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Joshua W. Cole v. State of Alaska (10/17/2019) ap-2661

Joshua W. Cole v. State of Alaska (10/17/2019) ap-2661


              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

                                               E-mail:  corrections @




                                                                                      Court of Appeals No. A-12442  

                                             Appellant,                           Trial Court No. 1AG-13-00001 CR  


                                                                                                   O P I N I O N 


                                             Appellee.                                No. 2661 - October 17, 2019  

                       Appeal f                                               

                                     rom the Superior Court, First Judicial District, Sitka,  

                       David V. George, Judge.  

                       Appearances:  Kelly R. Taylor, Assistant Public Defender, and  


                       Quinlan Steiner, Public Defender, Anchorage, for the Appellant.  


                       Elizabeth  T.  Burke,  Assistant  Attorney  General,  Office  of  


                       Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney  

                       General, Juneau, for the Appellee.  

                       Before:  Allard,  Chief Judge, Harbison, Judge, and Suddock,  


                       Senior Superior Court Judge. *  


                       Judge SUDDOCK.  

      *    Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  11  of   the  Alaska  

Constitution and Administrative Rule 23(a).  

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

                             In 2012, L.P., a twelve-year-old girl residing in Angoon, disclosed that                                                                            

 Joshua W. Cole had sexually abused her on two occasions. The authorities arranged for                                                                                              

 L.P.   to  give   a videotaped                             statement describing this abuse.                                          Cole was subsequently     

 charged with first-                    and second-degree sexual abuse of a minor based on the first incident,                                                          


 and two counts of second-degree sexual abuse of a minor based on the second one.                                                                                                      

                             Although L.P.'s videotaped statement would normally be hearsay, Alaska  


 Rule of Evidence 801(d)(3) provides that a pretrial videotaped statement "by the victim  


 of a crime who is less than 16 years of age" is not hearsay if certain foundational  


requisites are met.  Cole objected pretrial that two of these foundational requisites were  


not  satisfied.                  Following  a  two-stage  evidentiary  hearing,  the  court  overruled  this  


 objection, finding that the foundational criteria were met.  But the court conditioned  


 admission of the videotaped statement on L.P. testifying at trial before the video was  


played to the jury.  


                             Cole was convicted on all counts, and he now appeals, arguing that the trial  


judge erred when he found the foundational requisites of Rule 801(d)(3) to be satisfied.  


 For the reasons explained here, we find no error.  


                             Cole also claims that the judge should have sustained his objection when,  


 during the prosecutor's closing argument, sheinformedthejury that she was not required  


to prove the specific dates of Cole's crimes, even though the indictment charged that  


 each  incident  occurred  during  a  specific  month  of  the  year.                                                                       But  the  prosecutor's  


 evidence firmly placed each incident within the time frame specified in the indictment.  


And, contrary to Cole's argument in this appeal, he never raised the sort of alibi defense  


that might have made the timing of the crimes a significant issue.   Accordingly, we  


 conclude that Cole was not prejudiced by the prosecutor's remark.  


        1      AS 11.41.434(a)(1) and AS 11.41.436(a)(2), respectively.  

                                                                                        - 2 -                                                                                   2661

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


          Facts and proceedings  


                    When L.P. was two years old, she was adopted by a couple living in  


Angoon.  L.P. suffered from fetal alcohol spectrum disorder, and she had consequent  


learning  disabilities.            L.P.'s  adoptive  maternal  grandmother,  Marie  Demmert,  also  


resided in Angoon.  L.P. visited her grandmother's house often and would sometimes  


stay there overnight.  




Joshua Cole, shared a bedroom in Demmert's house.  In March 2011, while Hunter was  


away, Cole fondled L.P.'s breasts and digitally penetrated her vagina as she was resting  


on a bed at Demmert's house.  


                    In September 2011, L.P.'s mother brought L.P. to Alaska State Trooper  


Christopher Umbs, who interviewed her about whether Cole had sexually abused her.  


L.P. repeatedly denied that Cole had touched her sexually.  L.P. was eleven years old at  


the time.  


                    About a year later, in October of 2012, while L.P. slept on a couch in her  


grandmother's living room, she awakened to find Cole crouching on the floor next to  


her. Cole attempted to digitally penetrate L.P.'s vagina, but she turned away.  Cole then  


began fondling L.P.'s breasts through her shirt. He was almost immediately interrupted  


by Cole's girlfriend Hunter, who emerged from their bedroom and asked Cole what he  


was doing to L.P.  According to L.P., Cole said "nothing," stood up, and accompanied  


Hunter back to their bedroom.  


                    Soon after this happened, L.P. told her older stepbrother, Norman Joseph,  


that Cole had touched her "private area."   Shortly thereafter the family reported the  


matter to the authorities, and Trooper Umbs arranged for L.P. to be interviewed on  


videotape in Juneau at the Child Advocacy Center ("CAC").  

                                                              -  3 -                                                         2661

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


                    During this interview, L.P. described both incidents of her sexual abuse by  


Cole.  She also recanted her earlier denials from the September 2011 interview with  


Trooper Umbs.  


          Cole's challenges to the admission of L.P.'s videotaped interview  


                    Cole filed a pretrial motion opposing the admission of the CAC interview,  


contending that L.P.'s statement failed to satisfy the requirement of Evidence Rule  


801(d)(3)(H) that the court must "determine that [the statement] is sufficiently reliable  


and trustworthy and that the interests of justice are best served by admitting the recording  


into evidence."  


                    The  court  held  an  evidentiary  hearing  at  which  L.P.,  her  mother,  and  


Trooper Umbs testified.   Trooper Umbs testified that during L.P.'s interview at the  


Juneau  CAC,  he  and  another  person  had  observed  the  interview  via  closed-circuit  


television in an adjoining room.   (L.P.'s mother testified that she believed that three  


persons had observed the interview in this fashion.)  Umbs further testified that, toward  


the end of the interview, interviewer Jennifer Narvaez briefly visited the observation  


room to consult about followup questions.  Narvaez then resumed the interview and  


posed questions along the lines suggested by the observers.  


                    During  argument  at  the  close  of  the  hearing,  Cole's  defense  attorney  


objected to admission of L.P.'s statement on the ground that L.P.'s interviewer had failed  


to  identify  "each  person  participating  in  the  taking  of  the  statement"  on  the  video  


recording, as required by Rule 801(d)(3)(E).   The defense attorney pointed out that  


Narvaez had identified herself on the videotape, but she had not identified the observers  


in the adjoining room.  


                    After  the  evidentiary  hearing,  the  State  filed  a  supplemental  pleading  


identifying the persons in the adjoining room as Trooper Umbs, Keith Merrifield from  


Catholic Social Services, and Brian Messing, a CAC employee.  (We note that these  

                                                              - 4 -                                                          2661

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

same observers are identified on the title page of the transcript for  the CAC video  



                    The judge later issued a written order, conditionally finding that all of the  


foundational requisites of Rule 801(d)(3) had been satisfied. As to subsection (d)(3)(E),  


the judge noted that "L.P. and Mrs. Narvaez, who took L.P.'s statement and conducted  


the interview, were identified on the recording."  


                    The judge set a second evidentiary hearing to afford the parties a further  


opportunity  to  present  evidence  on  the  issue  of  whether  L.P.'s  statement  was  


"sufficiently reliable" to qualify for admission under Rule 801(d)(3)(H), and to clarify  


the meaning of that section's requirement that the judge find "that the interests of justice  


are best served by admitting the recording into evidence."  


                    During  that  hearing  Jennifer  Narvaez  confirmed  that,  after  a  brief  


intermission  late  in  L.P.'s  interview,  she  had  crafted  followup  questions  based  on  


suggestions fromthe persons observing the interview via closed-circuit television. After  


hearing further argument, the judge found that L.P.'s statement was sufficiently reliable  


and that its admission into evidence served the interests of justice.  


           Why we conclude that the judge did not err in finding that the foundational  


          requirement under Alaska Evidence Rule 801(d)(3)(E) was met  


                    As  noted,  Evidence  Rule  801(d)(3)  provides  for  the  admission  of  


out-of-court statements made by children who are alleged to be the victims of a crime,  


so long as those statements meet certain requirements. Under the rule, a child's recorded  


out-of-court statement is not hearsay and is therefore admissible into evidence, if the  


child is less than sixteen years of age, and if the following foundational matters are  



                    (A) the recording was made before the proceeding [at which  


                    it is being offered];  


                                                               -  5 -                                                         2661

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

                                                       (B)  the victim is available for cross-examination;                                                                         

                                                       (C)    the    prosecutor    and    any    attorney    representing    the  

                                                       defendant were not present when the statement was taken;                                                                                                                                                               

                                                       (D)  the recording is on videotape or other format that records                                                                                                                                                         

                                                       both the visual and aural components of the statement;                                                                                                                                 

                                                       (E)   each   person   who   participated   in   the   taking  of   the  

                                                        statement is identified on the recording;                                                                               

                                                       (F)  the taking of the statement as a whole was conducted in                                                                                                                                     

                                                       a manner that would avoid undue influence of the victim;                                                                                                                                                        

                                                       (G)  the defense has been provided a reasonable opportunity                                                                                                                                           

                                                       to view the recording before the proceeding; and                                                                                                                                          

                                                       (H)  the court has had an opportunity to view the recording                                                                                                                                                   

                                                       and determine that it is sufficiently reliable and trustworthy                                                                                                                                        

                                                       and that the interests of justice are best served by admitting                                                                                                                                   

                                                       the recording into evidence.                                                

If the trial court finds that any of these foundational requirements are not met, the                                                                                                                                                                                                                                                                 

videotaped interview is not admissible under Evidence Rule 801(d)(3).                                                                                                                                                                                                                                  

                                                       Here,   the   parties   disagree   regarding   the   meaning   of   the   foundational  

requirement that "each person who participated in the taking of thestatementisidentified                                                                                                                                                                                                                                      


on the recording."                                                                                                                                                                                                                                                                                                                     

                                                                                Cole argues that once the persons observing the interview on closed- 


circuit television gave suggestions to the interviewer during a break late in the interview,  


they became "participants" in the taking of L.P.'s statement within the meaning of  


 subsection (d)(3)(E), and that their late-stage participation then required the interviewer  


to directly identify them on the recording.  


                                                       The   State   argues   that   subsection   (d)(3)(E)'s   requirement   that   the  


participants be identified "on the recording" should be construed to apply only to those  

              2             Alaska Evid. R. 801(d)(3)(E).  

                                                                                                                                                                         -  6 -                                                                                                                                                                    2661

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

persons   physically   present   in   the   interview   room,  i.e.,   to   persons   whose   verbal  

 statements, body language, or other qualities might somehow directly influence the                                                                                                          

child's interview experience in some undue way.                                                                  The State reasons that even if out-of-                              

roomobservers provide off-record suggestions for additional questions, the child will be                                                                                                        

unlikely to intuit the genesis of those questions, and the court will be able to evaluate the                                                                                                 

propriety of the questions based on their merits rather than on who suggested them.                                                                                                             


                               Evidence Rule 801(d)(3) is a legislatively enacted rule.                                                                                           

                                                                                                                                                                We are required  


to interpret the rule "according to reason, practicality, and common sense, considering  



the meaning of the [rule]'s language, its legislative history, and its purpose."                                                                                           The parties  


provide no legislative history shedding light on the intended breadth of the phrase "each  


person who participated in the taking of the statement," and our independent researchhas  


revealed none.  


                               We discussed the overarching legislative rationale for this evidence rule in  



                                                 The bill's sponsor, Senator Hollis French, testified that the bill  

Augustine v. State . 


would enhance truth-finding at trials by affording children a safe venue to give their  


accounts free of the intimidating factors inherent to a courtroom, with questioning by  


persons trained to neutrally elicit information.  Senator French specifically mentioned  


two important safeguards to this procedure:   a judge would be required to evaluate  


whether the child had been subjected to undue influence, and also to evaluate whether  



the child's statement was trustworthy. 

        3      See Augustine v. State, 355 P.3d 573, 582 (Alaska App. 2015).  

        4      Brown v. State, 404 P.3d 191, 193 (Alaska App. 2017) (quoting                                                                                ARCTEC Servs. v.  

 Cummings, 295 P.3d 916, 920 (Alaska 2013)).  

        5      Augustine v. State , 355 P.3d 573, 582-83 (Alaska App. 2015).  

        6      Id.  

                                                                                             -  7 -                                                                                       2661

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

                        We   have   canvassed  statutes   in   multiple   other   states   that   provide   for  

admission of videotaped                        interviews by             child   victims of crime.                     The most common     

foundational   requirement   in   those   statutes   that   require   on-record   identification   of  

participants in the interview is that the interviewer must identify all persons                                                     heard  on the   

videotape.  None of these statutes require the identification of persons who are merely                                                 

consulted off-record.                 7  


                        Here, the only persons present in the interview room were Narvaez and  


L.P., both of whom were identified on the recording.  The observers - Trooper Umbs,  


Keith Merrifield, and Brian Messing - were identified on the front page of the transcript  


of the recording, but were not identified in the recording itself.  We perceive no reason  


why observers must be identified on the recording, even if they are consulted before or  


during the interview.  As the State points out, any questions suggested by the observers  


can still be assessed on their own merits based on the recording.  


                        This is not to say that the presence of observers is necessarily irrelevant to  


the reliability and trustworthiness assessment that the trial court must make.  The State  


should still report the identities of any observers to the defense so that the defense can  


determine whether the presence of the observers raises issues of undue influence.  But  


the failure to include that information on the recording itself does not, on its own,  


preclude admission of the videotaped interview.  In this case, the State did notify the  


defense of the identities of the observers, and we therefore need not decide the precise  


contours of when and how the identity of observers must be disclosed.  

      7     Ariz. Rev. Stat. Ann.  13-4252(A)(3) ("[e]veryvoice on the recording is identified");     

Kan. Stat. Ann.  22-3434(a)(2)(c);  Ky. Rev. Stat. Ann.  421.350(3)(c);  La. Stat. Ann.   

 15:440.5(A)(5);  Mo. Ann. Stat.  492.304(1)(5); Okla. Stat. Ann. tit. 10A,  1-4-505(B)(6);  

R.I. Gen. Laws Ann.  11-37-13.2(b)(3); Tenn. Code Ann.  24-7-123(b)(6); Utah R. Crim.                                             

P. 15.5(a)(5).  

                                                                         -  8 -                                                                   2661

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

                                                    Accordingly,   we   find   no   error   in   the   trial   court's   finding   that   the  

foundational requirement under Evidence Rule 801(d)(3)(E) was met.                                                                                                                                                                                            

                           Why we conclude that the judge did not err in finding that the foundational                                                                                                                                                             

                          requirement under Alaska Evidence Rule 801(d)(3)(H) was met                                                                                                                                                                            

                                                   Under Rule 801(d)(3)(H), the court must "determine that [the videotaped                                                                                                                                                                         

statement] is sufficiently reliable and trustworthy and that the interests of justice are best                                                                                                                                                                                                                                 

served by admitting the recording into evidence." Cole argues that the judge erred when                                                                                                                                                                                                                                  

he found that this foundational requirement was satisfied.                                                                                                                                  

                                                    Relying on our decision in                                                                           Augustine , Cole argues first that the judge erred                                                                                                               

when he failed to make detailed findings directly addressing each and every one of                                                                                                                                                                                                                                                   

Cole's challenges to the reliability of L.P.'s statement.                                                                                                                                                              But Cole did not make such a                                                                                      

request to the judge. In any event, we are unpersuaded by Cole's reliance on                                                                                                                                                                                                                        Augustine .   

In  Augustine , thejudgeaffirmatively declined to determinethe reliability of the proffered                                                                                                                                                                                                                

video statement                                               at all                , instead ruling that the weight of the evidence was for the jury to                                                                                                                                                                              

decide. Faced with this total abrogation of the judge's duty as gatekeeper, we remanded                                                                                                                                                                                                                 


the case for the judge to enter reliability findings.                                                                                                                                                                                                                                                             

                                                                                                                                                                                                  But the record in Cole's case reflects  


that  the  judge  independently  assessed  the  reliability  and  trustworthiness  of  L.P.'s  


statement  and  shows  that,  unlike  in  Augustine ,  the  judge  fulfilled  his  important  


gatekeeper role.  


                                                    Cole next argues that the judge misapplied the interests of justice standard.  


This claim rests on a subtle semantic difference that Cole did not point out below - a  


difference between the judge's use of the phrase "the interests of justice" in his oral  


decision and the language of the rule that "the interests of justice are best served by  

             8           Augustine , 355 P.3d at 585-86.  

                                                                                                                                                              -  9 -                                                                                                                                                          2661

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

admitting the recording into evidence."                           We have reviewed the record and we perceive                  

the   court's   phrasing   to   be,   if   anything,   a   linguistic   slip,   rather   than  a   substantive  



                      Finally, Cole argues that the judge applied the wrong evidentiary standard  


to the foundational requirements.  According to Cole, the judge was required to apply a  


clear and convincing standard when making these determinations. But Cole did not raise  


this claim in the trial court proceedings, and because he did not obtain a ruling on the  


applicable standard of care, we cannot tell what evidentiary standard the judge used, or  


would have used had this claim been made in the trial court.   For these reasons we  



conclude that Cole has waived this claim. 


                      We have reviewed the record, and we conclude that the judge's findings of  


fact  and  conclusions  of  law  adequately  address  whether  L.P.'s  statement  met  the  


requirements of subsection (H). We accordingly deny Cole's request that we remand the  


case and require the judge to enter additional findings of fact regarding this matter.  

      9    See  Bierria  v.  Dickinson  Mfg.  Co.,   36   P.3d   654,  657  (Alaska  2001)  ("[M]ore  

important than how the test is phrased is how it is applied."); see also In re Life Ins. Co. of  

Alaska , 76 P.3d 366, 370 (Alaska 2003) (concluding that the superior court's brief references   

to "substantial evidence" during its oral ruling did not show that the court had failed to apply  

the correct standard of review (de novo)).  



           See, e.g., Pierce v.  State, 261 P.3d 428, 430-32 (Alaska App. 2011) ("[A] litigant is  


not entitled to pursue a claim on appeal unless that claim was presented to the lower court,  

and unless the lower court issued a ruling on the merits of that claim.").  

                                                                 -  10 -                                                             2661

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

          The  court  did  not  err  when  it  overruled  defense  objections  to  the  


          prosecutor's final argument  


                    As explained earlier in this opinion, Cole was charged with committing  


sexual  assaults  on  L.P.  at  the  home  of  her  adoptive  maternal  grandmother  Marie  


Demmert on two separate occasions - in March 2011 and in October 2012.  


                    The evidence at trial showed that L.P. would stay overnight at Demmert's  


house (where Cole and his girlfriend Hunter also lived) during L.P.'s mother's monthly  


trips to Juneau to purchase household supplies.  


                    The State's evidence placed the first incident of abuse in March 2011. At  


that time, Cole and Hunter were expecting their first child.  For several weeks prior to  


the baby's birth on April 1, 2011, Hunter stayed in Juneau while Cole remained in  




                    The State's evidence placed the second incident of abuse in October 2012,  


on one of two weekends that L.P. stayed overnight at Demmert's house while her mother  


was in Juneau.  


                    Soon after this second incident, L.P. told her older stepbrother Norman  


Joseph that Cole had touched her "private area."  At the time of this disclosure, L.P. and  


her family were staying at a hotel in Juneau awaiting the birth of Joseph's daughter, who  


was born on October 16, 2012.  


                    During her final argument, the prosecutor told the jury several times that  

the State did not bear the burden of proving the exact dates of the crimes, and at one  


point stated that the State did not have to prove the exact months of the crimes.  The  


defenseattorneytwiceobjectedto theprosecutor'scharacterization oftheState's burden,  


telling the judge this misstated "the law of alibi."  The judge overruled these objections.  


                    Cole now argues on appeal that the trial court erred when it allowed the  


prosecutor to argue that the State did not have to prove the exact dates of the alleged  


                                                             -  11 -                                                        2661

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

offenses.  Specifically, Cole asserts that the judge effectively permitted the prosecutor  

to amend the indictment to eliminate any timing parameters, and that this amendment  


prejudiced his defense.  


                    Under Alaska law, the State is not obligated to prove the date of an alleged  


crime,  so  long  as  the  defendant  is  sufficiently  on  notice  of  the  charged  crime  to  


meaningfully defend against it.  As we held in Larkin v. State,  


                    Alaska law follows the same rules described in LaFave and  


                    in Wright:  the rules that the date of the offense is normally  


                    not a material element of the offense, and that a variance  


                    between the date specified in the indictment and the date  


                    revealed by the evidence at trial will not support an attack on  


                    the      judgement          unless        the     variance         prejudiced         the  


                    defendant's ability to prepare or present their defense.11  



                    Here,  we  conclude  that  Cole  was  not  prejudiced  by  the  prosecutor's  


statements for two reasons.  


                    First, even though the prosecutor stated briefly in closing that the State was  


not required to prove that Cole's crimes occurred during the respective months charged  


in the indictment - March 2011 and October 2012 - the evidence at trial actually did  


so,  and  the  prosecutor  never  argued  that  the  crimes  occurred  at  other  times.                                     The  


evidence at trial firmly linked the crimes to those two months. Testimony at trial related  


each incident to the weeks preceding the birth of a baby - the first incident to the birth  


of Hunter's baby, and the second to the birth of L.P.'s brother's baby.   The weeks  


preceding each respective birth fell within the March 2011and October 2012 time frames  


charged in the indictment.  


                    Second, although Cole's objections below were based on "the law of alibi,"  


Cole did not actually present alibi defenses excluding his opportunity to abuse L.P.  

     11   Larkin v. State , 88 P.3d 153, 157 (Alaska App. 2004).  

                                                             -  12 -                                                         2661

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

during the charged months. As to the March 2011 occurrence, Cole (who did not testify)                                                                                                                                                                                            

offered no evidence that he was away from Angoon during that month; his defense                                                                                                                                                                                               

attorney merely argued that since L.P. denied in her September 2011 statement that Cole                                                                                                                                                                                                   

had abused her, he must not have done so. This general denial did not amount to an alibi                                                                                                                                                                                                   


                                              And as to the October 2012 occurrence, L.P.'s mother testified that she                                                                                                                                                        

twice traveled to Juneau in early October, each time leaving L.P. in Demmert's care in                                                                                                                                                                                                             

Angoon. Cole presented documentary evidence that he was in Juneau during the first of                                                                                                                                                                                                              

those trips, but not the second. Indeed, in his statement to Trooper Umbs, Cole admitted                                                                                                                                                                                    

that he was present at Demmert's house on an October night, that he encountered L.P.                                                                                                                                                

sleeping on a living room couch, that Hunter entered the room and asked him what he   

was doing, and that he then returned to his bedroom with Hunter.                                                                                                                                                                L.P. and Hunter both                                      

testified to those same facts, and L.P. added that Cole molested her just before Hunter's                                                                                                                                                                                   



                                              Cole's case is analogous to an Illinois case,                                                                                                          People v. Stevens                                              .       Stevens  


argued that a jury instruction informing the jury that the date of the crime alleged in the  


indictment was not an element of the charged offense had prejudiced his defense.  The  


court held that because Stevens (like Cole) actually admitted that he was present on the  


night in question, he was not prejudiced by the instruction.  


                                              Here, while Cole's alibi defense only excluded two days falling within  


October 2012, evidence at trial suggested that the crime likely occurred during the  


following week.   L.P., Hunter, and Cole each acknowledged Cole's presence on an  


October night during which Hunter saw Cole next to the couch on which L.P. was lying.  

            12         People v. Stevens, 115 N.E.3d 1207, 1215-16 (Ill. App. 2018).  

                                                                                                                                           -  13 -                                                                                                                                         2661

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

                                                             We therefore conclude that Cole suffered no prejudice when the prosecutor                                                                                                                                                                                                                     

told the jury that the State did not have a burden to prove the exact date (or month) of                                   

Cole's crimes.                                                       


                                                             We AFFIRM the judgment of the superior court.  


                                                                                                                                                                                        -  14 -                                                                                                                                                                                       2661

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