[Cite as State v. Gross, 2018-Ohio-4557.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            PREBLE COUNTY



 STATE OF OHIO,                                   :     CASE NO. CA2018-01-001

         Plaintiff-Appellee,                      :             OPINION
                                                                11/13/2018
                                                  :
   - vs -
                                                  :

 FRANKLIN B. GROSS,                               :

         Defendant-Appellant.                     :



       CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS
                            Case No. 16CR12193



Martin P. Votel, Preble County Prosecuting Attorney, Eric E. Marit, Preble County
Courthouse, 101 East Main Street, Eaton, OH 45320, for plaintiff-appellee

Engel and Martin LLC, Joshua A. Engel, Mary K. Martin, 4660 Duke Drive, Suite 101,
Mason, OH 45040, for defendant-appellant



        M. POWELL, J.

        {¶ 1} Defendant-appellant, Franklin Gross, appeals his conviction in the Preble

County Court of Common Pleas for rape.

        {¶ 2} In March 2016, appellant and his three adult children, daughter Courtney and

sons Christopher ("Chris") and Cody, lived together in appellant's house, an A-frame

structure. Appellant's and Chris' bedrooms were on the first floor; Courtney's and Cody's

bedrooms were on the second floor. A couch and love seat arranged in an "L" shape in the
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living room were visible from a balcony on the second floor.

      {¶ 3} On March 12, 2016, the victim and Shawna Schnitker ("Shawna") went bar-

hopping with Courtney. Jesse Isaacs ("Jesse"), Courtney's boyfriend, eventually joined

them. The victim and Shawna drank and smoked marijuana and were both quite intoxicated

by the time the group left the last bar around 2:00 a.m. on March 13, 2016. Consequently,

Courtney invited the victim and Shawna to spend the night at appellant's nearby house.

      {¶ 4} Shortly after arriving at appellant's house, the three women and Jesse retired

for the night. Courtney gave a blanket to the victim. The victim slept on the couch and

Shawna slept on the love seat. Courtney and Jesse slept in her bedroom. Appellant and

his sons slept in their respective bedrooms.

      {¶ 5} Around 6:30 a.m. on March 13, 2016, the victim awoke, face down on the

couch, with her underwear and jeans around her ankles. She could feel someone on top

of her from behind. Moreover, she could feel skin to skin contact and lower pressure around

her vagina. Being somewhat disoriented and confused, the victim turned to look back and

saw appellant, naked, humping her from behind. Upon noticing that the victim had awaken,

appellant got off of her and walked to the other side of the living room before leaving the

room altogether. Upon realizing what had happened, the victim sat up, pulled up her pants

and underwear, and woke up Shawna.

      {¶ 6} The two went to another friend's home, and then to the emergency room

where the victim was interviewed and examined by a sexual assault nurse examiner

("SANE nurse"). The examination revealed no injuries. As part of her examination, the

SANE nurse took four swabs from the victim's vagina, two internally and two externally.

The swabs were submitted for analysis. The analysis revealed semen matching appellant's

DNA on all four vaginal swabs.

      {¶ 7} Appellant denied he had sexual contact or engaged in sexual conduct with

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the victim. Rather, appellant claimed he twice got up during the night to tend to the victim

because she was coughing hard and he feared she would vomit. Appellant noticed that the

victim was twisted in the blanket, with her underwear and jeans down to her knees.

Appellant claimed that while tending to the victim, she urinated on herself. Consequently,

appellant grabbed a dirty towel from the bathroom and placed it either underneath or behind

the victim. Appellant claimed that his semen found in the victim's vagina was a secondary

transfer from the towel, which he had used earlier in the evening to clean himself after

masturbating while watching a pornographic movie.

        {¶ 8} Appellant was indicted in December 2016 on two counts of rape, two counts

of gross sexual imposition, and three counts of sexual imposition. A jury trial was held on

September 25, 2017. The victim, Shawna, the SANE nurse, the victim's friend, Detective

Dean Miller of the Preble County Sheriff's Office, and Mary Cicco, a forensic scientist in the

DNA field, testified on behalf of the state. Appellant, his three children, and Jesse testified

on behalf of appellant. Following the state's case-in-chief, appellant moved to dismiss one

count of rape and one count of gross sexual imposition, arguing the state failed to prove

appellant committed the offenses with force or threat of force. Appellant further argued the

state failed to prove penetration. The trial court overruled the motion. Subsequently, the

state dismissed the three counts of sexual imposition.

        {¶ 9} On September 27, 2017, the jury found appellant guilty on both counts of rape

and both counts of gross sexual imposition. At sentencing, the trial court merged the

second rape count and both gross sexual imposition counts with the first rape count as

allied offenses of similar import. The court then sentenced appellant to four years in prison.1


1. We note that appellant was convicted of rape in violation of R.C. 2907.02(A)(1)(c), a felony of the first
degree. At sentencing, the trial court properly notified appellant, "The Defendant will serve a mandatory period
of postrelease control of five years." However, the trial court's November 15, 2017 sentencing entry incorrectly
states, "The Court has further notified the Defendant that post release control is mandatory in this case up to
a maximum of five years for the second degree mandatory
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       {¶ 10} Appellant now appeals, raising two assignments of error.

       {¶ 11} Assignment of Error No. 1:

       {¶ 12} THE CONVICTION FOR RAPE IN THIS MATTER WAS NOT SUPPORTED

BY SUFFICIENT EVIDENCE.

       {¶ 13} Appellant argues that his rape conviction is not supported by sufficient

evidence because the state failed to prove penetration.

       {¶ 14} Crim.R. 29(A) provides that "[t]he court on motion of a defendant or on its own

motion, after the evidence on either side is closed, shall order the entry of a judgment of

acquittal * * * if the evidence is insufficient to sustain a conviction of such offense or

offenses." An appellate court reviews the denial of a Crim.R. 29(A) motion pursuant to the

same standard as that used to review a sufficiency-of-the-evidence claim. State v. Wright,

12th Dist. Fayette No. CA2017-10-021, 2018-Ohio-1982, ¶ 22.

       {¶ 15} When reviewing the sufficiency of the evidence underlying a criminal

conviction, an appellate court examines the evidence in order to determine whether such

evidence, if believed, would support a conviction. Id. at ¶ 23. The relevant inquiry is

"whether, after viewing the evidence in a light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime proven beyond a

reasonable doubt." State v. Watson, 12th Dist. Warren No. CA2014-08-110, 2015-Ohio-

2321, ¶ 22.

       {¶ 16} Appellant was convicted of rape, in violation of R.C. 2907.02(A)(1)(c), which

provides in relevant part that

              No person shall engage in sexual conduct with another who is
              not the spouse of the offender when [t]he other person's ability
              to resist or consent is substantially impaired because of a
              physical condition and the offender knows or has reasonable
              cause to believe that the other person's ability to resist or

sentence."
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              consent is substantially impaired because of a physical
              condition.

       {¶ 17} As pertinent to this appeal, sexual conduct means "without privilege to do so,

the insertion, however slight, of any part of the body * * * into the vaginal or anal opening of

another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse."

R.C. 2907.01(A).

       {¶ 18} The victim testified she woke up, face down on the couch, with her underwear

and jeans around her ankles. She could feel someone on top of her from behind. Further,

she could feel skin to skin contact and lower pressure around her vagina. When she turned

to look back, she saw appellant, naked, humping her from behind. The victim further

testified that later on at the emergency room, she experienced some blood spotting even

though she was not on her period and had not experienced spotting before sleeping at

appellant's house. She further noticed that her vaginal area was "kind of raw" and that she

"had a little pain." The victim admitted that she did not know whether appellant had

ejaculated. She further admitted telling Detective Miller that she did not believe appellant

had ejaculated into her vagina and that she was not sure whether he had penetrated her.

However, she could feel appellant's penis in the area of her crotch and vagina during the

incident.

       {¶ 19} The SANE nurse testified she interviewed and examined the victim. The

sexual assault report completed by the nurse and containing a transcription of statements

the victim made during the examination, was admitted into evidence. The victim described

finding appellant on top of her, "straddling [her] from behind" and "moving in a motion like

he was having intercourse." The victim told the nurse she was "not sure if [appellant] had

completely penetrated me or how long he was on top of me but I could feel his penis in my

vaginal area while he made that humping motion." The victim complained of tenderness in

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the vaginal area, however the examination revealed no injuries.

       {¶ 20} Cicco, the DNA forensic scientist, testified that a dry stain swabbed from the

victim's buttocks matched appellant's DNA. She further testified that semen matching

appellant's DNA was found on all four vaginal swabs. Hence, appellant's semen was found

inside the victim's vagina. Nonetheless, Cicco could not tell whether penetration had

occurred. In addition to penetration, Cicco acknowledged that semen could be "introduced

to a person's body in more than one fashion" through secondary transfer. Cicco conceded

that secondary transfer could occur through a careless exterior swabbing of the vaginal

cavity or the use of the semen-covered towel on the victim's naked body. This was so

because of the sticky, mucous nature of semen:

              Everything in that vicinity is very closely related in proximity
              which is why my testing cannot tell penetration. I can tell you
              that semen was present. I can tell you what the DNA result is.
              I cannot tell you if penetration occurred because of the nature
              of semen and how it drains and seeps * * * just the way the body
              fluid works.

       {¶ 21} Appellant argues that given the victim's vague testimony and Cicco's "explicit"

testimony that "the presence of semen in the alleged victim's vagina was not evidence of

penetration," the state failed to prove penetration. Appellant cites several decisions in

support of his argument, including the Ohio Supreme Court's decision in State v. Ferguson,

5 Ohio St.3d 160 (1983). In four of the cases cited by appellant, the reviewing courts found

there was insufficient evidence of penetration. The fifth case involved attempted unlawful

sexual conduct with a minor, and the last case only referred to penetration in its facts.

       {¶ 22} In Ferguson, the supreme court considered whether a victim's testimony that

she and the defendant "had intercourse a couple times" was sufficient evidence of sexual

conduct to uphold a rape conviction. The supreme court found that it was not, stating

              We hold that the state's evidence on the element of sexual
              conduct was insufficient to establish that appellee had either
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              vaginal or anal intercourse with the victim. The victim's
              testimony was that she and appellee only had "intercourse."
              The victim did not testify that she and appellee had sexual
              intercourse, nor did the victim testify as to any degree of
              penetration. Inasmuch as one of the accepted definitions of the
              term "intercourse" relates to sexual intercourse, we could infer
              from the victim's testimony that she and appellee engaged in
              sexual intercourse. Two considerations prevent us from
              drawing that inference. First, in recognition of the state's burden
              of proof in criminal cases, we will not draw inferences against
              the accused from what must be characterized as vague and
              ambiguous testimony. Second, the record is completely devoid
              of any other evidence from any source that appellee and the
              victim engaged in "sexual intercourse" on the evening in
              question.

              Consequently, in a rape prosecution where the state's evidence
              is essentially the testimony of the victim, and where the victim
              testifies that she and the accused only had "intercourse" and
              does not testify as to any degree of vaginal or anal penetration,
              convictions on charges relating to either vaginal or anal
              intercourse are based on insufficient evidence.

(Emphasis sic.) Id. at 167-168.

       {¶ 23} We find that Ferguson is not applicable. The victim testified that appellant

was behind and on top of her, humping her, that she could feel skin to skin contact and

pressure around her vagina, and that she could feel appellant's penis in the area of her

crotch and vagina during the incident. This testimony was more detailed and specific than

the "vague and ambiguous testimony" that "we had intercourse a couple times" in Ferguson.

Additionally, and unlike in Ferguson, appellant's semen was found in the victim's vagina.

While this evidence was not conclusive of penetration, it is consistent with penetration.

       {¶ 24} We likewise find that the other decisions cited by appellant are distinguishable

and therefore inapplicable, in that (1) there was no context for the medical findings because

the infant victim could not testify as to what happened, see State v. Murphy, 5th Dist. Stark

No. 2015CA00024, 2015-Ohio-5108; (2) there was no evidence of the offender's semen in

the victim's vagina or anal cavity, see In re J.S., 8th Dist. Cuyahoga No. 102800, 2015-

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Ohio-4990; (3) the appellate court specifically noted the absence of semen inside the

victim's anus, see State v. Lee, 10th Dist. Franklin No. 03AP-436, 2004-Ohio-5540; or (4)

the cases do not stand for the proposition that testimony of "pressure" to the vaginal area,

when combined with other evidence, cannot support a conviction for rape. See State v.

Brannon, 12th Dist. Butler No. CA2016-05-096, 2017-Ohio-628; State v. Valenzona, 8th

Dist. Cuyahoga No. 89099, 2007-Ohio-6892.

       {¶ 25} Contrary to appellant's assertion, Cicco did not testify that the presence of

appellant's semen in the victim's vagina was not evidence of penetration. Rather, she

testified that she could not tell whether penetration had occurred, nor could she opine

whether the presence of the semen in the victim's vagina resulted from penetration or

secondary transfer.

       {¶ 26} In a recent case from the Eighth Appellate District, a victim testified that she

went to sleep after consuming numerous alcoholic drinks, that she did not believe she had

been penetrated, and that to her knowledge, she did not have sexual intercourse that night.

There was no physical evidence of penetration. However, the offender's DNA was found

on all of the victim's vaginal swabs, and two of the swabs were taken from the victim's

vaginal canal and cervix. Based upon the foregoing evidence, the appellate court upheld

the offender's rape conviction as follows:

              Pivotally, the record also indicates that semen was present on
              all four vaginal swabs and all four anal swabs, as well as on [the
              victim's] undergarment. In addition, the record indicates that
              I.N.R.'s DNA was found on [the victim's] vaginal swabs, anal
              swabs, and undergarments. Thus, because I.N.R.'s DNA was
              found in [the victim's] vaginal canal and cervix, any rational trier
              of fact could conclude that I.N.R. penetrated the victim as she
              lay sleeping, following an episode of binge drinking.

              Although the evidence of penetration is circumstantial, we note
              that circumstantial evidence has the same probative value as
              direct evidence. As such, in reviewing the evidence in a light
              most favorable to the prosecution, we find that any rational trier

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              of fact could conclude there exists sufficient evidence to sustain
              I.N.R's delinquency adjudication.

(Citations omitted.) In re I.N.R., 8th Dist. Cuyahoga No. 99983, 2014-Ohio-3582, ¶ 34-35.

       {¶ 27} Here, viewing the victim's testimony, the forensic evidence of appellant's

semen inside the victim's vagina, and Cicco's testimony as to how the semen could have

found its way into the vagina, including through penetration, in a light most favorable to the

prosecution, we find there was sufficient evidence of penetration. See In re I.N.R.; State v.

Carter, 89 Ohio St.3d 593 (2000) (finding sufficient evidence of penetration to support a

rape conviction where defendant's semen was found in the decedent's rectum, where

defendant denied any sexual conduct with the decedent, and where defendant presented

a theory at trial that his semen was deposited on the outside of the body and seeped into

the anus).

       {¶ 28} Appellant nonetheless argues that the jury "could not infer penetration from

the presence of semen" in the victim's vagina because such inference was "directly

contradicted by testimony that the mere presence of DNA in a person's vagina is not, in

fact, evidence of penetration," and because there were competing constructions of the

evidence, namely that given its sticky and mucous nature, the semen found in the victim's

vagina could have resulted from a careless swabbing of the vagina or the use of the semen-

covered towel.

       {¶ 29} Once again, we reiterate that Cicco did not testify that the presence of

appellant's semen in the victim's vagina was not evidence of penetration. The fact that the

forensic evidence as to the semen's presence in the victim's vagina is equally susceptible

to inferences of innocence as well as inferences of guilt does not mean that the evidence

was insufficient to support appellant's rape conviction. It is well-established that where the

state relies on circumstantial evidence to prove an element of the offense charged, the

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evidence need no longer be irreconcilable with any reasonable theory of innocence to

support a conviction. State v. Jenks, 61 Ohio St.3d 259, 273 (1991), overruling State v.

Kulig, 37 Ohio St.2d 157 (1974); State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954.

Hence, the jury was "not required to accept a 'competing inference of innocence' when the

same circumstances could also infer guilt beyond a reasonable doubt." State v. Sutton, 8th

Dist. Cuyahoga No. 100037, 2014-Ohio-1074, ¶ 38.

       {¶ 30} In light of the foregoing, we find there was sufficient evidence to support

appellant's rape conviction. Appellant's first assignment of error is overruled.

       {¶ 31} Assignment of Error No. 2:

       {¶ 32} THE CONVICTION IN THIS MATTER WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.

       {¶ 33} Appellant argues that his rape conviction is against the manifest weight of the

evidence because the victim's testimony was not credible and was contradicted by

"significant, additional evidence." Appellant asserts the victim's testimony was not credible

because she had been drinking and smoking marijuana before the incident and was

therefore intoxicated.

       {¶ 34} A manifest weight of the evidence challenge examines the "inclination of the

greater amount of credible evidence, offered at a trial, to support one side of the issue rather

than the other." State v. Bradbury, 12th Dist. Butler No. CA2015-06-111, 2016-Ohio-5091,

¶ 17. To determine whether a conviction is against the manifest weight of the evidence, the

reviewing court must look at the entire record, weigh the evidence and all reasonable

inferences, consider the credibility of the witnesses, and determine whether in resolving the

conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered. Id. An

appellate court will overturn a conviction due to the manifest weight of the evidence only in

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extraordinary circumstances when the evidence presented at trial weighs heavily in favor

of acquittal. Id. at ¶ 18.

       {¶ 35} At trial, the victim acknowledged that she was quite intoxicated by the time

she went to appellant's house, that she could not "really recall what happened once we got

there" and before she went to sleep on the couch, and that she was confused and

disoriented when she woke up, with appellant humping her from behind.             The victim

explained, "It took a minute to realize where I was, let alone what was happening. I was

confused, really confused." The victim testified she did not scream, call out, or talk to

appellant at the time of the incident. Rather, she pulled up her underwear and jeans, woke

up Shawna, and left appellant's house as quickly as possible. While her lower stomach and

jeans were wet, mid-thigh up, she did not believe she had urinated on the couch. She

explained that while "I've drank and done my fair share of recreational drugs[,] I've never

been one to vomit in my sleep, urinate in my sleep."

       {¶ 36} The victim testified that she was "pretty hysterical" and "crying pretty hard"

while driving to her friend's house, and that once there, she collapsed onto a fetal position,

cried, and refused to be physically comforted. Her testimony was corroborated by the

testimony of her friend and Shawna. The victim was examined by the SANE nurse at 9:30

a.m. The nurse testified that the victim was alert and oriented during examination and that

she was tearful at times.

       {¶ 37} Appellant asserts that the victim's testimony was not credible and was

contradicted by "significant, additional evidence," namely the testimony of his children and

Jesse. Jesse testified he heard the victim cough on two occasions and appellant check on

the victim.   Courtney testified she heard strong coughing in the middle of the night.

However, she told Detective Miller she assumed it was appellant as he and his children all

smoke. Appellant's children and Jesse testified that no one screamed, yelled, or called out

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during the night. However, as stated above, the victim testified she did not scream, call out,

or talk to appellant at the time of the incident. Trial testimony indicates that Shawna was

the only one sleeping in the same room as the victim, and that appellant's children and

Jesse all slept in bedrooms with their doors either closed or partially closed. Courtney and

Jesse both testified that the victim had urinated on the couch, that the smell of urine was

strong, and that appellant ordered that the couch be cleaned. Appellant's children and

Jesse all admitted that their knowledge of the victim urinating on the couch came directly

from appellant and not from their own, independent observation.

       {¶ 38} As stated earlier, appellant denied he had sexual contact or engaged in sexual

conduct with the victim. Rather, appellant claimed he twice got up during the night to tend

to the victim because she was coughing hard and he feared she would vomit. Upon

checking on the victim, appellant noticed that she was twisted in the blanket, with her

underwear and jeans down to her knees. While appellant was tending to the victim the

second time, she urinated on herself. Consequently, appellant grabbed the semen-covered

towel from the bathroom and placed it either underneath or behind the victim. Appellant

admitted that rather than tending to the victim himself, he could have woken up Shawna or

Courtney, especially since the latter was not intoxicated after bar-hopping. However,

appellant testified he did not wake up Shawna for fear she would blame him for the fact the

victim's jeans and underwear were down to her knees. Likewise, appellant did not wake up

Courtney because he did not want her to deal with the situation.

       {¶ 39} Trial testimony revealed that appellant did not mention that the towel was

semen covered during his interview with Detective Miller two days after the incident, and in

fact did not publicly speak about it until his jury trial. Trial testimony further revealed that

following the release of the DNA report and appellant's arrest, appellant contacted Planned

Parenthood and inquired the following: "If my girlfriend jerked me off and I wiped off the

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semen on a wet to damp towel, how possible would it be to find semen inside of her vagina."

Appellant testified he was told it was possible, and that "[f]rom the towel [semen] will travel

towards the vagina because that's what the semen does."

       {¶ 40} As to the victim's motive behind her rape allegations, appellant surmised the

victim either hallucinated or made up a story because she was embarrassed for having

urinated on the couch. Appellant further surmised that "[m]aybe [the victim] woke up in the

morning, realized she had wet herself, and used a towel and wiped herself before getting

dressed."

       {¶ 41} "A witness' intoxication is one of many factors that may be weighed by the

jury in assessing credibility." State v. Miller, 6th Dist. Erie No. E-16-037, 2017-Ohio-7986,

¶ 21. While it may provide appropriate fodder for cross-examination, it does not render the

witness' testimony per se incredible, nor does it require the jury to discredit all of the witness'

testimony. Id.; State v. Jarrell, 10th Dist. Franklin No. 96APA03-357, 1996 Ohio App. LEXIS

5767, * 32 (Dec. 17, 1996).

       {¶ 42} We find that the jury did not lose its way and create such a manifest

miscarriage of justice in finding appellant guilty of rape. The jury heard testimony that the

victim had been drinking and had smoked marijuana while bar-hopping and that she was

quite intoxicated by the time she arrived at appellant's house. However, the SANE nurse

testified that the victim was alert and oriented by the time the examination began at 9:30

a.m. Appellant provided an explanation as to why his semen and DNA were inside the

victim's vagina. His children and Jesse testified on his behalf.

       {¶ 43} As the trier of fact, the jury was in the best position to see and hear the

witnesses, and observe their demeanor, equivocation, and candor when it determined the

weight to be given their testimony. See Wright, 2018-Ohio-1982 at ¶ 30; Miller, 2017-Ohio-

7986 at ¶ 12. By its verdict, the jury plainly chose to credit the testimony of the victim and

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conclude that appellant's version was not credible. The jury heard all of the testimony,

considered the evidence, and found the state's theory of the case and its witnesses credible,

and we will not disturb the jury's verdict on appeal. Appellant's rape conviction is therefore

not against the manifest weight of the evidence. Miller at ¶ 22; In re I.N.R., 2014-Ohio-3582

at ¶ 42-43.

       {¶ 44} Appellant's second assignment of error is overruled.

       {¶ 45} Judgment affirmed.


       HENDRICKSON, P.J., and PIPER, J., concur.




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