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Milligan v. State (9/21/2012) ap-2376

Milligan v. State (9/21/2012) ap-2376


        The text of this opinion can be corrected before the opinion is published in the 

        Pacific Reporter.   Readers are encouraged to bring typographical or other formal 

        errors to the attention of the Clerk of the Appellate Courts. 

                               303 K Street, Anchorage, Alaska  99501

                                         Fax:   (907) 264-0878

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MOSES MILLIGAN,                                  ) 

                                                 )          Court of Appeals No. A-10788 

                            Appellant,           )         Trial Court No. 2NO-08-433 CR 


             v.                                  ) 

                                                 )                  O P I N I O N 

STATE OF ALASKA,                                 ) 


                            Appellee.            ) 

                                                 )          No. 2376 - September 21, 2012 

                Appeal from the Superior Court, Second Judicial District, 

                Nome, Ben E. Esch, Judge. 

                Appearances:       Rex   Lamont     Butler,   Rex   Lamont     Butler   & 

                Associates,     Inc.,  Anchorage,    for  the  Appellant.    Tamara    de 

                Lucia,     Assistant     Attorney    General,     Office    of   Special 

                Prosecutions      and  Appeals,    Anchorage,     and   John   J.  Burns, 

                Attorney General, Juneau, for the Appellee. 

                Before: Coats, Chief Judge, and Mannheimer and Bolger, 


                BOLGER, Judge. 

                N.P.  was   drinking   at   a   bar   with   a   group   of   people,   including   Moses 

Milligan. After the bar closed, N.P. invited the group to continue drinking at her house. 

N.P. testified that she woke the next morning to find Milligan on top of her, engaging in 

----------------------- Page 2-----------------------

sexual   penetration.   Milligan   was   convicted   of   sexual   assault   in   the   first   and   second 


                 At trial, Milligan claimed that N.P. experienced memory loss and did not 

remember consenting to sexual intercourse. He attempted to introduce evidence that N.P. 

experienced other alcohol-related memory losses near the time of this incident, but the 

trial judge excluded this evidence. We conclude that the evidence that N.P. had recently 

suffered   alcohol-related   memory   loss   was   admissible   to   impeach   her   memory   and 

perception. We therefore reverse Milligan's convictions for sexual assault and remand 

for a new trial. 

                 Milligan also argues that his indictment should be dismissed because there 

was   insufficient   evidence   supporting   the   charge   of   first-degree   sexual   assault,   and 

because the prosecutor failed to present exculpatory evidence relating to this charge. We 

conclude that there was sufficient evidence to support this charge and that the evidence 

in question was merely an inconsistency that was not clearly exculpatory. 

                 Milligan   also   argues   that,   during   the   grand   jury   presentation,   a   police 

officer mischaracterized Milligan's statements to other officers. We conclude that the 

superior court must reexamine this issue on remand to determine whether the officer's 

testimony   included   a   "negligent   omission"   and,   if   so,   whether   this   omission   caused 

substantial prejudice to the defendant. 


                 N.P. testified that she worked as a nurse at Quyanna Care in Nome. One 

evening, N.P. left work at approximately 11:30 p.m. with a co-worker, Melissa Hart, and 

decided to go to the Polaris Bar. N.P. and Melissa were joined by Buford Sallafie, Gary 

Evans,   and   Moses       Milligan.   N.P.   was   familiar   with    Milligan   because   he   was   the 

                                                     2                                                 2376

----------------------- Page 3-----------------------

boyfriend of a traveling nurse   who   worked at Quyanna Care. At closing time, N.P. 

invited the group to walk to her apartment for more drinks. 

                After the group arrived at the apartment, they played music, drank vodka, 

and smoked marijuana. After they ran out of vodka, N.P. drove Evans to the store to buy 

two more bottles of liquor. N.P.'s roommate, Jonel Fergerson, also began drinking with 


                The group drank and danced until approximately 5:00 a.m. Fergerson and 

Milligan began kissing and then retired to Fergerson's bedroom. Around 8:00 a.m., N.P., 

Hart, and Evans went to breakfast at the Polar Café. After breakfast, N.P. drove Hart and 

Evans to their homes and returned to her apartment. 

                When N.P. returned to her apartment, she noticed that Fergerson's door was 

closed. N.P. went into her bedroom and removed her pants, but left on her shirt, bra, and 

underwear. N.P. got into bed at approximately 9:30 a.m. and fell asleep promptly. 

                About forty-five minutes later, N.P. woke to find Milligan on top of her 

with   his   penis   inside   her   vagina.   N.P.   was   in   shock   and   did   not   know   what   to   do. 

Milligan did not appear to be paying attention to N.P., and N.P. believed Milligan looked 

as if "he didn't think that [she] was going to wake up." 

                N.P. demanded to know what Milligan was doing. When Milligan replied 

that N.P. wanted him there, she said, "[N]o, I didn't and you took my panties off." N.P. 

ordered Milligan to leave and Milligan replied, "I'm just really attracted to you." 

                N.P. was "in shock" and "scared" because she did not know Milligan very 

well and was concerned about "what might happen next." N.P. ordered Milligan to "get 

out."   Milligan   waited   ten   to   fifteen   seconds   before   removing   his   penis   from   N.P.'s 

vagina. Milligan proceeded to masturbate and ejaculate on N.P.'s bed before leaving the 


                                                    3                                              2376

----------------------- Page 4-----------------------


                Milligan was indicted on one count of first-degree sexual assault  and one 

count of second-degree sexual assault,2 and he proceeded to trial before Superior Court 

Judge Ben Esch. 

                At trial, Milligan testified that, when N.P. had returned to the apartment, he 

had followed her into her bedroom and sat on the bed with her. Milligan testified that 

N.P. had told him he had a "nice body," and they had started touching and having sex. 

Milligan testified that he had told the police that he did not remember the previous night, 

and that he had made that statement to the police because he panicked. 

                The jury found Milligan guilty of first- and second-degree sexual assault, 

and Milligan now appeals. 


                The evidence that N.P. suffered from alcohol-related memory 

                loss was admissible. 

                During   cross-examination,   N.P.   denied   that   she   had   ever   experienced 

blackout. In response, Milligan asked the court to allow him to introduce evidence that 

N.P. had previously experienced alcohol-related memory losses. Milligan made an offer 

of proof based on the testimony of Chad Yates and Darlene Stumbaugh. 

                Yates testified that he had dated N.P. for a short period of time before and 

after the incident in this case. Yates testified that, on one occasion, he had been drinking 

with N.P. and she ended up staying at his house. The following morning, she had asked 

Yates how they got home since she was unable to remember. On another occasion, Yates 

and N.P. came home from a bar and had sexual intercourse. Yates testified that N.P. had 

    1   AS 11.41.410(a)(1). 

    2   AS 11.41.420(a)(3). 

                                                    4                                                2376 

----------------------- Page 5-----------------------

been   talking   and   coherent   at   the   time.   But   the   following   morning,   N.P.   could   not 

remember whether she and Yates had had intercourse. 

                 Stumbaugh testified that she worked with N.P. at Quyanna Care Center. 

Stumbaugh recalled that one morning N.P. had mentioned that she had had so much to 

drink that she was unsure how she got home the night before. Stumbaugh could not 

remember the exact date when N.P. had informed her of the incident, but recalled that 

the conversation had taken place before the incident with Milligan. 

                 Judge Esch ruled that this evidence was inadmissible impeachment on a 

collateral issue. The judge also stated that the evidence regarding N.P.'s past memory 

loss constituted inadmissible propensity evidence. On appeal, Milligan contends that the 

trial court's decision excluding this evidence violated his due process right to present a 


                 Generally, a party   may not introduce extrinsic evidence to contradict a 

witness's testimony if the extrinsic evidence relates to a collateral matter.3 "If a matter 

is considered collateral, the testimony of the witness on direct or cross-examination 


stands - the examiner must take the witness's answer."  But a matter is not "collateral" 

if the matter is itself "relevant to a fact of consequence on the historical merits of the 


    3   Freeman v. State , 486 P.2d 967, 979-80 (Alaska 1971). 

    4    Worthy v. State, 999 P.2d 771, 774 (Alaska 2000). 

    5    1 Kenneth S. Broun et al.,McCormick on Evidence § 49, at 235 & n.13 (6th ed. 2006) 

(citing People v. Wadley , 523 N.E.2d 1249, 1257 (Ill. App. 1988) ("The test to determine 

whether a matter is collateral is whether it could be introduced for any purpose other than to 


                                                     5                                                2376

----------------------- Page 6-----------------------

                 Judge Esch apparently recognized that evidence is not collateral if it is 

relevant to a material issue. But he ruled that the evidence that N.P. had suffered alcohol- 

related memory loss was "propensity" evidence barred by Evidence Rule 404(b)(1). 

Under this rule, evidence of a character trait is generally inadmissible to show that a 

person acted in conformity with that trait at the time in question.6 For example, evidence 

that   a   witness   is   an   alcoholic   is   generally   regarded   as   character   evidence,   which   is 

inadmissible to impeach a witness's credibility.7 

                 On the other hand, evidence of flaws in a witness's memory and perception 

is generally admissible.8 And evidence of a witness's mental condition may be relevant 

to the extent that the condition affects the witness's capacity to accurately perceive and 


recall an event.  The Illinois Court of Appeals concluded that some evidence of alcohol- 

related memory losses falls into this category: 

                 Where the proffered evidence is only that the witness is an 

                 alcoholic, it is doubtful whether it is a relevant matter for 

                 cross-examination.   ...   And       it   is  clear  that   it   may  not   be 

                 presented extrinsically to rebut the witness's denial since it is 

                 in the nature of general character impeachment. ... Where, 

                 however,   the     proffered    evidence     is  that   the  condition   of 

                 alcoholism causes the witness to suffer blackouts when he 

                 drinks, and evidence has been presented that the witness was 

                 drinking near the time of the events of which he testifies, then 

    6   See Callahan v. State, 769 P.2d 444, 446 (Alaska App. 1989).

    7   See Dyer v. State, 666 P.2d 438, 451 (Alaska App. 1983).

    8   See Bakken v. State, 489 P.2d 120, 124 (Alaska 1971).

    9   See Walden v. State, Dep't of Transp ., 27 P.3d 297, 307 (Alaska 2001).

                                                      6                                                2376

----------------------- Page 7-----------------------

                 the   evidence    is  admissible     as  probative    of  the  witness's 

                 sensory capacity.10 

We agree with this reasoning. When there is evidence that a witness has been drinking 

at the time of the incident in question, evidence that the witness suffered alcohol-related 

memory       loss   near   that  time    is  relevant   to  impeach      the  witness's     memory      and 

perception. 11 

                 In this case, there was evidence that N.P. had been drinking with her friends 

from at least 11:30 p.m. until 5:00 a.m. before the incident in question. Milligan's offer 

of proof included two or three occasions when N. P. had suffered from memory loss near 

the time of this incident. Darlene Stumbaugh would have testified that, shortly before this 

incident, N.P. told her that she had so much to drink that she could not remember how 

she got home. Chad Yates would have testified that, on one occasion, after a night of 

drinking, N.P. asked him how they got home. Yates would also have testified that on 

another occasion, after a night of drinking, N.P. could not remember that she and Yates 

had intercourse, even though she had been talking and coherent at the time. The evidence 

of these other incidents was admissible to impeach N.P.'s memory and perception. 

                 When evidence is erroneously excluded, we ask whether the absence of the 

evidence   had   a   substantial   effect   on   the   jury's   verdict.12 In   this   case,   the   excluded 

evidence was relevant to a central issue. N.P. testified that she had been sleeping when 

Milligan began to sexually assault her. Milligan testified that N.P. was awake and that 

    10  People v. Di Maso , 426 N.E.2d 972, 975 (Ill. App. 1981) (citations omitted). 

    11  Id .; see also State v. Francis , 836 A.2d 1191, 1201 (Conn. 2003); State v. Hawkins, 

260 N.W.2d 150, 158 (Minn. 1977). 

    12  See David v. State, 123 P.3d 1099, 1102 (Alaska App. 2005); Love v. State , 457 P.2d 

622, 631-32 (Alaska 1969) (the test for whether an evidentiary ruling is harmless error is 

whether    the error had an appreciable effect on the jury's verdict). 

                                                     7                                                2376

----------------------- Page 8-----------------------

she consented to sexual intercourse. To reconcile this testimony, Milligan argued that 

N.P. had alcohol-related memory loss when she agreed to have intercourse with him. But 

Milligan's   argument   was   directly   contrary   to   N.P.'s   testimony   that   she   had   never 

suffered an alcohol-related memory loss. 

                The trial judge's ruling left Milligan without any evidence to support his 

argument. But if the trial court had admitted the testimony from Stumbaugh and Yates, 

then Milligan would have had an evidentiary basis for his argument that N.P.'s memory 

and    perception    were   compromised.       We   therefore    conclude    that  we   must   reverse 

Milligan's   convictions   because   this   error   may   have   appreciably   affected   the   jury's 


                The State presented sufficient evidence to support Milligan's 

                indictment for first-degree sexual assault. 

                Milligan also argues that the State presented insufficient evidence to the 

grand jury to support the charge of first-degree sexual assault. Milligan argues that there 

was no evidence that Milligan threatened N.P. with harm, and that there was no evidence 

to show that N.P. was coerced. 

                When we consider a challenge to the sufficiency of the evidence supporting 

an indictment, we draw "every legitimate inference" in favor of the indictment.13 There 

is sufficient evidence to support an indictment if, "viewed in the light most favorable to 

the indictment," the evidence "is adequate to persuade reasonable minded persons that 

    13  Cleveland v. State, 258 P.3d 878, 881 (Alaska App. 2011) (quoting  State v. Williams, 

855 P.2d 1337, 1346 (Alaska App. 1993)). 

                                                   8                                               2376 

----------------------- Page 9-----------------------

if unexplained or uncontradicted it would warrant a conviction of the person charged 

with an offense by the judge or jury trying the offense." 14 

                 Under AS 11.41.410(a)(1), "[a]n offender commits the crime of sexual 

assault in the first degree if the offender engages in sexual penetration with another 

person without consent of that person." "[W]ithout consent" means that a person, "with 

or without resisting, is coerced by the use of force against a person or property, or by the 

express or implied threat of death, imminent physical injury, or kidnapping to be inflicted 

on anyone."15 

                 We addressed this issue under similar facts in Nicholson v. State , where a 

teenage girl woke to find the defendant naked in bed with her, fondling her breasts. 16 At 

trial, the girl testified that she had hesitated to resist because she was in shock and was 

scared that the defendant might hurt her.17 We concluded that the jury could find that the 

girl's "momentary acquiescence in Nicholson's fondling her breast was 'coerced by an 

implicit threat of imminent physical injury' and thus constituted second-degree sexual 


                 Similarly, in Ritter v. State , the defendant was charged with four counts of 

second-degree   sexual   assault   for   engaging   in   sexual   contact   with   four   clients   while 

working as a massage therapist.19 We concluded that the defendant "could reasonably 

    14   Cleveland, 258 P.3d at 881 (quoting State v. Parks, 437 P.2d 642, 644 (Alaska 1968)).

    15  AS 11.41.470(8)(A). 

    16  656 P.2d 1209, 1210 (Alaska App. 1982). 

    17  Id. at 1213. 

    18  Id.

    19  97 P.3d 73, 74 (Alaska App. 2004). 

                                                     9                                                 2376

----------------------- Page 10-----------------------

have foreseen that the circumstances of the massage therapy would make his victims 

afraid to protest or resist: they were alone with him, they were undressed, and it was not 

feasible to run outside into the cold."20 We concluded that this evidence was therefore 

sufficient     to  support    the   jury's   conclusion     that  the   sexual    contact   was    "without 


                 Milligan asks us to reexamine our holdings in Nicholson and Ritter . We are 

not convinced that we should do so. These holdings appear to control our ruling on this 

issue. N.P. testified that she had gone to bed alone, then awoke to find Milligan on top 

of   her,   with   his   penis   in   her   vagina.   N.P.   testified   that   she   had   been   shocked   and 

frightened because she did not know Milligan very well and did not know what Milligan 

would do to her. This evidence was sufficient to allow the grand jury to conclude that 

N.P. was temporarily coerced to allow this sexual conduct to continue by an implicit 

threat of imminent physical injury. And   this conclusion supports the charge of first- 

degree sexual assault. 

                 The   State   did   not   withhold   exculpatory   evidence   from   the 

                 grand jury. 

                 Milligan also asserts that the State failed to present exculpatory evidence 

to the grand jury with respect to the charge of first-degree sexual assault. He argues that 

the State failed to present evidence that N.P. told the investigating officers and a SART 

examiner that Milligan had immediately removed his penis from her vagina after she told 

him to get off of her. N.P.'s testimony to the grand jury was that Milligan had removed 

his penis a couple seconds after she told Milligan to stop. 

    20  Id. at 77-78. 

    21  Id . at 74, 78. 

                                                     10                                                  2376 

----------------------- Page 11-----------------------

                Alaska Rule of Criminal Procedure 6(q) requires a prosecutor to present 

exculpatory evidence to the grand jury.22 But the prosecutor is only obligated to present 

evidence that tends, in and of itself, to negate the defendant's guilt.23  "The mere fact of 

inconsistency      does    not  automatically      convert    all  such   evidence    into  exculpatory 


                N.P.'s statements to the investigating officers and the SART examiner are 

merely inconsistent with N.P.'s testimony before the grand jury. This evidence was not 

substantially favorable because the inconsistency does not tend, in and of itself, to negate 

Milligan's guilt. 

                 The   lower   court   must   determine   whether   Officer   Redburn 

                made      a   "negligent     omission"      during    his   grand     jury 


                Before trial, Milligan moved to dismiss the charge of second-degree sexual 

assault. Milligan argued that Officer Byron Redburn had negligently omitted material 

information when he testified to the grand jury about Milligan's statements to two other 

police officers. Milligan contends that Redburn was misleading when he testified that 

Milligan told the officers that N.P. might have been passed out when they had sex, 

without   noting   that,   in   another   part   of   the   interview,   Milligan   denied   that   N.P.   was 

passed out. 

                In his ruling on Milligan's motion, Judge Esch compared the transcript of 

Milligan's interview with the testimony offered to the grand jury. The judge found that, 

    22  Frink v. State , 597 P.2d 154, 164-65 (Alaska 1979). 

    23  State v. McDonald , 872 P.2d 627, 639 (Alaska App. 1994). 

    24  Preston v. State , 615 P.2d 594, 602 (Alaska 1980). 

                                                    11                                                2376 

----------------------- Page 12-----------------------

during the interview, in response to an open-ended question about the incident, Milligan 

stated,   "Yeah,   we   was   out   at   [the]   Polaris.   We   all   went   back   to   her   place.   We   was 

drinkin' ... and the next thing you know everybody was just passed out." 

                The judge also found that, later in the interview, the police asked Milligan 

about his knowledge of whether N.P. was passed out: 

                Chief Burke:             Did she say anything to you? 

                Milligan :               She didn't say shit. 

                Chief Burke:             Okay, could she have been passed out? 

                Milligan:               Very well, as I - I was. Like, I was not, 

                                        it was not ... it was not a situation where, 

                                        I mean we was all drinking, everybody 

                                        was drinking. 

Milligan began to further discuss his drinking that evening, but Chief Burke interrupted 

him and asked him again whether N.P. had said anything during the sexual act. Milligan 

said no, and Chief Burke asked again whether N.P. might have been passed out: 

                Chief Burke:             Could she have been passed out? 

                Milligan:               No. She   -   I   mean,   she   couldn't have 

                                        been passed out, because ... 

                Chief Burke:             Had she been drinking a lot? 

                Milligan:               Everybody was drinking. Like I said ... . 

Milligan     then   stated  that  N.P.   consumed      the  least  amount     of  alcohol   out   of  the 

individuals present that evening and noted that N.P. drove other people home. 

                The record also indicates that Officer Harreus prepared a police report that 

summarized Milligan's interview. Harreus's report stated that, when Chief Burke asked 

Milligan if N.P. had been passed out when Milligan had sex with her, Milligan replied, 

                                                   12                                              2376

----------------------- Page 13-----------------------

"very well as I was" and "she could have been passed out." Harreus's report does not 

note that Milligan later denied that N.P. was passed out. 

                During the grand jury proceeding, Officer Byron Redburn was asked to 

summarize the statements Milligan made to the police following his arrest. Redburn 

testified that Milligan's story had evolved. At first Milligan denied that he had sex with 

N.P. Then he admitted that they had sex, but insisted that he would have stopped if she 

had said to stop. Then he admitted that he did stop, and then masturbated on the bed. 

                The prosecutor asked Redburn, "Did anyone ask [Milligan] whether or not 

[N.P.] was passed out when he had sex with her?" Redburn replied that Officer Harreus 

and Chief Burke had asked that question. Redburn explained, "[I]t seems to me his 

response was along the lines of, 'She might have been.'" 

                Milligan argues that Redburn's testimony constituted inadmissable hearsay 

evidence. Ordinarily, hearsay evidence may not be presented to the grand jury without 

compelling justification.25 But the legislature amended this rule in 1994 to allow a police 

officer   to   summarize   the   statements   of   other   officers   who   participate   in   a   criminal 

investigation.26     Alaska    Criminal    Rule   6(r)(3)   now    allows   hearsay    evidence    to  be 

presented to the grand jury if: 

        (i)  the   individual   presenting     the  hearsay    evidence    is  a  peace   officer 

        involved in the investigation; and (ii) the hearsay evidence consists of the 

        statement and observations made by another peace officer in the course of 

        an investigation; and (iii) additional evidence is introduced to corroborate 

        the statement. 

    25  Alaska R. Crim. P. 6(r)(1). 

    26  See SLA 1994, ch. 114, § 2. 

                                                   13                                                2376 

----------------------- Page 14-----------------------

However, the rule also provides that, if the testimony presented by a peace officer to the 

grand     jury   "is  inaccurate     because     of  intentional,    grossly    negligent,    or  negligent 

misstatements or omissions, then the court shall dismiss an indictment resulting from the 

testimony if the defendant shows that the inaccuracy prejudices substantial rights of the 


                 Judge Esch initially concluded that Redburn's testimony was not hearsay. 

He   reasoned   that   a   criminal   defendant's   statements   are   generally   admissible   as   the 

statement of a party opponent.28 We agree that Milligan's statements to the other officers 

were   not   hearsay.   But   the   judge's   analysis   did   not   account   for   a   second   layer   of 

hearsay.29 Redburn's testimony about the content of the other officers' reports would be 

hearsay   if offered for the proof of those reports. Thus, Redburn's hearsay summary 

appears to fall directly within the scope of Criminal Rule 6(r)(3). 

                 In an alternative ruling, Judge Esch concluded that Redburn did not make 

any   "misstatements"   within   the   meaning   of   this   rule.   The   judge   found   that,   during 

Milligan's      interview,     he   had   first  stated    that  everybody       was    passed    out,   then 

acknowledged that N.P. might have been passed out, then denied that she could have 

been passed out. The judge concluded that Redburn's testimony was not a misstatement 

of   Milligan's     interview     because    Redburn      accurately     described     Milligan's    second 

statement on this issue - the statement that suggested that N.P. might have been passed 


    27  Alaska R. Crim. P. 6(r)(4). 

    28  Alaska Evid. R. 801(d)(2). 

    29   Cf. Snyder v. Foote, 822 P.2d 1353, 1360 (Alaska 1991) (noting that hearsay within 

hearsay   is   admissible   only   if   each   part   of   the   combined   statement   is   admissible   as   an 

exception to the hearsay rule). 

                                                      14                                                2376

----------------------- Page 15-----------------------

                We conclude that the trial judge's analysis was incomplete. Under Criminal 

Rule 6(r)(3), an officer's summary may be "inaccurate" even if the testimony does not 

contain an outright misstatement. Under the text of this rule, an officer's testimony may 

also be inaccurate if it contains "negligent omissions." And Redburn's failure to mention 

Milligan's third statement on this issue - the statement denying that N.P. was passed 

out - could have been a negligent omission under this rule. 

                We   cannot   tell   from   this   record  whether   Redburn's   testimony   was   a 

negligent omission. It may be necessary for the superior court to hold an evidentiary 

hearing to resolve this issue. And if the court concludes that Redburn's testimony was 

a   negligent   omission,   then   it   must   also   consider   whether   this   inaccuracy   prejudiced 

Milligan's substantial rights. These issues must be resolved before the superior court can 

determine whether to dismiss the charge of second-degree sexual assault. 


                In view of our disposition, we are not required to address the other issues 

raised in Milligan's appeal. We REVERSE the superior court's judgment of conviction 

and REMAND for further proceedings consistent with this opinion. 

                                                   15                                              2376

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