         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   October 18, 2000 Session

               STATE OF TENNESSEE v. CHARLES E. SWAFFER

                  Direct Appeal from the Criminal Court for Macon County
                          Nos. 99-101; 99-102   J.O. Bond, Judge



                     No. M2000-00058-CCA-R3-CD - Filed March 8, 2001


Defendant Charles E. Swaffer was convicted by a Macon County jury of one count of Class C theft
of property over $10,000 and one count of Class D vandalism over $1,000. The trial court
subsequently imposed concurrent sentences of five years and three years, with Defendant to serve
one year of incarceration followed by supervised probation. Defendant challenges his convictions,
raising the following issues: (1) whether the trial court erred when it failed to grant a motion for a
mistrial; (2) whether the evidence was sufficient to support his convictions; and (3) whether the trial
court erred in applying improper enhancing factors and rejecting his mitigating factors. The
judgment of the trial court is affirmed.

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

THOMAS T. WOODALL , J., delivered the opinion of the court, in which NORMA MCGEE OGLE and
ROBERT W. WEDEMEYER , JJ., joined.

Lisa Stinett, Lafayette, Tennessee; later substituted by Thomas H. Bilbrey, Assistant Public
Defender, for the appellant, Charles E. Swaffer.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
Tom P. Thompson, Jr., District Attorney General; Guy Yelton, Assistant District Attorney General,
for the appellee, State of Tennessee.


                                             OPINION

                                               FACTS

        On the night of September 14, 1997, the Defendant and two accomplices (Jerry Clark and
Nathan Gregory) stole a Pontiac Firebird from Qualls’ Auto Value Vehicle and Towing. After a
while, the Firebird’s engine blew up and the three went back to Qualls’ property a second time.
During this second trip, the three stole a utility truck and two wreckers (one red and one blue). Jerry
Clark testified that he took the utility truck, while Defendant and Gregory took the wreckers. The
three drove around Westmoreland, through Hillsdale Trailer Park and through some residential
yards. At some point, the utility truck blew up and they left it sitting on the side of a road, and Clark
rode in the blue wrecker with the Defendant. Then, they went back to where the Pontiac was sitting
and smashed the car with the wreckers. Clark and Gregory told the jury that they also used the
wreckers to drive through some road construction barricades, to climb hills, drive through a mud pit
and through a tobacco patch. Eventually, the three rendered the trucks inoperable by playing
demolition derby with the trucks. The wreckers were left in a creek.

      The next morning, Jerry Qualls (the victim), awakened to find that someone had stolen his
1987 Pontiac Firebird, two of his wreckers and one utility truck. He used the trucks in his business,
Auto Value Vehicle and Towing. He immediately called the police, who later found Qualls’ two
wreckers and car in a creek about a mile from his home. The police found the utility truck further
down the road. Qualls also testified to the damage done to each vehicle, as follows:

 Vehicle                        Value Before Stolen        Value After Stolen         Damage
 1984 GMC Wrecker               $14,500                    $5,000                     $9,500
 1984 Chevrolet Wrecker         $13,500                    $3,000                     $10,500
 1975 Chevrolet 4x4             $2,000                     $0                         $2,000
 1987 Pontiac Firebird          $2,500                     $50                        $2,450
           Total                $32,500                                               $24,450

        Detective Jerry Dallas of the Lafayette Police Department testified that, on September 15,
1997, he arrived at work and was “advised of a vandalism on Sneed Boulevard, which was the road
under construction.” Shortly thereafter, Dallas was dispatched to Cave Hollow Road, where some
stolen wreckers had been recovered. When Dallas arrived at the scene, Mr. Qualls and some
deputies were present. Qualls’ car was found on top of a hill and the two wreckers were found in
the creek. On the back of one wrecker, the deputies found a piece of one of the barricades.

        Officer Matthew Looper of the Lafayette Police Department testified that, at approximately
3:30 a.m. on September 15, 1997, he was making rounds near the construction site for a new road
being built in Lafayette, when he noticed that someone had damaged all of the road barricades.
When Looper examined some of the wood pieces, he noticed red paint. Looper collected several
pieces and turned them over to the investigation team. Looper also admitted that he did not see who
had damaged the construction site.

       Martha Johns testified that, on the day following the offenses, the Defendant came to her
home and told her and her daughter, Nicki Rice, about the demolition derby he and some friends had
with some wreckers. Johns stated that the Defendant told her that, after the demolition, they left the


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wreckers in a creek. Johns admitted that she had pled guilty to charges of possession of marijuana,
yet, stated she had not offered testimony against the Defendant in order to avoid jail time.

        Nicki Rice, testified that the day after these crimes took place, the Defendant came to her
home and told her about the crimes. Rice told the jury that Defendant told her he was involved with
the stealing and destruction of some wreckers. Rice testified that the discussion only occurred
between her and the Defendant. Rice admitted that her mother, Martha Johns, was in bed at this
time. Detective Jimmy Hardin testified that he took the statements of Martha Johns and Nicki Rice
one week after he took the Defendant’s statement. Hardin explained that, in the statements of Johns
and Rice, each stated that the Defendant told them about the offenses on September 19, 1997.

        Johnny Matthew Johnson testified that the Defendant told him that Defendant and two other
boys had stolen some wreckers. Johnson recalled that the Defendant had told him that the trucks
were driven through a trailer park. Johnson also admitted that he did not believe the Defendant’s
story, until he saw the story in the newspaper. On cross examination, Johnson stated that he had not
told Defendant’s mother or anyone else that Defendant was with him on the night these criminal acts
were committed. Johnson admitted that he had served time in jail, but he was not offered anything
in exchange for testifying against the Defendant.

        Travis Swaffer testified that he and the Defendant were cousins. Swaffer also stated that he
was best friends with the co-defendants, and that he had previously lived with Nathan Gregory.
Swaffer told the jury that Jerry Clark came to his home and told him that Clark and Gregory had
stolen and crashed Qualls’ car and wreckers. Swaffer stated that Clark told him that Clark and
Nathan drove the vehicles through the Defendant’s trailer park, and saw the Defendant looking out
his bedroom window. Swaffer said that Clark and Nathan went racing through the trailer park.
Swaffer testified that Clark never mentioned that the Defendant was with them on the night the
offenses were committed.

         Swaffer further testified that he had dated Nathan Gregory’s mother. Swaffer told the jury
that Gregory’s mother told him that the Defendant was not involved in these offenses. Gregory’s
mother also told Swaffer that only Nathan Gregory, Jerry Clark and Derrick Sadler (Gregory’s
brother) were involved. Swaffer stated that, on three different occasions, the Defendant swore that
he was not involved in these crimes. Nathan Gregory told Swaffer the same things. Swaffer also
testified that he heard Johnny Johnson say that the Defendant was with him on the night of the
offenses. He further stated that Defendant’s mother and attorney were present when Johnson made
this statement.

        Swaffer admitted that he and the Defendant had previously been charged with burglary, for
which the two were granted pretrial diversion. Swaffer testified that he had been close to both the
Defendant and Nathan Gregory, but that he would not lie for either of them. Swaffer acknowledged
that he was not with the Defendant on the night in question.




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         Kathy Coffee, the Defendant’s mother, testified that Nathan Gregory and Jerry Clark came
to her house and told her about what they had done to the wreckers and the car. Coffee stated that
Gregory and Clark said that they knew they were going to be “sent off” for what they had done, and
“that it did not matter.” Coffee explained that she heard Jerry Clark say that Derrick Sadler, Clark’s
brother (and not the Defendant) was involved with the theft and vandalism. Coffee also testified that
she would not lie for her son, if she knew that he had done something wrong.

       The jury also heard testimony from Bobby Swann, the Superintendent of the road
construction project being conducted by Eatherly Group, Inc. Swann testified that, on or about
September 14 and 15, 1997, three sets of road barricades, valued at $2,700 per set, were totally
destroyed. However, Swann admitted that he did not see anyone destroy the barricades, because it
occurred after working hours.

        At the close of all the proof, the jury convicted Defendant of Class C theft of property
(greater than $10,000 but less than $60,000) for the vehicles belonging to Qualls. The jury also
convicted Defendant of Class D vandalism (greater than $1,000 but less than $10,000) for the
damage to the road signs belonging to Eatherly Group, Inc.

                                            ANALYSIS

                                   I. DENIAL OF MISTRIAL

        Defendant contends that the trial court erred by failing to grant a mistrial when the State
elicited improper statements from Travis Swaffer concerning a prior burglary charge, in which
Defendant and Travis Swaffer were involved. We disagree.

       At trial, Travis Swaffer was called to testify for the defense and he was questioned about his
knowledge of Defendant’s involvement in the theft and vandalism. The prosecution cross-examined
Travis Swaffer and the following colloquy occurred:

           Q.      First cousins are you?
           A.      Yes, sir.
           Q.      First cousins?
           A.      Yes.
           Q.      And I believe you and him got involved in the burglary?
           A.      Yes.
           Q.      Together; is that right?
           A.      Yes, sir.
           Q.      And were convicted of it?
           A.      Yes, sir.
           Q.      That’s you and Charles Swaffer I’m talking about?
           A.      Yes, sir.
           Q.      And you know that he talked with Your Honor?


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At this point, defense counsel objected, on the basis that there had been no conviction in the burglary
case, and the men had been granted pretrial diversion. The trial court sustained Defendant’s
objection, but defense counsel did not ask for a curative instruction. At the conclusion of Travis
Swaffer’s testimony, defense counsel moved for a mistrial, based upon the comments elicited from
Swaffer; however, the record reflects that the trial court made no ruling on Defendant’s motion.

         The testimony of the witness who testified after Travis Swaffer is the next thing in the
transcript immediately following Defendant’s motion for a mistrial. There is absolutely no response
to the Defendant’s motion in the transcript, by either the assistant district attorney or the trial court.
Obviously, this could be interpreted to be an implicit denial of Defendant’s motion for a mistrial.
Alternatively, it could be that any response by the State to the motion, and/or the trial court’s ruling
on the motion for mistrial was erroneously omitted from the record. In any event, we find that
defense counsel should have at least requested a ruling on the motion for a mistrial, in order to
preserve the issue for review on appeal. There is no requirement that relief be granted to a party who
failed to “take whatever action might be reasonably available to prevent or nullify any harmful effect
of an error.” Tenn. R. App. P. 36(a). Also, it was Defendant’s responsibility to include a complete
record on appeal in the event the trial court did rule on his motion for a mistrial. Tenn. R. App. P.
24(b); State v. Boling, 840 S.W.2d 944, 951 (Tenn. Crim. App. 1992). Without a complete record
regarding the trial court’s basis for his ruling denying the motion for mistrial, or a clear explanation
why no ruling was given, we presume that the trial court was correct in its ruling. See State v. Oody,
823 S.W.2d 554, 559 (Tenn. Crim. App. 1991) (holding that a trial court’s ruling is presumed correct
in the absence of an adequate record on appeal).

         Further, we note that on appeal Defendant argues that the testimony regarding his prior bad
acts and his association with Travis Swaffer was not relevant evidence and was therefore
inadmissible under Tenn. R. Evid. 404(b). The Defendant also argues that the evidence of his prior
bad acts was prejudicial to his case and more probably than not affected the jury verdict. However,
at trial Defendant did not object to this testimony based upon Rule 404(b). Rather, Defendant’s
objection only sought to clarify for the jury that he had been granted pretrial diversion on the
burglary charge, and did not have a conviction for burglary. “An appellant cannot change theories
from the trial court to the appellate court.” State v. Banes, 874 S.W.2d 73, 82 (Tenn. Crim. App.
1993). Such action constitutes waiver. State v. Gregory, 862 S.W.2d 574, 578 (Tenn. Crim. App.
1993). However, even if the issue was not waived, we still find that any harm caused by the
admission of this testimony was harmless. The State presented overwhelming proof, beyond the
testimony of Travis Swaffer, from which reasonable minds could find beyond a reasonable doubt
that the Defendant was guilty of the charged offenses. Thus, Defendant is not entitled to relief on
this issue.

                            II. SUFFICIENCY OF THE EVIDENCE

        Defendant contends that the evidence was insufficient to support his convictions for Class
C theft of property and Class D vandalism. We disagree.



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        When a Defendant challenges the sufficiency of the convicting evidence on appeal, this Court
does not reweigh or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
Neither does this Court substitute its inferences for those drawn by the trier of fact from the
circumstantial evidence. Liakas v. State, 199 Tenn. 298, 305 286 S.W.2d 856, 859 (1956). The law
compels this Court to grant the State the strongest legitimate view of the evidence contained in the
record plus all reasonable and legitimate inferences that may be drawn from the evidence. State v.
Tuttle, 914 S.W.2d 926, 932 (Tenn. Crim. App. 1995).

        It is upon the jury to resolve questions concerning the credibility and weight of the witnesses’
testimony, not this court. State v. Darnell, 905 S.W.2d 953 (Tenn. Crim. App. 1995). A finding
of guilt "shall be set aside if the evidence is insufficient to support the finding by the trier of fact of
guilt beyond a reasonable doubt.” Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 317,
99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). However, a jury conviction removes the presumption
of innocence of the defendant and replaces it with one of guilt. Thus, on appeal, a convicted
defendant has the burden of establishing the insufficiency of the evidence. State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).

        These standards apply to jury convictions based upon direct evidence, circumstantial
evidence, or a combination of both. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.
App.1990). However, convictions based solely on circumstantial evidence, require facts and
circumstances that are so overwhelming as to exclude any other explanation except the defendant's
guilt. State v. Tharpe, 726 S.W.2d 896, 900 (Tenn. 1987).

         Defendant argues that the State failed to meet its burden of proof, since all evidence
presented by the State was “circumstantial, uncorroborated and biased.” We conclude that when the
evidence is viewed in the light most favorable to the State, as it must be, the evidence was sufficient
for a rational jury to find beyond a reasonable doubt that Defendant committed the acts of theft and
vandalism involved here.

       In Tennessee, it is well-settled that a defendant cannot be convicted on the uncorroborated
testimony of an accomplice. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994). However,

                      [t]his corroborative evidence may be direct or entirely circumstantial,
             and it need not be adequate, in and of itself, to support a conviction; it is
             sufficient to meet the requirements of the rule if it fairly and legitimately tends
             to connect the defendant with the commission of the crime charged. It is not
             necessary that the corroboration extend to every part of the accomplice's
             evidence. The corroboration need not be conclusive, but it is sufficient if this
             evidence, of itself, tends to connect the defendant with the commission of the
             offense, although the evidence is slight and entitled, when standing alone, to but
             little consideration.




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Id. In other words, “only slight circumstances are required to corroborate an accomplice's
testimony.” State v. Griffis, 964 S.W.2d 577, 589 (Tenn. Crim. App. 1997). Whether an
accomplice's testimony has been sufficiently corroborated is a question for the jury. Bigbee, 885
S.W.2d at 803.

        We conclude that there is evidence in this case sufficient to establish the “slight
circumstances” necessary to corroborate Gregory and Clark’s testimony. First, Martha Johns and
Nicki Rice testified that the Defendant came to their house and told them that he was involved in the
theft and vandalism. Second, Defendant told Johnny Johnson that he had stolen some wreckers and
driven them through the trailer park. Johnny Johnson also testified that the Defendant had asked him
to say that the Defendant was with him on the night of these offenses. The sufficiency of the
corroborating evidence was a question for the jury. State v. Bigbee, 885 S.W.2d 797, 804 (Tenn.
1994). Here, the jury found that the testimony of these witnesses was more than sufficient to connect
Defendant with the commission of the charged offenses, and to corroborate the testimony of Gregory
and Clark.

         Moreover, contrary to Defendant's position, the evidence presented was not entirely
circumstantial. However, even if the evidence had been entirely circumstantial, it would still be
more than sufficient to sustain the convictions. By Defendant’s own admission to Nicki Rice and
Johnny Johnson, which is direct evidence, Defendant committed the charged crimes and has been
fairly connected to commission of the offenses. Finally, Defendant’s argument that the evidence was
insufficient because witnesses were “biased” goes against well settled law that the jury resolves
questions concerning a witness’s credibility and the weight of his/her testimony. State v. Darnell,
905 S.W.2d 953 (Tenn. Crim. App. 1995). Defendant is not entitled to relief on this issue.

                                       III. SENTENCING

        On appeal, sentences imposed by the trial court are reviewed de novo with a presumption of
correctness. Tenn. Code Ann. § 40-35-401(d). The law conditions this presumption upon an
affirmative showing in the record that the trial judge considered the sentencing principles and all
relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). Failure of the
trial court to comply with the statutory directives removes the presumption of correctness and as a
result our review is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997). In conducting our
review, we must consider all the evidence, the presentence report, the sentencing principles, the
enhancing and mitigating factors, arguments of counsel, the defendant’s statements, the nature and
character of the offense and the defendant’s potential for rehabilitation. Tenn. Code Ann. §§ 40-35-
103(5), -210(b)(1997 & Supp.1999); Ashby, 823 S.W.2d at 169.

       Defendant was convicted of Class C theft of property and Class D vandalism of property.
See Tenn. Code Ann. § 39-14-103, -105(4), -408, -105(3) (1997). The sentence for a Range I
offender convicted of a Class C felony is between three and six years. Tenn. Code Ann. § 40-35-
112(a)(3) (1997). The sentence for a Range I offender convicted of a Class D felony is between two
and four years. Tenn. Code Ann. § 40-35-112(a)(4). The presumptive sentence for Class C and D


                                                -7-
felonies is the minimum sentence in the range if there are no enhancement or mitigating factors.
Tenn. Code Ann.§ 40-35-210(c) (1997). If there are enhancement, but no mitigating factors, the
court may set the sentence above the minimum, but still within the range. Tenn. Code Ann.§ 40-35-
210(d) (1997). Where both enhancement and mitigating factors apply, the trial court must start at
the minimum sentence, enhance the sentence within the range as appropriate for the enhancement
factors, and then reduce the sentence within the range as appropriate for the mitigating factors. Id.
§ 40-35-210(e). The weight afforded an enhancement or mitigating factor is left to the discretion
of the trial court so long as the trial court complies with the purposes and principles of the Tennessee
Criminal Sentencing Reform Act of 1989 and its findings are supported by the record. State v.
Hayes, 899 S.W.2d 175, 185 (Tenn. Crim. App. 1995).

       The record indicates that in determining the length of Defendant’s sentences, the trial court
found the following statutory enhancement factor applied: (1) Defendant has a previous history of
criminal convictions or criminal behavior in addition to those necessary to establish the appropriate
range. See Tenn. Code Ann. § 40-35-114(1) (1997). The trial court also apparently considered the
Defendant’s untruthfulness at his sentencing hearing in deciding to enhance the Defendant’s
sentence. However, the trial court found that none of the enumerated mitigating factors of Tenn.
Code Ann. § 40-35-113 were applicable.

         Defendant does not challenge the application of enhancement factor (1), and we conclude
that it was properly applied. The presentence report indicates that Defendant’s prior criminal record
consists of convictions for theft and spotlighting deer.

       Defendant does challenge the trial court’s enhancement of his sentence based upon his
untruthfulness at his sentencing hearing regarding his prior record. At Defendant’s sentencing
hearing, the trial judge made the following comments:

            Court: With his prior activity and the way he lied here on this stand, just
                   absolutely lied to me, that’s going to get him five years on the three
                   to six. I’m going to increase that up to five years. I’m going to
                   increase the other one up to three years for an effective eight year
                   sentence [sic]. . . .Get to visit on Sunday, that’s the only visit you get.
                   He doesn’t need to be working, he’s a liar, Sheriff, you can’t trust
                   him. He’s proved that right here in this court.

       While Tenn. Code Ann. § 40-35-113(13) provides a catch-all provision for the trial judge to
consider "(a)ny other (mitigating) factor," Tenn. Code Ann. § 40-35-114 has no such provision for
enhancement factors. Nonstatutory factors cannot be used to enhance sentences. State v. Strickland,
885 S.W.2d 85 (Tenn. Crim. App. 1993). Thus, a defendant's lack of truthfulness is not a proper
consideration for increasing the length of his sentence. See Tenn. Code Ann. § 40-35-114; State
v. Anderson, 985 S.W.2d 9, 20 (Tenn. Crim. App. 1997). But Cf. State v. Dowdy, 894 S.W.2d 301,
305-6 (Tenn. Crim. App. 1994) (holding a defendant’s untruthfulness is probative of her prospects
for rehabilitation and is a proper consideration when deciding whether to grant probation). In
deciding to depart from the minimum sentence, the trial court is limited to those enhancement factors

                                                   -8-
listed in Tenn. Code Ann. § 40-35-114. State v. Dykes, 803 S.W.2d 250, 258 (Tenn. Crim.
App.1990). Therefore, we find that the trial court improperly relied on Defendant's untruthfulness
to enhance his sentence.

        Further, the Defendant argues that the trial court should have considered several mitigating
factors. He contends that because his criminal conduct neither caused nor threatened serious bodily
injury, Tenn. Code Ann. § 40-35-113 (1), the trial court should have reduced his sentence. The
Defendant also asserts the application of two other mitigating factors that fall under the catchall
provision of Tenn. Code Ann. § 40-35-113(13). Pursuant to Tenn. Code Ann. § 40-35-113(13), the
Defendant argues that the trial court erroneously refused to recognize as mitigating factors: (1) the
fact that his “prior criminal record and/or activity was of a nonviolent nature;” and (2) that he was
employed and had a wife and children who depended upon him for their sole support. The trial court
found that neither of these mitigating factors were applicable, and we find that even if they are
applicable, the factors were entitled to little or no weight.

         Finally, we note that there was also adequate proof in the record to support the application
of enhancement factors (6) and (8). See State v. Winfield, 23 S.W.3d 279 (Tenn. 2000) (an appellate
court can find applicable an enhancement factor not found by the trial court unless there is disputed
evidence on application of the enhancement factor which would require specific findings of fact by
the trial court). As for enhancing factor (6), “the amount of damage to property sustained by or taken
from the victim was particularly great,” we find that Qualls’ testimony on the amount of damage
done is sufficient to establish this enhancement factor. Qualls testified that the damage to his car and
trucks amounted to approximately $24,000. The trial court also made the following finding as to the
damages suffered:

               Court: . . .Extraordinary amount of money involved in what he’s [Defendant]
                      done to these people. Tore this man’s business all to pieces trying to
                      earn an honest living out here. Tear up everything he’s got. $35,000
                      [sic] is what it costs him, now he says it’s three times that amount to
                      replace it. . . . This man has lost a lot.

Defendant offered no evidence disputing the amount of the damage. Thus, we find enhancement
factor (6) is applicable to the theft conviction.

        Enhancement factor (8), “the defendant has a previous history of unwillingness to comply
with the conditions of a sentence involving release in the community,” was also applicable to
Defendant’s case. Id. The presentence report reflects that on February 3, 1997, Defendant was
granted one year of pretrial diversion for a burglary charge. Then, on November 22, 1997, Defendant
was arrested for spotlighting deer and convicted on December 5, 1997. Therefore, enhancement
factor (8) is clearly applicable to both convictions.

       We have found that three enhancement factors apply to the theft conviction and two to the
vandalism conviction. The mitigating factors relied upon by Defendant are entitled to little, if any


                                                  -9-
weight. Therefore, the enhancing factors substantially outweigh the mitigating factors, and are
sufficient to support the sentence imposed by the trial court.

       For the foregoing reasons, the judgment of the trial court is AFFIRMED.


                                                    ___________________________________
                                                    THOMAS T. WOODALL, JUDGE




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