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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. JERRY LOCKLEAR
Filed: 2 August 2005
1. Rape--second-degree--child victim--force--sufficiency of evidence
It has been held that the child's knowledge of her father's power may alone induce fear
sufficient to overcome her will. Evidence that defendant began molesting his daughter when she
was four years old, that he threatened and frighted her, and that she became pregnant twice was
sufficient to support denial of defendant's motion to dismiss charges of second-degree rape.
2. Sexual Offenses--incest--sufficiency of evidence--discrepancies in dates
Testimony that defendant was the victim's father, that he started molesting her when she
was four years old, and hospital records indicating intercourse were sufficient to deny a motion to
dismiss charges of incest. Discrepancies between the dates of the offenses were credibility issues
for the jury.
3. Evidence--statements to detective--corroboration
A rape and incest victim's statements to a detective were admissible for corroborative
purposes. Inconsistencies were for the jury to consider and weigh.
4. Evidence--statements from mother of incest victim--additional facts--corroboration
Statements from the mother of a rape and incest victim were properly admitted for
corroboration. The mother's statements tended to strengthen and add credibility to her trial
testimony, although they included additional facts not referred to in her testimony.
5. Evidence--prior bad acts--rape and incest--testimony from victim's sister
The trial court did not err by allowing testimony from a rape and incest victim's older
sister about defendant's abuse of her when she was a child. This illustrated a continuing pattern
and an intent to commit incest.
6. Evidence--prior bad acts--rape and incest--mother's testimony--independent
evidence of guilt
There was no plain error in a rape and incest prosecution in allowing the victim's mother
to testify about defendant's prior bad acts. Assuming that defendant's argument was sufficient to
raise plain error, there was strong, independent evidence of defendant's guilt.
7. Appeal and Error_preservation of issues--jury instructions--necessity for objection
Defendant must present an issue to the trial court and obtain a ruling to preserve that issue
for appellate review. The defendant here waived appellate review of jury instructions where he did
not object but pointed out a concern, the judge reworded the instructions, and defendant did not
Appeal by defendant from judgments entered 24 June 2004 by
Judge Ola M. Lewis in Robeson County Superior Court. Heard in the
Court of Appeals 8 June 2005.
Attorney General Roy Cooper, by Assistant Attorney General M.
Elizabeth Guzman, for the State.
Haral E. Carlin, for defendant-appellant.
Jerry Locklear (defendant) appeals from judgments entered
after a jury found him to be guilty of: (1) two counts of second-
degree rape; and (2) five counts of felony incest. We find no
A. State's Evidence
V.L. is defendant's daughter. The State's evidence tended to
show in April 1995, defendant came home drunk while V.L., fifteen
years old, was home alone. Defendant began touching V.L. and she
attempted to get away from him. When V.L. tried to telephone for
help, defendant pulled the telephone wire from the wall. V.L. and
defendant wrestled. Defendant eventually overpowered and engaged
in sexual intercourse with her.
V.L. drove defendant's car to her mother's job site in tears.
Her mother returned home and discovered the telephone wire had been
torn from the wall. V.L.'s mother also observed the bedcovers were
off the bed and defendant was lying across the bed drunk. The
following day V.L.'s mother took her to the hospital. A rape kitindicated sexual activity but failed to detect the presence of
semen. V.L. reported the rape to the Robeson County Department of
Social Services (DSS), but recanted a short time later because
defendant threatened to hurt her and her mother.
A second incident also occurred in 1995 when V.L. wrecked the
car she was driving. V.L. was accompanied by defendant, her
brother, and a cousin. V.L. was driving because defendant was too
drunk to drive. V.L. and defendant hid from the police in the
woods while her brother and cousin fled. While hiding, defendant
and V.L. engaged in sexual intercourse. V.L. testified she
believed this event occurred in Spring 1995 because it was warm
V.L. testified that sexual intercourse with defendant became
an ongoing thing, occurring about four and five times a month,
although she had difficulty remembering specific dates. In 1997,
V.L., then seventeen years old, engaged in sexual intercourse with
defendant on the living room couch. V.L. subsequently became
pregnant with her son, J.L., born 26 June 1998. V.L. identified
defendant as the father of her son.
Four months after the birth of her son, V.L., then eighteen
years old, went out on a date. Defendant insisted on checking
her when she returned home
to see if she had engaged in sexual
intercourse. Defendant subsequently engaged in sexual intercourse
with V.L. who became pregnant and gave birth to K.L., a daughter,
on 12 August 1999. V.L. told hospital employees and DSS of defendant's actions
and the assaults that had taken place over several years. The
hospital and DSS helped V.L. enter a shelter. In November 2002,
V.L. spoke to Detective Vincent Sinclair (Detective Sinclair)
the Robeson County Sheriff's Office Juvenile Task Force. DSS had
taken V.L.'s children from her home until she filed charges against
defendant, who continued to visit her. V.L. recalled telling
Detective Sinclair about the incident where she wrecked the car but
could not remember telling him the dates of the other incidents.
V.L. stated defendant started inappropriately touching her when she
was four years old.
M.L., V.L.'s older sister, testified over defendant's
objection that defendant had touched her private parts with his
hands before she was old enough to start school. M.L. could not
recall exactly what happened to her, but remembered the events.
M.L. could not recall specific times, dates, places, or other
precise information. In addition to M.L.'s testimony, V.L.'s
mother testified defendant had beaten and shot at her, put knives
to her throat, pulled her hair out by the roots, and had raped her.
Detective Sinclair interviewed V.L., her mother, and M.L.
During trial, their statements were read to the jury over
defendant's objection. Detective Sinclair also had LabCorp perform
a DNA analysis to determine the paternity of V.L.'s children.
Anthony Winston testified he analyzed the specimens and in his
opinion, the tests showed a 99.99% probability defendant had
fathered both of V.L.'s children. After his arrest, defendant gave a statement to Detective
Sinclair during which, at certain points, he admitted to having sex
with V.L. after her children were born. At other times during his
statement, defendant denied remembering placing his penis inside
B. Defendant's Evidence
Defendant testified on his own behalf, denied any wrongdoing
with his daughter, M.L., and denied any type of sex with V.L.
Defendant denied some of the statements he made to Detective
Sinclair. When asked if he ever engaged in sex in any way with
V.L. at any time, defendant responded, not that I can remember.
The jury found defendant guilty of two counts of second-degree
rape and five counts of felony incest. Defense counsel did not
object to the sentencing worksheet finding defendant a record level
II for purposes of sentencing. The trial court sentenced defendant
to seven consecutive sentences totaling a minimum of 275 months and
a maximum of 348 months. Defendant appeals.
Defendant argues the trial court erred in: (1) not dismissing
the charges of second-degree rape for insufficient evidence; (2)
not dismissing the charges of incest for insufficient evidence; (3)
allowing Detective Sinclair to read statements of V.L. and V.L.'s
mother into evidence for the purposes of corroboration; (4)
allowing M.L.'s testimony on defendant's prior bad acts; (5)
allowing V.L.'s mother to testify to remote past acts; (6) giving
a disjunctive jury instruction concerning second-degree rape andincest; (7) not requiring the State to meet its burden of proof of
defendant's existing criminal conviction record in sentencing
III. Abandonment of Assignments of Error
Defendant voluntarily abandoned assignments of error numbers
seven, nine, eleven, twelve, and thirteen by failing to argue them
in his brief. N.C.R. App. P. 10 (2004). We decline to review
these abandoned assignments of error and dismiss.
IV. Motion to Dismiss
Defendant argues the trial court erred in not dismissing the
charges of second-degree rape and felony incest due to insufficient
evidence. We disagree.
In ruling on a motion to dismiss, the trial court must
consider the evidence in the light most favorable to and give the
State every reasonable inference to be drawn from the facts and
evidence presented. State v. Lee, 348 N.C. 474, 488, 501 S.E.2d
334, 343 (1998) (citations omitted). We uphold a trial court's
ruling on a motion to dismiss if the State presents substantial
evidence: (1) of each essential element of the offense charged,
or of a lesser offense included therein, and (2) of defendant's
being the perpetrator of such offense. State v. Fritsch, 351 N.C.
373, 378, 526 S.E.2d 451, 455, cert. denied, 531 U.S. 890, 148 L.
Ed. 2d 150 (2000) (quoting State v. Powell, 299 N.C. 95, 98, 261
S.E.2d 114, 117 (1980) (citations omitted)). Substantial evidence
is . . . relevant evidence which a reasonable mind could accept as
adequate to support a conclusion. Lee, 348 N.C. at 488, 501S.E.2d at 343 (citing State v. Vick, 341 N.C. 569, 583-84, 461
S.E.2d 655, 663 (1995)). [T]he evidence need only give rise to a
reasonable inference of guilt for the case to be properly submitted
to the jury. State v. Barnett, 141 N.C. App. 378, 383, 540 S.E.2d
423, 427 (2000), disc. rev. denied and appeal dismissed,353 N.C.
527, 549 S.E.2d 552, aff'd per curiam, 354 N.C. 350, 554 S.E.2d 644
A. Second-Degree Rape
 Defendant argues insufficient evidence was tendered to
support the charges of second-degree rape.
To establish the crime of second-degree rape, the State must
prove the defendant engage[d] in vaginal intercourse with another
person [b]y force and against the will of the other person. N.C.
Gen. Stat. § 14-27.3 (2003); see also State v. Hosey, 79 N.C. App.
196, 199-200, 339 S.E.2d 414, 416, cert. granted, 316 N.C. 382, 342
S.E.2d 902, modified by 318 N.C. 330, 348 S.E.2d 805 (1986). We
have held that
[c]onstructive force in the form of fear,
fright, or coercion [is sufficient] to establish the element of
force in second-degree rape and may be demonstrated by proof of a
defendant's acts which, in the totality of the circumstances,
create the reasonable inference that the purpose of such acts was
to compel the victim's submission to sexual intercourse.
State v. Parks, 96 N.C. App. 589, 593, 386 S.E.2d 748, 751 (1989)
(citing State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673 (1987)).
Our Supreme Court held illicit advances at an age when [a child]
could not yet fully comprehend the implications of defendant's
conduct . . . . has conditioned [the child] to succumb to the
illicit advances are sufficient to establish the element of force. Etheridge, 319 N.C. at 47, 352 S.E.2d at 681. The Court further
held when the sexual activity between a parent and child creates
a unique situation of dominance and control in which explicit
threats and displays of force are not necessary to effect the
abuser's purpose . . . the child's knowledge of [her] father's
power may alone induce fear sufficient to overcome [her] will to
resist . . . . Id. at 48, 352 S.E.2d at 681-82.
Here, V.L. alleged defendant engaged in vaginal intercourse
with her on 26 September 1997 and 11 November 1998, both of which
resulted in V.L. becoming pregnant. Forensic DNA testing showed a
high probability that defendant is the father of V.L.'s children.
V.L. stated defendant started molesting her when she was four years
old. V.L. testified she was scared and stated, [defendant]
threatened me before if I tell anybody he would beat me and try to
Taken in the light most favorable to the State, substantial
evidence supports each element of the charges against defendant and
tends to show defendant committed the offenses. The trial court
did not err in denying defendant's motion to dismiss. This portion
of defendant's assignment of error is overruled.
 Defendant asserts the trial court erred in not dismissing
the charges of incest due to insufficient evidence. Defendant
argues the indictment dates and the dates of the alleged
intercourse V.L. testified to are not the same. In order to establish the crime of incest, the State must
prove the defendant engaged in carnal intercourse with his parent
or child or stepchild or legally adopted child. N.C. Gen. Stat. §
14-178 (2003). In State v. Cameron, our Court addressed the issue
of inconsistent dates on an indictment for incest and those
testified to at trial. 83 N.C. App. 69, 72, 349 S.E.2d 327, 329-30
(1986). The facts in Cameron showed discrepancies between the
alleged occurrence date and the date the child testified that she
was raped by her father. We held, failure to state accurately the
date or time an offense is alleged to have occurred does not
invalidate a bill of indictment nor does it justify reversal of a
conviction obtained thereon. Id. at 72, 349 S.E.2d at 329 (citing
N.C. Gen. Stat. § 15-155). We noted this rule may not apply in
cases where the defendant claimed an alibi defense. Id. at 72, 349
S.E.2d at 330 (citations omitted).
Here, V.L., her mother, and M.L. all testified defendant was
V.L.'s father. V.L. stated defendant started molesting her when
she was four years old. Hospital records were introduced into
evidence showing the presence of bruising and other indications of
intercourse during April 1995, one of the dates defendant was
charged with incest.
Defendant further argues the dates contained in the indictment
and those testified to at trial were inconsistent. Defendant did
not argue an alibi for the alleged time of the encounters.
Defendant's only asserted defense was that V.L. was the aggressor
in all sexual activity between them. Defendant was placed onnotice by the indictments of multiple allegations of sexual offense
with his daughter and suffered no prejudice as a result of her
imperfect memory of specific dates. Id. at 73, 349 S.E.2d at 330.
Any discrepancies were credibility issues for the jury to weigh in
determining defendant's guilt.
Taken in the light most favorable to the State, substantial
evidence supports the elements of felony incest and tends to show
defendant committed the offenses. The trial court did not err in
denying defendant's motion to dismiss. This assignment of error is
Defendant argues the trial court erred by allowing Detective
Sinclair to read into evidence statements of V.L. and her mother
for the purposes of corroboration. We disagree.
Corroboration is the process of persuading the
trier of the facts that a witness is credible.
We have defined corroborate as to
strengthen; to add weight or credibility to a
thing by additional and confirming acts or
evidence. Prior consistent statements of a
witness are admissible as corroborative
evidence even when the witness has not been
impeached. However, the prior statement must
in fact corroborate the witness' testimony.
In order to be corroborative and therefore
properly admissible, the prior statement of
the witness need not merely relate to specific
facts brought out in the witness's testimony
at trial, so long as the prior statement in
fact tends to add weight or credibility to
such testimony. Our prior statements are
disapproved to the extent that they indicate
that additional or new information,
contained in the witness's prior statement but
not referred to in his trial testimony, may
never be admitted as corroborative evidence.
However, the witness's prior statements as tofacts not referred to in his trial testimony
and not tending to add weight or credibility
to it are not admissible as corroborative
evidence. Additionally, the witness's prior
contradictory statements may not be admitted
under the guise of corroborating his
State v. Ramey, 318 N.C. 457, 468-69, 349 S.E.2d 566, 573-74 (1986)
(internal citations and quotations omitted) (emphasis supplied).
A. V.L.'s Statements
 Defendant asserts V.L.'s statements to Detective Sinclair
were inconsistent with her testimony at trial and should not have
been allowed into evidence for corroboration. Defendant argues two
specific instances: (1) V.L. told Detective Sinclair defendant had
molested her since she was seven and later testified defendant's
molestation began when she was four; and (2) V.L. inverted the
order in her testimony of an alleged sexual encounter and a fight
between her mother, defendant, and herself.
V.L.'s testimony clearly indicated a long term and continuing
sexual abuse by defendant. Although V.L.'s statements included
additional facts not referred to in her testimony, V.L.'s prior
oral and written statements to Detective Sinclair tended to
strengthen and add credibility to her trial testimony. Any
inconsistencies were for the jury to consider and weigh. These
statements were admissible as corroborative evidence. See State v.
Higginbottom, 312 N.C. 760, 769, 324 S.E.2d 834, 840 (1985),
superseded by statute on other grounds by State v. Green, 348 N.C.
588, 502 S.E.2d 819 (1998); see also State v. Burns, 307 N.C. 224,
231-32, 297 S.E.2d 384, 388 (1982). The jury could not be allowed to consider this evidence for
any other purpose, however, and whether it in fact corroborated the
victim's testimony was, of course, a jury question. Ramey, 318
N.C. at 470, 349 S.E.2d at 574. We find no error in the admission
of Detective Sinclair's testimony regarding V.L.'s prior statements
for corroborative purposes. This portion of defendant's assignment
of error is overruled.
B. V.L.'s Mother's Statements
 Defendant argues V.L.'s mother's statements made to
Detective Sinclair contained different information from her
testimony at trial. Defendant asserts these statements should not
be allowed into evidence for corroboration purposes.
The only examples defendant asserts in his brief in support of
not allowing V.L.'s mother's statement are: (1) the reversal of
events by V.L.; (2) whether defendant was drunk and passed out when
V.L. and her mother returned home to get some clothes; and (3)
whether defendant woke up and a fight ensued when V.L. and her
mother were trying to get some clothes.
V.L.'s and her mother's prior oral and written statements to
Detective Sinclair tended to strengthen and add credibility to her
trial testimony although they included additional facts not
referred to in her testimony. They were admissible as
corroborative evidence. See Higginbottom, 312 N.C. at 769, 324
S.E.2d at 840; see also Burns, 307 N.C. at 231-32, 297 S.E.2d at
388. The jury could not be allowed to consider this evidence for
any other purpose, however, and whether it in fact corroborated the
victim's testimony was, of course, a jury question. Ramey, 318
N.C. at 470, 349 S.E.2d at 574. We find no error in the admission
of Detective Sinclair's testimony of V.L.'s mother's prior
statements for corroborative purposes. This assignment of error is
VI. Prior Bad Acts
 Defendant argues the trial court erred by allowing the
testimony of M.L. regarding defendant's prior bad acts.
Our Supreme Court held in State v. Shamsid-Deen that testimony
of an older sister about the father's sexual abuse of herself or
siblings before they left home was permissible. 324 N.C. 437, 447-
48, 379 S.E.2d 842, 848-49 (1989). The Court explained the law of
evidence of other crimes and acts before and since its codification
of Rule 404(b) of the North Carolina Rules of Evidence. Id. at
444, 379 S.E.2d at 847. Rule 404(b) provides:
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2003). Evidence of prior acts
of sexual misconduct may be admissible to show the defendant's
intent, motive, or plan to commit the crime charged. Shamsid-Deen,
324 N.C. at 446, 379 S.E.2d at 848 (citing State v. Boyd, 321 N.C.
574, 577, 364 S.E.2d 118, 119 (1988)) (facts tended to show apattern of sexual abuse by the defendant just before his daughters
reached puberty, which continued into their early adulthood).
Generally, if another victim testifies to the defendant's past acts
and a substantial lapse in time has occurred, the testimony may be
considered too remote in time and will not fall within the Rule
404(b) exception to be admitted. State v. Jones, 322 N.C. 585,
589-91, 369 S.E.2d 822, 824-25 (1988), disc. rev. denied and appeal
dismissed, 328 N.C. 95, 402 S.E.2d 423 (1991). However, in
Shamsid-Deen, the Court stated:
the continuous execution of similar acts
throughout a period of time has the opposite
effect. When similar acts have been performed
continuously over a period of years, the
passage of time serves to prove, rather than
disprove, the existence of a plan. We thus
hold that the prior acts were not too remote
to be considered as evidence of defendant's
common scheme to abuse the victim sexually.
324 N.C. at 445, 379 S.E.2d at 847 (citing State v. Browder, 252
N.C. 35, 38, 112 S.E.2d 728, 730-31 (1960)).
Here, V.L. stated defendant began fondling her at age four and
such acts continued throughout her adolescence. V.L. described
being beaten and threatened with beatings if she did not comply or
keep quiet. M.L. testified defendant began touching her in her
private parts before she started school. M.L. testified defendant
grabbed her and beat her during these sexual assaults. M.L.
testified she went to the hospital to be examined for sexual abuse
around the age of eight or nine.
M.L.'s testimony concerning defendant's actions towards her
when she was a child illustrate a continuing pattern of sexualabuse and an intent to commit incest with M.L. during the same
approximate age defendant began to molest V.L. Shamsid-Deen, 342
N.C. at 446-47, 379 S.E.2d at 848. This assignment of error is
VII. Past Acts
 Defendant argues the trial court committed plain error by
allowing V.L.'s mother to testify regarding defendant's past acts
which were irrelevant, prejudicial, and incompetent.
Where, as here, a criminal defendant fails to object to the
admission of certain evidence, the plain error analysis, rather
than the ex mero motu or grossly improper analysis, is the
applicable standard of review. State v. Ridgeway, 137 N.C. App.
144, 147, 526 S.E.2d 682, 685 (2000) (citing State v. Gary, 348
N.C. 510, 501 S.E.2d 57 (1998)). If we are not persuaded that the
jury probably would have reached a different result had the alleged
error not occurred, we will not award defendant a new trial. Id.
(citing State v. Bronson, 333 N.C. 67, 75, 423 S.E.2d 772, 777
In State v. Odom, our Supreme Court adopted the plain error
rule exception to Rule 10 of the North Carolina Rules of Appellate
Procedure. 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (applying
to assignments of error regarding jury instructions). A defendant
seeking plain error review must specifically and distinctly argue
the alleged error committed by the trial court amounted to plain
error. State v. Nobles, 350 N.C. 483, 514-15, 515 S.E.2d 885, 904
(1999), vacated and remanded, 357 N.C. 433, 584 S.E.2d 765 (2003). Here, defendant fails to argue plain error specifically and
distinctly in his brief. Id. Defendant fails to cite any rules
or authority to permit this Court to ascertain the grounds upon
which defendant bases his plain error argument. Defendant broadly
mentions Rules 401, 402, 403, and 404(b) of the North Carolina
Rules of Evidence. Defendant does not apply these rules to any
facts or evidence in his analysis to allow this Court to review his
Presuming, without deciding, defendant's broad listing and
quoting of evidence rules would be specific enough for this Court
to review defendant's argument, we find there would be no probable
impact on the jury's decision in light of other overwhelming
evidence of defendant's guilt. Ridgeway, 137 N.C. App. at 147, 526
S.E.2d at 685.
The State tendered strong evidence of defendant's guilt
independent of V.L.'s mother's testimony concerning when she left
defendant and why she did not take her children with her.
Defendant was the father of two children born of V.L. and admitted
having sex with V.L. Furthermore, V.L. and M.L. both testified
about defendant's violent nature and illicit sexual advances. This
evidence tends to show and prove a longstanding and recurrent
pattern of abuse of V.L. by defendant. We find no probability the
jury would have reached a different conclusion had V.L.'s mother's
testimony been excluded. Id. This assignment of error is
VIII. Jury Instructions
 Defendant argues the trial court erred in: (1) giving a
disjunctive jury instructions concerning second-degree rape and
felony incest; and (2) not requiring the State to meet its burden
of proof of defendant's existing criminal conviction record used
during sentencing. We disagree.
Defendant failed to object to the jury instructions but
pointed out a concern to the trial court. The trial judge reworded
the instructions and defendant failed to object. Defendant failed
to object at all during the sentencing phase.
Rule 10(b)(1) of the North Carolina Rules of Appellate
Procedure requires a defendant present an issue to the trial court
and obtain a ruling in order to preserve that issue for appellate
review. N.C.R. App. P. 10(b)(1) (2004). Defendant failed to
object to the jury instructions and the sentencing phase during
trial and has waived appellate review. State v. Scott, 343 N.C.
313, 332, 471 S.E.2d 605, 616-17 (1996) (citing State v. Moseley,
338 N.C. 1, 36, 449 S.E.2d 412, 433-34 (1994), cert. denied, 514
U.S. 1091, 131 L. Ed. 2d 738 (1995); N.C.R. App. P. 10(c)(4)).
These assignments of error are dismissed.
Taking the evidence in the light most favorable to the State
and allowing it all reasonable inferences, substantial evidence
tends to show all essential elements of second-degree rape and
felony incest and defendant was the perpetrator of each offense
charged. The trial court did not err in denying defendant's motion
to dismiss these charges for insufficient evidence. The trial court did not err in allowing Detective Sinclair to
read into evidence statements of V.L. and her mother for
corroboration or allowing the testimony of M.L. to show defendant's
prior bad acts. M.L.'s testimony tends to show defendant's
longstanding and consistent pattern of sexual abuse of his
Defendant waived appellate review of his remaining assignments
of error after failing to either object or specifically allege
plain error on appeal.
Defendant received a fair trial free from any errors he
assigned and argued.
Judges MCCULLOUGH and BRYANT concur.
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