even when the evidence is viewed in the light

most favorable to Defendant. Thus, the trial court did not err as no instruction on

the ultimate user exemption was required. Because the evidence did not support the

instruction, Defendant cannot show plain error.

IV. Ineffective Assistance of Counsel

       Finally, Defendant asserts that he received ineffective assistance of counsel

because his counsel failed to object and agreed to the admission of Hyland’s statement

and failed to request a jury instruction on the ultimate user exception. We decline to

address this claim on direct appeal.

       If “the record before this [c]ourt is not thoroughly developed regarding . . .

counsel’s reasonableness, or lack thereof, . . . [then] the record before us is insufficient

to determine whether defendant received ineffective assistance of counsel.” State v.

Todd, 369 N.C. 707, 712, 799 S.E.2d 834, 838 (2017). Here, the record before us is

insufficient to determine whether trial counsel was ineffective or whether there were

reasonable, strategic reasons for counsel’s actions.           Accordingly, we dismiss



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Defendant’s ineffective assistance of counsel claim without prejudice to his right to

assert his claim in a motion for appropriate relief.

                                       Conclusion

      Accordingly, we find no error in the trial court’s admission of Hyland’s

statement as there was no “judicial action” at issue where both parties consented to

the entry of the statement. In addition, Defendant has waived appellate review of

his fatal variance claim. Defendant was not entitled to an instruction on the ultimate

user exemption, and the trial court was not required to provide an instruction to the

jury on this issue sua sponte. Finally, we dismiss Defendant’s ineffective assistance

of counsel claim without prejudice.

      NO ERROR IN PART; DISMISSED IN PART.

      Judges BRYANT and TYSON concur.




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