                                                                                 FILED
                                                                             Jun 29 2016, 8:45 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Ross G. Thomas                                             Gregory F. Zoeller
      Indianapolis, Indiana                                      Attorney General of Indiana

                                                                 Ellen H. Meilaender
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Deante Dalton,                                             June 29, 2016
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 20A05-1508-CR-1098
              v.                                                 Appeal from the Elkhart Circuit
                                                                 Court
      State of Indiana,                                          The Honorable Terry C.
      Appellee-Plaintiff.                                        Shewmaker, Judge
                                                                 Trial Court Cause No.
                                                                 20C01-1409-MR-4



      Bradford, Judge.



                                           Case Summary
[1]   On September 14, 2014, Appellant-Defendant Deante Dalton, along with two

      accomplices, participated in a violent home invasion which resulted in the


      Court of Appeals of Indiana | Opinion 20A05-1508-CR-1098 | June 29, 2016                       Page 1 of 16
      death of one of those accomplices, Dretarrius Rodgers. As a result of his

      participation in the home invasion and Rodgers’s death, Dalton was

      subsequently charged with felony murder. Following a jury trial, Dalton was

      found guilty as charged.


[2]   On appeal, Dalton contends that the evidence is insufficient to sustain his

      felony murder conviction. For its part, Appellee-Plaintiff the State of Indiana

      (the “State”) argues that the evidence is sufficient to sustain Dalton’s

      conviction. Concluding that the evidence is sufficient to affirm Dalton’s

      conviction, we affirm.



                            Facts and Procedural History                         1




[3]   In September of 2014, Brenda Marsh lived in a home in Elkhart with her

      husband, Lewis; her four daughters, Daosha, Laqwela, ZaCarra, and

      Zameshia; her son, Dramar; Laqwela’s boyfriend, Norman Gray, and their

      infant son, Landon; Daosha’s young son, Julian; and Brenda’s brother, Joe.

      The family knew Freddie Rhodes, who was a cousin of two of Brenda’s

      daughters on their father’s side of the family. The family also knew Dalton,

      whose mother was related to Brenda’s cousin and who was a year ahead of

      ZaCarra in school. Both Rhodes and Dalton, who were friends, had previously




      1
        We held oral argument in this case on June 16, 2016 at Hoosier Boys State on the campus of
      Trine University. We wish to thank counsel for their advocacy and extend our appreciation to
      the staff of Trine University as well as the organizers and participants of Hoosier Boys State
      for their fine hospitality.

      Court of Appeals of Indiana | Opinion 20A05-1508-CR-1098 | June 29, 2016           Page 2 of 16
      been to the family’s home. The family also knew Dretarrius Rodgers, as he had

      lived in their neighborhood when he was younger.


[4]   At approximately 10:30 p.m. on September 14, 2015, Brenda left the family’s

      residence to drive her mother home. While Brenda was gone, Dalton, Rhodes,

      and Rodgers arrived together at the family’s home in Rhodes’s silver Chrysler

      300. Dalton, Rhodes, and Rodgers went to the family’s home “fit’n on trying

      to rob someone.” Tr. p. 950.


[5]   Upon entering the family’s residence, Dalton was wearing a ski mask. Rhodes

      and Rodgers wore bandanas over their faces. Rodgers also wore a glove on his

      left hand. All three men were armed with firearms. Dalton remained on the

      main level of the family’s home while Rhodes and Rodgers went downstairs to

      the lower level.


[6]   After going downstairs, Rhodes and Rodgers kicked in the door to the bedroom

      Laqwela and Norman shared with their infant son. Rhodes and Rodgers

      pointed their firearms at Laqwela, who was holding her son, and Norman,

      asking “where is the stuff?” Tr. p. 781. Laqwela attempted to flee upstairs to

      safety with her son, but remained downstairs after she saw Dalton standing at

      the top of the stairs pointing his firearm down at her.


[7]   In an effort to protect Laqwela and their son, Norman told Rhodes and Rodgers

      that the “stuff” was in the laundry room under the dryer. Rhodes and Rodgers

      proceeded to the laundry room. While Rhodes and Rodgers attempted to



      Court of Appeals of Indiana | Opinion 20A05-1508-CR-1098 | June 29, 2016   Page 3 of 16
      overturn the dryer, Norman turned off the lights, grabbed Rodgers, and began

      “tussl[ing]” and wrestling with him. Tr. p. 786.


[8]   The tussle between Norman and Rodgers carried them out of the laundry room,

      into ZaCarra’s downstairs bedroom, and into a downstairs family room.

      ZaCarra, who was hiding in her closet, and Laqwela both heard two sets of

      gunshots, with one set sounding louder than the other set. At some point

      during the tussle, Norman was shot four times in the chest, hip, hand, and

      shoulder. Rogers was also shot in the neck, wrist, hip, and buttock.


[9]   Meanwhile, Brenda had returned home and recognized Rhodes’s vehicle. After

      entering through her front door, Brenda was confronted by Dalton, who

      pointed his firearm at her and told her to “sit the f[***] down.” Tr. p. 108.

      Brenda, recognizing Dalton by his eyes, initially responded, “little boy, this is

      not Halloween, you know, stop playing.” Tr. p. 107. However, when Dalton

      repeated his command for her to “sit the f[***] down[,]” Brenda realized that

      Dalton was serious and complied with his order. Tr. p. 108. Dalton, who was

      holding the family’s blue laptop computer under his arm, asked Brenda if

      anyone else was with her. Brenda responded in the negative. As Dalton was

      holding her at gunpoint, Brenda could hear a scuffle and loud noises coming

      from downstairs. She then heard four to five loud gunshots fired in rapid

      succession, followed by the sound of two or three softer gunshots and the sound

      of footsteps coming up the stairs.




      Court of Appeals of Indiana | Opinion 20A05-1508-CR-1098 | June 29, 2016   Page 4 of 16
[10]   Rhodes, who was still holding a firearm, ran upstairs, tapped Dalton on the

       shoulder, and said “let’s go, let’s go, let’s go.” Tr. p. 117. Dalton then ran from

       the family’s home, taking the family’s laptop with him. Brenda immediately

       called 911. Upon retreating from the family’s home, Rhodes got into the

       driver’s seat of his vehicle and Dalton got into the front passenger seat. As

       Rhodes drove away, Dalton fired multiple gunshots toward the home, one of

       which went through the door frame and several others of which went through

       the front windows.


[11]   Norman, who was bleeding heavily, was able to make it up the stairs before

       collapsing at the front door. He subsequently recovered from his injuries.

       Rodgers, on the other hand, collapsed at the bottom of the stairs and died.

       Rodgers’s cause of death was later determined to be multiple gunshot wounds,

       one of which completely transected the jugular vein before cutting through the

       esophagus and the right lung.


[12]   Later that evening, police located Rhodes’s vehicle. The family’s blue laptop

       computer was recovered from inside the vehicle. Police also recovered more

       gloves similar to the one that Rodgers wore during the incident as well a

       backpack containing Rhodes’s identification from the trunk of Rhodes’s vehicle.

       Dalton subsequently admitted to police that he had gone to the Marsh family’s

       home with Rhodes and Rodgers to commit a robbery, had been inside the home

       while the attempted robbery took place, and knew Rodgers was armed during

       the commission of the attempted robbery.



       Court of Appeals of Indiana | Opinion 20A05-1508-CR-1098 | June 29, 2016   Page 5 of 16
[13]   On September 17, 2014, the State charged Dalton with felony murder.

       Following trial, which was conducted over the course of a number of days

       between June 15 and June 22, 2015, the jury found Dalton guilty as charged.

       The trial court subsequently sentenced Dalton to a term of fifty-five years. This

       appeal follows.



                                   Discussion and Decision
[14]   On appeal, Dalton contends that the evidence is insufficient to sustain his

       felony murder conviction.

               When reviewing the sufficiency of the evidence to support a
               conviction, appellate courts must consider only the probative
               evidence and reasonable inferences supporting the verdict. It is
               the fact-finder’s role, not that of appellate courts, to assess
               witness credibility and weigh the evidence to determine whether
               it is sufficient to support a conviction. To preserve this structure,
               when appellate courts are confronted with conflicting evidence,
               they must consider it most favorably to the trial court’s ruling.
               Appellate courts affirm the conviction unless no reasonable fact-
               finder could find the elements of the crime proven beyond a
               reasonable doubt. It is therefore not necessary that the evidence
               overcome every reasonable hypothesis of innocence. The
               evidence is sufficient if an inference may reasonably be drawn
               from it to support the verdict.



       Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal citations,

       quotations, and footnotes omitted). “In essence, we assess only whether the

       verdict could be reached based on reasonable inferences that may be drawn from


       Court of Appeals of Indiana | Opinion 20A05-1508-CR-1098 | June 29, 2016    Page 6 of 16
       the evidence presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012)

       (emphasis in original). Further, a conviction can be sustained on only the

       uncorroborated testimony of a single witness, even when that witness is the

       victim. Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012) (citing Ferrell v. State,

       565 N.E.2d 1070, 1072-73 (Ind. 1991)). The jury, acting as the trier-of-fact, is

       free to believe whomever it sees fit. See Klaff v. State, 884 N.E.2d 272, 274 (Ind.

       Ct. App. 2008).


                                I. The Felony Murder Statute
[15]   Indiana Code section 35-42-1-1 provides that “[a] person who … (2) kills

       another human being while committing or attempting to commit … robbery …

       commits murder, a felony.” “In its interpretation of this statute, [the Indiana

       Supreme Court] has determined that the State need not prove intent to kill, only

       the intent to commit the underlying felony.” Exum v. State, 812 N.E.2d 204,

       207 (Ind. Ct. App. 2004), trans. denied. “[T]he felony murder rule applies

       ‘when, in committing any of the designated felonies, the felon contributes to the

       death of any person.’” Forney v. State, 742 N.E.2d 934, 938 (Ind. 2001) (quoting

       Palmer v. State, 704 N.E.2d 124, 126 (Ind. 1999) (footnote omitted, emphasis in

       original). Thus, “it matters not whether the death caused is that of the intended

       victim, a passerby[,] or even a co-perpetrator.” Id. at 938-39.


[16]   A person who commits or attempts to commit one of the felonies designated in

       the felony-murder statute is criminally responsible for the death of another

       during the commission of said crime when the accused reasonably should have


       Court of Appeals of Indiana | Opinion 20A05-1508-CR-1098 | June 29, 2016    Page 7 of 16
       “‘foreseen that the commission of or attempt to commit the contemplated

       felony would likely create a situation which would expose another to the

       danger of death.’” Palmer, 704 N.E.2d at 126 (quoting Sheckles v. State, 684

       N.E.2d 201, 205 (Ind. Ct. App. 1997), trans. denied). Where the death that

       occurs could reasonably have been foreseen, “‘the creation of such a dangerous

       situation is an intermediary, secondary, or medium in effecting or bringing

       about the death of the victim. There, the situation is a mediate contribution to

       the victim’s killing.’” Id. (quoting Sheckles, 684 N.E.2d at 205). The question

       therefore “is whether [the defendant’s conduct] caused or contributed to [the

       victim’s] death or set in motion a series of events that could reasonably be

       expected and did, in fact, result in his death.” Pittman v. State, 528 N.E.2d 67,

       70 (Ind. 1988).


                                       II. Relevant Authority
                                                   A. Palmer
[17]   In Palmer, Robert Williams, a parolee who had recently been released from

       prison, asked Jesse Palmer to accompany him to see his parole officer. 704

       N.E.2d at 125. While at the parole office, correctional officers attempted to

       arrest Williams pursuant to a warrant relating to an alleged parole violation. Id.

       Williams resisted arrest and Palmer pulled a gun, held it to one of the officer’s

       head, and said “I’m going to blow you away. Do what I tell you.” Id. Palmer

       instructed the officer to let Williams go. Id. Upon being released, Williams

       instructed Palmer to shoot the officer. Id. During an ensuing struggle, the


       Court of Appeals of Indiana | Opinion 20A05-1508-CR-1098 | June 29, 2016   Page 8 of 16
       officer was shot in the hand and another officer fatally shot Williams. Id. at

       125-26.


[18]   Palmer was subsequently charged with and convicted of felony murder in

       relation to Williams’s death. Id. Upon review, the Indiana Supreme Court

       affirmed Palmer’s felony murder conviction, finding that Palmer’s conduct, i.e.,

       pointing a loaded handgun at the head of a corrections officer and thereafter

       firing the weapon and striking the officer, “clearly raised the foreseeable

       possibility that the intended victim might resist or that law enforcement would

       respond, and thereby created a risk of death to persons present. This felonious

       conduct was clearly ‘the mediate or immediate cause’ of Williams’s death.” Id.


                                                   B. Jenkins
[19]   In Jenkins v. State, Rodney Jenkins and Timothy D. Thomas attempted to rob

       Darrick C. Lawson while confining Lawson and Shalia R. Rogers. 726 N.E.2d

       268, 270 (Ind. 2000). Jenkins and Thomas were armed with a gun during the

       attempted robbery. Id. During the attempted robbery, Thomas grabbed

       Lawson and Jenkins held a gun to Lawson’s stomach. Id. Thomas instructed

       Lawson to lie on his stomach on the floor. Id. Thomas then taped Lawson’s

       ankles together and his hands behind his back with tape that he and Jenkins had

       brought with them. Id. Meanwhile Jenkins retrieved Rogers from the second

       level of the apartment. Id. After bringing Rogers downstairs, Jenkins handed

       the gun to Thomas, who was standing on Lawson’s back. Id. Jenkins then

       taped Rogers’s eyes, mouth, and hands and instructed her to sit on a chair. Id.


       Court of Appeals of Indiana | Opinion 20A05-1508-CR-1098 | June 29, 2016   Page 9 of 16
[20]   Thomas demanded money and drugs from Lawson, who indicated that he

       didn’t have any. Id. Thomas “watched” the victims while Jenkins searched the

       apartment. Id. During the search, Jenkins found Lawson’s gun, which Jenkins

       then carried with him through the apartment. Id. Jenkins also took a spoon

       from the kitchen, heated it up, and threatened to torture the two victims. Id.

       Afraid that she was about to be tortured, Rogers revealed where some money

       was hidden upstairs. Id.


               [Jenkins] went upstairs, retrieved approximately $300.00, and
               returned to the main floor, stating that he found some money but
               that it was less than they had hoped to get. Thomas taped
               Lawson’s mouth, turned up the volume on the television, and
               said that they had to kill Lawson. Thomas found a rope and
               decided to choke Lawson, rather than shoot him. Lawson
               initially refused to raise his head so that Thomas could wrap the
               rope around his neck, but then raised it when Thomas threatened
               to shoot him. Thomas wrapped the rope twice around Lawson’s
               neck and held an end in each hand. As Thomas pulled the rope
               tight around Lawson’s neck, Lawson freed his hands and tried to
               get up from the floor. Thomas struck Lawson twice on the head
               with the butt of a gun, but Lawson continued to arise. As
               Lawson struggled with Thomas, [Jenkins], still carrying
               Lawson’s gun, took Rogers to the stairs. As the struggle
               continued, Lawson noticed, on a nearby couch, the gun that
               Thomas and [Jenkins] had brought to the apartment. Lawson,
               expecting to be killed, grabbed the gun and shot Thomas seven
               times, killing him. [Jenkins] then fled.


       Id. at 270-71.




       Court of Appeals of Indiana | Opinion 20A05-1508-CR-1098 | June 29, 2016   Page 10 of 16
[21]   Jenkins was subsequently charged with and convicted of felony murder in

       relation to Thomas’s death. Id. at 268. Upon review, the Indiana Supreme

       Court found as follows:

               The probative evidence supporting the felony murder, robbery,
               and confinement convictions is substantial. The evidence and
               reasonable inferences establish that the defendant and his co-
               perpetrator engaged in dangerously violent and threatening
               conduct and that their conduct created a situation that exposed
               persons present to the danger of death at the hands of a non-
               participant who might resist or respond to the conduct. The
               evidence and reasonable inferences also establish that Thomas’s
               death was foreseeable and that the defendant’s role in creating
               this dangerous situation, which included the use of at least two
               guns during the episode, was “‘an intermediary, secondary, or
               medium in effecting or bringing about the death.’” See Palmer,
               704 N.E.2d at 126 (quoting Sheckles, 684 N.E.2d at 205). We
               find sufficient probative evidence from which a reasonable trier
               of fact could have found, beyond a reasonable doubt, that the
               defendant was the mediate or immediate cause of Thomas’s
               death and that this killing occurred during the defendant’s
               commission or attempted commission of robbery.


       Id. at 271.


                                                   C. Forney
[22]   In Forney, Mark Bankhead and Michael Cornner met at Lafayette Square Mall

       in Indianapolis to sell a pound of marijuana to Chris Matthews. 742 N.E.2d at

       936. The drug deal had been arranged by Jacqueline Woods. Id. Jamar

       Reynolds drove Woods and Matthews to the pre-determined location. Id.

       Reynolds’s cousin, Guilford Forney, and Corey Henderson were also in the

       Court of Appeals of Indiana | Opinion 20A05-1508-CR-1098 | June 29, 2016   Page 11 of 16
       vehicle with Reynolds, Woods, and Matthews. Id. Upon arriving at the pre-

       determined location, Matthews and Woods exited Reynolds’s vehicle and

       walked over to the automobile where Bankhead and Cornner sat. Id. Cornner

       showed Matthews the marijuana that he intended to sell before getting out of

       Bankhead’s vehicle and into the back seat of Reynolds’s vehicle. Id. Once in

       Reynolds’s vehicle, Cornner asked, “Who wants the marijuana, lets make the

       deal.” Id. No one in Reynolds’s vehicle responded to Cornner’s question. Id.

       Instead, Reynolds sped his vehicle away from Bankhead’s vehicle. Id. Forney

       then instructed Matthews and Henderson to get the money by saying, “[G]et

       the scrill get the scrill.” Id.


[23]   Suddenly, Henderson pulled out a gun from between the front passenger seat

       and the door. Id. He pointed the gun at Cornner’s stomach and said, “Shut up,

       empty your pockets.” Id. “Cornner raised his hands and allowed Henderson to

       search his pockets for money.” Id. “During this time, Forney ‘mess[ed] with

       the radio’ and said, ‘[L]ets go to my house.’” Id.


               Cornner then grabbed Henderson’s wrist and hand that held the
               gun. As they struggled, Henderson pulled the trigger and the gun
               fired a bullet into Reynolds. Reynolds[’s] head fell onto the
               steering column and the car sped through the intersection, over a
               median and down a ditch. Cornner, Forney, Matthews and
               Henderson jumped out of the car, leaving Reynolds in the driver
               seat. The car then crashed into the window of a furniture store.


       Id. (internal record citations omitted).




       Court of Appeals of Indiana | Opinion 20A05-1508-CR-1098 | June 29, 2016   Page 12 of 16
[24]   Forney was subsequently charged with and convicted of felony murder in

       relation to Reynolds’s death. Id. at 937. Upon review, the Indiana Supreme

       Court found that Forney’s murder charge was based upon accomplice liability.

       Id. at 938. The Indiana Supreme Court also found that the evidence was

       sufficient to sustain Forney’s conviction because Reynolds’s death “was a

       ‘natural and probable consequence’ of the robbery.” Id. (quoting Wright v. State,

       690 N.E.2d 1098, 1110 (Ind. 1997)).


                                                  D. Layman
[25]   In Layman v. State, sixteen-year-old Blake Layman and seventeen-year-old Levi

       Sparks were convicted of felony murder after one of their co-perpetrators was

       killed during an attempted burglary. 42 N.E.3d 972, 974 (Ind. 2015). Layman,

       Sparks, and sixteen-year-old Jose Quiroz decided to burglarize a home at which

       they believed no one was present and invited two other friends, eighteen-year-

       old Anthony P. Sharp, Jr., and twenty-one-year-old Danzele Johnson, to

       participate in the burglary. Id. Unbeknownst to the group, the intended victim

       was actually asleep in an upstairs bedroom. Id. After hearing the group

       “kicking in” the rear door of his home, the intended victim grabbed his

       handgun and cellular telephone and ran downstairs. Id. Upon seeing the

       intruders, the victim “began firing his weapon[,]” hitting both Layman and

       Johnson. Id. Johnson died as a result of the gunshot wound. Id.


[26]   Layman and Sparks were subsequently charged with and convicted of felony

       murder in relation to Johnson’s death. Id. at 974-75. On review, the Indiana


       Court of Appeals of Indiana | Opinion 20A05-1508-CR-1098 | June 29, 2016   Page 13 of 16
       Supreme Court overturned Layman’s and Sparks’s felony murder convictions,

       finding that the evidence was insufficient to prove that their conduct was the

       mediate or immediate cause of Johnson’s death. Id. at 979. In overturning

       Layman’s and Sparks’s convictions, the Indiana Supreme Court found that

       unlike the situations presented in Palmer, Jenkins, and Forney, neither Layman,

       Sparks, “nor their cohorts engaged in any dangerously violent and threatening

       conduct.” Id. at 979 (internal citation omitted).


         III. Whether the Evidence is Sufficient to Prove that
        Dalton’s Actions Were the Mediate or Immediate Cause
                         of Rodgers’s Death
[27]   In the instant matter, the evidence demonstrates that Dalton, Rhodes, and

       Rodgers entered the Marsh family’s home for the purpose of committing a

       robbery. At the time, all three were armed with firearms. Upon entering the

       family’s home, Rhodes and Rodgers went to the lower level and held Laqwela,

       Norman, and their infant son at gunpoint. As Laqwela attempted to flee

       upstairs to safety with her infant son, Dalton pointed his weapon at her, causing

       her to retreat. Dalton also threatened Brenda, forcing her to sit on the couch at

       gun point.


[28]   While in the lower level of the family’s home, Rodgers engaged in a scuffle with

       Norman. This scuffle moved into at least three rooms and resulted in both

       Norman and Rodgers suffering numerous gunshot wounds. These gunshot

       wounds resulted in injury to Norman and Rodgers’s death. In addition, as



       Court of Appeals of Indiana | Opinion 20A05-1508-CR-1098 | June 29, 2016   Page 14 of 16
       Dalton and Rhodes fled the family’s home, Dalton took the family’s laptop

       computer.


[29]   In challenging the sufficiency of the evidence to sustain his felony murder

       conviction, Dalton argues that the evidence is insufficient to prove that his

       actions were the mediate or immediate cause of Rodgers’s death. In support,

       Dalton argues that the facts of the instant matter are similar to those presented

       in Layman. However, unlike in Layman, Dalton, Rhodes, and Rodgers

       committed a violent home invasion during which they were all armed with

       loaded firearms. Dalton, for his part, engaged in violent and threatening

       conduct, both as a principal and as an accomplice. In addition, all three men

       pointed their weapons at their intended victims in a threatening manner, and at

       least two of the men, one of whom was Dalton, fired their weapons either

       inside or in the direction of the family’s home.


[30]   Also unlike in Layman, the evidence in the instant matter indicated that Dalton,

       Rhodes, and Rodgers anticipated that the home was occupied. The evidence

       establishes that when the three men arrived at the home, there were vehicles

       parked in the driveway. The evidence also establishes that the three men, who

       were familiar with the occupants of the home, attempted to conceal their

       identity by covering their faces with a ski mask and bandanas.


[31]   We conclude that the situation presented here is more similar to the situations

       presented in Palmer, Jenkins, and Forney than that presented in Layman. Given

       the violent and threatening nature of Dalton’s conduct considered together with


       Court of Appeals of Indiana | Opinion 20A05-1508-CR-1098 | June 29, 2016   Page 15 of 16
       the Indiana Supreme Court’s holdings in Palmer, Jenkins, and Forney, we

       conclude that the evidence presented is sufficient to prove that Dalton’s actions

       were a mediate or immediate cause of Rodgers’s death.



                                                Conclusion
[32]   In light of the evidence most favorable to Dalton’s conviction, we conclude that

       the State presented sufficient evidence to prove that Dalton’s actions, both as a

       principal and as an accomplice, were a mediate or immediate cause of

       Rodgers’s death. We therefore affirm the judgment of the trial court.


[33]   The judgment of the trial court is affirmed.


       Vaidik, C.J., and Barnes, J., concur.




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