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        IiuiaaaA'•                            —C—                               ■■
'^'                    '                                 SUSAN L. CARLSON
                       I                              SUPREME COURT CLERK

   IN THE SUPREME COURT OF THE STATE OF WASHINGTON


 STATE OF WASHINGTON,                                             No. 94346-0


                 Respondent,                                        En Banc
        V.



  MICHAEL DAVID MURRAY,                                 Filed     may 1 7 2018
                     Petitioner.




       WIGGINS, J.—Michael David Murray appeals his exceptional sentence for three

 counts of indecent exposure. His appeal presents two questions. First, we must decide

 whether the sexual motivation aggravator, ROW 9.94A.535(3)(f), can apply to the crime

 of indecent exposure, ROW 9A.88.010. We hold that because indecent exposure lacks

 an inherent sexual motive, the sexual motivation aggravator may apply. Second, we

 must decide whether the rapid recidivism aggravator, ROW 9.94A.535(3)(t), was void for

 vagueness as applied to Murray. Because a reasonable person would not have to guess

that reoffending 16 days after being released from jail is "shortly after," we hold that the

 rapid recidivism aggravator was not void for vagueness as applied to Murray.

 Consequently, we affirm the Court of Appeals.
state V. Murray (Michael David)
No. 94346-0


                            FACTS AND PROCEDURAL HISTORY

  I.    Factual History

        In early 2015, Murray was released from King County jail. Sixteen days after being

released, Murray exposed his penis in public to four different women on three separate

occasions, touching himself in two of the incidences. First, Murray exposed his penis

and masturbated in front of S.L. in a retirement home where she worked. The next day,

Murray exposed his penis to C.Y. while alone in an elevator with her. Four days later,

Murray exposed his penis and masturbated in front of L.S. while she was cutting K.N.'s

hair.


 II.    Procedural History

        The State charged Murray with three counts of indecent exposure. Because of a

previous conviction for indecent liberties, Murray's three counts of indecent exposure

were elevated from a misdemeanor to a class C felony. RCW 9A.88.010(2)(c).

Additionally, the State alleged two aggravating factors: that the offenses were sexually

motivated and that the offenses were committed shortly after Murray's release from jail

(i.e., rapid recidivism).

        At trial, the State presented the testimony of three previous victims to whom

Murray had exposed his penis; he had also masturbated during two of these previous

incidents. These testimonies were used for the purpose of proving motive, intent, and

absence of mistake or accident. In response, Murray presented a defense of diminished

capacity. He called an expert to testify that he lacked inhibitive control because of a

previous brain injury.
state V. Murray (Michael David)
No. 94346-0


      The jury rejected Murray's defense and found Murray guilty on ail three counts of

indecent exposure. The jury also found that the sexual motivation and rapid recidivism

aggravators were proved beyond a reasonable doubt. As a result, the trial court imposed

an exceptional sentence of 36 months' imprisonment. Murray appealed his conviction to

Division One of the Court of Appeals.

      On appeal, Murray challenged his exceptional sentence, arguing that it was clearly

excessive because of his brain injury. He also argued that the sexual motivation

aggravator and rapid recidivism aggravator did not apply. Alternatively, he argued that

the rapid recidivism aggravator was void for vagueness under the Fifth Amendment to

the United States Constitution. The Court of Appeals rejected all of these arguments and

affirmed Murray's conviction and sentence. State v. Murray, No. 74422-4-1, slip op. at 1,

14 (Wash. Ct. App. Mar. 6, 2017)(unpublished), https://www.courts.wa.gov/opinions/

pdf/744224.pdf.

       Murray appealed the Court of Appeals decision to this court. We granted review

on two issues: (1) whether the sexual motivation aggravator can apply to indecent

exposure and (2) whether the rapid recidivism aggravator is unconstitutionally vague.

                                  STANDARD OF REVIEW

       We review matters of statutory interpretation de novo. State v. Armendariz, 160

Wn.2d 106, 110, 156 P.3d 201 (2007). We also review questions of constitutional law de

novo. State v. Rice, 174 Wn.2d 884, 892, 279 P.3d 849 (2012).
state v. Murray (Michael David)
No. 94346-0


                                        ANALYSIS

       We decide two issues.^ First, we hold that the sexual motivation aggravator can

apply to indecent exposure because indecent exposure does not inherently require a

sexual motive. Second, we hold that the rapid recidivism aggravator was not

unconstitutionally vague as applied to Murray because a person of reasonable

understanding would not have to guess that reoffending 16 days after being released

from jail qualifies as "shortly after being released from incarceration." RCW

9.94A.535(3)(t). As a result, we affirm the Court of Appeals.

  I.   Does the indecent exposure aacravator inherentiv require a sexual motive?

       Because indecent exposure does not inherently require a sexual motive, we hold

that the sexual motivation aggravator can apply.

       Generally, a defendant's sentence falls within a standard range based on the

offender score and the seriousness of the crime. RCW 9.94A.510. However, a court may

impose a sentence outside the standard range when it finds substantial and compelling

reasons justifying such an exceptional sentence. RCW 9.94A.535. A court can impose

a sentence outside the standard range if facts support an aggravated sentence.^ Id.] see

also RCW 9.94A.537.




^ Murray also asks us to decide the broader question of whether aggravators listed in RCW
9.94A.535 are subject to void for vagueness challenges. We need not resolve this question
because even if we assume that Murray can bring a void for vagueness challenge, the rapid
recidivism aggravator was not void as applied to him. As a result, we do not reach the broader
question of whether aggravators listed In RCW 9.94A.535 are subject to void for vagueness
challenges generally.

2 Generally, facts supporting an aggravated sentence must be submitted to the jury and proved
beyond a reasonable doubt. RCW 9.94A.537.
state V. Murray (Michael David)
No. 94346-0


       Murray was sentenced above the standard range based on the sexual motivation
aggravator. RCW 9.94A.535(3)(f): see also RCW 9.94A.835. The sexual motivation
aggravator is based on the recommendation of the former Governor's Task Force on
Community Protection. Wash. State Governor's Task Force on Cmty. Prot., Final

Report (1989). The task force recommended that the legislature create a sexual

motivation aggravator to help control sex offenders. Id. at 11-9. It described the purpose

behind the sexual motivation aggravator as increasing the punishment for defendants

who commit crimes for the purpose of sexual gratification:

       Many offenders commit crimes which cannot be labeled as sex crimes
       under the existing criminal code, but their sexual motivation is clear.
       Offenders who break into women's homes and steal underwear, or those
       who enter homes to masturbate in front of female residents, are quite
       different from burglars who steal electronic equipment. Under current law,
       however, burglars with a sexual motivation are labeled only as burglars,
       receive no calculated enhancements for their more serious conduct, and
       are not eligible for special sentencing options to mandate treatment.



      ... Under current law, the court or jury can make a special finding regarding
       deadly weapon use, and the Task Force recommends a similar provision
       be established for felonies with a sexual motivation. The finding will carry
       three consequences in addition to the labeling: 1) consideration for an
       aggravated sentence outside the range; 2) higher offender score points for
       any future sex offenses; and 3) eligibility for commitment as a sexually
       violent predator. . . .

Id. at 11-4. Ultimately, the legislature adopted the task force's proposed legislation

creating the sexual motivation aggravator. Compare id. at 111-39, with Laws of 1990, oh.
3, §601.

       The definition of the sexual motivation aggravator is somewhat labyrinthine. We

begin with its definition: '"Sexual motivation' means that one of the purposes for which
state V. Murray (Michael David)
No. 94346-0


the defendant committed the crime was for the purpose of his or her sexual gratification."

RCW 9.94A.030(48). Whenever "sufficient admissible evidence exists" that "would justify

a finding of sexual motivation" (RCW 9.94A.835(1)), a prosecutor must charge a

defendant with the aggravator, unless the defendant is charged with a sex offense as

defined in RCW 9.94A.030(47). This statute lists a series of crimes that constitute a sex

offense, including, among others, rape, child molestation, indecent liberties, sexual

exploitation of a minor, and incest. See RCW 9.94A.030(47)(a)(i)-(iii).

       The exclusion of sex offenses makes sense because the purpose of creating the

sexual motivation aggravator was to enhance the punishment of an offender who was

sexually motivated in committing a crime that did not necessarily include sexual

motivation, as explained by the Governor's Task Force on Community Protection. When

it defined sex offenses and defined the punishments for those crimes, the legislature

already considered the sexual nature of these crimes.^

       Indecent exposure is nof one of the crimes defined as a sex offense. Accordingly,

indecent exposure is potentially one of the crimes for which the sexual motivation

aggravator can apply. But there is yet another limitation on charging a defendant with

the sexual motivation aggravator: a court may not enhance a defendant's sentence

based on an aggravator that is already an element of the primary offense. See State v.


2 The dissent correctly points out that enumerated sex offenses "can be committed for multiple
purposes. Including sexual gratification." Dissent at 4. However, the possible motivations behind
enumerated sex crimes are legally Irrelevant to the question before us. The statute clearly excludes
the application of the sexual motivation aggravator to these crimes. RCW 9.94A.030(47). In contrast.
Indecent exposure may also have multiple possible motivations. But Indecent exposure Is not a
statutorlly excluded offense. Id. Thus, the question remains: Is sexual motivation Inherent In the crime
of Indecent exposure? While sexual gratification may be one of the motivations behind an Indecent
exposure, It Is not necessarily one. See infra at 8. Consequently, sexual motivation may apply to
some but not to other Incidents of Indecent exposure.
state V. Murray (Michael David)
No. 94346-0


Thomas, 138 Wn.2d 630, 636, 980 P.2d 1275 (1999)("Thus, an exceptional sentence

may not be based on factors inherent to the offense for which a defendant is convicted.");

see also State v. Stubbs, 170 Wn.2d 117, 127-28, 240 P.3d 143(2010)(concluding that

because the '"great bodily harm'" aggravator encompassed an element of first degree

assault, it could not be used to enhance a defendant's sentence). Thus, "sexual

motivation logically applies only to offenses that are not inherently sexual in nature,

ascribing additional culpability where the facts nevertheless prove the crime was

undertaken for the purpose of sexual gratification." Thomas, 138 Wn.2d at 636.

       Murray argues that his crime—indecent exposure—is inherently sexual in nature

and consequentiy that the sexual motivation aggravator cannot apply. A person is guilty

of indecent exposure when "he or she intentionally makes any open and obscene

exposure of his or her person or the person of another knowing that such conduct is

likely to cause reasonable affront or alarm." RCW 9A.88.010. The statute does not

define "obscene." "[0]bscene" is defined in the dictionary as "disgusting to the senses

usu. because of some filthy, grotesque, or unnatural quality[;] . . . grossly repugnant to

the generally accepted notions of what is appropriate[;] . . . offensive or revolting as

countering or violating some ideal or principle: as . . . abhorrent to morality or virtue :

stressing or reveling in the iewd or lustful . . . ." Webster's Third New International

Dictionary 1557 (2002). This court has also defined "obscene" as "a lascivious

exhibition of those private parts of the person which instinctive modesty, human decency,

or common propriety require shall be customarily kept covered in the presence of

others." State v. Galbreath,69 Wn.2d 664,668,419 P.2d 800(1966). In turn,"lascivious"
state V. Murray (Michael David)
No. 94346-0


is defined as "inclined to lechery : lewd, lustful" or "tending to arouse sexual desire :

LIBIDINOUS, SALACIOUS." WEBSTER'S, SUpra, at 1274.

       Nothing in the statute or these definitions inherently requires that an exposure be

committed with a sexuai motive. As the State notes in its brief, there are several

conceivable examples where an individual could be convicted of indecent exposure but

lack sexual motivation: (1) flashing a passerby for shock value, (2) streaking naked

across a schooi campus, or(3) mooning someone out a window. See Suppl. Br. of Resp't

at 10-11. Consequently, while an obscene exposure might be sexually motivated, a

sexuai motive is not an inherent requirement. Therefore, because indecent exposure

does not inherently require a sexual element, we conclude that the sexual motivation

aggravator can apply to convictions of indecent exposure.

 II.   Was the rapid recidivism aggravator void for vagueness as applied to Murrav?

       The due process clauses of the Fifth Amendment and the Fourteenth Amendment

to the United States Constitution require that statutes afford citizens a fair warning of

prohibited conduct. City of Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693

(1990). A statute is unconstitutionaliy vague if (1) "it 'fails to define the offense with

sufficient precision that a person of ordinary inteiligence can understand it,'" or (2) '"it

does not provide standards sufficiently specific to prevent arbitrary enforcement.'" State

V. Duncalf, 177 Wn.2d 289, 296-97, 300 P.3d 352(2013)(quoting State v. Eckblad, 152

Wn.2d 515, 518, 98 P.3d 1184 (2004)). It is not necessary that a person be able to

predict with complete certainty the exact point at which his or her actions would qualify

as prohibited. State v. Halstien, 122 Wn.2d 109, 118, 857 P.2d 270 (1993). Instead, as

long as "a person of reasonable understanding is [not] required to guess at the meaning
state V. Murray (Michael David)
No. 94346-0


of the statute," "notwithstanding some possible areas of disagreement, the ordinance is

sufficiently definite." Duncalf, 177 Wn.2d at 297; Douglass, 115 Wn.2d at 179.

       When examining whether a statute is void for vagueness, we analyze the statute's

language in context and afford the language a "sensible, meaningful, and practical

interpretation." Douglass, 115 Wn.2d at 180. The presence of undefined terms "does not

automatically mean that the enactment is unconstitutionally vague." Id. Instead, "the

court may consider the plain and ordinary meaning as set forth in a standard dictionary."

State V. Bahl, 164 Wn.2d 739, 754, 193 P.3d 678 (2008).

       Here, Murray argues that the rapid recidivism aggravator is unconstitutionally

vague as applied to him."^ The rapid recidivism aggravator justifies an exceptional

sentence when the jury finds that "[t]he defendant committed the current offense shortly

after being released from incarceration." RCW 9.94A.535(3)(t). "Shortly after" is not

defined in the statute. Murray contends that this lack of a definition, along with the

prosecutor's statement that it was up to the jury to decide whether the defendant's

actions satisfied the aggravator, evinces that the aggravator is impermissibly vague.

       "Shortly" is defined as "in a short time : presently, soon." Webster's, supra, at

2103. In turn, "short" is defined as "not extended in time : of brief duration : lasting a little

while only." Id. at 2102. There are four Court of Appeals cases examining if a period of

time was "shortly after" incarceration. First, in State v. Cham, the Court of Appeals held

that the defendant's "commission of a crime within one hour of release from jail



 When an individual makes a vagueness challenge that does not involve the First Amendment,
courts evaluate the statute as applied rather than evaluating it for facial vagueness. Douglass,
115 Wn.2d at 182.
state V. Murray (Michael David)
No. 94346-0


satisfie[d]" the rapid recidivism aggravator. 165 Wn. App. 438, 450, 267 P.3d 528(2011).

Second, in State v. Butler, the Court of Appeals concluded that a defendant's actions

committed "within hours of his release" qualified as "shortly after release from

incarceration." 75 Wn. App. 47, 54, 876 P.2d 481 (1994). Third, in State v. Saltz, the

Court of Appeals agreed that the commission of a crime one month after a defendant

was released from incarceration qualified as '"shortly after.'" 137 Wn. App. 576, 584-85,

154 P.3d 282(2007).® Fourth, in State v. Combs,the Court of Appeals held that the rapid

recidivism aggravator did not apply when a defendant attempted to elude police six

months after he was released from incarceration. 156 Wn. App. 502, 505, 232 P.3d 1179

(2010). Although the court declined to "set an outer time limit on what constitutes a short

period of time," it reasoned that because "[a]ttempting to elude typically is an impulse

crime brought about by circumstances," the defendant's actions six months after being

released from incarceration was not a short period of time. Id. at 506-07. Thus, our Court

of Appeals has upheld the imposition of the aggravator when a defendant reoffends

within a few hours of release up to a month after release from incarceration. But under

the facts in Combs, they held that a period of six months was not "rapid recidivism" for

an impulse crime. Id. at 507.

       Here, Murray began reoffending 16 days after being released from King County

jail. Considering the fact that Murray was previously incarcerated for indecent liberties



5 In Saltz, the defendant stipulated to his release date and to the date of the charged crime (one
month later) and that "it was 'shortly after being released from incarceration.'" 137 Wn. App. at
584. Thus, the Court of Appeals did not need to reach the question of whether the defendant's
conduct qualified as "shortly after." However,the court chose to address the question and agreed
that the facts met the requirements of the rapid recidivism aggravator. See id. at 585.

                                               10
state V. Murray (Michael David)
No. 94346-0


and indecent exposure, the mere two weeks and two days between his release and

reoffense is especially brief. See id. at 506 (noting that "similarity of offenses or victims"

is "additional evidence" of the defendant's disregard for the law, "the gravamen" of rapid

recidivism). A person of reasonable understanding would not have to guess that

reoffending 16 days after being incarcerated is within a short time and within the

proscribed conduct under the rapid recidivism aggravator. Duncalf, 177 Wn.2d at 297.

Thus, we hold that the rapid recidivism aggravator was not void for vagueness as applied

to Murray.

                                      CONCLUSION

       In sum, we affirm Murray's sentence. The sexual motivation aggravator may

apply to indecent exposure because indecent exposure does not inherently require a

sexual motive. In addition, the rapid recidivism aggravator was not void for vagueness

as applied to Murray. A person of reasonable understanding would not have to guess

that reoffending 16 days after being released from incarceration is proscribed conduct

under the rapid recidivism aggravator. Consequently, we affirm the Court of Appeals.




                                             11
state V. Murray (Michael David)
No. 94346-0




      WE CONCUR.



                                       r,




                                       /




                                  12
State V. Murray (Michael D.)




                                       No. 94346-0



       MADSEN,J.(dissenting)—The majority holds that the sexual motivation

aggravator may be applied in this case because indecent exposure is not defined as a "sex

offense" under RCW 9.94A.030(47), and sexual motivation is not inherent in the

crime. Given the definition of the crime of indecent exposure, it is unimaginable that the

lascivious exhibition of sexual body parts is not a sexually motivated act. I dissent and

would hold that the sexual motivation aggravator may not be applied to enhance the

penalty for indecent exposure because sexual motivation is inherent in the crime of

indecent exposure.

                                        Discussion


       A court may impose a sentence above the standard range if the crime of conviction

was committed with sexual motivation. RCW 9.94A.535(3)(f). The sexual motivation

aggravator may not be used to enhance sentences for sex offenses defined under RCW

9.94A.030(47), or in circumstances where sexual motivation is inherent in the crime of

conviction. State v. Thomas, 138 Wn.2d 630, 636, 980 P.2d 1275 (1999). While

indecent exposure is not among those defined as "sex offenses" under RCW
No. 94346-0
Madsen, J., dissenting


9.94A.030(47), the plain language ofRCW 9.94A.030(48) and RCW 9A.88.010

demonstrate that it is inherently sexually motivated.

       Under RCW 9.94A.030(48),'"[sjexual motivation' means that one ofthe purposes

for which the defendant committed the crime was for the purpose of his or her sexual

gratification." (Emphasis added.) Indecent exposure is the intentional act of making

"any open and obscene exposure of his or her person or the person of another loiowing

that such conduct is likely to cause reasonable affront or alarm." RCW

9A.88.010(1). This court has defined "obscene" as "a lascivious exhibition of those

private parts of the person which instinctive modesty, human decency, or common

propriety require shall be customarily kept covered in the presence of others." State v.

Galbreath, 69 Wn.2d 664,668,419 P.2d 800(1966). "In turn,'lascivious' is defined as

'inclined to lechery : LEWD, LUSTFUL' or 'tending to arouse sexual desire : LIBlDrNOUS,

SALACIOUS.' Webster's[Third New International Dictionary 1274 (2002)]."

Majority at 7-8. By definition, it is indisputable that one ofthe purposes for which a

defendant commits indecent exposure is for sexual gratification.

       The majority rejects the obvious, citing examples of indecent exposure that it says

are not sexually motivated: "(I)flashing a passerby for shock value,(2)streaking naked

across a school campus, or(3) mooning someone out a window." Id. at 8. I

disagree. These actions constitute the crime ofindecent exposure only because they

involve the lascivious exhibition of sexual body parts.
No. 94346-0
Madsen, J., dissenting


       While sexual gratification may not be the primary purpose of those acts, as the

majority notes, it is certainly one ofthe purposes. Indeed, the only reason "flashing a

passerby" carries any shock value is because it is lascivious exhibition of sexual body

parts, which tends "to arouse sexual desire." WEBSTER'S,supra, 1274. The same is true

for streaking and mooning. Sexual gratification may not be the only purpose for these

acts, but it is inconceivable that openly exposing sexual body parts in a lascivious manner

is not, at least in part, for the defendant's sexual gratification. In holding that sexual

motivation is not inherent in the crime ofindecent exposure, the majority appears to

require that sexual motivation must be the primary purpose, rather than one ofthe

purposes,"for which the defendant committed the crime." RCW 9.94A.030(48). This is

at odds with RCW 9.94A.030(48).

       In addition, the majority's attempt to explain the distinction between indecent

exposure and crimes for which a sexual motivation aggravator may not be applied

demonstrates a fundamental misunderstanding ofsex crimes, which contributes to its

faulty conclusion that sexual motivation is not inherent in the crime of indecent exposure.

The majority says.

              The exclusion of sex offenses makes sense because the purpose of
       creating the sexual motivation aggravator was to enhance the punishment of
       an offender who was sexually motivated in committing a crime that did not
       necessarily include sexual motivation .... When it defined sex offenses
       and defined the punishments for those crimes, the legislature already
       considered the sexual nature of these crimes.


Majority at 6.
No. 94346-0
Madsen, J., dissenting


      I see no difference between indecent exposure and the crimes defined as sex

offenses. All of these crimes are sexual in nature. And, as with the crimes defined as sex

offenses, indecent exposure can be committed for multiple purposes, including sexual

gratification. See Nat'l RESEARCH COUNCIL, UNDERSTANDING Violence Against

Women 59(1996)("It also has been argued that rape, in particular, represents fulfillment

of sexual needs through violence [(Lee Ellis, Theories of Rape:Inquiries Into the

Causes of Sexual Aggression (1989))], but research has found that motives of power

and anger are more prominent in the rationalizations for sexual aggression than sexual

desires [(David Lisak & Susan Roth, Motives and Psychodynamics ofSelf-Reported,

Unincaraerated Rapists, 60 Am.J. OF Orthopsychiatry 268-80(1990); David Lisak,

Subjective Assessment ofRelationships with Parents by Sexually Aggressive and

Nonaggressive Men,9 J. OF INTERPERSONAL VIOLENCE 399-411 (1994))]". Indeed,

violence against women,such as rape,"is widely believed to be motivated by needs to

dominate women." Id. Or,"[f]or instance, the prison rapist may rape to establish himself

above his victim in the prison hierarchy; by dominating his victim, he elevates his own

position. He may also establish power in the prison community because, like others who

share or display their rapes, he sends the message that,'because I rape, I deserve your

respect.'" Katharine K. Baker, Once A Rapist? Motivational Evidence and Relevancy in

Rape Law, 110 Harv.L.Rev. 563,609(1997).

       Another rapist typology is the "anger rapist," who
No. 94346-0
Madsen, J., dissenting


       assaults his victim completely. He attacks all parts of her body, often
       forces her to engage in repeated, nonsexual degrading acts, and uses much
       more violence than is necessary to force her into submission. "The aim of
       this type of rapist is to vent his rage on his victim and to retaliate for
       perceived wrongs or rejections he has suffered at the hands of women....
       This offender displays a great deal of anger and contempt toward women."

Baker,supra, at 611 (alteration in original)(footnotes omitted)(quoting A. Nicholas

Groth, Ann Wolbert Burgess & Lynda Lytle Holmstrom,Rape: Power, Anger, &

Sexuality, 134 Am.J. Psychiatry, 1239,1241(1977) and citing A. Nicholas Groth &

H. Jean Birnbaum,Men Who Rape: The Psychology of the Offender 44 (1979)).

       Similar to the examples of indecent exposure that the majority says are not

sexually motivated, rape is often not primarily motivated by the defendant's desire for

sexual gratification. Rather, the sexual conduct involved in these crimes is a mechanism

to achieve a different goal. That goal may be power, dominance, or aggression, which is

achieved through sexual conduct. In instances of indecent exposure, that goal may be

"shock value," as the majority suggests, but, as with other sex crimes, one of the purposes

of indecent exposure is the defendant's sexual gratification.

       I would hold that the sexual motivation aggravator may not be applied to enhance

the sentence for indecent exposure, as sexual motivation is inherent in the

crime. Accordingly, I respectfully dissent.
No. 94346-0
Madsen, J, dissenting




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