                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                          December 15, 2015




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 STATE OF WASHINGTON,                                                 No. 46153-6-II

                                Respondent,

         v.

 PEDRO GODINEZ JR.,                                             UNPUBLISHED OPINION

                                Appellant,

 JOANNA KRYSTIN SPEAKS,

                                Defendant.

       JOHANSON, C.J. — Pedro Godinez, Jr. appeals his jury trial convictions for first degree

attempted murder, first degree kidnapping, first degree robbery, first degree unlawful possession

of a firearm, and his resulting sentence. He argues that the trial court improperly admitted the

victim’s hearsay statements, erred when it allowed a witness to testify wearing prison attire, and

committed two sentencing errors. We hold that (1) the trial court did not err when it admitted the

victim’s excited utterances, (2) no prejudice resulted from the inmate testifying in her prison attire,

(3) the trial court improperly added one point to Godinez’s offender score, and (4) the trial court

did not abuse its discretion when it determined that attempted murder and first degree robbery

were not the same criminal conduct. Finally, we reject Godinez’s assertion in his statement of
No. 46153-6-II


additional grounds (SAG) that he was improperly denied the opportunity to fully question certain

jurors. We affirm Godinez’s convictions, reverse his sentence, and remand for resentencing.

                                             FACTS

                                     I. BACKGROUND FACTS

       In November 2012, Freddy Landstrom was at home when Joanna Speaks called him.

Landstrom agreed to meet Speaks and drove to Speaks’s apartment after midnight. Based on a

receipt that the police collected, Landstrom stopped at a gas station at 1:56 AM and then continued

directly to Speaks’s home.

       According to Landstrom, within a minute of his arriving at Speaks’s apartment, Godinez

entered with his gun pointed at Landstrom. Landstrom initially thought that Godinez was there to

rob Speaks and him, but soon realized that it was a setup and that Speaks was involved. Still at

gunpoint, Godinez ordered Landstrom to remove his jacket and to put his valuables on the bed.

       Godinez then told Landstrom to get into Landstrom’s car and to drive around the

Vancouver area. As Landstrom drove, Godinez sat in the back seat with his gun pointed at

Landstrom. After what seemed like hours to Landstrom, Godinez told him to pull over on a gravel

road near a swamp. Godinez ordered Landstrom out of the car and told him to get on his knees,

facing away from Godinez. Landstrom, who thought Godinez was preparing to shoot him, stood

up and tried to talk Godinez out of it. Landstrom told Godinez he could keep his car and agreed

not to report it as stolen until Godinez said it was okay. He also told Godinez he had over $10,000

in his various accounts and that Godinez could use the cards he had stolen to access that money.

       Because Godinez told Landstrom that he could report his car stolen on Saturday,

Landstrom thought he had convinced Godinez to spare his life as they walked down the gravel


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No. 46153-6-II


road. But then Godinez ordered Landstrom to get back on his knees. Godinez shot Landstrom

from a distance of about four or five feet, but the first bullet just grazed Landstrom’s head.

Landstrom turned to face Godinez, who shot him again in the chest. Landstrom was shot again in

the hand and in the arm before he could run away and hide in a nearby swamp. Landstrom waited

in the swamp for what “seemed like an eternity” and eventually wandered for at least a mile until

he found someone to call the police. 2A Report of Proceedings (RP) at 466.

         When the police arrived at about 4:30   AM,   Vancouver Police Department Officer John

Janisch contacted Landstrom. Officer Janisch said that Landstrom was “[v]ery stressed out, in a

panic, [and] thinking he was going to die.” 2A RP at 361. Minutes later the ambulance arrived

and Officer Janisch accompanied Landstrom to the hospital to interview Landstrom and to learn

what happened because he was afraid that Landstrom might not survive. Officer Janisch recorded

Landstrom’s statements in the ambulance and the State played the 23-minute-long recording at

trial.

                                     II. PROCEDURAL FACTS

         The State charged Godinez with attempted first degree murder, first degree kidnapping,

first degree robbery, first degree unlawful possession of a firearm, and several other charges. At

trial, the State moved to admit the recorded statement Landstrom gave while in the ambulance.

The State agreed that the recording was hearsay, but argued that it was admissible as an excited

utterance: a statement of Landstrom’s then-existing mental, emotional, or physical condition and

a statement for medical diagnosis or treatment. Godinez argued that “while I concur that if this

was just statements by the victim that they would be admissible under those exceptions, these are




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No. 46153-6-II


not just statements, though; this is an actual interview, question-and-answer situation, and

obviously Defense wasn’t there, wasn’t able to cross-examine.” 2A RP at 327.

       After the State’s offer of proof, the trial court admitted Landstrom’s recorded statement as

“excited utterance, then existing mental, emotional, or physical condition, and statements for the

purpose of medical diagnosis or treatment, as well as present sense . . . impression.” 2A RP at

356-57. Although the trial court did not directly address Godinez’s confrontation clause concerns,

it found that because Landstrom’s statement did not identify Godinez, there was no prejudice. The

State played the recording and Godinez made no further objection.

       Landstrom testified to the facts as stated above and also identified Godinez in photographs

taken from surveillance video at a gas station where Godinez had used Landstrom’s bank cards.

A forensic scientist testified that Godinez’s deoxyribonucleic acid (DNA) was present on

Landstrom’s car’s steering wheel. Another police officer testified that Landstrom’s car was

discovered at a motel where Godinez was staying.

       The State called Speaks to testify. Speaks had already pleaded guilty to first degree robbery

and witness tampering and was serving her sentence in prison as a result of this incident. Because

Speaks did not have civilian clothes when she was transported to the courthouse from prison, she

testified in her prison uniform. Godinez objected, arguing that “the clothing does go to --

diminishes the veracity of a witness when they’re in jail garb” and requested that she be permitted

to testify in civilian clothes. 2B RP at 572-73. The State told the trial court it planned to ask

Speaks about her guilty plea and her role in the incident. The trial court overruled Godinez’s

objection because there were no civilian clothes available.




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No. 46153-6-II


       Speaks testified that she robbed Landstrom when she pulled a gun on him at her apartment

and asked him to empty his pockets. She then told Landstrom to leave and did not see him or

Godinez that night. Speaks claimed that she saw Godinez the next day, told him that Landstrom’s

credit cards were hers, asked him to use them to withdraw money for her, and did not see him

again until she was in jail. Later, Speaks’s father testified as an impeachment witness. He testified

that Speaks told him Godinez had robbed Landstrom at gunpoint, had “removed the victim” with

a gun from her apartment, and had shot him near a lake or a park. 2B RP at 655. Godinez did not

testify nor did he call any witnesses in his defense.

       A jury convicted Godinez of attempted first degree murder, first degree kidnapping, first

degree robbery, and first degree unlawful possession of a firearm, with several enhancements and

aggravators. At sentencing, the trial court agreed with the State that Godinez’s convictions for

attempted first degree murder and first degree kidnapping did not constitute the same criminal

conduct because although the two crimes involved the same victim, murder and kidnapping do not

require the same criminal intent, and the two crimes did not occur at the same time and place.

Godinez disagreed. Godinez also objected to the addition of one point to his offender score based

on “community custody” for a gross misdemeanor, but the trial court agreed with the State and

added one point to his offender score. 5 RP at 1248.

       Godinez appeals his convictions and sentence.




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No. 46153-6-II


                                            ANALYSIS

                            I. EXCITED UTTERANCE HEARSAY EXCEPTION

         Godinez argues that the trial court abused its discretion because Landstrom’s recorded

statement is hearsay and no hearsay exceptions apply that permit its admission.1 We disagree.

         Godinez argues that Landstrom’s recorded statement was not an excited utterance. He

concedes that Landstrom endured a startling event but argues that Landstrom’s recorded statement

was not an excited utterance primarily because too much time elapsed between when he was

attacked and when he gave the statement in the ambulance. We disagree.

         We review the trial court’s evidentiary rulings for an abuse of discretion. State v. Garcia,

179 Wn.2d 828, 846, 318 P.3d 266 (2014). The trial court “‘abuses its discretion if its decision is

manifestly unreasonable or based upon untenable grounds or reasons.’” Garcia, 179 Wn.2d at 846

(internal quotation marks omitted) (quoting State v. Lamb, 175 Wn.2d 121, 127, 285 P.3d 27

(2012)).

         Hearsay is “a statement, other than one made by the declarant while testifying at the trial

or hearing, offered in evidence to prove the truth of the matter asserted” in the statement. ER

801(c). Hearsay statements are inadmissible unless they fall within one of the exceptions in the

Rules of Evidence. ER 802. One such exception is for the declarant’s “excited utterances,”

defined as “statement[s] relating to a startling event or condition made while the declarant was

under the stress of excitement caused by the event or condition.” ER 803(a)(2). To qualify as an

exited utterance, a statement must meet three conditions: (1) a startling or exciting event must




1
    We assume, without deciding, that Godinez preserved this issue for appellate review.

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No. 46153-6-II


have occurred, (2) the declarant’s statement must have been made while he or she was under the

stress of the startling or exciting event, and (3) the statement must be related to the startling or

exciting event. State v. Chapin, 118 Wn.2d 681, 686, 826 P.2d 194 (1992).

       Godinez argues that over two to three hours elapsed between shortly after 1:56 AM, when

Landstrom arrived at Speaks’s apartment, and 4:30 AM, when the police responded to the marina.

Godinez argues this time lapse is evidence that Landstrom’s statement was not spontaneous

because he had too much time to consider fabricating a story. But Godinez does not understand

the nature of the startling event that Landstrom experienced. The startling event did not end when

Godinez fired the last bullet at Landstrom. Instead, Landstrom was still under the stress of the

evening’s startling events when he dove into the swamp, emerged from the swamp, and happened

upon the marina because he had not yet arrived at a place of safety. Even minutes later when the

police arrived and Landstrom was secured in the ambulance, he was still under the stress of the

evening’s startling events because he had been shot four times, was still bleeding, and thought he

would die.

       Therefore, Godinez’s argument that too much time elapsed between Landstrom’s arrival at

Speaks’s apartment and Landstrom’s recorded statement is unpersuasive. We hold that the trial

court did not abuse its discretion when it determined that the excited utterance exception to the

hearsay rule permitted the admission of Landstrom’s recorded statement.2




2
 Because Landstrom’s statement was admissible as an excited utterance, we need not address the
other hearsay exceptions that Godinez argues the trial court misapplied.

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No. 46153-6-II


                            II. SPEAKS’S TESTIMONY IN PRISON ATTIRE

       Godinez argues that the trial court erred when it permitted Speaks to testify in her prison

attire without conducting a hearing or making findings “justifying [her] appearance.” Br. of

Appellant at 26. He argues that permitting Speaks to testify in her prison attire damaged her

credibility. Even if the trial court erred, any error was harmless beyond a reasonable doubt.

       The defendant’s right to appear free from “all bonds or shackles” is grounded in the Sixth

and Fourteenth Amendments to the United States Constitution and article I, section 22 of the

Washington State Constitution. State v. Finch, 137 Wn.2d 792, 842-43, 975 P.2d 967 (1999).

These concerns apply to defendants and inmate witnesses similarly. State v. Rodriguez, 146 Wn.2d

260, 263-64, 269, 45 P.3d 541 (2002). We review alleged constitutional violations de novo. State

v. Johnson, 180 Wn.2d 295, 300, 325 P.3d 135 (2014).

       “[A]n inmate witness, whether testifying for the defense or the state, should not appear

before a jury in restraints absent a finding of necessity by the trial court.” Rodriguez, 146 Wn.2d

at 269. In making this finding, trial courts should balance the defendant’s right not to be prejudiced

by his or a witness’s appearance against the trial court’s longstanding right to control security and

provide order in the courtroom. Rodriguez, 146 Wn.2d at 265-68.

       Assuming the trial court erred, we turn to a harmless error analysis. Godinez argues that a

constitutional harmless error standard applies and any error was not harmless because testifying in

prison attire damaged Speaks’s credibility and had the jury believed Speaks’s testimony, it “would

have completely exonerated” Godinez. Br. of Appellant at 27. We disagree.

       An error of constitutional magnitude is harmless when the reviewing court is “convinced

beyond a reasonable doubt that any reasonable jury would have reached the same result in the


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No. 46153-6-II


absence of the error.” State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985). Where there is

a constitutional error, we presume prejudice and place the burden on the State to prove that the

error was harmless beyond a reasonable doubt. Guloy, 104 Wn.2d at 425; State v. Stephens, 93

Wn.2d 186, 191, 607 P.2d 304 (1980).

        Because Speaks testified that she was in prison serving a sentence for Landstrom’s robbery,

there was no prejudice resulting from the jury seeing Speaks in prison attire. Any inferences the

jury may have made or information it may have gained from seeing Speaks in prison attire was

merely cumulative of Speaks’s testimony. Speaks’s father also testified as an impeachment

witness, contradicting her testimony and damaging her credibility much more severely. Further,

in addition to Speaks’s, her father’s, and Landstrom’s testimony identifying Godinez as his

attacker, Godinez’s DNA found in Landstrom’s car, and the discovery of Landstrom’s car at the

motel where Godinez stayed all support the conclusion that the error was harmless. We are

convinced beyond a reasonable doubt that any reasonable jury would have reached the same result

if Speaks had not testified in prison attire.

                                        III. OFFENDER SCORE

        Godinez contends that the trial court improperly added a point to his offender score because

he was on misdemeanor and not felony community custody.               We agree and remand for

resentencing.

                           A. STANDARD OF REVIEW AND RULES OF LAW

        We review the trial court’s calculation of the defendant’s offender score de novo. State v.

Olsen, 180 Wn.2d 468, 472, 325 P.3d 187, cert. denied, 135 S. Ct. 287 (2014). We also review

the sentencing court’s interpretation of the Sentencing Reform Act of 1981 (SRA), ch. 9.94A


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No. 46153-6-II


RCW, de novo. State v. Jones, 172 Wn.2d 236, 242, 257 P.3d 616 (2011). A defendant may raise

a challenge to his offender score for the first time on appeal because “the sentencing court acts

without statutory authority when it imposes a sentence based on a miscalculated offender score.”

State v. Soper, 135 Wn. App. 89, 104 n.11, 143 P.3d 335 (2006); see also State v. Jones, 182

Wn.2d 1, 6-7, 338 P.2d 278 (2014); State v. Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999). It

is the State’s burden to prove a convicted defendant’s criminal history to calculate his offender

score. Ford, 137 Wn.2d at 480-81.

       The SRA requires trial courts to add one point to a convicted defendant’s offender score

when the “present conviction is for an offense committed while the offender was under community

custody.” RCW 9.94A.525(19). “Community custody” is defined as “that portion of an offender’s

sentence of confinement in lieu of earned release time or imposed as part of a sentence under this

chapter.” RCW 9.94A.030(5) (emphasis added). “This chapter” refers to the SRA and the SRA

permits sentencing courts to impose punishment, including community custody, on defendants

convicted of only felonies. RCW 9.94A.505(1). The SRA requires sentencing courts to impose

punishments on felony offenders consistent with its provisions and its “purpose” is to “make the

criminal justice system accountable to the public by developing a system for the sentencing of

felony offenders.” RCW 9.94A.505(1), .010.

                                          B. ANALYSIS

       Here, the trial court added one point to Godinez’s offender score for his first degree

attempted murder and unlawful possession of a firearm convictions because he was on

“community custody” for a misdemeanor. 5 RP at 1241. Godinez’s community custody officer

testified that Godinez was on active “misdemeanor community custody” on the date of his offenses


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No. 46153-6-II


for a prior fourth degree assault conviction and that Godinez was not, “[t]o [his] knowledge,” on

community custody for his prior first degree theft felony conviction.3 5 RP at 1199. Fourth degree

assault is a gross misdemeanor. RCW 9A.36.041(2). The State also presented no evidence that

Godinez’s community custody was a “portion of [his] sentence . . . in lieu of earned release time.”

RCW 9.94A.030(5).

       Because fourth degree assault is a misdemeanor and community custody could not have

been ordered for that conviction under the SRA, the trial court improperly added one point to

Godinez’s offender score because he was on community custody. We reverse Godinez’s sentence

and remand for resentencing.

                                  IV. SAME CRIMINAL CONDUCT

       Godinez argues that the trial court abused its discretion when it found that his first degree

attempted murder and first degree kidnapping convictions did not constitute the same criminal

conduct. We disagree.

                          A. STANDARD OF REVIEW AND RULES OF LAW

       We review the trial court’s finding that two crimes did not constitute the same criminal

conduct for an abuse of discretion or a “misapplication of the law.” State v. Graciano, 176 Wn.2d

531, 537, 295 P.3d 219 (2013). Where the record supports only one conclusion regarding the

defendant’s conduct, the trial court abuses its discretion when it arrives at a contrary result.

Graciano, 176 Wn.2d at 537-38. But if the record before the trial court supports either a conclusion




3
  It appears from the record that Godinez’s community custody officer testified based on the
judgment and sentence from his fourth degree assault and first degree theft convictions. But that
document is not in the record.
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No. 46153-6-II


that the defendant’s crimes constituted the same criminal conduct or that they did not, the issue

lies squarely in the trial court’s discretion. Graciano, 176 Wn.2d at 538.

       When a person is convicted of two or more serious violent offenses, the trial court must

run the sentences for those offenses consecutively unless the trial court finds that the crimes

constituted the same criminal conduct. RCW 9.94A.589(1)(b). Two crimes constitute the same

criminal conduct when they “require the same criminal intent, are committed at the same time and

place, and involve the same victim.” RCW 9.94A.589(1)(a). At sentencing, it is the defendant’s

burden to demonstrate that his crimes constituted the same criminal conduct. Graciano, 176

Wn.2d at 540. We construe the statute narrowly to “‘disallow most claims that multiple offenses

constitute the same criminal act.’” Graciano, 176 Wn.2d at 540 (quoting State v. Porter, 133

Wn.2d 177, 181, 942 P.2d 974 (1997)). The defendant’s failure to establish any element defeats

his or her claim that his or her crimes amounted to the same criminal conduct. Graciano, 176

Wn.2d at 540.

                                          B. ANALYSIS

       The issue here is whether the trial court abused its discretion when it determined that the

first degree attempted murder and first degree kidnapping did not require the same criminal intent

and did not occur at the same time and place.

       1. SAME CRIMINAL INTENT

       Godinez does not contest the same criminal intent element because he believes that the trial

court found that his first degree attempted murder and first degree kidnapping crimes had the same

criminal intent. We disagree and conclude that the trial court did not abuse its discretion when it

found that Godinez’s two crimes did not require the same criminal intent.


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No. 46153-6-II


          Two crimes require the same criminal intent if, when viewing them objectively, the

defendant’s criminal intent did not change from one crime to the next. State v. Tili, 139 Wn.2d

107, 123, 985 P.2d 365 (1999). This analysis requires us to first “objectively view each underlying

statute” to determine whether the intents are the same. State v. Price, 103 Wn. App. 845, 857, 14

P.3d 841 (2000). If the intents are the same, we view the facts available to the trial court at

sentencing to determine whether the defendant’s intent was different regarding each count. Price,

103 Wn. App. at 857.

          Here, the trial court found “some overlap in criminal intent [because kidnapping and

attempted murder might both involve bodily injury] but [found] that they are not the same criminal

intent and, as argued by the State, the attempted murder is quite a different intent than that of

kidnapping.” 5 RP at 1239. Examining the underlying statutes, attempted first degree murder and

first degree kidnapping do not require the same criminal intent. First degree kidnapping requires

an intentional abduction with intent to inflict bodily injury. RCW 9A.40.020(1)(c). Attempted

first degree murder requires specific intent to cause another person’s death. RCW 9A.28.020;

RCW 9A.32.030.        The required criminal intent is different because although first degree

kidnapping may be done with intent to inflict bodily injury, intent to inflict bodily injury does not

equate to a specific intent to cause death. The trial court did not abuse its discretion when it found

that the attempted first degree murder and first degree kidnapping did not require the same criminal

intent.

          In addition, the facts here demonstrate that the attempted murder and the first degree

kidnapping did not require the same criminal intent. As the State suggests, Landstrom almost

talked Godinez out of shooting him by promising not to report the car theft and by telling him how


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No. 46153-6-II


much money was available in his accounts. Godinez responded by telling Landstrom he could

report his car stolen on Saturday, thereby implying Landstrom would be alive on Saturday to do

so. This demonstrates that Godinez had not conclusively formed the intent to cause Landstrom’s

death when he kidnapped him because just moments before shooting Landstrom, Godinez

considered other plans. Apart from the fact that he held Landstrom at gunpoint, no other evidence

was available to the trial court to suggest that Godinez had planned to kill Landstrom when he

kidnapped him.

       Therefore, because kidnapping requires proof of intent to cause bodily injury and attempted

murder requires specific intent to cause death and Godinez had not inexorably formed the intent

to cause Landstrom’s death when he kidnapped him, it was reasonable for the trial court to

conclude that Godinez’s crimes did not require the same criminal intent. The trial court did not

abuse its discretion when it found that, based on this record, the attempted first degree murder and

first degree kidnapping did not require the same criminal intent.

       2. SAME TIME AND PLACE

       Godinez appears to argue that his two crimes need not have occurred simultaneously to

occur at the same time and place. We conclude that the trial court did not abuse its discretion when

it found that Godinez’s crimes did not occur at the same time and place.

       Here, the trial court found that “[t]he kidnapping occurred at gunpoint at the apartment of

Joanna Speaks in east Clark County; the attempted murder at a remote area of west Clark County.”

5 RP at 1239. The court also relied on Landstrom’s testimony that “it seemed like hours” passed

between his arrival at Speaks’s apartment, driving around the Vancouver area in Landstrom’s car

at gunpoint, and Godinez’s decision to shoot him. 5 RP at 1239.


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No. 46153-6-II


       These findings are supported by the record and lead to only one conclusion—that the two

crimes did not occur at the same time and place. The record shows that the kidnapping occurred

over two hours before the attempted murder and that the kidnapping occurred in east Clark County

and the attempted murder occurred in west Clark County. We defer to the trial court’s discretion.

See Graciano, 176 Wn.2d at 538.

       The trial court did not abuse its discretion when it concluded that the first degree attempted

murder and first degree kidnapping convictions did not constitute the same criminal conduct

because they did not require the same criminal intent and did not occur at the same time and place.

Godinez’s argument fails.

                            V. STATEMENT OF ADDITIONAL GROUNDS

       In his SAG, Godinez also asserts that he was prejudiced by the trial court’s decision not to

permit questioning of a juror who was uncomfortable having her name announced in open court.

We disagree.

       Although there are three references to jurors’ discomfort about having their names

announced in court, the record does not support Godinez’s argument that the trial court denied him

the opportunity to question jurors about this issue. Godinez’s counsel specifically stated that if he

had any further concerns about the issue, he would file written motions. The record does not

support his contention that the trial court denied him an opportunity to question the jurors fully.




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No. 46153-6-II


        We affirm Godinez’s convictions, reverse his sentence, and remand for sentencing.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                    JOHANSON, C.J.
 We concur:



 BJORGEN, J.




 MAXA, J.




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