                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     March 2, 2017
               Plaintiff-Appellee,

v                                                                    No. 329384
                                                                     Wayne Circuit Court
MICHAEL ANTHONY MCCROY,                                              LC No. 15-004258-01-FC

               Defendant-Appellant.


Before: JANSEN, P.J., and BECKERING and GADOLA, JJ.

PER CURIAM.

        Defendant, Michael McCroy, appeals as of right his bench trial convictions of assault
with intent to do great bodily harm (AWIGBH), MCL 750.84, intentional discharge of a firearm
from a motor vehicle, MCL 750.234a, and possession of a firearm during the commission of a
felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant to two years’
probation each for the AWIGBH and intentional discharge of a firearm from a motor vehicle
convictions, and two years’ imprisonment for the felony-firearm conviction. We affirm.

                      I. BASIC FACTS AND PROCEDURAL HISTORY

        This case arises out of a shooting that occurred in May 2015 near a party store in Detroit.
At around 4:30 p.m., defendant drove his father Michael Johnson, his friend “Juno,” and
Christian Cross to a party store. Juno and Cross were arguing in the backseat. When the two
men got out of the car in the party store parking lot, the argument turned physical and Cross
pushed Juno to the ground. Defendant got out of the car and stopped the two men from fighting.
Three of Cross’s cousins happened to be at a barber shop across the street, and they watched
Cross push Juno to the ground. One of the cousins, Marcus Turner, testified that he and the other
two men walked over to the party store parking lot to see what was happening. According to
defendant, the cousins were threatening everyone and followed defendant and the others into the
party store. Johnson testified that as he walked back out of the party store, he informed
defendant that he thought he saw that one of the men had a gun. Defendant, Johnson, and Juno
got back in the car, and defendant started to drive away.

       Defendant claimed that he heard one of the men in the parking lot say, “get the heat,”
which defendant understood as a term for a firearm. As defendant pulled out, he watched Turner
run behind his car and he did not know if Turner had a gun or not, but he thought he might.
Defendant turned left out of the parking lot, and according to his and his father’s testimony, there
                                                -1-
were five other men walking across the street heading toward the party store parking lot.1
Defendant claimed that he heard one of them load a weapon by pulling the slide back.
Defendant, Juno, and Johnson all testified that they heard loud banging on the car, which they
claimed sounded like it could have been bullets hitting the car. Defendant watched as Turner
threw an object at the car, which Juno and Turner testified was a clear bottle.2 The bottle hit the
back of the car. According to defendant, he feared for his life and the lives of his passengers
based on the five men approaching from the right, the banging on the car, and the fact that he
heard someone say “get the heat.” Thus, seconds after Turner’s bottle hit the car, defendant
pulled out his gun, stuck it out the driver-side window, and fired two shots. Defendant claimed
he aimed the gun at the ground and was only attempting to prevent the men from attacking.
However, the second bullet struck Turner in the leg. Surveillance videos at the party store
captured the entire incident and were admitted at trial. Additionally, defendant admitted pictures
of his vehicle, which had some damage to the roof and right side of the car. However, there were
no bullet holes.

                               II. SUFFICIENCY OF THE EVIDENCE

       Defendant first argues that the evidence presented at trial was insufficient to support his
convictions.3 We disagree.

        When reviewing a challenge to the sufficiency of the evidence following a bench trial,
this Court reviews the record de novo. People v Lanzo Const Co, 272 Mich App 470, 473; 726
NW2d 746 (2006). This Court must review the evidence in a light most favorable to the
prosecution and determine whether a rational trier of fact could have found each element of the
charged crimes proven beyond a reasonable doubt. People v Reese, 491 Mich 127, 139; 815
NW2d 85 (2012). This Court resolves conflicts of evidence in favor of the prosecution, and will
not interfere with the trier of fact’s determinations regarding the weight of evidence and the
credibility of the witnesses. People v Unger, 278 Mich App 210, 222; 749 NW2d 272 (2008).



1
  Johnson testified that a lot of the danger was coming from the five guys to the right of the
vehicle coming from a house area, who were running toward them and all had something in their
hands. He clarified that he was not talking about the people they had encountered in the parking
lot, as “[w]e moved too fast for that.” Defendant described the people on the passenger side of
the vehicle as a “group” of people who “attacked us” and came “close” to the vehicle, although
he did not know exactly how close. Defendant described Turner’s approach and the group to the
right coming at him at the same time.
2
    Turner testified that he threw a glass juice bottle, which struck the top rear of the car.
3
  Although defendant’s first stated issue in his brief to this Court claims there was insufficient
evidence to convict him for intentional discharge of a firearm from a motor vehicle and for
felony-firearm, defendant does not provide support for these arguments. Because defendant
failed to properly argue these claims, he has abandoned them on appeal. People v Lopez, 305
Mich App 686, 694; 854 NW2d 205 (2014), citing People v King, 297 Mich App 465, 474; 824
NW2d 258 (2012).


                                                    -2-
        The gravamen of defendant’s claim is two-fold. First, defendant argues that there was
insufficient evidence to find that he had the intent to do great bodily harm as required for an
AWIGBH conviction. Second, defendant argues there was insufficient evidence to disprove
beyond a reasonable doubt his self-defense claim. Defendant’s arguments fail.

        To convict a defendant of AWIGBH, the prosecutor must prove two elements: “(1) an
attempt or threat with force or violence to do corporal harm to another (an assault), and (2) an
intent to do great bodily harm less than murder.” People v Stevens, 306 Mich App 620, 628; 858
NW2d 98 (2014). The element of intent to do great bodily harm is further defined as “an intent
to do serious injury of an aggravated nature.” People v Brown, 267 Mich App 141, 147; 703
NW2d 230 (2005) (quotation marks and citation omitted). “Because of the difficulty in proving
an actor’s intent, only minimal circumstantial evidence is necessary to show that a defendant had
the requisite intent.” Stevens, 306 Mich App at 629, citing People v Harverson, 291 Mich App
171, 178; 804 NW2d 757 (2010). Additionally, “[i]intent to cause serious harm can be inferred
from the defendant’s actions, including the use of a dangerous weapon or the making of threats.”
Stevens, 306 Mich App at 629, citing People v Parcha, 227 Mich App 236, 239; 575 NW2d 316
(1997).

        Multiple witnesses, including defendant, testified that defendant pulled out his handgun,
stuck it out the window, and fired shots in the general direction of Turner. The surveillance
video also supports this testimony. In fact, one of the bullets struck Turner in the leg, further
showing that defendant had aimed the weapon in Turner’s direction before pulling the trigger.
Regardless of this evidence, defendant claims that he was shooting at the ground and not at
Turner, proving he lacked the intent to do great bodily harm. Given that the evidence is viewed
in favor of the prosecution, only minimal circumstantial evidence is required to show the
requisite intent, and defendant purposefully pointed a dangerous weapon in the direction of
another person and pulled the trigger twice, there was sufficient evidence to find that defendant’s
actions satisfy the intent requirement for AWIGBH.

       Defendant also argues that the prosecution failed to prove beyond a reasonable doubt that
defendant did not act in self-defense. After a defendant produces some evidence that the
elements of self-defense exists, “the prosecution must exclude the possibility of self-defense
beyond a reasonable doubt.” Stevens, 306 Mich App at 630, citing People v Dupree, 486 Mich
693, 709-710; 788 NW2d 399 (2010) (quotation marks omitted). Under MCL 780.972(1):

               An individual who has not or is not engaged in the commission of a crime
       at the time he or she uses deadly force may use deadly force against another
       individual anywhere he or she has the legal right to be with no duty to retreat if
       either of the following applies:

               (a) The individual honestly and reasonably believes that the use of deadly
       force is necessary to prevent the imminent death of or imminent great bodily harm
       to himself or herself or to another individual.

       Defendant satisfied the initial burden of providing some evidence of self-defense.
Defendant claimed that he was justified in protecting himself because his vehicle was being
attacked by Turner and another group of men, and the circumstances surrounding the incident

                                                -3-
raised an honest and reasonable belief that his life was in danger. As support, defendant claimed
he heard someone say, “get the heat,” Johnson informed defendant that someone had a gun, and
Juno, Johnson, and defendant all heard banging noises on defendant’s car—noises that sounded
like gunfire. However, viewing the evidence in favor of the prosecution, there was sufficient
evidence for the prosecution to satisfy the burden of excluding self-defense beyond a reasonable
doubt.

        To begin, defendant argues that the trial court relied too heavily on the surveillance video
in its ruling and failed to consider the testimony of the defense witnesses. This argument is
without merit. The trial court noted that much of defendant’s self-defense claim rested on his
assertion that there was a group of five men approaching the right side of defendant’s vehicle.
This Court should not disturb the credibility determinations of the trial court, Unger, 278 Mich
App at 222, and here, the trial court discredited defendant’s testimony for two reasons. First, the
surveillance video did not show a group of five men approaching from the right side of the
vehicle as described by defendant and his father. After reviewing the surveillance video, which
includes an expansive view of the parking lot and surrounding area where the incident took
place, we agree with the trial court’s conclusion that there was not a group of men anywhere near
defendant’s vehicle at the time of the shooting or any time thereafter.4 Second, the trial court
determined that it would not make sense that defendant, fearful of men approaching the right side
of the vehicle, would aim the gun over his left shoulder and fire two shots towards Turner, who
was on the back left side of the vehicle. For that reason, the trial court discredited that aspect of
defendant’s testimony. Moreover, the trial court expressly discredited Johnson’s testimony
regarding the claim that there was a man with a gun in the parking lot. For these reasons, it was
clear that the trial court considered the defense witnesses’ testimony, but that it discredited much
of their testimony because it contradicted clear surveillance video and was simply not believable.

        The record also contains no evidence that Cross’s cousins or any other person actually
pulled a gun out or fired a gun at defendant’s vehicle. Defendant did not testify to seeing a gun.
Instead, he testified that Turner threw an object that struck defendant’s car, and defendant then
fired two shots out his window. The surveillance video likewise shows that Turner was shot
seconds after throwing the bottle and as defendant’s car was driving away from the parking lot.
Based on this evidence, there was no threat of imminent death or great bodily harm, and
defendant did not have justification to use deadly force. Thus, there was sufficient evidence to
prove defendant did not have an honest and reasonable belief that the use of deadly force was
necessary. MCL 780.972(1)(a).

        Finally, defendant argues that the prosecution did not disprove defendant’s self-defense
claim at trial, and the trial court misapplied the self-defense standard. These arguments are
meritless. First, the prosecutor did disprove defense counsel’s self-defense claim at trial. At one
point during the prosecutor’s closing argument, the trial court asked whether defendant had a
legal justification for shooting at Turner. The prosecutor then explained at length that defendant
did not have justification because defendant’s story did not make sense based on the surveillance



4
    Defendant admitted at trial that the group he described was not depicted in the video.


                                                  -4-
video. In rebuttal, the prosecutor again argued that it had proven beyond a reasonable doubt that
defendant did not act in self-defense. Despite defendant’s claims to the contrary, the prosecution
clearly refuted the self-defense claim, and as stated previously, there was sufficient evidence to
disprove defendant’s self-defense claim beyond a reasonable doubt.

         Second, the trial court did not misapply the self-defense standard. The trial court agreed
with defense counsel that the burden rested on the prosecution to refute a claim of self-defense
beyond a reasonable doubt. In fact, the prosecutor acknowledged that it was the prosecution’s
burden to disprove self-defense beyond a reasonable doubt. Moreover, the trial court never held
in its ruling that defendant was required to, but failed to, prove self-defense beyond a reasonable
doubt, but instead, held that defendant was not justified in shooting at Turner for throwing a
bottle at the car and concluded that the prosecution met its burden of establishing the elements of
the underlying charges beyond a reasonable doubt. Therefore, the record shows that the trial
court properly applied the self-defense standard.

                                       III. DUE PROCESS

       Defendant also argues that he was denied due process when the trial court relied on
defendant’s statement, which had been read into the record by Investigator Craig McDonald
pursuant to MCL 763.8 and MCL 763.9.5 We disagree.

        To preserve a due process argument for appellate review, a defendant must raise an
objection on that ground in the trial court. People v Hanks, 276 Mich App 91, 95; 740 NW2d
530 (2007). Defense counsel objected to the prosecution’s attempt to have McDonald read
defendant’s statement into the record. However, defense counsel did not object on due process
grounds. Instead, defense counsel requested the trial court “give extra favorable light to the
defense when the statement comes in.”6 Therefore, this issue has not been properly preserved.

        Generally, this Court reviews constitutional due process claims de novo. People v
Schumacher, 276 Mich App 165, 176; 740 NW2d 534 (2007). However, unpreserved claims are
reviewed for plain error. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). A
plain error is one that is “clear or obvious,” and the error must affect the defendant’s “substantial
rights.” Id. at 763. In other words, the defendant must have been prejudiced by the plain error.
Id. Further, “[r]eversal is warranted only when the plain, forfeited error resulted in the
conviction of an actually innocent defendant or an error seriously affected the fairness, integrity
or public reputation of judicial proceedings independent of [the] defendant’s innocence.” Id. at


5
 MCL 763.8 and MCL 763.9 address the requirements surrounding a law enforcement agency’s
obligation to record interrogations of individuals using audiovisual recording equipment and the
consequences for failing to do so. In this instance, although the Michigan State Police recorded
defendant’s statement, the recording was not properly preserved and able to be presented at trial.
6
  Defense counsel based his objection on defendant’s entitlement to the jury instruction
mandated in MCL 763.9 when a law enforcement agency fails in its duty to record interrogations
of individuals using audiovisual recording equipment.


                                                -5-
763-764 (quotation marks and alterations omitted). This Court reviews issues of statutory
interpretation de novo. People v Juntikka (On Remand), 310 Mich App 306, 309; 871 NW2d
555 (2015).

       First and foremost, Michigan courts have repeatedly recognized that the due process
clauses of both the United States and Michigan constitutions do not require audiovisual
recording of custodial interrogations. People v Geno, 261 Mich App 624, 627; 683 NW2d 687
(2004), citing California v Trombetta, 467 US 479; 104 S Ct 2528, 2533; 81 L Ed 2d 413 (1984);
People v Fike, 228 Mich App 178, 184; 577 NW2d 903 (1998). Therefore, to the extent
defendant claims that he has a constitutional right to a remedy, such as the suppression of his
statement, defendant’s claim fails.

        Defendant also argues that the trial court should have indicated on the record that the
statement was not properly recorded and then explained how this error affected the court’s
evidentiary findings. Pursuant to MCL 763.8, law enforcement officials must record all
interrogations involving the commission of major felonies. If law enforcement officials fail to
do so, a defendant’s remedy is provided in MCL 763.9:

               Any failure to record a statement as required under section 8 of this
       chapter or to preserve a recorded statement does not prevent any law enforcement
       official present during the taking of the statement from testifying in court as to the
       circumstances and content of the individual’s statement if the court determines
       that the statement is otherwise admissible. However, unless the individual
       objected to having the interrogation recorded and that objection was properly
       documented under section 8(3), the jury shall be instructed that it is the law of this
       state to record statements of an individual in custodial detention who is under
       interrogation for a major felony and that the jury may consider the absence of a
       recording in evaluating the evidence relating to the individual’s statement.

Defendant claims that because the court would have been obligated to give an instruction
permitting the jury to consider the absence of a recording when evaluating the evidence, the
court was not only required to do so in a bench trial setting, it also had to explain its reasoning on
the record. Therefore, defendant claims that the court erred when it failed to consider that the
statement was not properly recorded. Defendant’s argument is misguided.

        There is no dispute that McDonald failed to preserve the recording as required under
MCL 763.8. McDonald had 30 days to request the recording, but he did not do so and the
recording was unavailable at trial. However, MCL 763.9 allows a testifying officer to discuss
the contents of a defendant’s statement so long as the officer was “present during the taking of
the statement,” and the “court determined that the testimony is otherwise admissible.”
Defendant does not dispute that McDonald was present at the interview. Additionally, the trial
court ruled that McDonald’s testimony was otherwise admissible and he could read defendant’s
statement into the record. Thus, defendant was entitled to the remedy under MCL 763.9, and this
Court only imposes remedies that are clearly delineated under the statute. See People v Anstey,
476 Mich 436, 448-449; 719 NW2d 579 (2006) (“[S]uppression of the evidence is not an
appropriate remedy for a statutory violation where there is no indication in the statute that the
Legislature intended such a remedy and no constitutional rights were violated.”). Defendant’s

                                                 -6-
only remedy under the statute was a jury instruction, and in this case there was no jury. In a
bench trial, “the trial court is presumed to know the applicable law” and is not required to
instruct itself on the applicable law. Lanzo Const Co, 272 Mich App at 484. Therefore, the trial
court had no further obligations under the statute.

                            IV. PROSECUTORIAL MISCONDUCT

      Defendant also argues that a statement made by the prosecutor during his closing
argument constituted prosecutorial misconduct, depriving defendant of a fair and impartial trial.
We disagree.

        To preserve the issue of prosecutorial misconduct, a defendant must contemporaneously
object to the prosecutor’s statements. See People v Thomas, 260 Mich App 450, 453-454; 678
NW2d 631 (2004). Defendant did not object to the alleged improper statement at trial, and the
issue is not properly preserved. Unpreserved claims of prosecutorial misconduct are reviewed
for plain error affecting defendant’s substantial rights. Id. at 453-454. Once the plain error rule
is satisfied, a conviction is reversed only if the defendant is actually innocent or if the error
“seriously affected the fairness, integrity, or public reputation of judicial proceedings.” People v
Ackerman, 257 Mich App 434, 449; 669 NW2d 818 (2003).

        “[T]he test for prosecutorial misconduct is whether a defendant was denied a fair and
impartial trial.” People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). Prosecutors are
typically “accorded great latitude regarding their arguments and conduct.” People v Cooper, 309
Mich App 74, 90; 867 NW2d 452 (2015), quoting People v Bahoda, 448 Mich 261, 282; 531
NW2d 659 (1995). They are generally free to argue the evidence and all reasonable inferences
as may be related to their theory of the case, and they are not required to confine their statement
to the blandest possible terms. Dobek, 274 Mich App at 66. “[A] prosecutor’s comments must
be read as a whole and evaluated in light of defense arguments and the relationship they bear to
the evidence admitted at trial.” People v Callon, 256 Mich App 312, 330; 662 NW2d 501
(2003). “Otherwise improper prosecutorial conduct or remarks might not require reversal if they
address issues raised by defense counsel.” Dobek, 274 Mich App at 64.

        Defendant argues that the prosecutor prejudiced his self-defense claim by referencing the
“grassy knoll,” a JFK assassination conspiracy theory. During closing argument, the prosecutor
stated:

              The [c]ourt can see also from that same [c]amera that [defendant] rolled
       his window down shortly after getting in the car. All the other windows are up.
       There is [sic] no guys advancing on the car from the right front, from the alley,
       from the houses, from nowhere on the right front.

                                              * * *

                According to [defendant] he’s seeing all of this. Looking right, looking
       left, seeing these alleged guys, kind of reminds me, I’m not going to go into it.
       Reminds me of the grassy knoll. He sees these people advancing toward the car.
       He sees [Turner] from the back. [Defendant] does not have justification. His
       self-defense claim is not honest. It’s not reasonable because it’s not fact based.
                                                -7-
        Defendant claims that the prosecutor improperly influenced the trial court with a
reference to the JFK assassination, specifically that defendant’s testimony was akin to the grassy
knoll theory—a theory that JFK was assassinated by another shooter standing on a grassy knoll
just outside the view of the camera footage. According to defendant, the prosecutor analogized
the grassy knoll to defendant’s testimony because defendant had claimed there were five men
ready to attack his vehicle, but that they were just outside the view of the party store surveillance
footage. Defendant claims this analogy amounted to prosecutorial misconduct that prejudiced
his entire self-defense claim. Defendant’s argument is unavailing.

        The prosecutor’s statement must be read in context with defendant’s claim of self-
defense, Callon, 256 Mich App at 330, and the prosecutor’s statement refuted defendant’s claim
that there was a group of men just outside of the camera’s view threatening defendant and his
two passengers. The prosecutor is afforded great latitude when making statements during
closing argument, and he is not confined to using the blandest possible terms. Dobek, 274 Mich
App at 66. For that reason, a quick reference to a historical event in history does not amount to
plain error, and even if it did, “[a] judge, unlike a juror, possesses an understanding of the law
which allows him to ignore such errors and to decide a case based solely on the evidence
properly admitted at trial.” People v Taylor, 245 Mich App 293, 305; 628 NW2d 55 (2001)
(quotation marks and citation omitted). The trial court concluded that, based on the surveillance
video and the testimony at the bench trial, there was not a group of men approaching defendant’s
car.

        Defendant also argues, as part of his claim of prosecutorial misconduct, that he was
prejudiced by the prosecution’s statement because defendant’s self-defense claim relied heavily
on the fact that the group of men attacked his car. This argument fails. The trial court found it
“convincing” that even if there had been a group of men off to the right of defendant’s car, there
was no justification for shooting in the opposite direction towards Turner, who had only tossed a
bottle at defendant’s car. Therefore, defendant’s claim is unavailing, and the prosecutor’s
statement did not deprive defendant of a fair and impartial trial.

                                        V. JAIL CREDIT

       Finally, defendant argues that he was denied proper jail credit. We disagree.

        To preserve an issue involving whether the defendant was properly awarded jail credit for
time served, the issue must have been raised and decided by the trial court. People v Connor,
209 Mich App 419, 431; 531 NW2d 734 (1995). At the sentencing hearing, defendant did not
object to his award of jail credit for time served, and the issue has not been properly preserved.
Generally, “[w]hether a defendant is entitled to credit for time served in jail before sentencing is
a question of law that we review de novo.” People v Armisted, 295 Mich App 32, 49; 811 NW2d
47 (2011). However, as stated previously, this Court reviews unpreserved claims for outcome-
determinative plain error. Id. at 46, citing Carines, 460 Mich at 763-764.

       The trial court granted defendant jail credit based, in part, on the six days that defendant
was incarcerated, beginning with his arrest on May 22, 2015, to his arraignment on May 27,
2015. Thereafter, defendant was out on bond until the conclusion of the trial. After trial, the
court denied defense counsel’s request to continue defendant’s bond, and defendant was

                                                -8-
remanded to jail. Defendant received jail credit for the time he was remanded to jail on August
18, 2015, up until his sentencing on September 2, 2015. Based on those two findings, the trial
court set defendant’s jail credit at 21 days.

       Defendant argues that under MCL 769.11b he should receive 11 days of jail credit for his
time on a tether from July 18, 2015, to July 28, 2015. Defendant’s argument fails. According to
MCL 769.11b:

              Whenever any person is hereafter convicted of any crime within this state
       and has served any time in jail prior to sentencing because of being denied or
       unable to furnish bond for the offense of which he is convicted, the trial court in
       imposing sentence shall specifically grant credit against the sentence for such
       time served in jail prior to sentencing.

This Court held in People v Reynolds, 195 Mich App 182, 183; 489 NW2d 128 (1992), that
when “participation in [a] tether program was not due to [the defendant’s] being denied or unable
to furnish bond for the offense of which he was convicted [pursuant to MCL 769.11b], he is not
entitled to sentence credit under the sentence credit statute.” Here, defendant was out on bond
from May 2015 until his conviction on August 18, 2015, and therefore, according to the plain
language of the statute, he is not entitled to jail credit for being in a tether program during that
time out of jail. This Court in Reynolds also held that time spent on a tether is not equivalent to
time spent in jail. Reynolds, 195 Mich App at 184. Thus, because defendant was out on bond
while he was tethered, and because time on a tether is not equivalent to time spent in jail,
defendant has not demonstrated a clear and obvious error on the record, and he is not entitled to
11 days of jail credit for his time spent on a tether.

       Defendant also argues that he should be afforded six days of jail credit for time served in
September, 2015. This argument is without merit. Defendant received jail credit from August
18, 2015, up until his sentencing date on September 2, 2015. Under MCL 769.11b, defendant is
only entitled to jail credit for “time served in jail prior to sentencing.” Thus, defendant could not
have been denied six days of jail credit in September 2015, when he was sentenced on
September 2, 2015. Moreover, defendant was, in fact, credited for the days in September that he
spent in jail before his sentencing. Therefore, the trial court did not err when it granted
defendant 21 days of jail credit.

       Affirmed.



                                                              /s/ Kathleen Jansen
                                                              /s/ Jane M. Beckering
                                                              /s/ Michael F. Gadola




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