        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs October 26, 2011

    STATE OF TENNESSEE v. BENJAMIN WILLIAM RIFFEY, ALIAS

                  Appeal from the Criminal Court for Knox County
                  No. 77360B   Jon Kerry Blackwood, Senior Judge


                  No. E2011-00641-CCA-R3-CD - Filed March 9, 2012


In February 2005, the Defendant, Benjamin William Riffey, alias, pled guilty to facilitation
to commit aggravated robbery. He was sentenced as a Range I, standard offender to six years
and was placed on probation. Subsequently, the Defendant was transferred to enhanced
probation. On February 22, 2011, a violation of probation warrant was filed, the third against
the Defendant. Following a hearing, the trial court revoked the Defendant’s sentence of
probation and ordered that he serve the remainder of his six-year sentence in the Department
of Correction. In this appeal, the Defendant contends that the trial court erred by revoking
his probation. After a review of the record, we conclude that the trial court did not abuse its
discretion and affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J ERRY L. S MITH and
N ORMA M CG EE O GLE, JJ., joined.

Cameron D. Bell, Knoxville, Tennessee, for the appellant, Benjamin William Riffey, alias.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; Randall E. Nichols, District Attorney General; Ta Kisha M. Fitzgerald, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                     OPINION
                               FACTUAL BACKGROUND

       On February 2, 2005, the Defendant pled guilty to facilitation to commit aggravated
robbery, a Class C felony. See Tenn. Code Ann. §§ 39-11-403, -13-402. He received a six-
year sentence as a Range I, standard offender and was placed on probation. In July 2007, a
violation of probation warrant was filed, which was later amended. The Defendant’s
probation was revoked in February 2008, and he was returned to probation and ordered to
serve an additional year on probation. A second violation warrant was issued on June 19,
2008, which was thereafter amended twice. Ultimately, the petition for revocation was
dismissed. On August 14, 2009, the Defendant was transferred to enhanced probation. On
February 22, 2011, a third violation of probation warrant was filed.

       The first violation warrant was issued on July 27, 2007, alleging that the Defendant
had violated the rules of his probation by being arrested for theft of a laptop valued at $1,200
and by not paying supervision fees and court costs as required. The warrant was later
amended to include the additional violation of failure to perform community service work
as ordered. Following a hearing, the trial court revoked the Defendant’s probation on
February 28, 2008, finding that “the [D]efendant has been guilty of violating the laws of this
State, and has otherwise violated the conditions of his probation.” As a result of the
revocation, the Defendant was “placed back on [s]tate [p]robation for one additional year[.]”

        The Defendant was again charged with violating the conditions of his probation. On
June 19, 2008, the trial court issued a second violation warrant, wherein it was alleged that
the Defendant admitted to using marijuana on May 22, 2008. The warrant was amended in
August 2008, to include additional violations: that the Defendant had changed residences
without notifying his probation officer; that the Defendant had missed his “scheduled A&D
appointment with CAPP”; that the Defendant refused to pay his probation fees; and that the
Defendant had not performed his community service work as required. This warrant was
amended a second time in December 2008. In addition to restating that the Defendant had
failed to pay his probation fees and perform his required community work, the Defendant’s
probation officer averred that the Defendant “was argumentative and belligerent with his
probation officer on 10-22-08.” The trial court dismissed the petition for revocation
following a hearing on April 9, 2009. Thereafter, his supervision was briefly transferred to
Indiana but was quickly returned to Knoxville after he came back to Tennessee.

       On August 14, 2009, the trial court transferred the Defendant from regular probation
to enhanced probation, where he was then supervised by Lisa Mooneyham with the Board
of Probation and Parole. The trial court issued a third violation warrant on February 22,
2011, based upon allegations by Ms. Mooneyham (1) that the Defendant was arrested on
February 18, 2011, for leaving the scene of accident, driving under the influence, driving on
a suspended license, and violating an order of protection; (2) that the Defendant violated his
curfew and was under the influence of alcohol on the evening of his arrest; (3) that the
Defendant was in arrearage for supervision fees; (4) that he “had not provided verification
that costs [had] been paid”; and (5) that he was in arrearage for required community service
work. A hearing on the warrant was held on March 11, 2011.



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       Ms. Mooneyham testified that, after the Defendant was “administratively moved” to
enhanced probation, she supervised the Defendant. According to Ms. Mooneyham, her
former supervisor “felt like that [the Defendant] was considered more of a high risk on -- for
regular probation.” She stated that, at that time of his transfer, the Defendant was “very
difficult to deal with” and he was not “maintaining his mental health treatment[.]” During
her supervision of the Defendant, the Defendant married and had a child. The couple later
divorced, and “an order of protection was in place.”

        Ms. Mooneyham testified that the Defendant initially did “fairly well” on enhanced
probation and dealt with things in an appropriate manner. She explained that the Defendant
had bipolar disorder. According to Ms. Mooneyham, the Defendant was maintaining his
mental health and handling “his estranged wife . . . appropriately.” She testified that, in the
beginning, the Defendant contacted her several times a day, so they could “work through any
issues he had.” He reported to her as required and obeyed his curfew. Although he worked
at a moving company, his hours had been reduced, and he “was job searching.” He was
struggling financially and, because of his mental health issues, Ms. Mooneyham was able to
assist the Defendant with getting funds from the Helen Ross McNabb center to pay his rent.

       She testified about the allegations in the February 22, 2011 warrant—the Defendant’s
arrest for new charges and being behind in his required community service work and
payment of his supervision fees. Ms. Mooneyham’s probation violation report was entered
into evidence without objection.

        Following the Defendant’s arrest on February 18, 2011, the Defendant posted bond
and then phoned Ms. Mooneyham to inform her of his arrest. The Defendant did as she
instructed and turned himself in for the probation violation. Ms. Mooneyham confirmed that
the Defendant was not allowed to consume alcohol while on probation and was in violation
of his curfew on the evening he was arrested. Acknowledging that he had been charged with
violating the protection order on the night of his arrest, she opined that the Defendant “felt
like he could be more around her” after the divorce was final, despite the fact that they had
“a very volatile relationship anyway.” When asked about the alleged violation of the order
of protection, Ms. Mooneyham responded, “Well, I was under the impression that he
resolved that when the divorce was final.” She thought that the order of protection had been
lifted and opined that the Defendant likely thought the same. Ms. Mooneyham asked the
Defendant why this incident had happened, and the Defendant responded that he was having
a panic attack and apologized for not calling her. At the time of his arrest, he was no longer
frequently calling Ms. Mooneyham to discuss his problems; those types of phone calls ceased
when the Defendant got divorced.




                                              -3-
        As for his community service work, Ms. Mooneyham stated that the Defendant had
tried to catch up on it when he was placed on enhanced probation, but he had again fallen
behind in performing the required hours. Also, because his hours at the moving company
were not very regular, he had fallen behind in paying his supervision fees. Ms. Mooneyham
testified that she told the Defendant he would have “to catch up with things that he was
behind on[.]”

        Ms. Mooneyham stated that, while the Defendant’s behavior was troubling, she did
not consider him “a lost cause” and thought that this incident “was out of character for
him[,]” that he “made a very foolish mistake[.]” She characterized the Defendant as a good
father to his daughter, helping to support and raise her. Since the Defendant had been placed
under her supervision, she had “seen an improvement in his ability to become a contributing
member to society[.]” According to Ms. Mooneyham, the Defendant’s mother and sister
were very supportive of the Defendant’s efforts to rehabilitate himself. Despite these
encouraging words, she was “very concerned” by the Defendant’s behavior.

       Ms. Mooneyham testified that the February 18, 2011 charges against the Defendant
were still pending at the time of the hearing. The affidavit of complaints for leaving the
scene of accident, driving on a suspended license, and driving under the influence, were
attached to Ms. Mooneyham’s probation violation report. According to Ms. Mooneyham,
the Defendant’s probation was set to expire in 2012.

       The Defendant testified that he benefitted greatly from Ms. Mooneyham’s supervision,
as she was the only one who “could keep [him] under control.” According to the Defendant,
he had never been placed on probation prior to this offense. The Defendant believed he
could succeed on enhanced probation if allowed another chance, stating that he wanted to do
so for his nine-month-old daughter, whom he cared for four days a week. He asserted that
he would “be able to stay out of any further trouble[.]”

       When asked about his employment, the Defendant relayed that he was employed with
a moving company for two months, which he thought was going to provide him with regular
work. However, once the weather turned bad, his hours were cut. He tried to get hired by
another moving company, “but it kind of dwindled away also.” The Defendant claimed his
father could get him a full-time job at Krispy Kreme if he was reinstated to probation.

       The Defendant acknowledged that he had been on probation since 2005 and was
“behind a lot” in performing his community service work and was not up-to-date on paying
his supervision fees. He claimed that his supervision fees were $45 a month but that those
could be lowered by going to the Career Center, which he did sometimes. He recalled being
told by the court in December 2008 that he was “extremely behind on [his] community

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service” and court costs. According to the Defendant, in April 2009, his mother paid $1,700
towards his court costs, so he could go live with her in Indiana. He admitted that his
supervision fees were still in arrearage in the amount of $620, paying only $100 since
December 2008, but claimed his family could pay any arrearage if needed. He believed his
courts costs had been paid in full. The Defendant further acknowledged that his community
service work was still not completed; he estimated that he had done approximately four days
of community service work since December 2008 and that he had approximately 14 days left
to do. When asked why he had not completed the work, the Defendant replied, “My reasons
probably aren’t the best reasons.” He claimed that he was busy seeking employment to
support himself and his daughter and that transportation was a problem. At one point, he
tried living with his mother in Indiana but later returned to Knoxville to attend Pellissippi
State Community College. The Defendant testified that he did not know why his license had
been suspended prior to his arrest for that charge.

        The Defendant’s sister, Jamie Riffey, testified that she spoke with the Defendant daily
and visited him often when she had a valid driver’s license. If her schedule had permitted,
she would have driven him to do community service work. She believed that the birth of the
Defendant’s daughter had “completely changed him. He doesn’t want to get in trouble.” She
considered him to be a good father and did not think he had any violent tendencies. She
stated that the Defendant had improved over the years while on enhanced probation, opining
that the Defendant “sincerely desire[d] to -- to successfully complete his probation[.]”

       Following the completion of testimony, the trial court found by a preponderance of
the evidence that the Defendant had failed to pay his supervision fees, failed to perform his
required community service work, and had committed new offenses. The trial court revoked
the Defendant’s probation and ordered him to serve the remainder of his six-year sentence
in the Department of Correction. This appeal followed.

                                         ANALYSIS

       The Defendant contends that the trial court abused its discretion by revoking his
probation and ordering him to serve the remainder of his sentence in the Department of
Correction. Specifically, he contends that the State failed to establish that he violated the law
by a preponderance of the evidence, that there was no evidence that his failure to pay was
willful or that he failed to make sufficient bona fide efforts to acquire the resources to pay,
and that he was not apprised of a deadline for performance of his community service work.
The State responds that there is ample evidence in the record to support the trial court’s
findings.




                                               -5-
        A trial court may revoke a sentence of probation upon finding by a preponderance of
the evidence that the defendant has violated the conditions of release. Tenn. Code Ann. §
40-35-311(e). The decision to revoke probation is in the sound discretion of the trial judge.
State v. Kendrick, 178 S.W.3d 734, 738 (Tenn. Crim. App. 2005); State v. Mitchell, 810
S.W.2d 733, 735 (Tenn. Crim. App. 1991). The judgment of the trial court to revoke
probation will be upheld on appeal unless there has been an abuse of discretion. State v.
Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). To find an abuse of discretion in a probation
revocation case, the record must be devoid of any substantial evidence that would support
the trial court’s decision that a violation of the conditions of probation occurred. Id.; State
v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn.
Crim. App. 1980). Such a finding “‘reflects that the trial court’s logic and reasoning was
improper when viewed in light of the factual circumstances and relevant legal principles
involved in a particular case.’” State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting
State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)).

       A trial court is not required to find that a violation of probation occurred beyond a
reasonable doubt. Stamps v. State, 614 S.W.2d 71, 73 (Tenn. Crim. App. 1980). The
evidence need only show that the court has exercised conscientious judgment in making the
decision and has not acted arbitrarily. Id. In reviewing the trial court’s finding, it is our
obligation to examine the record and determine whether the trial court has exercised a
conscientious judgment rather than an arbitrary one. Mitchell, 810 S.W.2d at 735.

       The Defendant’s primary argument is that the State failed to establish by a
preponderance of the evidence that he committed new offenses. It is generally recognized
that in order to prevail in a revocation proceeding based upon allegations of criminal
misconduct, the State must show by a preponderance of the evidence that the defendant
violated the law. See State v. Michael Harlan Byrd, No. 01C01-9609-CC-00411, 1998 WL
216859, at *7 (Tenn. Crim. App. May 1, 1998). The State need not show a conviction for
the new offense, but it should show by a preponderance of the evidence that the defendant
violated the law. See State v. Andrew B. Edwards, No. W1999-01095-CCA-R3-CD, 2000
WL 705309, at *3 (Tenn. Crim. App. May 26, 2000), perm. app. dismissed, (Tenn. Sept. 11,
2000).

       A new arrest and pending charges are proper grounds on which a trial court can
revoke a defendant’s probation provided that the State establishes sufficient grounds,
generally by “produc[ing] evidence in the usual form of testimony,” that the defendant
committed another offense while on probation. See State v. Paul Williams, aka Paul
Williams El, No. W2010-00598-CCA-R3-CD, 2011 WL 1457741, at *5 (Tenn. Crim. App.
Apr. 15, 2011) (quoting Harkins, 811 S.W.2d at 83 n.3), perm. app. denied, (Tenn. Aug. 24,
2011). Arrest warrants alone, with supporting affidavits, may be sufficient to support a

                                              -6-
revocation finding. See State v. John Edward Winn, Jr., No. M2009-00094-CCA-R3-CD,
2010 WL 2516855, at *3 (Tenn. Crim. App. June 22, 2010) (e.g., State v. Frederick Neblett,
No. 01C01-9805-CR-00232, 1999 WL 142069, at *3 (Tenn. Crim. App. Mar. 17, 1999) (trial
court properly relied on facsimile copy of arrest warrant which was reliable hearsay and
where good cause existed to allow its introduction); State v. Jerry Dale Whitehead, No.
86-220-III, 1987 WL 7984, at *2 (Tenn. Crim. App. Mar. 17, 1987) (arrest report admissible
in determining probation revocation)). The terms of the violation warrant put the Defendant
on notice that the State would assert the new charges as part of its case for revocation. See
id. (citing Whitehead, 1987 WL 7984, at *2).

        The State argues that the affidavits of complaint attached to Ms. Mooneyham’s
probation violation report constitute proper evidence upon which to base the revocation. We
agree. Ms. Mooneyham testified that the Defendant called to inform her of his arrest and she
received a copy of the arrest report. Ms. Mooneyham asked the Defendant why this incident
had happened, and the Defendant responded that he was having a panic attack and
apologized for not calling her. A copy of her violation report, which included the affidavits
of complaints, was entered into evidence. While the officer who executed the affidavits did
not testify at the revocation hearing, the Defendant did not object to the introduction of this
evidence as an exhibit to Ms. Mooneyham’s testimony. Thus, the trial court could rely upon
the matters set forth in the affidavits. See State v. Mark Crites, No. 01C01-9711-CR-00512,
1999 WL 61053, at *3 (Tenn. Crim. App. Feb. 9, 1999); State v. Charles Wayne Richardson,
No. 03C01-9503-CR-00065, 1995 WL 464234, at *3 (Tenn. Crim. App. Aug. 7, 1995)
(approving the reliance upon information set forth in an arrest warrant and affidavit to
support a revocation).

       In the affidavits of complaint, Officer Wesley Chad Coleman stated that he was
dispatched to an automobile “crash with injury” at approximately 11:30 p.m. on February 17,
2011. Upon arrival at the scene, Officer Coleman observed a row of mailboxes that had been
knocked down, but no vehicle was present. Officer Coleman followed the “fluid trail” from
the scene to an automobile parked in front of a residence; he then observed footprints leading
from the vehicle inside the residence. He proceeded to the house and saw the Defendant
through a glass door “laughing and holding an unopened bottle of Corona beer.” Upon
speaking to the Defendant, Officer Coleman learned that the car belonged to the Defendant’s
ex-wife. The Defendant initially denied driving the car, but Officer Coleman spoke with the
Defendant’s ex-wife, who advised him that the Defendant had just returned from driving her
vehicle. The Defendant then admitted to being the driver of the car when it was involved in
the accident, and the keys were found in his pocket. Officer Coleman noted that the
Defendant smelled of alcohol, he had “blood shot/glassy eyes,” his speech was slurred, he
was unsteady on his feet, and he admitted to consuming alcohol. According to Officer
Coleman, the Defendant performed poorly on a field sobriety test. The results of a blood

                                              -7-
alcohol test were still pending at the time he prepared the affidavits. Officer Coleman also
noted that a records check revealed that the Defendant’s driver’s license was suspended for
two counts of “failure to satisfy citations.”

      This was sufficient evidence to establish by a preponderance of the evidence that the
Defendant had committed new offenses. Therefore, we cannot conclude that the trial court
abused its discretion in revoking the Defendant’s probation.

        As a secondary matter, the State argues that, even if the trial court erred by
considering evidence of the Defendant’s pending charges, there was other adequate evidence
supporting revocation as the trial court also found that the Defendant failed to pay his
supervision fees and failed to perform his required community service work. The Defendant
argues that the record does not support a finding that he violated the terms of his probation
on these grounds. Specifically, he contends that (1) he only had costs, as opposed to
restitution, outstanding, and one cannot be imprisoned for default of costs; (2) even if he
owed restitution, the court was required to find that his failure to pay was willful or that he
failed to make sufficient bona fide efforts to acquire the resources to pay; and (3) he was not
apprised “that there was a deadline for him to complete a certain amount of community
service hours by any date other than the natural expiration of his term of probation.”

        Regarding his failure to pay his fees, the Defendant himself testified at the probation
revocation hearing that he had paid his court costs in full and only had supervision fees
remaining; no mention was ever made of any restitution owed. Ms. Mooneyham testified
that she informed the Defendant prior to filing the warrant that he was behind on some of his
fees. When the defendant’s violation of probation is based on failure to pay restitution or
fines, the trial court must determine the reasons behind the failure to pay. State v. Dye, 715
S.W.2d 36, 40 (Tenn. 1986); Massey v. State, 929 S.W.2d 399, 402 (Tenn. Crim. App. 1996)
(citing Bearden v. Georgia, 461 U.S. 660(1983)). If the nonpayment is due to willful refusal
to pay or failure to make sufficient bona fide efforts to obtain the means to pay, then
probation may be revoked. Dye, 715 S.W.2d at 40. If, on the other hand, the nonpayment
stems from the probationer’s inability to pay, it may not form the basis for imprisonment
unless alternative measures other than incarceration are inadequate to meet the State’s needs
in punishment and deterrence. Id. Here, the record does not reflect that the trial court made
the appropriate determination that the Defendant’s nonpayment was willful or that he failed
to make bona fide efforts to obtain the means to pay, as is required.

       Other panels of this court have reasoned that implicit findings were sufficient to fulfill
the requirement under Dye and Bearden. See State v. Roderick Dean Hughes, E2009-00649-
CCA-R3-CD, 2009 WL 3787251, at *4 (Tenn. Crim. App. Nov. 12, 2009), State v. Bernita
Hogan, M2002-00808-CCA-R3-CD, 2003 WL 1787312, at *4-5 (Tenn. Crim. App. Apr. 4,

                                               -8-
2003), perm. app. denied, (Tenn. Sept. 8, 2003). The Defendant provided that his
supervision fees were $45 a month, but he stated that the fee could be lowered by going to
the Career Center, which he did sometimes. The Defendant admitted that his supervision
fees were still in arrearage in the amount of $620, having paid only $100 since December
2008. At the time of the hearing, these fees had not been paid, but the Defendant claimed
his family could pay them for him, if needed. Prior to being transferred to enhanced
probation, the Defendant had twice been informed through violation warrants of his failure
to pay his supervision fees. However, there was some indication at the revocation hearing
that the Defendant’s failure to pay his fees was due to his inability to do so. Ms. Mooneyham
testified that, although the Defendant worked at a moving company, his hours had been
reduced. She stated that he “was job searching[,]” but he was struggling financially. Ms.
Mooneyham even assisted the Defendant in getting funds to pay his rent.

       On the record before us, the findings of the trial court do not rise to the level of the
implicit findings in Hughes and Hogan. We must conclude that the court erred in revoking
the Defendant’s probation on this ground without making adequate findings to support its
ruling. See State v. Raymond Bradley, Jr., No. M2010-02508-CCA-R3-CD, 2011 WL
2682183, at *4 (Tenn. Crim. App. July 11, 2011) (citing State v. Shane Thomas Cox, E2009-
00628-CCA-R3-CD, 2010 WL 98885, at *3 (Tenn. Crim. App. Jan. 12, 2010)). However,
we will uphold a court’s revocation of probation despite the failure to make adequate
findings if an independent and proper basis, aside from the Defendant’s failure to pay, exists.
See State v. Daryl McKinley Robinson, W1999-01386-CCA-R3-CD, 2000 WL 546209, at
*2 (Tenn. Crim. App. May 4, 2000).

        As for his violation of the community service requirement, the Defendant admits that
one of the conditions of his probation was to perform community service work, but he argues
that the record does not support revocation on this ground. He cites to Stacy Stewart v. State,
No. M1999-00684-CCA-MR3-CD, 2000 WL 374756, at *2 (Tenn. Crim. App. Apr. 7, 2000),
for the proposition that due process requires that probationers only be held responsible for
violations of those conditions of probation of which they were reasonably apprised. Relying
on this proposition, he submits that he “did not have notice that there was a deadline for him
to complete a certain amount of community service hours by any other date than the natural
expiration of his term of probation[,]” thus, that revocation is not supported by the record.

       A review of the record establishes that the Defendant was on notice that, as a
condition of his probation, he would have to complete a certain amount of community service
within a specified timeframe. The conditions of probation, filed along with the Defendant’s
judgment form, reflected a requirement of “96 hours per year [c]ommunity [s]ervice through
the Department of Correction[].” Prior to being transferred to enhanced probation, the
Defendant had twice been informed through violation warrants of his failure to perform the

                                              -9-
required amount of community service work. The Defendant acknowledged that he was
informed by the court in December 2008 of his serious arrearage in this regard, but he agreed
that he still had not completed the required amount. He estimated that he had done
approximately four days of community service work since December 2008 and that he had
approximately 14 days left to do. The Defendant admitted that he did not have a good reason
for his non-compliance other than his transportation issues and employment search. The
Defendant’s sister testified that, if her schedule had permitted, she would have driven him
to do community service work. We cannot conclude that the trial court abused its discretion
in revoking the Defendant’s probation on this ground.

        The record supports the trial court’s decision to revoke the Defendant’s probationary
sentence on the grounds that the Defendant committed new offenses and failed to perform
his community service hours as required. The Defendant violated the conditions of his
release after having been given a second chance. We have held “that an accused, already on
probation, is not entitled to a second grant of probation or another form of alternative
sentencing.” State v. Jeffrey A. Warfield, No. 01C01-9711-CC-00504, 1999 WL 61065, at
*2 (Tenn. Crim. App. Feb. 10, 1999), perm. app. denied, (Tenn. June 28, 1999). The trial
court acted within its discretionary authority to revoke the Defendant’s probation and impose
his original six-year sentence. See Tenn. Code Ann. §§ 40-35-310, -311(e). Accordingly,
the judgment of the trial court is affirmed.

                                      CONCLUSION

        In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.




                                                    ________________________________
                                                    D. KELLY THOMAS, JR., JUDGE




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