                                                                                                      DIVISION II —
                                                                                             2014 AUG 6 9
                                                                                                          APB 9: 35

                                                                                             El

    IN THE COURT OF APPEALS OF THE STATE OF WASHING'IVVy                                                 a




                                              DIVISION II



STATE OF WASHINGTON,                                                         No. 43603 -5 -II


                                   Respondent,


         v.

                                                                  PART PUBLISHED OPINION
DAVID CLYDE DANIELS,


                                   Appellant.


         HUNT, J. —        David Clyde Daniels appeals his jury trial convictions for promoting

commercial sexual abuse of a minor ( PCSAM),           second degree promoting prostitution, and fourth

degree    assault.     He argues that his convictions for PCSAM and second degree promoting

prostitution constitute double jeopardy because the offenses are the same in law and fact. In the

unpublished portion of this opinion, we address Daniels' statement of additional grounds for


review ( SAG),       where he asserts that ( 1) his trial counsel ineffectively assisted him by failing to

call defense witnesses, failing to impeach the victim on cross -examination, and failing to object

to the   second   degree promoting    prostitution charge on   double      jeopardy   grounds; (   2) the evidence


was insufficient to support his convictions; and ( 3) he was subject to vindictive prosecution by

the State.    Holding that there is no double jeopardy .because the legislature intended separate

punishments       for promoting     commercial   sexual   abuse   of   a    minor (   PCSAM) and promoting


prostitution, and     rejecting Daniels' SAG    claims, we affirm all      three convictions.
No. 43603 -5 - II



                                                                     FACTS


                                                                    I. CRIMES


             In early January 2012, David Clyde Daniels stopped and spoke with 15- year -old NJ' as

she walked        home from          a gas station.          NJ intimated that she was 19 years old and gave Daniels


her   phone      number.        Some days later, Daniels called her, and they agreed to meet at Daniels'

cousin' s      home.     Daniels believed NJ to be 19                     years old.         He taught her how to post an ad on


Backpage.                                        her                           Over the next several weeks, Daniels had NJ
                com2




                        and recruited                  as a prostitute.




prostitute herself on his behalf, including one full day on Seattle' s Aurora Avenue in King
                                                 3
County.        While NJ " walk[ ed]          "       Aurora that night, however, Daniels learned from a friend that NJ


had lied       about   her    age,    which she            later   admitted was        15.     2 Verbatim Report of Proceedings


    VRP) at 30.


             Despite then knowing that NJ was underage, Daniels continued to prostitute her around

Tacoma.         He drove her to          and         from the      areas she would " walk,"             shadowed her on the street,




1
    It is   appropriate   to   provide some             confidentiality in this         case.    Accordingly, it is hereby ordered
that initials will be used in the body of the opinion to identify the juveniles involved.
2
     Backpage. com is         an online classified website, similar                    to Craigslist.        It includes a category of
    adult"     advertisements         that    say serve as a conduit for illegal activities, including
                                                 critics

prostitution,        even     though Backpage. com officially prohibits illegal services. See Deborah
Feyerick &           Sheila Steffen, A lurid journey through Backpage. com, CNN ( May 10, 2012, 3: 59
PM),         http: / thecnnfreedomproject.blogs. cnn.com/ 2012/ 05/ 10/ a- lurid-j ourney-through-backpage-
                      /
com/.



3
     According       to NJ, "   walk"     meant " walk[            ing]   until   someone picks us           up" and that if someone
stopped        and   expressed       interest in engaging in                  sexual   activity,      she   was   to "   see what they' re
talking       about,   find   out   if they' re        cops or not, and        then go       ahead"   and make a "       date."   2 VRP at
23 -24.



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No. 43603 -5 - II



rented motel rooms         for her    and   her " dates,"   and    kept    all of   the money   she earned.    2 VRP at 33,


34.


          On February 7, Daniels drove NJ to the Spanaway Loop area of Pierce County for a

 date"    with a "   John"      who   had   contacted     her through Backpage. com.             2 VRP    at   41 -42.   After


performing the sex act and receiving payment, NJ called Daniels to pick her up. Daniels arrived

with another minor female, FN, in his car. NJ gave Daniels only half of her $90 earnings and did

not    tell him   about   the   other $ 45, which she        kept.       When NJ got into the car, Daniels demanded


her phone. When NJ refused, Daniels grabbed the phone from her, removed the battery, told FN

to drive,    got   into the backseat         with   NJ,     and    ordered    her to    remove   her   clothes (   apparently


worried    that she was "       wired ").   2 VRP at 46. When NJ again refused, Daniels tore off her jacket,


pinned her to the floor of the car, and hit her several times in the jaw. Daniels later let NJ out of

the car and drove off with FN.


          The next morning, NJ went to her former high school and reported to the assistant

principal    that another         student   had taken her         cell   phone.      Tacoma Police Department School


Resource Officer Gerald Turney interviewed NJ, who said that FN was in possession of NJ' s cell

phone, that David Daniels had been with FN when it was taken, and that they had been in a red

Lincoln town car. Turney observed injuries on NJ, including bruising of her jaw and a cut on her

lip.

           Based     on    this    information,      Turney issued a countywide message advising law

enforcement that probable cause existed for the arrest of Daniels for robbery, kidnapping,

pimping, and unlawful imprisonment. That afternoon, Tacoma Police Department Officer Randy

Frisbie detained Daniels after a felony traffic stop of his red Lincoln town car.



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No. 43603 -5 -II



                                                             II. PROCEDURE


           The State        charged       Daniels     with   PCSAM (       count      1),   second degree robbery ( count 2),

unlawful      imprisonment ( count 3), fourth degree                   assault ( count        4),   and second degree promoting
                                  4
prostitution ( count        6).


                                                                 A. Trial


           Officers Turney and Frisbie testified to the facts previously set forth. CH testified that he

had   attended    high      school with          NJ   during    the 2009 -10    school year.           In " November( ish)" 2011,


CH had seen a light -
                    skinned girl he believes was NJ with Daniels in a white truck at a gas


station.     1 VRP     at   55.        In January 2012, he spoke with Daniels on the phone and informed him

that NJ was no older than 15 or 16, which revelation seemed to have surprised Daniels.


           In addition to the facts previously set forth, NJ testified that she was 15 years old when

Daniels      stopped   her   to talk      outside a gas station       in   January     2012.        She admitted having lied when

she   told   him that       she was       19    years old.     She had agreed to meet Daniels at his cousin' s house

where Daniels and another male took pictures of her in her underwear, which Daniels helped NJ


post on      Backpage. com,             with a   description     of   herself   and     his   contact   information.     When calls


started coming in a few hours later, Daniels told NJ the prices of certain acts she was to perform.

                                  1.   Promoting prostitution in Seattle, late January 2012

           NJ testified that the next day Daniels and CH took her and another girl to " walk" Aurora

Avenue in Seattle.            2 VRP        at   23.   Daniels either followed NJ on the street or waited in a motel

room    at the nearby Seals Motel,                    where "   dates"     could occur.             2 VRP   at   24.   That night NJ



4
    Initially, the State also charged Daniels with second degree driving while in a suspended or
revoked status (       DWLS) ( count 5).              But it later dropped that charge.




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No. 43603 -5 -II



performed         13   sex   acts    for   a    total   of about $       400, all of which Daniels forcibly took from her

during a strip search. When NJ returned from " walking" later that night, Daniels confronted her

about   her   age      in the   motel      bathroom.          2 VRP      at    30.   She admitted to Daniels that she was only

15.


                              2. PCSAM in Tacoma, late January /early February 2012

         NJ also testified that, after learning that she was only 15 years old, Daniels continued to

prostitute her for another three weeks, answering calls from Backpage.com and having her

 walk"   in Tacoma           on      Pacific Avenue           and   Tacoma Avenue.            2 VRP   at    33.    For example, NJ


described     a   day   in " late     January, beginning            of   February," that she had spent " walking" on Pacific

Avenue:       Daniels drove her to " the strip," provided a motel room, and waited at a McDonald' s


while she     had      sex with a customer              for money. 2 VRP at 34. NJ called Daniels to let him know


when she had picked up a customer for a sexual interaction.

         NJ testified           about      another "     date"   on      February      7, 2012:   After   a "   John" contacted her


through Backpage, Daniels dropped her off and picked her up from the " date" in the Spanaway

Loop    area.      2 VRP        at   41.   NJ further testified about the incident in the car as described above,

when Daniels had become violent with her.


                                           B.   Jury Instructions and Closing Argument

                                                         1.   PCSAM instructions


         The trial court first instructed the jury about PCSAM:

         A person commits the crime of promoting commercial sexual abuse of a minor
         when he knowingly advances commercial sexual abuse of a minor or profits from
         a minor engaged in sexual conduct.




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No. 43603 -5 -II



           Commercial sexual abuse of a minor means a minor receives compensation for
          engaging in sexual conduct

Clerk' s Papers ( CP)        at   28 (   Jury   Instruction 7).        Instruction 8 defined     a " minor"      as any person


under     18   years of age.      CP at 29. Instruction 9 provided the jury with the statutory definitions of

 sexual        conduct," "   sexual      contact,"    and "   sexual      intercourse."     CP    at   30; see also RCW


9A.44. 010 ( definitions). Instruction 10 was the " to convict" instruction for PCSAM:


           To convict the defendant of the crime of promoting commercial sexual abuse of a
           minor, as charged in Count I, each of the following elements of the crime must be
           proved beyond a reasonable doubt:


                      1) That on or about the period between the 1st day of January, 2012, and
           the 7th day of February, 2012, the defendant knowingly advanced commercial
           sexual abuse of a minor or profited from a minor engaged in sexual contact; and


                      2) That any of these acts occurred in the State of Washington.

CP at 31 ( Jury Instruction 10).

           The trial court also provided a unanimity instruction for this PCSAM charge:

           The State alleges that the defendant committed acts of promoting commercial
           sexual    abuse     of a minor        on multiple       occasions.    To convict the defendant of
           promoting commercial sexual abuse of a minor, one particular act ofpromoting
           commercial sexual abuse of a minor must be proved beyond a reasonable doubt,
           and you must        unanimously        agree     to which act     has been     proved.      You need not

           unanimously agree that the defendant committed all the acts of promoting
           commercial sexual abuse of a minor.



CP   at   32 ( Jury Instruction 11) (       emphasis added).




                               2.   Second degree promoting prostitution instructions

           The trial court also instructed the jury on second degree promoting prostitution.

Instruction 22        stated, "     A person commits the crime of promoting prostitution in the second

degree     when     he   or she   knowingly       profits   from   or advances prostitution."          CP   at   43.   Instruction




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No. 43603 -5 -II



23   provided    statutory definitions for " prostitution,"          " advanced prostitution,"     and " profited from


prostitution."      CP   at   44;   see   also   RCW 9A. 88. 060 ( definitions).       The " to   convict"   instruction


provided in relevant part:


           To convict the defendant of the crime of promoting prostitution in the second
           degree, as charged in Count VI each of the following elements of the crime must
           be proved beyond a reasonable doubt:


                    1) That on or about the period between the 1st day of January, 2012, and
           the 7th day of February, 2012, the defendant knowingly profited from prostitution
           or advanced prostitution, and



                    2) That any of these acts occurred in the State of Washington.

CP at 45 ( Jury Instruction 24).

           As with the PCSAM charge, the trial court provided the jury with a unanimity instruction

for the promoting prostitution charge:

           The State alleges that the defendant committed acts of promoting prostitution on
           multiple occasions.    To convict the defendant of promoting prostitution, one
           particular act of promoting prostitution must be proved beyond a reasonable
           doubt,   and you must          unanimously     agree as   to   which act   has been    proved.    You

           need not unanimously agree that the defendant committed all the acts of
           promoting prostitution.


CP   at   46 ( Jury instruction 25) (      emphasis added).



                                                    3.   Closing argument

           In closing argument, the prosecutor specified certain acts for the jury to consider for each

charge.      For the second degree promoting prostitution charge, the prosecutor asked the jury to




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No. 43603 -5 - II




consider only NJ' s first night on Aurora Avenue in Seattle, when Daniels believed she was 19

years olds:




        Promoting Prostitution in the Second Degree, he' s benefiting, profiting from her
        selling herself after he —I' m sorry, before he learns that she 's 15. Because the
        promoting Commercial Sexual Abuse            of a   Minor has     an age requirement.   She
        told you, I lied and I told him I' m 19.
                                             Now he' s promoting a prostitute because
        she' s not a minor   in his        So promoting prostitution, a benefit that he
                                      mind, right.

        got prior to learning that makes him guilty of Promoting Prostitution in the
        Second Degree.


3 VRP at 14 ( emphasis added).


        For the PCSAM charge, the prosecutor asked the jury to consider the acts that had

occurred after Daniels learned NJ' s true minor age, 156:


        If [NJ] is telling the truth, you believe these things actually happened, he' s guilty
        of Promoting Sexual Abuse of a Minor because he knew she was 15 years old
        after that date in Aurora and continued to profit from her selling herself

3 VRP at 13 ( emphasis added).


                                         C. Verdict and Sentencing

        The jury found Daniels guilty of promoting commercial sexual abuse of a minor

 PCSAM) (     count   2), fourth degree   assault ( count   4),   and second degree promoting prostitution




5 The only evidence of Daniels' promoting prostitution of NJ before he knew she was 15 was the
single " walk[   ing]" Aurora Avenue in Seattle in January 2012. 2 VRP at 57.

6 NJ testified about two specific commercial sexual exploitations of her after Daniels knew she
was 15, both in Tacoma: one day in " late January, beginning of February" " walking" on Pacific

Avenue, 2 VRP at 34; and February 7, in the Spanaway Loop area of Pierce County, when she
had sex with a " John" who had contacted her through Backpage. com, which incident ended in
Daniels' assaulting NJ. 2 VRP at 41.



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No. 43603 -5 - II



 count    6).      Neither the State nor Daniels asked the trial court to merge the PCSAM and


promoting        prostitution convictions   for sentencing         purposes.      Daniels appeals his convictions.


                                                    ANALYSIS


          PCSAM AND SECOND DEGREE PROMOTING PROSTITUTION NOT " SAME OFFENSE"


          Daniels argues that his convictions for PCSAM and second degree promoting prostitution

violate the constitutional prohibitions against double jeopardy because the jury could have based

both convictions on the same criminal conduct. Because NJ was a minor, all of Daniels' conduct


that promoted NJ' s prostitution arguably violated both the promoting prostitution statute and the

PCSAM           statute.   However, the State expressly elected in closing argument for the jury to

consider only the Seattle activities before Daniels learned NJ was a minor in considering the

promoting prostitution charge, and to consider only the Pierce County activities after Daniels
learned NJ        was a minor    in considering the PCSAM            charge.    Under these circumstances, we hold


that Daniels' convictions were not based on the same criminal conduct and, therefore, there was


no double jeopardy.

          The Fifth Amendment to the United States Constitution                             provides   that   no "   person be


subject   for the     same offence   to be twice   put   in   jeopardy   of    life   or   limb." U. S. CONST. amend. V.


Mirroring        this federal   constitutional guarantee,      Washington'        s   State Constitution      provides, "   No




7 Nor did Daniels raise a double jeopardy objection.


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No. 43603 -5 -II



                                                                                        8
person shall ...            be twice    put   in   jeopardy for   the    same offense. "       WASH. CONST.     art.   I, § 9; see


also   State     v.    Kier, 164 Wn.2d 798, 803,                 194 P. 3d 212 ( 2008).          Under these provisions, a


defendant cannot be punished multiple times for the same criminal act. See State v. Mutch, 171

Wn.2d 646, 661 -62, 254 P. 3d 803 ( 2011).

         The threshold question here is whether Daniels was convicted of multiple offenses based

on the same criminal conduct.9 See State v. Pena Fuentes, 179 Wn.2d 808, 824 -26, 318 P. 3d 257

 2014); Mutch, 171 Wn.2d                 at   662 -66. "[ I] f each count arises from a separate and distinct act, the


defendant is          not   potentially    exposed      to   multiple punishments        for   a single act."   Pena Fuentes,


179 Wn.2d         at   824.       We will not find a double jeopardy violation when it is " manifestly apparent

to the jury that        each count represent[ s]         a separate act."        Pena Fuentes, 179 Wn.2d at 824 ( quoting

Mutch, 171 Wn.2d at 665 -66).




8 Because Daniels did not raise the double jeopardy issue below, we treat this argument as falling
within the RAP 2. 5( a)( 3) manifest constitutional error exception to the preservation requirement.
 A double jeopardy claim is of constitutional proportions and may be raised for the first time on
appeal."        State   v.   Mutch, 171 Wn.2d 646, 661, 254 P. 3d 803 ( 2011).                       Thus, we review de novo
the double       jeopardy         argument     he   raises   for the first time     on appeal.   State v. Kelley, 168 Wn.2d
72, 76, 226 P. 3d 773 ( 2010).


9 When a defendant makes a double jeopardy argument, we normally determine whether the
legislature intended              multiple punishments          in the      particular situation.    Kier, 164 Wn.2d at 804.
Within     constitutional           boundaries, the legislature is            empowered    to " define criminal conduct and
assign punishment             to it."    Kier, 164 Wn. 2d         at   803. "   Where a defendant' s act supports charges

under two criminal statutes, a court weighing a double jeopardy challenge must determine
whether,        in light     of   legislative intent, the     charged crimes constitute        the   same offense."     Kier, 164
Wn.2d      at    803 -04 ( internal       quotations omitted) (         quoting State v. Freeman, 153 Wn.2d 765, 771,
 108 P. 3d 753 ( 2005)).               Here, however, we need not engage in this legislative intent analysis
because we hold that Daniels is being punished for two separate criminal. acts, not twice for the
same act.




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No. 43603 -5 -II




        Here, during NJ' s testimony and closing argument, the State distinguished between

different geographic locations ( Seattle and Tacoma) and between different time periods ( before

and after Daniels knew the victim was underage) to support convictions for the two separate


charges, promoting prostitution and PCSAM. In closing argument, the State made it clear that it

was asking the jury to convict on the promoting prostitution charge based on Daniels' activities

in Seattle before he knew that NJ was a minor, and asking the jury to convict on the PCSAM

charge based only on Daniels' activities in Pierce County after he knew NJ was a minor.

        Daniels argues that the State' s election was insufficient to establish that the two

                                                                                      10
convictions   were   based    on   separate     criminal   conduct,    citing Kier.        But here, the evidence


clearly distinguished between Daniels'            separate criminal acts.       One course of criminal activity

occurred   in Seattle before Daniels knew NJ            was a minor.     The other course of criminal activity

occurred    later in Pierce   County,    after       Daniels knew NJ      was   a   minor.    The State' s closing

argument served to confirm this distinction, making it clear that the different criminal conduct

supported    convictions   for different      offenses.     As a result, this case is more similar to Pena

Fuentes, where our Supreme Court held that separate criminal conduct supported the defendant' s




to Daniels argues that, according to Kier, 164 Wn.2d at 814, we should hold that the prosecutor' s
argument distinguishing Daniels', PCSAM and promoting prostitution charges was insufficient to
relieve the ambiguity in the jury' s verdict. The State charged Kier with robbery and assault for

carjacking at gunpoint a vehicle occupied by a man and his son. Kier, 164 Wn.2d at 802.
During closing argument, the State identified the man as the victim of the robbery and the son as
the victim of the assault. Kier, 164 Wn.2d at 813. The Supreme Court held that ( 1) this closing

argument did not constitute a " clear election" because the evidence at trial identified both the
father and the son as victims of the robbery and the jury instructions did not specify that only the
man was     the robbery    victim; and (   2)   as
                                                      jury' s verdict was
                                                     a result,   the                        ambiguous.   Kier, 164

Wn.2d at 813, 814.. Disagreeing, we distinguish Kier in the text above.



                                                           11
No. 43603 -5 -II




two convictions because the State clearly distinguished between the acts constituting one crime

from the acts constituting the second crime. Pena Fuentes, 179 Wn.2d at 825 -26.

           In light of the State' s differentiation between the two crimes with separate supporting

                                two clearly distinguished time      periods —before   and after Daniels learned
acts committed       during

NJ'   s   young   age —   it is " manifestly apparent" that the jury convicted Daniels based on factually

separate and distinct acts. Pena Fuentes, 179 Wn.2d at 824 ( quoting Mutch, 171 Wn.2d at 665.)

Accordingly, we hold that the conviction and punishment of Daniels for both PCSAM and

second degree promoting prostitution did not constitute double jeopardy.

           A majority of the panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder shall be filed for public

record in accordance with RCW 2. 06. 040, it is so ordered.


                                          STATEMENT OF ADDITIONAL GROUNDS


                                           A. Effective Assistance of Counsel


           In his SAG, Daniels asserts that his appointed trial counsel ineffectively assisted him by

failing to call defense witnesses, failing to cross -examine the victim effectively, and failing to

object     to the State'   s   filing   of a second   degree promoting prostitution   charge.   These assertions


fail because Daniels does not show that defense counsel' s actions were deficient or prejudiced


him in any way. State             v.    Emery,   174 Wn.2d 741, 754 -55, 278 P. 3d 653 ( 2012) (   citing State v.

McFarland, 127 Wn.2d 322, 334 -35, 899 P. 2d 1251 ( 1995)).




                                                             12
No. 43603 -5 -II



                                                  B.     Sufficiency of Evidence

         Daniels next asserts that the State failed to put forward sufficient evidence to support his


convictions, singling out in particular the State' s testimonial evidence on which the State' s case

relied. This claim fails.


           When a party challenges the sufficiency of evidence to support a criminal conviction, we

must   view    the      evidence     in the light           most    favorable to the State to determine         whether "   any


rational   trier   of    fact   could    have found         guilt   beyond   a reasonable     doubt."    State v. Gordon, 172


Wn.2d 671, 680, 260 P. 3d 884 ( 2011) (                      quoting State v. Salinas, 119 Wn.2d 192, 201, 829 P. 2d

1068 ( 1992)).          This    inquiry   requires     that "[   a] 11 reasonable inferences from the evidence must be


drawn in favor          of   the State    and   interpreted      most   strongly   against   the   defendant." State v. Brown,


162 Wn.2d 422, 428, 173 P. 3d 245 ( 2007) (                         quoting State v. Hosier, 157 Wn.2d 1, 8, 133 P. 3d

936 ( 2006)); Salinas, 119 Wn.2d                  at   201. "    Credibility determinations are for the trier of fact and

are not subject         to   review" on appeal.          State v. Mines, 163 Wn.2d 387, 391, 179 P. 3d 835 ( 2008)


 citing State      v.   Thomas, 150 Wn.2d 821, 874, 83 P. 3d 970 ( 2004)). We defer to the trier of fact' s


resolution of conflicting testimony, evaluation of witness credibility, and decisions regarding the

persuasiveness of the evidence. State v. Notaro, 161 Wn. App. 654, 671, 255 P. 3d 774 ( 2011).

           As its verdicts imply, the jury apparently found credible NJ' s uncontradicted testimony

about Daniels' sexually exploitive and assaultive actions, which determination we do not review

on appeal.         Notaro, 161 Wn.              App.   at   671.     Moreover, NJ' s testimony alone was sufficient to

allow a reasonable trier of fact to find Daniels guilty beyond a reasonable doubt of PCSAM,

second     degree promoting             prostitution, and        fourth degree     assault.   Thus, viewing the evidence in




                                                                      13
No. 43603 -5 -II



the light most favorable to the State, we hold that the evidence was sufficient to support the


jury' s verdicts.

                                    C. Prosecutorial Misconduct


         Finally, Daniels asserts that he was subject to vindictive prosecution when the State

amended the information to add the charge of second degree promoting prostitution shortly

before trial. The record before us on appeal does not support this assertion; moreover, we note


that   prosecutors are vested with great   discretion in   filing   criminal charges.   See State v. Korum,


157 Wn.2d 614, 625, 141 P. 3d 13 ( 2006).


          We affirm.




We concur:




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