                                                                    SECOND DIVISION
                                                                    March 31, 2011




No. 1-08-0805




THE PEOPLE OF THE STATE OF ILLINOIS,                     )   Appeal from the
                                                         )   Circuit Court of
                                                         )   Cook County
                    Plaintiff-Appellee,                  )
                                                         )
v.                                                       )   05 MC 619520
                                                         )
                                                         )
                                                         )
APRIL HAYNES,                                            )   Honorable
                                                         )   Robert Clifford,
                    Defendant-Appellant.                 )   Judge Presiding.
                                                         )
                                                         )




JUSTICE KARNEZIS delivered the opinion of the court, with opinion.
Presiding Justice Cunningham and Justice Hoffman concurred in the judgment and
opinion.


                                          OPINION

      Following a jury trial, defendant April Haynes was convicted of resisting a police

officer and attempting to obstruct justice (720 ILCS 5/31-1 (West 2006)) and was

sentenced to 1 year of conditional discharge and 15 days of community service. On
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appeal, defendant argues: (1) trial counsel was ineffective for failing to request that the

jury be instructed on self-defense; (2) the trial court failed to comply with Illinois

Supreme Court Rule 431(b) (eff. May 1, 2007); and (3) the trial court improperly

imposed a fee pursuant to section 5-1101(a) of the Illinois Vehicle Code (55 ILCS 5/5-

1101(a) (West 2006)).

       On March 30, 2010, we affirmed defendant’s conviction but modified the fees

associated with her case. People v. Haynes, 399, Ill. App. 3d 903 (2010). On January

26, 2001, the Illinois Supreme Court entered supervisory order No. 110299, directing

this court to vacate its judgment and reconsider the case in light of People v.

Thompson, 238 Ill. 2d 598 (2010). Upon reconsideration, we affirm defendant’s

conviction as modified.

                                      BACKGROUND

       Defendant was charged with battery of a police officer (720 ILCS 5/12-3(a)(1)

(West 2006)), resisting arrest (720 ILCS 5/31-1(a) (West 2006)), attempted obstruction

of justice ( 720 ILCS 5/31-4(a) (West 2006)) and permitting an unauthorized person to

drive her vehicle (625 ILCS 5/6-304 (West 2006)) after defendant’s car, being driven by

her unlicensed son, slid into a pole in Lansing, Illinois. Defendant was arrested after

she failed to inform police officers that her son was the driver of the vehicle. When

officers attempted to arrest her, defendant refused to cooperate and place her hands

behind her back. It took five officers to eventually get defendant’s hands cuffed behind

her back.

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       Nadine Guthrie testified that she was driving her daughter to school on

November 23, 2005, at approximately 8 a.m., when she saw a car swerve and hit a

metal pole in the 3300 block of Ridge Avenue in Lansing, Illinois. She saw two youths

exit the vehicle. Guthrie continued to drive her daughter to school but planned to

return to the scene to see if the boys needed help.

       Kaila Seimers was working in Mancino’s restaurant at about 8 a.m. on

November 23, 2005, when she heard a car crash. She saw that the car had hit a pole

and watched as two young men got out of the car. They walked over to her and asked

to use her phone. The young men left after they made a call. Seimers called the police

and reported the accident.

       Several minutes later, defendant entered the restaurant and asked Seimers to

tell the police that she (defendant) had been the one driving the car. Seimers testified

that she refused to lie and went back to work. Defendant went outside to wait for the

police to arrive.

       Officer Hynek testified that he received a dispatch stating that there was a non-

injury car accident at 3300 Ridge Road. When Officer Hynek arrived at the scene, he

saw a car resting against a light pole. He approached the vehicle and saw defendant

standing there. Defendant told him that her car slid into the pole and that she was the

only one in the car. Officer Hynek filled out the accident report that included

defendant’s information. Defendant never told Officer Hynek that her son was driving



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the car. Officer Hynek told defendant to wait in Mancino’s restaurant while he filled out

the report.

       While Officer Hynek was filling out the report, Nadine Guthrie arrived at the

scene of the accident. She asked if the two people in the car were injured. She then

stated that she saw two young men exit the car after the accident.

       After his conversation with Guthrie, Officer Hynek went into Mancino’s restaurant

to talk to defendant. He asked defendant about her children. Defendant responded

that her children were in school. Officer Hynek contacted another police officer to go

speak with defendant’s oldest son Lance at the local high school. Lance later admitted

to Officer Yonker that he was the one who drove the car into the pole.

       Officer Hynek gave defendant several opportunities to admit that she was not

driving the car, but she continued to maintain that she was the driver. Officer Hynek

told defendant she was under arrest and asked her to put her hands behind her back.

Officer Hynek testified that it is police department policy to handcuff people with their

hands placed behind their back. Defendant placed her hands in front of her chest and

clenched them together. Officer Hynek and Officer Klingleschmitt tried to break

defendant’s hands apart and bring them behind her back, but defendant fell to the

ground.

       While defendant was on the ground, Officers Hynek and Klingleschmitt

continued to try to get defendant’s hands behind her back, but defendant hid her hands

underneath her body. Officer Hynek put his knee in her back and when that was

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ineffective, he used the Taser gun twice on her back. Officer Hynek testified that he

used the Taser gun on a “dry stun” mode, which only inflicts localized pain, unlike the

gun’s other mode, which inflicts greater pain to the entire body by electric shock.

      Video cameras in Mancino’s restaurant captured most of defendant’s arrest.

The videotapes were entered into evidence by the State and played to the jury. Officer

Hynek gave a narrative of the videotape as part of his testimony. The video showed

the following. Defendant was standing inside the restaurant struggling with Officers

Hynek and Klingleschmitt as they attempted to place her under arrest. The three then

fell to the ground and defendant hid her hands underneath her body. Officer Hynek

threatened to use the Taser gun on defendant and eventually used the Taser on her

shoulder in “dry mode” after he attempted to free defendant’s hands with a knee to her

back. When Officer Hynek tasered defendant, Officer Klingeschmitt was able to grab

defendant’s arm. However, defendant quickly pulled her arm away and put it under her

body. Officer Hynek used the Taser gun again. Defendant then kicked Officer Hynek

in the groin. Defendant refused to place her hands behind her back and refused to

cooperate with the officers despite being told repeatedly that she was under arrest.

Three additional officers arrived at the scene and attempted to gain defendant’s

cooperation. Defendant resisted the request of all five officers. The officers eventually

used pressure points to free defendant’s hands. Finally, the officers were able to

handcuff defendant’s hands behind her back using three sets of handcuffs. The video

ends with defendant being escorted out of the restaurant.

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        After she was handcuffed, Officer Hynek drove defendant to the station. During

the transport, defendant admitted that she knew her son Lance Dudley was driving her

car and that Lance did not have a driver’s permit. The parties stipulated that Lance

Dudley did not have a driver’s license on the date of the accident.

        Following the court’s denial of defendant’s motion for a directed finding,

defendant testified. Defendant also gave a narrative of the videotape obtained from

Mancino’s restaurant.

        Defendant testified that she was shopping for groceries at about 7:30 a.m. on

the day of the incident and that she intended to drive her sons to school that morning.

She was on her way home when she received a call from her son Lance who told her

that he was driving and had hit a pole. Lance was not given permission to drive and

did not have a driver’s license. She drove to Mancino’s and walked over to the site of

the accident. Lance was no longer there. Officer Hynek arrived while she was

standing there.

        Defendant testified that Officer Hynek asked her what happened and she told

him that the car slid into the pole. She testified that she never told officers that she was

driving the car. Defendant went into Mancino’s restaurant to wait for Officer Hynek to

fill out his report.

        Officer Hynek came into the restaurant and yelled at defendant to “put your

hands behind your back. Lance was driving.” Defendant testified that she told Officer

Hynek that she understood that he may be placing her under arrest but that she was “to

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[sic] large to be cuffed from one set of cuffs behind [her] back” and asked that she be

handcuffed in front.

       Defendant testified that she did not resist arrest but Officer Hynek grabbed her

hands and jerked her around in a circular motion. Defendant testified that she

continually told the officers that she would go with them but that Officer Hynek kept

twirling her around. She also testified that she attempted to explain to the officers that

she had numerous medical conditions but Officer Hynek would not listen and tasered

her when she was standing up. Defendant claims that this incident was missing from

the video. She fell to the ground as she was paralyzed from being tasered. She lost

control of her body and rolled over on her stomach and onto her hands. Defendant

also claims that this was missing from the video. She continually asked officers to

handcuff her in front but Officer Hynek threatened to taser her again. Officers

eventually handcuffed her behind her back with three sets of handcuffs.

       Defendant testified that the video was missing many incidents. However, the

parties stipulated to the authenticity of the video. In addition, defendant denied asking

Kaila Seimers to lie.

       Defendant also called Officer Klingleschmitt as a witness. After defendant was

placed in custody, Officer Klingleschmitt filled out a “Use of Force” report. Officer

Klingleschmitt did not include in her report that defendant kicked Officer Hynek in the

groin because she did not see that happen.



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       After hearing all of the evidence, the jury convicted defendant of resisting arrest

and attempting to obstruct justice. Defendant was sentenced to 1 year of conditional

discharge with 15 days of community service. She was also ordered to pay a fee. It is

from this judgment that defendant now appeals.

                                         ANALYSIS

                             Ineffective Assistance of Counsel

       Defendant first claims that trial counsel was ineffective when he failed to tender

a self-defense instruction so that the jury could consider whether defendant’s actions

were intended to defend herself against the officers’ use of force. Specifically,

defendant claims that there was sufficient evidence to show that her use of force, if any,

was justified in light of the officers' prior use of excessive force.

       To prevail on a claim of ineffective assistance of counsel, a defendant must

satisfy the two prong test set forth in Strickland v. Washington, 466 U.S. 668, 687, 80 L.

Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984). A defendant must show that (1) trial

counsel's representation fell below an objective standard of reasonableness, and (2)

she was prejudiced by the deficient performance. Strickland, 466 U.S. at 687, 80 L. Ed.

2d at 693, 104 S. Ct. at 2064; People v. Albanese, 104 Ill. 2d 504, 525 (1984). Where

the defendant fails to prove prejudice, the reviewing court need not determine whether

counsel's performance constituted less than reasonable assistance. Strickland, 466

U.S. at 697, 80 L. Ed.2d at 699, 104 S. Ct. at 2069; People v. Flores, 153 Ill. 2d 264,

284 (1992). The defendant bears the burden of overcoming a strong presumption in

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favor of finding that counsel’s advocacy was effective. Albanese, 104 Ill. 2d at 525.

Failure to request a self-defense instruction constitutes ineffective assistance of

counsel when such a failure was not the result of trial strategy. See People v. Wright,

111 Ill. 2d 18, 26-27 (1986).

       A person resists arrest when he or she commits a physical act of resistance or

obstruction, that is, a physical act that impedes, hinders, interrupts, prevents or delays

the performance of the officer's duties, such as going limp, forcefully resisting arrest, or

physically helping another party to avoid arrest. People v. Raby, 40 Ill. 2d 392, 399

(1968); People v. McCoy, 378 Ill. App. 3d 954, 962 (2008).

       An arresting officer generally may use any force reasonably necessary to

effectuate an arrest and need not retreat in the face of resistance. 720 ILCS 5/7-5(a)

(West 2006). An arrestee may not use force to resist an arrest even if the arrest is

unlawful. 720 ILCS 5/7-7 (West 2006). However, the use of excessive force by a

police officer invokes the right of self-defense. 720 ILCS 5/7-1(a) (West 2006). “A

person is justified in the use of force against another when and to the extent that [s]he

reasonably believes that such conduct is necessary to defend [her]self or another

against such other’s imminent use of unlawful force.” 720 ILCS 5/7-1(a) (West 2006).

       A defendant is entitled to an instruction on her theory of the case if there is some

foundation for the instruction in the evidence. People v. Jones, 175 Ill. 2d 126, 131-32

(1997). Only a slight amount of evidence is necessary to justify giving an instruction.

People v. Robinson, 92 Ill. App. 3d 972 (1981). An instruction on self-defense is

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required in a resisting arrest case when the defendant has presented some evidence of

excessive force on the part of the arresting officer. People v. Williams, 267 Ill. App. 3d

82, 88 (1994).

       Defendant argues that this case is analogous to People v. Sims, 374 Ill. App. 3d

427 (2007). In Sims, the defendant was prosecuted for battery and resisting arrest.

The trial court rejected the defendant’s request for a self-defense instruction based on

the officers’ use of excessive force. The evidence produced at trial showed that the

defendant submitted peacefully to being handcuffed and was placed in the squad car

without incident. He did not use force against the officers until after his girlfriend

arrived at the car. Defendant asserted that he only resorted to force when one officer

put his hands on defendant's girlfriend and then one of the officers threw defendant to

the ground. Sims, 374 Ill. App. 3d at 433.

       On appeal, the Sims court found that the trial court incorrectly denied the

defendant’s request for a self-defense instruction because the defendant produced

evidence that demonstrated that he was afraid and was struggling to try to get away

from the officers. Sims, 374 Ill. App. 3d at 435. In addition, a jury could have

reasonably believed that officers used excessive force where photographs of the

defendant showed that he had sustained a swollen eye and numerous cuts and

bruises. Sims, 374 Ill. App. 3d at 435.

       We find this case similar to People v. Wicks, 355 Ill. App. 3d 760 (2005). In

Wicks, the defendant argued that the trial court erred when it refused defendant’s

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request for a self-defense instruction in a resisting arrest case. The Wicks court

affirmed the decision of the trial court finding that the evidence adduced at trial showed

that the defendant refused from the outset to cooperate with police. The police officers’

efforts were designed to get the defendant’s hands out of his pockets. As such, the

police officers’ use of force was justified and not excessive. Consequently, the trial

court did not err when it refused to give a self-defense instruction. Wicks, 355 Ill. App.

3d at 764.

       Here, defendant did not submit peacefully to the officers to be handcuffed (cf.

People v. Sims, 374 Ill. App. 3d 427, 435 (2007)). Similar to Wicks, defendant refused

to follow the officers’ orders and it was only after defendant refused to cooperate with

the officers by keeping her hands clenched in front of her that the officers resorted to

using force. Defendant testified that she knew Officer Hynek was placing her under

arrest and told her to “stand up, and put your hands behind your back.” Defendant

testified that she replied, “Officer, I understand that you may be placing me under

arrest, however, I am to [sic] large to be cuffed from one set of cuffs behind my back”

and asked to be cuffed in the front. Officer Hynek testified that officers told defendant

numerous times that they could not handcuff her in front but would accommodate her

by using multiple handcuffs behind her back. However, defendant would not put her

hands behind her back and wrestled with the officers, causing defendant and the

officers to fall to the ground. The video shows that once on the ground, defendant hid

her hands underneath her body. It was only after defendant repeatedly refused to

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cooperate with the officers that Officer Hynek used his taser gun. It eventually took five

officers to place defendant in custody. Defendant was handcuffed behind her back with

three sets of handcuffs.

       Like Wicks, the evidence in this case does not support the giving of a self-

defense instruction. A self-defense instruction should only be given in a resisting arrest

case when a defendant resists arrest after the officers resort to using excessive force.

A self-defense instruction is inappropriate in this case where defendant resisted arrest

and then officers used force to effectuate the arrest. Consequently, we cannot find that

defendant was prejudiced by defense counsel’s failure to request a self-defense

instruction. As such, we find that counsel provided effective assistance.

                                   Rule 431(b) Violation

       Defendant next claims the trial court failed to comply with Illinois Supreme Court

Rule 431(b) (eff. May 1, 2007) when it failed to question one juror whether she

understood and accepted each of the four Rule 431(b) (Zehr) principles.

       In People v. Zehr, 103 Ill. 2d 472, 477 (1984), our supreme court held that

“essential to the qualification of jurors in a criminal case” is that they know : (1) a

defendant is presumed innocent, (2) he is not required to present evidence on his own

behalf, (3) the State must prove him guilty beyond a reasonable doubt, and (4) his

decision not to testify may not be held against him.

       In 1997, our supreme court amended Rule 431(b) to embrace the voir dire

principles established in Zehr. 177 Ill. 2d R. 431(b). The new rule required, that if

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requested by defendant, the trial court was required to ask potential jurors, individually

or in a group, whether that juror understood and accepted the four Zehr principles. 177

Ill. 2d R. 431(b). At that time, the trial court had no obligation to sua sponte question

jurors as to the Zehr principles. People v. Lampley, 405 Ill. App. 3d 1, 9 (2010).

       On May, 1, 2007, Rule 431(b) was amended to require the trial court to question

potential jurors on the Rule 431(b) principles in every case, without defendant’s

prompting, whether they understand and accept each Zehr principle. Lampley, 405 Ill.

App. 3d at 9. The current version of Illinois Supreme Court Rule 431(b) (eff. May 1,

2007), reads as follows:

       “ ‘The court shall ask each potential juror, individually or in a group, whether that

  juror understands and accepts the following principles: (1) that the defendant is

  presumed innocent of the charge(s) against him or her; (2) that before a defendant

  can be convicted the State must prove the defendant guilty beyond a reasonable

  doubt; (3) that the defendant is not required to offer any evidence on his or her

  behalf; and (4) that the defendant's failure to testify cannot be held against him or

  her; however, no inquiry of a prospective juror shall be made into the defendant's

  failure to testify when the defendant objects.’ “

       In enacting the amended version of Rule 431(b), our supreme court imposed a

sua sponte duty on courts to ask potential jurors individually or in a group whether they

accept these principles. Lampley, 405 Ill. App. 3d at 9.



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       Defendant claims that during voir dire in the present case, the trial court

addressed the Rule 431(b) principles with 11 of the 12 jurors. Defendant urges that the

trial court failed to make the proper inquiry of Tammie Bradley, who was initially

selected as an alternate juror, but was later empanelled when a juror was dismissed.

The record in this case reveals that the trial court questioned juror Bradley regarding

the subject matter of only one of the Zehr principles, that the State was required to

prove defendant guilty beyond a reasonable doubt.

       Rule 431(b) “mandates a specific question and response process.” People v.

Thompson, 238 Ill. 2d 598, 607 (2010). “The rule requires questioning on whether the

potential jurors both understand and accept each of the enumerated principles.”

Thompson, 238 Ill. 2d at 607. Accordingly, failure to ascertain whether the jurors both

understand and accept the principles constitutes a violation of Rule 431(b) and

therefore, error. Thompson, 238 Ill. 2d at 607.

       Defendant admits that she neither objected at trial to the alleged errors by the

court nor raised the errors in her posttrial motion for a new trial. A defendant's failure

to both object at trial to an alleged error and raise the issue in a written post-trial motion

results in forfeiture of that issue on appeal. People v. Enoch, 122 Ill. 2d 176, 186

(1988). Defendant requests, however, that we review this allegation of error under the

plain error doctrine.

       The plain error doctrine allows a court of review to consider a forfeited error

when “(1) the evidence is close, regardless of the seriousness of the error, or (2) the

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error is serious, regardless of the closeness of the evidence.” People v. Herron, 215 Ill.

2d 167, 186-87 (2005). Under the first prong of the doctrine, “the defendant must prove

'prejudicial error.' That is, the defendant must show both that there was plain error and

that the evidence was so closely balanced that the error alone severely threatened to

tip the scales of justice against him.” Herron, 215 Ill. 2d at 187.

       In the instant case, the evidence was not so closely balanced that the “error

alone severely threatened to tip the scales of justice against [her].” Herron, 215 Ill. 2d

at 186-87. The testimony of Officer Hynek, in conjunction with the video, shows that

defendant repeatedly resisted officers’ requests to place her hands behind her back. It

took a Taser gun, a knee to the back and the use of pressure points, as well as five

officers, to obtain defendant’s compliance. Defendant’s claim of error with regard to

the court’s violation of Rule 431(d) is, therefore, not reviewable under the first prong of

the plain error doctrine.

       With respect to the second prong of the plain error doctrine, “the defendant must

prove there was plain error and that the error was so serious that it affected the

fairness of the defendant's trial and challenged the integrity of the judicial process.”

Herron, 215 Ill. 2d at 187. Defendant must be able to show that the trial court’s error in

failing to comply with Rule 431(b) was so serious that it “affected the fairness of the

defendant’s trial and challenged the integrity of the judicial process.” People v.

Piatkowski, 225 Ill. 2d 551, 565 (2007). A defendant can satisfy the second prong of

plain error review if he is able to establish that he was tried by a biased jury.

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Thompson, 238 Ill. 2d at 614. However, a violation of Rule 431(b) does not implicate a

fundamental right or constitutional protection and, therefore, a failure to conduct a

proper Rule 431(b) questioning does not make it inevitable that the jury was biased.

Thompson, 238 Ill. 2d at 609-10. The defendant must prove such bias. Thompson,

238 Ill. 2d at 614.

       In Thompson, the supreme court held that the defendant failed to meet his

burden to establish that the trial court’s violation of Rule 431(b) affected the fairness

and integrity of his trial because the defendant failed to provide evidence showing the

jury in his case was biased as a result of the violation. Thompson, 238 Ill. 2d at 614-

15. As a result, the defendant’s procedural default was not excused by the second

prong of plain error review. Thompson, 238 Ill. 2d at 615. Similarly here, we find no

basis for a second prong plain error review of defendant’s assertion that the court

violated Rule 431(b) because there is no evidence in the record that would lend

support to a possible claim of a biased jury. Defendant’s claim that the court violated

Rule 431(b) is not saved from forfeiture by the second prong of plain error review

                                   Fees

       Finally, defendant argues, and the State agrees, that the $5 court system fee

was improperly imposed in this case where section 5-1101(a) of the Counties Code

provides that a fee may be levied against a person for a judgment of guilt or grant of

supervision in violation of the Illinois Vehicle Code or a similar municipal ordinance.

See 55 ILCS 5/5-1101(a) (West 2006).

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       Although defendant was initially charged with permitting an unauthorized person

to drive her vehicle in violation of section 6-304 of the Illinois Vehicle Code, defendant

was acquitted of this charge. Defendant was convicted of resisting arrest and

attempting to obstruct justice, which are not offenses under the Illinois Vehicle Code.

Consequently, the $5 court system fee should be vacated.

       Based on the foregoing, the judgment of the trial court is affirmed as modified.

       Affirmed as modified.




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            REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT



THE PEOPLE OF THE STATE OF ILLINOIS,

             Plaintiff-Appellee,

      v.


APRIL HAYNES,

             Defendant-Appellant.


                                    No. 1-08-0805

                               Appellate Court of Illinois
                             First District, Second Division

                                    March 31, 2011


                JUSTICE KARNEZIS delivered the opinion of the court.

                   CUNNINGHAM, P.J., and HOFFMAN, J., concur.


                    Appeal from the Circuit Court of Cook County.

                   The Honorable Robert Clifford, Judge Presiding.


For APPELLANT, Michael J. Pelletier, Deputy Appellate Defender of the State of Illinois
(Linda Olthoff, Assistant Appellate Defender, of counsel)


For APPELLEE, Anita Alvarez State's Attorney of Cook County (James E. Fitzgerald,
William Toffenetti, Kathryn Roy, Assistant State’s Attorneys, of counsel)


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