        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 April 20, 2010 Session

      STATE OF TENNESSEE v. EMMETT LEJUAN HARVELL AND
       BARDELL NELSON JOSEPH, A.K.A. SHAWN ANGLIN, A.K.A.
                 BILLONTAE SMONTEZ ADAMS

            Direct Appeal from the Criminal Court for Davidson County
                   No. 2008-D-3551     Cheryl Blackburn, Judge


              No. M2009-01168-CCA-R3-CD - Filed November 29, 2010


The defendants, Emmett Lejuan Harvell and Bardell Nelson Joseph, were both convicted of
the facilitation of tampering with evidence, a Class D felony, and simple possession of a
Schedule VI controlled substance, a Class E felony. In addition, Defendant Joseph was
convicted of possession of a handgun by a convicted felon, a Class E felony. On appeal, both
defendants argue that the evidence was insufficient to support their convictions, and
Defendant Joseph argues that he was sentenced improperly. After careful review, we affirm
the judgments from the trial court.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the court, in which D AVID H. W ELLES
and T HOMAS T. W OODALL, JJ., joined.

Richard McGee and James O. Martin, III, Nashville, Tennessee, for the appellant, Emmett
Lejuan Harvell.

Dawn Deaner, District Public Defender, and Emma Rae Tennent (on appeal), J. Michael
Engle, and Kristin Neff (at trial), Assistant District Public Defenders, for the appellant,
Bardell Nelson Joseph.

Robert E. Cooper, Jr., Attorney General; Deshea Dulany Faughn, Assistant Attorney General;
Victor S. (Torry) Johnson, III, District Attorney General; and Bret Gunn, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION
        The drug-related convictions at issue arise from a course of events that began when
a Nashville Metropolitan police officer attempted to break up a public altercation. On
February 4, 2008, Officer Jacob Pilarski was on patrol and observed a green Lincoln
Navigator parked on the side of the road with its back passenger door open. After pulling
closer to investigate, Officer Pilarski noticed two adults fighting with each other outside the
vehicle, with a third individual – who was later identified as defendant Bardell Joseph –
standing nearby. After getting out of his vehicle to investigate, Officer Pilarski saw that a
fourth individual, who was later identified as Defendant Harvell, was sitting in the driver’s
seat of the Navigator and that the vehicle was otherwise unoccupied.

       When the individuals became aware of the officer’s presence, the two men stopped
fighting, and Defendant Joseph jumped into the rear passenger side of the vehicle through
the open door. Officer Pilarski yelled for them to stop, but Defendant Harvell drove the
Navigator away from the scene at a very high rate of speed. Officer Pilarski elected not to
pursue; instead, he issued a “be on the lookout alert” for the Navigator to his fellow officers
and turned his attention to the remaining two men. Neither of these two men were in
possession of drugs or guns and were eventually released without charge.

       Officer Michael Thomas, also of the Metro Nashville Police Department, heard
Officer Pilarski’s “be on the lookout” alert for the fleeing Navigator. A short time later, he
observed a vehicle fitting the description drive through a stop sign and enter Interstate 40.
Confirming that the vehicle’s tag number was the one given in the alert, Officer Thomas
followed the vehicle as it went on to Interstate 24 and eventually exited onto Murfreesboro
Road. When his requested back-up arrived, including Officer Patrick Scott Ragan, Officer
Thomas turned on his lights to begin a traffic stop. Soon thereafter, he saw what appeared
to be two cellophane bags thrown out of the passenger side of the vehicle. Officer Thomas
believed that one of these bags broke open because, immediately after they were tossed, a
dust-like substance with the appearance of cocaine appeared on his windshield. Officer
Thomas informed his fellow officers that the plastic bags had been thrown from the
Navigator and continued his pursuit, while Officer Ragan stopped alongside the road and
attempted to recover them. Officer Thomas observed a black object being thrown from the
Navigator and informed Officer Ragan of this as well. The driver of the vehicle drove on for
approximately a quarter mile in all, turning onto Park Plus Boulevard before stopping near
Centennial Street.

       Officer Thomas ordered Defendant Harvell out of the driver’s seat and then removed
Defendant Joseph from the rear passenger’s seat. In so doing, Officer Thomas observed and
confiscated a plastic bag of marijuana in plain view on the front passenger’s seat next to the
console. A further search of the vehicle turned up several cigarillos (often used to smoke
marijuana) and numerous cell phones, which the officers also confiscated.

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       Meanwhile, Officer Regan searched along the stretch of road where Officer Thomas
had seen the two plastic bags being discarded, and there he recovered a single bag of
marijuana. Thereafter, in searching the area where Officer Thomas had seen the black object
discarded, Officer Ragan discovered a loaded Smith & Wesson .40 caliber handgun laying
next to a black bandanna. Officer Ragan secured the evidence and caught up with Officer
Thomas and the Navigator. Both defendants were arrested.

        On February 9-11, 2009, the defendants were tried in Davidson County Criminal
Court. At the conclusion of the trial, Defendant Harvell was found guilty of felony
facilitation of tampering with evidence and felony possession of marijuana. Defendant
Joseph was convicted of felony facilitation of tampering with evidence, felony possession
of marijuana, and felony possession of a handgun by a convicted felon. On March 11, 2009,
the court sentenced Defendant Harvell to two years for felony drug possession and to three
years for facilitation, to be served concurrently. On March 18, 2009, the court sentenced
Defendant Joseph to three years for felony possession of marijuana, three years for being a
felon in possession of a firearm, and to eight years for facilitation of tampering with
evidence, with all sentences to run concurrently. This appeal followed.

                                          Analysis

       On appeal, the defendants argue that the evidence was insufficient to support their
respective facilitation convictions. Defendant Joseph also argues that the evidence was
insufficient to support his conviction for being a felon in possession of a handgun and for
possessing a controlled substance. Finally, Defendant Joseph claims the trial court erred by
denying him an alternative sentence. We address each argument in turn.

Defendant Emmett LeJuan Harvell

        Defendant Harvell first argues that the evidence presented against him was
insufficient to support the jury’s finding that he is guilty of facilitation of tampering with
evidence. Specifically, he argues that evidentiary support is lacking for the jury’s conclusion
that he knowingly provided substantial assistance in the commission of any tampering with
evidence because the jury elected not to convict either himself or Defendant Joseph of
evidence tampering as a principal. Since only he and Defendant Joseph were in the vehicle,
Defendant Harvell argues, by logical extension the jury must have concluded that no actual
tampering with any evidence occurred. However, we have long held that defendants may not
avail themselves of the benefits of these sorts of logical inconsistencies between the verdicts
of co-defendants, and we have little difficulty affirming that principle again today.

       When an accused challenges the sufficiency of the evidence, this court must review

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the record to determine if the evidence adduced during the trial was sufficient “to support the
finding by the trier of fact of guilt beyond a reasonable doubt.” Tenn. R. App. P. 13(e). In
determining the sufficiency of the evidence, this court does not reweigh or reevaluate the
evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Instead, this court affords
the State the strongest legitimate view of the evidence contained in the record, as well as all
reasonable and legitimate inferences that may be drawn from that evidence. State v. Elkins,
102 S.W.3d 578, 581 (Tenn. 2003). Because the trier of fact, not this court, resolves
questions concerning the credibility of the witnesses as well as all factual matters and the
weight and value to be given to all the evidence, see id., “[a] guilty verdict by the jury,
approved by the trial judge, accredits the testimony of the witnesses for the State and resolves
all conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn.
1973). In the face of this “presumption of guilt,” the accused has the burden of illustrating
why the evidence is insufficient to support the verdict returned by the trier of fact. State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982); Grace, 493 S.W.2d at 476.

        In this case, the defendant has not carried his burden; the direct and circumstantial
evidence is more than sufficient to support a jury finding that Defendant Harvell facilitated
tampering with the evidence. To be guilty of felony facilitation, a defendant must knowingly
furnish substantial assistance in the commission of a felony (in this case, evidence
tampering), knowing that the person intends to commit a felony but without the intent
required for direct criminal responsibility (i.e. the intent of promoting or profiting from the
offense). See T.C.A. § 39-16-503(a)(1) (2008). With respect to the offense that was
facilitated in this case, the Tennessee Supreme Court recently elucidated the elements
necessary to establish evidence tampering. In State v. Curtis Lee Majors, the court
explained:

        Tennessee’s criminal code provides as follows:

              Tampering with or fabricating evidence. -- (a) It is unlawful for
              any person, knowing that an investigation or official proceeding
              is pending or in progress, to:

              (1) Alter, destroy, or conceal any record, document or thing with
              intent to impair its verity, legibility, or availability as evidence
              in the investigation or official proceeding[.]

       T. C. A. § 39-16-503(a)(1) (2006). Thus, the felony offense of tampering with
       evidence consists of three elements: (1) an ongoing investigation about which
       the accused knows, (2) the accused alters, destroys, or conceals some “record,
       document or thing,” and (3) the accused tampers with the “record, document

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       or thing” in order to impair its use as evidence in the investigation.

2010 Tenn. LEXIS 722, at *12 (Tenn. Sept. 3, 2010).

        There is considerable evidence that supports the jury’s finding that Defendant Harvell
knowingly provided substantial assistance to Defendant Joseph’s tampering with evidence.
Officer Thomas testified that a large bag of marijuana was found in plain view on the front
seat of the Navigator driven by Defendant Harvell. From this, a jury could reasonably
conclude that Defendant Harvell was aware that there were drugs in the vehicle he was
operating. Officer Pilarski further testified that, notwithstanding his plain instruction to
stop, Defendant Harvell fled from the scene of a fight. Officer Thomas testified that, after
he activated his lights and attempted to initiate a traffic stop, Defendant Harvell drove away
at a high rate of speed, only to pull over and stop soon after several bags and a foreign object
had been tossed from the vehicle. Officer Thomas testified that, even though only one plastic
bag was recovered, he saw two distinct bags tossed from the vehicle’s window and that a
powdery substance with the appearance of cocaine appeared on his windshield soon after the
bags were thrown.

       From this testimony, a jury could have reasonably concluded that Defendant Joseph
destroyed a bag of evidence by throwing it out of the window of a fast-moving car, knowing
the police were in pursuit. Such actions constitute tampering with the evidence. Moreover,
that same jury could have reasonably concluded that Defendant Harvell drove the vehicle on
the night in question for the specific purpose of providing the time, distance, and other
assistance necessary for Defendant Joseph to tamper with evidence by destroying a bag of
cocaine. Evidence suffices to support the conviction.

        Nonetheless, the defendant argues that, by failing to convict Defendant Joseph as a
principal of the tampering offense, the jury necessarily found that no tampering occurred;
therefore, the evidence to support a facilitation conviction is lacking. We have previously
held that state law expressly forbids the use of an inconsistent judgment of a co-defendant
to evade criminal liability in this manner. In State v. Gennoe, 851 S.W.2d 833, 836 (Tenn.
Crim. App. 1992), this court upheld the conviction of a defendant for facilitation of sexual
battery, even though his co-defendant had only been convicted of facilitation with respect to
that same battery and was never convicted of the principle crime of sexual battery itself. The
case before us is indistinguishable. In Gennoe, this court explained its holding by observing
that, although old common law practice forbade the conviction of aiders, abettors, and
accessories absent the conviction of the principal, the Tennessee legislature had specifically
altered this practice by statute. See id. As amended in 1989, the Tennessee Code
specifically provides that “it is no defense that . . . the person for whose conduct the
defendant is criminally responsible has been acquitted, has not been prosecuted or convicted,

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has been convicted of a different offense or different type or class of offense, or is immune
from prosecution.” T.C.A. § 39-11-407 (1989). Consequently, in Gennoe, each co-
defendant’s acquittal of sexual battery was no bar to their conviction for facilitation of the
same offense.

        We reaffirm these holdings again today. Although Defendant Harvell urges us that
the issue before us today is not inconsistent verdicts or applying the statute but, instead,
whether the evidence in this case is sufficient to support a conviction, he draws a distinction
without a difference. His only argument that the evidence in his case was insufficient is that
the jury reached a verdict with respect to his co-defendant whose inconsistency with his own
demonstrates that the evidence to support his conviction is lacking. The issues are one and
the same. While Defendant Harvell further claims that the issue as framed in Gennoe and
related cases (i.e. inconsistent verdicts) and the court’s analysis in that case are not relevant
to the case at bar, even assuming arguendo that he was correct, it is the holding of our cases,
not their reasoning, that governs this court’s prospective decision-making. We have
repeatedly held that it is both lawful and constitutional for all parties participating in a crime
to be found guilty of merely facilitating that crime without any of them being held guilty as
a principal, and we cannot and will not change that outcome today. Defendant Harvell is not
entitled to relief.

Defendant Bardell Nelson Joseph

       Defendant Joseph challenges each of his convictions on the grounds of sufficiency of
the evidence. Applying the same standard of review explained supra, we have reviewed the
record and determined that sufficient evidence exists to support the jury’s finding with
respect to each conviction.

Possession of Marijuana

        Pursuant to Tennessee Code Annotated section 39-17-418(a) (2008), to support a
conviction for simple possession of marijuana, the State need only to prove that the defendant
knowingly possessed marijuana. Possession of contraband may be actual or constructive.
State v. Transou, 928 S.W.2d 949, 955 (Tenn. Crim. App. 1996). As this court explained in
State v. Cooper, 736 S.W.2d 125, 129 (Tenn. Crim. App. 1987), “[b]efore a person can be
found to constructively possess a drug, it must appear that the person has ‘the power and
intention at a given time to exercise dominion and control over . . . [the drugs] either directly
or through others.’” This court further explained that “constructive possession is the ability
to reduce an object to actual possession.” Id. (internal citation omitted).

       This court continued:

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       The mere presence of a person in an area where drugs are discovered is not,
       alone, sufficient to support a finding that the person possessed the drugs.
       Harris v. Blackburn, 646 F.2d 904 (5th Cir. 1981). See Dishman v. State, 460
       S.W.2d 855, 858 (Tenn. Crim. App. 1970); Whited v. State, 483 S.W.2d 594
       (Tenn. Crim. App. 1972). Likewise, mere association with a person who does
       in fact control the drugs or property where the drugs are discovered is
       insufficient to support a finding that the person possessed the drugs. Harris
       v. Blackburn, supra. See Dishman v. State, supra; Whited v. State, supra.

Cooper, 736 S.W.2d at 129. The Tennessee Supreme Court has stated that, although a
defendant’s mere presence at a place where controlled substances are found will not support
an inference of possession, a person in possession of the premises where controlled
substances are found may be presumed to possess the controlled substances themselves.
State v. Ross, 49 S.W.3d 833, 846 (Tenn. 2001).

        Based on the evidence produced at trial, a jury could have concluded that Defendant
Joseph knowingly possessed marijuana in at least two different ways. First, the officer in
pursuit of the vehicle testified that he saw two plastic bags thrown from the passenger’s side
of the vehicle. Another officer testified that he recovered a plastic bag containing marijuana
from the area where the two bags were thrown. Defendant Joseph was seated on the
passenger side of the vehicle when they were stopped, and there was no erratic or distracted
driving observed by the police at the time when the bags were thrown. This suggests that the
driver was not the one throwing the drugs across the car and out the passenger’s window.
These facts taken together are sufficient to support a finding by the jury that Defendant
Joseph was the one who threw a bag of marijuana out the window, and, therefore, that he
must have picked up and been in actual possession of the marijuana for at least long enough
to commit this act.

       Alternatively, an additional bag of marijuana was found, in plain view, in the front
passenger side of the vehicle. Given the testimony of numerous individuals that Defendant
Joseph had been in the car prior to the altercation and that he also chose to be in the car
during the time spent during the police chase, by virtue of electing to jump into the car
through an open door after Officer Pilarski commanded him to stop, a jury could reasonably
conclude that Defendant Joseph was aware that bags of marijuana were in the car and
intentionally chose to be in very close proximity to them. In this sense, a jury could
reasonably conclude that Defendant Joseph was in constructive possession of the bags of
marijuana and that he made the decision to knowingly place himself in their close proximity
in order to ensure his ability to quickly reduce the bags to his actual possession. In any event,
regardless of what theory the jury actually chose, the evidence adduced at trial was sufficient
to support Defendant Joseph’s conviction for possession of a Schedule VI controlled

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substance.

Possession of a handgun by a convicted felon:

        Defendant Joseph acknowledges that: he had a prior felony drug conviction; Officer
Thomas saw a black object thrown from a vehicle; and Officer Ragan recovered a handgun
and a black bandana from the same area. However, he urges that the State presented
insufficient evidence for a jury to conclude that he, rather than Defendant Harvell, threw the
gun from the vehicle. We disagree. Officer Thomas testified that the object came out of a
passenger side window and that he observed no erratic driving when the items were thrown
that might indicate that they had been thrown across the car by the driver. This testimony is
enough to support the jury’s conclusion that Defendant Joseph possessed a handgun, at least
for long enough to throw it from a car window. Defendant Joseph argues that it is just as
likely that the driver could have thrown the handgun out the passenger side window without
any erratic driving. This defendant was free to make this argument to the jury. However, by
finding him guilty, the jury necessarily disagreed with this hypothesis. On appeal, we must
afford the State all reasonable inferences that may be drawn from the evidence, and the jury
was certainly free to make the reasonable assumption that a gun thrown from the passenger
side of a moving car was thrown by the passenger rather than the driver.

Facilitation:

         As previously stated, Tennessee Code Annotated section 39-11-403 provides that “[a]
person is criminally responsible for the facilitation of a felony if, knowing that another
intends to commit a specific felony, but without the intent required for criminal responsibility
under section 39-11-402(2), the person knowingly furnishes substantial assistance in the
commission of the felony.” With respect to the underlying crime, Tennessee law states that
it is “unlawful for any person, knowing that an investigation or official proceeding is pending
or in progress, to . . . [a]lter, destroy, or conceal any record, document or thing with intent
to impair its verity, legibility, or availability as evidence in the investigation of official
proceeding . . .” T.C.A. § 39-16-503(a)(1) (2008). Defendant Joseph raises several
arguments with respect to the sufficiency of the evidence to support his conviction for
facilitation, none of which has merit.

        Defendant Joseph’s first argument is that the State failed to establish that any evidence
was concealed or destroyed in this case. With respect to the “missing” second bag that was
thrown from the vehicle and the substance that thereafter appeared on the pursuing patrol car,
Defendant Joseph urges that Officer Thomas could “provide nothing more than guesswork
about what hit his windshield.” Moreover, Defendant Joseph points out that Officer Ragan
stated in his testimony that he remembered the radio alert referencing only a single bag being

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thrown from the Navigator prior to conducting his search. Neither of these facts undermines
Defendant Joseph’s conviction.

        The evidence tampering statute does not require the State to prove with any degree
of certainty the nature of the “thing” that has been destroyed by the defendant. Instead, the
State must show only that the defendant, aware of an imminent police investigation, chose
to “[a]lter, destroy, or conceal” something with the intent to deprive the police of its use as
evidence in that investigation. It does not matter for purposes of the statute whether the
substance at issue was an illegal narcotic, a legal chemical precursor to such a narcotic, the
ashes of burned currency or counterfeit currency, or, for that matter, mere flour or baking
soda. From the testimony presented at trial, a jury could determine that one of the defendants
destroyed whatever it was to keep it out of the hands of police after becoming aware of a
pending investigation, and the stature requires no more.

        With respect to the alleged discrepancies between the officers’ testimony, to the extent
there was any conflict, the jury was free to credit Officer Thomas’s statement that there were
two bags thrown from the moving vehicle over Officer Ragan’s statement that he only heard
over the radio about a single bag being discarded. As a reviewing court, we must resolve all
testimonial discrepancies in favor of the interpretation most favorable to the State.
Moreover, Officer Ragan’s statement that he only remembered a report of a single bag being
discarded does not render the existence of a second bag “mere conjecture,” as Defendant
Joseph urges. Rather, it may simply be a reflection of the fact that the two officers’
memories of the event differ or that, in the heat of a moment of hot pursuit, Officer Thomas
first radioed when he witnessed the tossing of a single bag and was too engaged in his
driving to update the score when a second bag was tossed.

        Next, Defendant Joseph argues, as he does with respect to the other objects in the car,
that there was no evidence that he was aware that this additional bag of contraband (later
destroyed) was in the car. We disagree. From the evidence, the jury was free to conclude
not only that Defendant Joseph was aware that there were drugs in the car but, indeed, that
he threw them from the moving vehicle or assisted Defendant Harvell in committing that
same act by handing him the bags to throw, ripping a hole in one of the bags so that the drugs
would come free when the bag was thrown.

Defendant’s Sentence to Confinement:

       Next, Defendant Joseph urges that the trial court erred in denying him an alternative
sentence. Specifically, he contends that his eight year sentence of confinement was
“unwarranted and unnecessary” and that the trial court should have sentenced him instead
to a period of confinement followed by probation. This court’s review of the sentence

                                              -9-
imposed by the trial court is de novo, with a presumption of correctness conditioned upon an
affirmative showing in the record that the trial judge considered the sentencing principles and
all relevant facts and circumstances. See T.C.A. § 40-35-401(d); State v. Pettus, 986 S.W.2d
540, 543 (Tenn. 1999). The burden is upon the appealing party to show that the sentence is
improper. See T.C.A. § 40-35-401(d), Sentencing Comm’n Comments.

       In conducting our review, we are required, pursuant to Tennessee Code Annotated
section 40-35-210(b), to consider the following factors in sentencing:

       (1) [t]he evidence, if any, received at the trial and the sentencing hearing; (2)
       [t]he presentence report; (3) [t]he principles of sentencing and arguments as
       to sentencing alternatives; (4) [t]he nature and characteristics of the criminal
       conduct involved; (5) [e]vidence and information offered by the parties on the
       enhancement and mitigating factors in [sections] 40-35-113 and 40-35-114;
       and (6) [a]ny statement the defendant wishes to make in the defendant’s own
       behalf about sentencing.

        If our review reflects that the trial court followed the statutory sentencing procedure,
imposed a lawful sentence after giving due consideration and proper weight to the factors and
principles set out under sentencing law, and the trial court’s findings of fact are adequately
supported by the record, then we may not modify the sentence even if we would have
preferred a different result. State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000). Here, the trial
court ordered Defendant Joseph to serve eight years in confinement in the Department of
Correction. Because the trial court found him to be a persistent offender, his release
eligibility date is forty-five percent of that sentence.

        After reviewing the transcript and record, we have concluded that the trial court
properly considered the principles of sentencing, the evidence at trial and the sentencing
hearing, the presentence report, arguments of counsel, the nature and characteristics of the
defendant’s conduct, the enhancement and mitigating factors, and the statements of the
defendant when it declined to afford Defendant Joseph an alternative sentence.
Consequently, even if we agreed with the defendant that his sentence was totally unwarranted
and unnecessary and that a lesser sentence would better serve the interests of justice, we
would, nonetheless, be compelled to deny his claim. See Hooper, 29 S.W.3d at 5. However,
in this case, Defendant Joseph’s five prior felonies and forty prior misdemeanor convictions
could well support a denial of alternative sentencing, even under de novo review. The
presentence report reflects that the defendant has been sentenced to probation “at least five
or six times” in the past and that he has “violated [that] probation just innumerable times.”
Consequently, although Defendant Joseph was potentially eligible for probation based on the
length of his sentence, he has failed to carry his burden of showing that the trial court abused

                                              -10-
its discretion when it denied him alternative sentencing.

                                        Conclusion

        Based on the foregoing and the record as a whole, we affirm the judgments from the
trial court.


                                                   _________________________________
                                                   JOHN EVERETT WILLIAMS, JUDGE




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