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State v. Dayton

Court of Appeals of Ohio, Third District, Union

July 30, 2018

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
LUCKIE J. DAYTON, III, DEFENDANT-APPELLANT.

          Appeal from Union County Common Pleas Court Trial Court No. 2016-CR-0131

          Natalie J. Bahan for Appellant.

          Melissa A. Chase for Appellee

          OPINION

          PRESTON, J.

         {¶1} Defendant-appellant, Luckie J. Dayton III ("Dayton"), appeals the February 22, 2017 judgment entry of sentence of the Union County Court of Common Pleas. For the reasons that follow, we affirm.

         {¶2} In April 2015, Dayton's children, M.R.D., M.A.D., M.D., and I.D., as well as Dayton's stepdaughter, P.W., were removed from Dayton's home following an allegation by P.W. that Jessica Dayton ("Jessica"), Dayton's wife, was physically abusing M.R.D. and M. A.D. At first, Dayton was permitted to visit with his children because only Jessica was charged with endangering children. However, following a visit with M.A.D. in August 2015, Dayton was arrested for intimidation after M.A.D. alleged that Dayton showed her a picture during the visit which stated something to the effect of "Your Mother Did Not Abuse You." On August 31, 2015, the Union County Grand Jury indicted Dayton on one count of intimidation in violation of R.C. 2921.03(A), a third-degree felony. (Case No. 2015-CR-162, Doc. No. 1). On September 17, 2015, Dayton appeared for arraignment and entered a plea of not guilty. (Case No. 2015-CR-162, Doc. No. 8).

         {¶3} Although Dayton was not initially implicated in Jessica's abuse of M.R.D. and M.A.D., he was soon charged with offenses relating to the abuse. He was also charged with offenses stemming from an allegation that Dayton sexually abused P.W. and that he attempted to bribe M.R.D. and M.A.D. to give favorable testimony in proceedings against Jessica. On June 20, 2016, the Union County Grand Jury indicted Dayton on ten counts, including: Counts One and Two of gross sexual imposition in violation of R.C. 2907.05(A)(4), (C)(2), third-degree felonies; Counts Three and Four of endangering children in violation of R.C. 2919.22(B)(2), (E)(3), second-degree felonies; Counts Five and Six of endangering children in violation of R.C. 2919.22(A), (E)(2)(c), third-degree felonies; Counts Seven and Eight of permitting child abuse in violation of R.C. 2903.15(A), (C), third-degree felonies; and Counts Nine and Ten of bribery in violation of R.C. 2921.02(C), (G), third-degree felonies. (Case No. 16-CR-0131, Doc. No. 1). Although the indictment charged Dayton with violations of R.C. 2919.22(B)(2) as the principal offender as permitted under R.C. 2923.03(F), a subsequently filed bill of particulars clarified that the State was pursing the charges against Dayton under the complicity statute for involvement with Jessica's abuse of two of his minor daughters, M.R.D. and M.A.D., in violation of R.C. 2919.22(B)(2). (Case No. 16-CR-0131, Doc. No. 14A).

         {¶4} On July 22, 2016, Dayton appeared for arraignment and entered pleas of not guilty to the ten-count indictment. (Case No. 16-CR-0131, Doc. No. 8).

         {¶5} On December 1, 2016, the State filed a motion to consolidate case numbers 2015-CR-162 and 2016-CR-0131. (Case No. 16-CR-0131, Doc. No. 42); (Case No. 2015-CR-162, Doc. No. 35). On December 2, 2016, the trial court granted the State's motion and consolidated the cases under case number 2016-CR-0131. (Case No. 16-CR-0131, Doc. No. 45); (Case No. 2015-CR-162, Doc. No. 36). The intimidation charge that was the subject of case number 2015-CR-162 was later designated as Count Eleven in case number 16-CR-0131. (See Case No. 16-CR-0131, Doc. Nos. 64, 74).

         {¶6} On December 9, 2016, the State filed a motion requesting that the trial court call Jessica as the court's witness under Evid.R. 614(A). (Case No. 16-CR-0131, Doc. No. 56). On December 12, 2016, the trial court granted the State's motion to call Jessica Dayton as the court's witness. (Case No. 16-CR-0131, Doc. No. 61).

         {¶7} A jury trial was held on December 12-16, 2016. (Dec. 12-16, 2016 Tr., Vol. I, at 2-6). At the conclusion of the State's case-in-chief on December 15, 2016, Dayton moved for a Crim.R. 29 judgment of acquittal for Counts One through Eleven of the indictment. (Dec. 12-16, 2016 Tr., Vol. VII, at 1302-1307). The trial court granted Dayton's motion as to Count One and denied his motion as to Counts Two through Eleven. (Id. at 1307-1308, 1315); (Case No. 16-CR-0131, Doc. No. 64). The jury found Dayton guilty as to Counts Two through Eleven. (Dec. 12-16, 2016 Tr., Vol. VIII, at 1731-1738); (Case No. 16-CR-0131, Doc. Nos. 65, 66, 67, 68, 69, 70, 71, 72, 73, 74).

         {¶8} The trial court held a sentencing and sex-offender registration hearing on February 22, 2017. (Feb. 22, 2017 Tr.); (Case No. 16-CR-0131, Doc. Nos. 81, 82). The trial court determined that Counts Three, Five, and Seven are allied offenses of similar import and merged those counts. (Case No. 16-CR-0131, Doc. No. 81). The trial court also determined that Counts Four, Six, and Eight are allied offenses of similar import and merged those counts. (Case No. 16-CR-0131, Doc. No. 81). The State elected to pursue Counts Three and Four for sentencing. (Case No. 16-CR-0131, Doc. No. 81). The trial court sentenced Dayton to 54 months in prison on Count Two, 4 years in prison on Count Three, and 4 years in prison on Count Four, to be served consecutively for an aggregate prison term of 12 years and 6 months. (Case No. 16-CR-0131, Doc. No. 81). Dayton was also sentenced to 30 months in prison on Count Nine, 30 months in prison on Count Ten, and 30 months in prison on Count Eleven, each of which is to be served concurrently with his sentences for Counts Two, Three, and Four. (Case No. 16-CR-0131, Doc. No. 81). The trial court also classified Dayton as a Tier II sex offender. (Case No. 16-CR-0131, Doc. No. 81).

         {¶9} Dayton filed his notice of appeal on March 24, 2017. (Case No. 16-CR-0131, Doc. No. 89). He raises three assignments of error for our review. We will address Dayton's assignments of error in the order presented, and for the sake of clarity, we will address Dayton's second and third assignments of error together.

         Assignment of Error No. I

         Defendant-appellant's convictions are supported by insufficient evidence, and are against the weight of the evidence and therefore resulting [sic] in a denial of due process.

         {¶10} In his first assignment of error, Dayton argues that his convictions are based on insufficient evidence and against the manifest weight of the evidence. As to his endangering-children, complicity-to-endangering-children, and permitting-child-abuse convictions, Dayton argues that the State presented insufficient evidence that he either had knowledge of the abuse occurring in his residence or that he recklessly disregarded a substantial risk that abuse was taking place; he also argues that the evidence weighs against the jury's finding to the contrary. As to his gross-sexual-imposition conviction, Dayton argues that the jury erred in crediting the victim's account of the alleged abuse and that, as a result, his gross-sexual-imposition conviction is against the manifest weight of the evidence.[1]

         {¶11} Manifest "weight of the evidence and sufficiency of the evidence are clearly different legal concepts." State v. Thompkins, 78 Ohio St.3d 380, 389 (1997). Accordingly, we address each legal concept individually.[2]

         {¶12} "An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt." State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus, superseded by state constitutional amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Consequently, "[t]he 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." Id. "In deciding if the evidence was sufficient, we neither resolve evidentiary conflicts nor assess the credibility of witnesses, as both are functions reserved for the trier of fact." State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33, citing State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, ¶ 25 (1st Dist). See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19 ("Sufficiency of the evidence is a test of adequacy rather than credibility or weight of the evidence."), citing Thompkins at 386.

         {¶13} On the other hand, in determining whether a conviction is against the manifest weight of the evidence, a reviewing court must examine the entire record, "'weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of witnesses and determine[ ] whether in resolving 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.'" Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing court must, however, allow the trier of fact appropriate discretion on matters relating to the weight of the evidence and the credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard, "[o]nly in exceptional cases, where the evidence 'weighs heavily against the conviction,' should an appellate court overturn the trial court's judgment." State v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.

         {¶14} Dayton was convicted of two counts of endangering children in violation of R.C. 2919.22(A), two counts of complicity to endangering children in violation of R.C. 2923.03(A) and R.C. 2919.22(B)(2), two counts of permitting child abuse in violation of R.C. 2903.15(A), and one count of gross sexual imposition in violation of R.C. 2907.05(A)(4).

         {¶15} The criminal offense of endangering children is codified in R.C. 2919.22, which provides, in relevant part:

(A) No person, who is the parent * * * of a child under eighteen years of age * * * shall create a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support.
(B) No person shall do any of the following to a child under eighteen years of age * * *:
(2) Torture or cruelly abuse the child

R.C. 2919.22(A), (B)(2).

         {¶16} "'To find the defendant guilty of child endangering under [R.C. 2919.22(A)], the state must prove beyond a reasonable doubt that the defendant: (1) was the parent, guardian, custodian, person having custody or control, or person in loco parentis of a child under eighteen; (2) violated a duty to said child; (3) created a substantial risk to the health or safety of the child; and (4) acted recklessly.'" State v. Miller, 3d Dist. Seneca No. 13-13-14, 2014-Ohio-261, ¶ 11, quoting State v. Miller, 3d Dist. Logan Nos. 8-07-07 and 8-07-08, 2007-Ohio-6711, ¶ 12, citing R.C. 2919.22(A) and State v. McGee, 79 Ohio St.3d 193, 195 (1997). A "substantial risk" means "a strong possibility, as contrasted with a remote or significant possibility, that a certain result may occur or that certain circumstances may exist." R.C. 2901.01(A)(8). The culpable mental state required to sustain a conviction for endangering children under R.C. 2919.22(A) is recklessness. McGee at 195. "A person acts recklessly when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that the person's conduct is likely to cause a certain result or is likely to be of a certain nature." R.C. 2901.22(C). "A person is reckless with respect to circumstances when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that such circumstances are likely to exist." Id.

         {¶17} On the other hand, to prove the offense of endangering children under R.C. 2919.22(B)(2), the State must prove beyond a reasonable doubt that a defendant recklessly tortured or cruelly abused a child under eighteen years of age. See State v. Journey, 4th Dist. Scioto No. 09CA3270, 2010-Ohio-2555, ¶ 24, citing R.C. 2919.22(B)(2). R.C. 2919.22 does not define the terms "torture" or "cruelly abuse." See State v. Wainscott, 12th Dist. Butler No. CA2015-07-056, 2016-Ohio-1153, ¶ 24, quoting State v. Nivert, 9th Dist. Summit No. C.A. NOS. 16806, 1995 WL 608415, *2 (Oct. 18, 1995). "However, the word 'torture' as used in [R.C. 2919.22(B)(2)] has been defined as 'the infliction of severe pain or suffering (of body or mind),' with the word 'abuse' being defined as 'ill-use, maltreat; to injure, wrong or hurt.'" Id., quoting State v. Surles, 9th Dist. Summit No. 23345, 2007-Ohio-6050, ¶ 5. "Moreover, to treat someone 'cruelly' means to 'demonstrate indifference to or delight in another's suffering,' as well as to treat that person 'severely, rigorously, or sharply.'" Id., quoting State v. Brown, 9th Dist. Summit No. 23737, 2008-Ohio-2956, ¶ 12. As with R.C. 2919.22(A), the culpable mental state required to sustain a conviction for endangering children under 2919.22(B)(2) is recklessness. See id. at ¶ 25, citing State v. Ossege, 12th Dist. Clermont Nos. CA2013-11-086 and CA2013-11-087, 2014-Ohio-3186, ¶ 55 and State v. Adams, 62 Ohio St.2d 151 (1980), paragraph one of the syllabus.

         {¶18} R.C. 2923.03, Ohio's complicity statute, provides, in relevant part, that "[n]o person, acting with the kind of culpability required for the commission of an offense, shall * * * [a]id or abet another in committing the offense * * *." R.C. 2923.03(A)(2).

To support a conviction for complicity by aiding and abetting pursuant to R.C. 2923.03(A)(2), the evidence must show that the defendant supported, assisted, encouraged, cooperated with, advised, or incited the principal in the commission of the crime, and that the defendant shared the criminal intent of the principal. Such intent may be inferred from the circumstances surrounding the crime. State v. Johnson, 93 Ohio St.3d 240 (2001), syllabus. "'"Evidence of aiding and abetting may be shown by either direct or circumstantial evidence, and participation in criminal intent may be inferred from presence, companionship, and conduct before and after the offense is committed."'" State v. Wright, 3d Dist. Hardin No. 6-15-14, 2016-Ohio-5465, ¶ 9, quoting State v. Rowe, 3d Dist. Seneca No. 13-10- 14, 2011-Ohio-5739, ¶ 32, quoting State v. Gragg, 173 Ohio App.3d 270, 2007- Ohio-4731, ¶ 21 (12th Dist.). Accordingly, to sustain a conviction for complicity to endangering children under R.C. 2923.03(A)(2) and 2919.22(B)(2), the State must prove beyond a reasonable doubt that a defendant recklessly aided or abetted another's violation of R.C. 2919.22(B)(2). See State v. Diggs, 10th Dist. Franklin No. 14AP-18, 2014-Ohio-3340, ¶ 25-26 (applying the recklessness culpability standard to the complicity statute).

         {¶19} The criminal offense of permitting child abuse is codified in R.C. 2903.15, which provides, in relevant part, that "[n]o parent, guardian, custodian, or person having custody of a child under eighteen years of age * * * shall cause serious physical harm to the child, or the death of the child, as a proximate result of permitting the child to be abused [or] to be tortured * * *." R.C. 2903.15(A). The culpable mental state required to sustain a conviction under R.C. 2903.15(A) is recklessness. See State v. Ferguson, 2d Dist. Clark No. 08CA0050, 2011-Ohio-4285, ¶ 27. "Serious physical harm" means:

(a) Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment;
(b) Any physical harm that carries a substantial risk of death;
(c) Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity;
(d) Any physical harm that involves some permanent disfigurement or that involves some temporary, serious disfigurement; [or]
(e) Any physical harm that involves acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain.

R.C. 2901.01(A)(5)(a)-(e).

         {¶20} The criminal offense of gross sexual imposition is codified in R.C. 2907.05 which provides, in relevant part, that "[n]o person shall have sexual contact with another, not the spouse of the offender * * * when * * * [t]he other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person." R.C. 2907.05(A)(4). "Sexual contact" is defined in R.C. 2907.01(B) as meaning "any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person." "Whether touching is done for the purpose of sexual gratification is a 'question of fact to be inferred from the type, nature, and circumstances surrounding the contact.'" State v. Todd, 3d Dist. Hardin No. 6-16-11, 2017-Ohio-4355, ¶ 12, quoting In re K.C., 1st Dist. Hamilton No. C-140307, 2015-Ohio-1613, ¶ 32.

         {¶21} At trial, the State first offered the testimony of Detective Nathan Stone ("Detective Stone") of the Marysville Division of Police. (Dec. 12-16, 2016 Tr., Vol. I, at 243-244). Detective Stone testified that he was present on the day that a search warrant was executed at Dayton's residence and that he was tasked with taking photographs of the residence and items seized. (Id.). Detective Stone identified State's Exhibits 1 through 11 as photographs depicting the residence as it appeared on May 27, 2015 as well as items seized from the residence. (Id. at 245-260) (See State's Exs. 1-11).

         {¶22} Next, Dayton's then 14-year-old daughter, M.R.D., testified that when she was living with Dayton, she recalled having fights with her sister, M.A.D., "almost every day" because "[Jessica] would force [M.R.D. and M.A.D.] to fight over stupid stuff like "not letting the dog out" and "keeping [their] brother and sister from waking up [Jessica]." (Dec. 12-16, 2016 Tr., Vol. IV, at 748, 750, 759). According to M.R.D., Jessica would tell M.R.D. and M.A.D. to "go into the bathroom and sort it out * * * and by sort it out, she meant, * * * hit and punch and stuff * * *." (Id. at 750). She testified that she suffered "marks" from the fights and "busted lips." (Id. at 750-751). M.R.D. testified that she was often forced to fight with M.A.D. during car trips. (Id. at 766-767). On one occasion, she was forced to hit M.A.D. in the head with a lunchbox. (Id. at 767). M.R.D. stated that she has a "few scars on [her] forehead" from fighting with M.A.D. but that her facial scars were "mainly from [Jessica]." (Id. at 751). M.R.D. testified that Jessica once hit her in the head with the "clip of a belt," leaving a visible scar. (Id.). She testified that the belt buckle "busted open" her head and that Jessica used super glue to close the wound without taking her to the doctor. (Id. at 751-752). She testified that her head was repeatedly slammed into the walls of their residence by Jessica, that the walls were damaged as a result, and that a hole in the wall, caused when Jessica pushed M. A.D. into the wall, had to be covered over with a poster. (Id. at 754). She testified that Dayton was at home the day Jessica pushed M.A.D. into the wall, causing the hole. (Id. at 779).

         {¶23} M.R.D. also testified that Jessica forced her and M.A.D. to "tuck in" their toes because Jessica said their "feet were disgusting." (Id. at 756). She testified that they were forced to walk with their toes tucked under their feet "all day." (Id.). She testified that, on one occasion, Jessica "took a hammer to [their] feet." (Id.). M.R.D. testified that Jessica once pushed M.A.D., causing M.A.D. to hit her head on the corner of a night stand. (Id. at 757). As a result, M.A.D. got a "goose egg" on her head, which Jessica told M.R.D. to get rid of by pushing on it. (Id.). M.R.D. testified that she complied with Jessica's instruction and that M.A.D. then had "two black eyes and her whole forehead was swollen" for approximately two days. (Id. at 757-758). She also testified that Jessica forced them to "float"- stand on their "tippy toes" and fall face forward without catching themselves with their hands-"[a]lmost every day after [they] got home from school." (Id. at 762). She testified that one time, Jessica stood on M.A.D.'s stomach until M.A.D. lost consciousness and stopped breathing, resulting in M.R.D. having to perform CPR on M.A.D. (Id. at 763-764). M.R.D. testified that Jessica would "quite often" conceal her and M.A.D.'s injuries with makeup and that they would have cuts and bruises "most of the time." (Id. at 758-759). She testified that this pattern continued for at least four years from the time that she was 8-years-old until she was placed in foster care just before she turned 13-years-old. (Id. at 770).

         {¶24} As to Dayton's knowledge of what was happening, M.R.D. testified that Jessica recorded M.A.D. and M.R.D. fighting so that she could show Dayton to "prove to him that we were fighting with each other, and this would always happen when he was gone." (Id. at 755). She testified that she would interact with Dayton when he would help with homework after school and that they would also eat together. (Id. at 764-765). As to other people's knowledge of what was happening at home, M.R.D. stated that she would tell teachers only that she and M.A.D. were fighting because Jessica instructed her to say no more than that. (Id. at 759-760). She testified that she never told them the full extent of what was happening because she was scared to do so. (Id. at 772).

         {¶25} On cross-examination, M.R.D. testified that Dayton was "usually at work" and not present when Jessica made M.R.D. and M.A.D. fight each other. (Id. at 784). She testified that they "were forced to tell [Dayton] that we were fighting with each other" without being instructed to do so by Jessica "so that's what he thought." (Id. at 789). She stated that Jessica would threaten them so that they would not tell Dayton what was really going on and why she was fighting M.A.D. (Id. at 784-785). M.R.D. identified State's Exhibit 27 as a series of photographs depicting bruises and other injuries. After reviewing State's Exhibit 27, she stated that Dayton was not present when those injuries were inflicted and that he was never informed exactly how M.R.D. sustained those injuries. (Id. at 789). She testified that Dayton never hit them and Jessica never hit her or M.A.D. in the presence of Dayton. (Id. at 790).

         {¶26} In addition, M.R.D. testified that Dayton was upstairs trying to sleep when Jessica pushed M.A.D. into the wall causing the hole which was later covered up by a poster. (Id. at 793-794). She testified that when Dayton inquired as to how the wall was damaged, he was told that M.A.D. was being clumsy and fell into the wall. (Id. at 795). M.R.D. then testified as to another hole in the bathroom wall caused by Jessica repeatedly pushing M.R.D. and M.A.D. into it. (Id. at 796). She testified that Jessica told Dayton that that hole was caused by M.A.D. and M.R.D.'s fighting. (Id. at 797). Finally, M.R.D. opined that she did not think that Dayton knew of Jessica's abuse. (Id. at 801-802).

         {¶27} The State also offered the testimony of M.A.D., who was 15-years-old at the time of her testimony. (Dec. 12-16, 2016 Tr., Vol. V, at 842). M.A.D.'s testimony was, in large part, identical to M.R.D.'s testimony. When asked what her and her siblings did after school, M.A.D. replied that "usually [M.R.D.] and I fought and stuff." (Id. at 844). M.A.D. testified that she and M.R.D. would fight and hit each other "[a]nywhere [they] were told" by Jessica. (Id. at 845-846). She said that, as a result, she suffered bloody lips and black eyes. (Id. at 846, 860). M.A.D. also confirmed many of the details of M.R.D.'s account of the "goose egg" M.A.D. sustained. (Id. at 846-847). She testified that she missed two days of school as a result of that incident, and when she returned to school, makeup was applied to conceal her injuries. (Id. at 848).

         {¶28} M.A.D. identified State's Exhibit 36 as a picture depicting a scar on the back of her head. (Id. at 863-864). When asked how she got the scar, M.A.D. responded that it could have happened when Jessica "stomped [her] head into the floor[, ] * * * slammed [her] head into the corner of walls[, ] * * * [or] hit [her] in the head with belts." (Id. at 865).

         {¶29} M.A.D.'s testimony complemented much of M.R.D.'s account of day-to-day life in the Dayton household. (See id. at 850-853, 867-868). Like M.R.D., M.A.D. testified that Dayton was upstairs sleeping when she was shoved against the wall, creating the hole that was later covered with a poster. (Id. at 854-855, 898-899). She further testified that Jessica struck her and M.R.D. with belts and that M.R.D. sustained a scar on her forehead from getting him the head with a belt buckle by Jessica. (Id. at 866-867). She stated that Jessica instructed M.A.D. and M.R.D. to fight during car trips. (Id. at 872-875). When asked how often she had bloody lips and noses, M.A.D. responded that she had them "[a]ll the time." ...


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