In re Bullock

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NO. COA13-149 NORTH CAROLINA COURT OF APPEALS Filed: 3 September 2013 IN THE MATTER OF LAWRENCE BULLOCK III, Respondent. Granville County No. 11 SPC 84(SB-43) On Writ of Certiorari to review Order entered 12 June 2012 by Judge Robert F. Johnson in Superior Court, Granville County. Heard in the Court of Appeals 15 August 2013. Attorney General Roy A. Cooper III, by Assistant Attorney General Adam M. Shestak, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Hannah Hall, for respondent-appellant. STROUD, Judge. Lawrence Bullock recommitting Hospital. him to ( respondent ) the insanity 1999, at Central an order Regional Dorothea recommitment Procedural History respondent (NGRI) kidnapping. at unit from We reverse and remand for entry of a revised order. I. In forensic appeals of first was found degree not guilty burglary and by reason second of degree He was involuntarily committed to the forensic unit Dix Hospital hearings at ( Dorothea least every Dix ). year He has had since and was -2recommitted after each one to the forensic unit at either Dorothea Dix or Central Regional Hospital ( Central Regional ). On 8 April 2012, respondent had another recommitment hearing and was recommitted again to the forensic unit at Central Regional. II. Factual Background During respondent s recommitment hearing on 8 April 2012, his sister testified that she has seen a great deal of improvement [in respondent over the past several years] because [he] has been able to come to family outings, visits, and come to [her] home on several occasions just to have meals with [her] husband and [her] . . . . He [also] was able to attend two funerals . . . . [and her] daughter s wedding. Respondent s sister also indicated that she would feel very comfortable with respondent having more possibly even for [an entire] weekend. of the evidence that respondent frequent visits This was the totality presented in favor of his discharge.1 Respondent s respondent s doctor, condition Dr. generally, Vance, including testified his about diagnosis of schizoaffective disorder and the medications that he was taking. Dr. Vance also indicated that respondent does not necessarily 1 The parties stipulated that the testimony of respondent s brother-in-law would corroborate that of his sister. -3feel he needs to take his medications and that if respondent ever stopped taking his medications he would inevitably have a relapse, experience mania, psychosis, delusional beliefs, and auditory energized, Vance hallucinations, irritable, further testified and as well sexually that even at as become more inappropriate. respondent s Dr. current medication level (which respondent has declined to modify), his condition periodically manifests itself, most recently in an episode two months prior to the hearing where respondent was convinced that [his] family members were being kidnapped and held in the hospital. Based on this evidence, the trial court concluded that respondent had failed to show that he no longer suffers from a mental illness or that he is no longer dangerous to others. The trial court accordingly recommitted respondent for another year to the forensic unit at Central Regional. III. Appellate Jurisdiction Respondent appeals from the recommitment order entered 12 June 2012. He filed written notice of appeal on 23 July 2012. Appeals from involuntary commitment orders are appealable as in civil cases. N.C. Gen. Stat. § 122C-272 (2011). Appeals in civil cases must generally be taken within thirty days of entry -4of the judgment. acknowledges, N.C.R. respondent App. P. failed 3(c)(1). to timely Thus, as appeal he the recommitment order. Nonetheless, respondent filed a petition for writ of certiorari with this Court pursuant to Rule 21 of the North Carolina Rules of Appellate Procedure. He claims that his failure to take timely action related to a disagreement between him and his trial counsel as to whether, when, and how to note his appeal. The State opposes respondent s petition. We find that these circumstances are appropriate for issuance of the writ and we grant respondent s petition for writ of certiorari. Therefore, we have jurisdiction to consider the merits of respondent s appeal. IV. Standard of Review [W]e review [a recommitment] order as we would a commitment order. Thus, we must determine whether there is competent evidence to support the trial court s factual findings and whether these findings support the court s ultimate conclusion that respondent still has a mental illness and is dangerous to others. In re Hayes (Hayes I), 151 N.C. App. 27, 29 30, 564 S.E.2d 305, 307, app. dismissed and disc. rev. denied, 356 N.C. 613, 574 S.E.2d 680 (2002). V. Analysis -5Respondent argues on appeal that (1) he proved by a preponderance of the evidence[] that he is no longer dangerous to others, (2) the trial court erred by failing to consider the conditional release of [respondent] as an option, (3) the trial court violated N.C. Gen. Stat. § 15A-1321 and [respondent s] right to due process by ordering that [he] be recommitted in the forensic unit at Central Regional, and (4) the trial court s findings of fact were insufficient to resolve the disputed issue of whether [respondent] was dangerous to others . . . . (Original in all caps) We hold that the trial court s findings are insufficient at present to support its conclusions. Therefore, we must reverse the order and remand for additional findings. Because the remaining issues are likely to recur on remand, we also hold that the trial court did not err in not making a finding about whether conditional circumstances and did release is not or err appropriate violate in respondent s process rights in committing him to a forensic unit. A. Findings of Fact During an NGRI acquittee recommitment hearing, The respondent shall bear the burden to prove by a preponderance of the evidence that he (i) no longer has a mental illness as defined in G.S. 122C-3(21), or (ii) is no these due -6longer dangerous to others as defined in G.S. 122C-3(11)b. If the court is so satisfied, then the court shall order the respondent discharged and released. If the court finds that the respondent has not met his burden of proof, then the court shall order inpatient commitment be continued for a period not to exceed 180 days. The court shall make a written record of the facts that support its findings. N.C. Gen. Stat. § 122C-276.1(c) (2011); see N.C. Gen. Stat. § 122C-276.1(d) recommitment (establishing hearings are that governed third by the and same subsequent standard and authorizing such recommitments for periods of up to one year). Here, the trial court concluded that respondent had not shown that he was no longer mentally ill or that he is no longer dangerous to others. Respondent first argues that the trial court erred in concluding that he failed to meet his burden under the statute given the evidence presented. In making this argument, respondent is simply asking this Court to reweigh the evidence in his favor. It is not the function of this Court to reweigh the evidence on appeal. Garrett v. Burris, ___ N.C. App. ___, ___, 735 S.E.2d 414, 418 (2012), aff d per curiam, ___ N.C. ___, 742 S.E.2d 803 (2013). Therefore, this argument is meritless. Respondent next argues that the trial court failed to make sufficient findings of fact to support its conclusion that -7respondent has failed to show that he is no longer dangerous to others. He does not contend that he is no longer mentally ill. Dangerous to others means that within the relevant past, the individual has inflicted or attempted to inflict or threatened to inflict serious bodily harm on another, or has acted in such a way as to create a substantial risk of serious bodily harm to another, or has engaged in extreme destruction of property; and that there is a reasonable probability that this conduct will be repeated. Previous episodes of dangerousness to others, when applicable, may be considered when determining reasonable probability of future dangerous conduct. Clear, cogent, and convincing evidence that an individual has committed a homicide in the relevant past is prima facie evidence of dangerousness to others. N.C. Gen. Stat. § 122C-3(11)(b) (2011). [A] trial court must . . . make sufficient findings of fact and conclusions of law to allow the reviewing court to determine whether a judgment, and the legal conclusions that underlie it, represent a correct application of the law. Spicer v. Spicer, 168 N.C. App. 283, 287, 607 S.E.2d 678, 682 (2005) (citation omitted). Recitations of the testimony of each witness do not constitute findings of fact by the trial judge. In re M.R.D.C., 166 N.C. App. 693, 699, 603 S.E.2d 890, 894 (2004) (citation and quotation marks omitted), denied, 359 N.C. 321, 611 S.E.2d 413 (2005). disc. rev. -8The majority of the trial court s findings in its 25 May 2012 order are recitations of testimony, indicating that witnesses testified about particular topics. The trial court did not either make by actual making findings separate regarding findings or the by material finding facts, specific testimony in the record credible. Omitting those findings that merely recite testimony, we are left with only the following relevant facts to review: 1. The Respondent was committed to Dorothea Dix Hospital pursuant to North Carolina General Statute 15A-1321 having been found not guilty by reason of insanity to the crimes of first degree burglary and second degree kidnapping in Vance County case files 98-CRS-12164 through 12165. 2. The Respondent has been hospitalized continuously at the forensic program run by the Department of Health and Human Services since August, 1999. His present commitment is to expire May 25, 2012. . . . . 4. . . . Dr. Vance has been the treating attending physician for Mr. Bullock for slightly less than one year, although he has worked with Mr. Bullock for at least three years. Dr. Vance has examined Respondent and has reviewed the Respondent s medical records. The diagnosis of the Respondent is schizo-affective disorder and that is the primary diagnosis. . . . 7. [The trial court lists the medications respondent is on]. -9. . . . 10. . . . At this point in time Respondent s treatment team has discussed the increase of any privileges this is in part because the Respondent not adequately demonstrated that he is dangerous to society. . . . the not and has not 11. The Court does note that in previous court orders apparently the Respondent s treatment team has been granted authority to allow Respondent privileges to attend oncampus activities at the forensic unit run by DHHS under a one-to-ten supervision, with one staff to no more than ten patients, and to attend off-campus activities under a oneto-ten supervision, and also to have a fourhour unsupervised pass daily on campus. The order states that Dr. Vance testified that respondent does not necessarily feel he needs to take his medications, let alone increase the dosage, and that if respondent were to stop the relapse. medication A experiencing auditory . relapse mania, . . . would [h]e likely psychosis, hallucinations, as would inevitably result in delusional well as him have a respondent beliefs, becoming energized, irritable, and sexually inappropriate. and more Indeed, Dr. Vance testified that even while respondent was medicated and under the suffering supervision auditory of his treatment hallucinations and team, believed he had that members had been kidnapped and held in the hospital. been family Based on -10his review of respondent s medical records and his interactions with respondent, Dr. Vance concluded that respondent is not ready to be discharged. The evidence does support the court s findings that Dr. Vance testified as noted above, but the trial court did not find that these assertions were facts. Nor did the trial court find that it considered this testimony credible, as opposed to its similar recitation of defendant s sister s testimony including her statement that she did not think defendant was a harm to himself or anyone else. Recitation of the opposing testimonies do not resolve the conflicts raised by the testimony but merely recognizes that the conflict exists. The trial court must weigh all of the evidence and in its findings, resolve the conflicts raised, as [r]ecitations of the testimony of each witness do not constitute findings of fact by the trial judge. In re M.R.D.C., 166 N.C. App. at 699, 603 S.E.2d at 894. Although the burden is on respondent to show that he is no longer dangerous, the trial court must make adequate factual findings relevant to whether respondent is still dangerous or not. It failed to do so here. Therefore, we must reverse the trial court s order and remand for entry of a revised order with appropriate findings of fact sufficient to support the trial court s conclusions of law. -11B. Conditional Release Although we have concluded that we must remand for entry of a revised order, we will address the remaining issues raised by respondent because these issues will not be resolved on remand even if the trial court makes findings of fact consistent with the statements of Dr. Vance in the testimonial findings of fact as discussed above. erred in not Respondent argues that the trial court considering conditional release Respondent would effectively or making be raises an three a finding about whether appropriate disposition. issues: whether (1) the trial court misunderstood the available dispositional options; (2) whether the trial court must make a finding regarding conditional release in every case; and (3) whether the trial court should have found him eligible for conditional release in this case. N.C. Gen. Stat. §§ 122C 264, 268.1, 276.1, and 277 read in pari materia establish the trial court s authority to order a conditional release as a dispositional option in § 122C 268.1 and § 122C 276.1 hearings. In re Hayes (Hayes II), 199 N.C. App. 69, 82, 681 S.E.2d 395, 403 (2009), disc. rev. denied, 363 N.C. 803, 690 S.E.2d 694, cert. denied, 363 N.C. 803, 690 S.E.2d 695 (2010). In Hayes II, the respondent was an NGRI acquittee who had -12been charged with four counts of first degree murder, five counts of felonious assault with a deadly weapon, and two counts of assault on a law enforcement officer. App. at 70, 681 S.E.2d at 396. reason of insanity on all Hayes II, 199 N.C. Hayes was found not guilty by charges and was involuntarily committed to a psychiatric hospital pursuant to N.C. Gen. Stat. § 15A 1321. Id. at 70-71, 681 S.E.2d at 396-97. From 1988 to 2007, Hayes had yearly recommitment hearings and was recommitted after each one. Id. at 71, 681 S.E.2d at 397. During the 2007 hearing, Hayes presented numerous psychologists and psychiatrists, all of whom advocated for his discharge; even the State s expert psychologist advocated for Hayes release, just a conditional one. Id. at 71 73, 681 S.E.2d at 397 98. After receiving this testimony, the trial court recommitted Hayes, finding that Hayes would be dangerous to others in the future supervision . . . . if unconditionally released with no Id. at 85, 681 S.E.2d at 405. Hayes appealed the trial court s recommitment order. at 74, 681 S.E.2d at 399. Id. He argued that the trial court erred in failing to consider a conditional release as a dispositional option during his recommitment hearing. at 396. Id. at 70, 681 S.E.2d The State argued both at trial and on appeal that the -13trial court was not even authorized to conditionally release Hayes. Id. at 76, 681 S.E.2d at 400. Although Hayes had not properly present[ed] a distinct argument to the trial court that a conditional release was a possible disposition, invoked Rule 2 to decide the merits of his claim. we Id. at 76 78, 681 S.E.2d at 400 01. We concluded that it is apparent from the trial court s findings of fact that its assumption that it had no authority to order a conditional release played a fundamental role in its decision, to recommit Hayes and that this assumption was a misapprehension as to the applicable law. S.E.2d at 405. Id. at 85, 681 Therefore, we were unable to determine that the trial court, if aware that a conditional release was a legal disposition, would have still recommitted Hayes because it incorrectly treated its dispositional options as binary, looking only to recommitment and full discharge. remanded for a de novo hearing entitled to a conditional release. Here, the trial court s Id. regarding As a result, we whether Hayes was Id. order does not affirmatively indicate that it considered conditionally releasing respondent, but without any indication to the contrary, [w]e presume that the trial court was aware of, and applied, the law as set forth -14in Hayes II. Lawing v. Lawing, 81 N.C. App. 159, 178, 344 S.E.2d 100, 112 (1986); Scott v. Scott, 106 N.C. App. 606, 613, 417 S.E.2d 818, 823 (1992) ( in a bench trial, the trial judge will be presumed to know the law. ), aff'd, 336 N.C. 284, 442 S.E.2d 493 (1994). There is nothing in the record to suggest that the trial judge misunderstood trial court s discharge the statement respondent or available that dispositional options. it was considering recommit him does not whether show that The to it misunderstood the applicable law. Rather, unlike in Hayes II, neither defendant nor the State presented any evidence that a conditional release would be medically appropriate. Even the testimony of defendant s sister, which was the only evidence presented by defendant, does not mention conditional release. A trial court is not required to make a finding as to conditional release in every case. Trial courts are not normally required to resolve an issue that is not raised by the parties and the evidence. See Small v. Small, 107 N.C. App. 474, 477, 420 S.E.2d 678, 681 (1992) ( In a trial without a jury, it is the duty of the trial judge to resolve all issues raised by the pleadings and the evidence . . . . (emphasis added)). Neither Hayes II nor the statutes require the trial court to make a -15finding as to whether conditional release is appropriate where neither the evidence nor the parties raises that issue. Finally, respondent did not argue to the trial court that he should be conditionally released. Therefore, the issue of whether respondent should be conditionally released has not been preserved for our review. Contrary show that options, to the the N.C.R. App. P. 10(a)(1).2 respondent s trial trial court court arguments, the misunderstood is not required record the to does not dispositional make a finding regarding conditional release in every case, and in this case respondent failed to argue appropriate. Therefore, that such a disposition would be the trial court did not err by failing to mention conditional release in its findings. C. Commitment to the Forensic Unit In his brief, respondent points to authority granting him procedural due process protections during his recommitment hearings. E.g., In re Reed, 39 N.C. App. 227, 249 S.E.2d 864 2 Respondent requests that we invoke Rule 2, as we did in Hayes II, and waive his failure to preserve this issue. Given that there was no witness who testified about whether conditional release was appropriate and the only medical testimony supported recommitment, we are not convinced that applying Rule 10 in this case would work manifest injustice to respondent. See Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 196, 657 S.E.2d 361, 364 (2008) (reaffirming that Rule 2 is only to be invoked cautiously and in exceptional circumstances. ). -16(1978). was Respondent then argues that his right to due process violated Central because Regional, he which was is placed more in the restrictive forensic than unit the at other units.3 He contends that this placement violated N.C. Gen. Stat. § 15A-1321(a) second because degree the crimes kidnapping do of first not degree involve burglary and allegations of inflict[ing] or attempt[ing] to inflict serious physical injury or death on another person, and the current iteration of § 15A1321 indicates that in such a situation an NGRI acquittee should be placed in a State 24-hour facility designated pursuant to G.S. 122C-252. See N.C. Gen. Stat. § 15A-1321(a) (2011). Respondent does not explain how this claim implicates his due process rights. Thus, the only issue is whether the trial court misunderstood its statutory authority in committing respondent to 3 the forensic unit at Central Regional. N.C.R. App. P. See generally 10A N.C. Admin. Code 28A.0102(b)(16)(2012) ( Forensic Division means the unit at [a psychiatric] [h]ospital which serves clients who are . . . (B) found not guilty by reason of insanity [or]. . . (D) deemed to require a more secure environment to protect the health, safety and welfare of clients, staff and the general public. ); 10A N.C. Admin. Code 28C.0308 (2012) (allowing for routine searches of the forensic unit); 10A N.C. Admin. Code 28D.0403 (allowing a court order to supersede the normal rules for determining when a forensic patient can refuse psychotropic medication and not face forcible administration of the drug). -1728(b)(6). An alleged error in statutory interpretation is an error of law, and thus our standard of review for this question is de novo. Armstrong Examiners, 129 v. N.C. North App. Carolina 153, 156, State 499 Bd. S.E.2d of Dental 462, 466 (citations omitted), disc. rev. denied and app. dismissed, 348 N.C. 692, 511 S.E.2d 643 (1998), cert. denied, 525 U.S. 1103, 142 L.Ed. 2d 770 (1999). Respondent was initially committed under N.C. Gen. Stat. § 15A-1321. The current iteration of § 15A-1321 differentiates between NGRI acquittees who were charged with a crime wherein it is alleged that the defendant inflicted or attempted to inflict serious physical injury or death and those who were not. If not alleged, the acquittee is to be committed to a State 24-hour facility designated pursuant to G.S. 122C-252. N.C. Gen. Stat. § 15A-1321(a). If defendant is charged with a crime wherein inflict[ing] or attempt[ing] to inflict serious physical injury or death is alleged, the acquittee is to be committed to a Forensic Unit operated by the Department of Health and Human Services, where the [acquittee] shall reside until the [acquittee s] release . . . . 1321(b). Until this new version was N.C. Gen. Stat. § 15Aenacted, none of the -18commitment statutes mentioned the forensic unit. Even now, only § 15A-1321(b) refers to that unit. The current version of N.C. Gen. Stat. § 15A-1321 applies to offenses committed on and after 1 January 1999. 1999 N.C. Sess. Laws 212, § 12.35B(b). Respondent s offenses occurred in November of 1998; thus, the current version of the statute is not applicable. The applicable version of § 15A-1321 provides only that [w]hen a defendant charged with a crime is found not guilty by reason of insanity . . . the presiding judge shall enter an order . . . committing the defendant to a State 24-hour facility designated pursuant to G.S. 122C-252. N.C. Gen. Stat. § 15A-1321 (1997).4 The applicable version of N.C. Gen. Stat. § 15A-1321 did not define a State 24-hour facility. 5 Chapter 122C, however, did and still does define both State facility and 24-hour facility. N.C. Gen. Stat. § 122C-3(14) (1997); N.C. Gen. Stat. § 122C-3(14)(2011). A State facility is a facility that is operated by the Secretary of DHHS. N.C. Gen. Stat. § 122C3(14)(f). A 24-hour facility is a facility that provides a 4 We do note that the original commitment order purported to commit respondeent under § 15A-1321(b), which as outlined above, does not apply to respondent. Nevertheless, respondent did not appeal from that order and it is not before us. 5 The current version of this statute also does not define that term. -19structured living environment and services for a period of 24 consecutive facilities hours under or more [Chapter and includes 122C]. N.C. hospitals Gen. Stat. that § are 122C- 3(14)(g). It follows, then, that a State 24-hour facility is a 24-hour facility operated by DHHS. Central Regional where respondent was committed is such a facility, as was Dorothea Dix.6 The statutes that govern the hearing at issue here do not distinguish between a forensic unit and any other unit within a 24-hour facility. Recommitment hearings for NGRI acquittees are conducted § under 122C-276.1. That section states that proceedings of the rehearing shall be governed by the same procedures provided by G.S. 122C-268.1. 122C-276.1. N.C. Gen. Stat. § Section 122C-268.1(i), in turn, requires the trial court to order that inpatient commitment continue at a 24-hour facility if it finds that the respondent has not shown that he 6 N.C. Gen. Stat. § 122C-181(a)(1)(a1)(2011) (authorizing the Secretary of DHHS to operate Central Regional Hospital); N.C. Gen. Stat. § 122C-252 (2011) (authorizing the Secretary of DHHS to designate 24-hour facilities); 10A N.C. Admin. Code 26C.0104(d)(2012) (noting that the list of designated facilities is available on the DHHS website); N.C. Dep t of Health and Human Serv., North Carolina Facilities Designated for the Custody and Treatment of Individuals Under Petitions for Involuntary Commitment, available at http://www.ncdhhs.gov/mhddsas/services/IVC/ivcdesignatedfaciliti es.xls (designating Central Regional as a 24-hour facility). -20is eligible for release. N.C. Gen. Stat. § 122C-268.1(i) (2011). The statute does not mention whether an NGRI acquittee must be committed to a particular unit; it only requires that the acquittee be committed to a 24-hour facility. Respondent argues in his reply brief that even if the new version of N.C. Gen. Stat. § 15A-1321 does not apply to him, neither the authorize old his version of commitment § to 15A-1321 nor § a forensic unit. 122C-268.1 We are not convinced that NGRI acquittees committed under N.C. Gen. Stat. § 15A-1321(a), the prior version of § 15A-1321, or § 122C-268.1 may not be committed to a forensic unit within a 24-hour facility simply because a subset of NGRI acquittees now must be committed to such a unit under N.C. Gen. Stat. § 15A-1321(b). The primary rule of construction of a statute is to ascertain the intent of the legislature and to carry out such intention to the fullest extent. Dickson v. Rucho, 366 N.C. 332, 339, 737 S.E.2d 362, 368 (2013) (citation and quotation marks omitted). A forensic unit is not a separate facility from the 24-hour facility it is simply a particular part of that facility. If the legislature intended to specify a particular unit for those NGRI acquittees committed under the old N.C. Gen. Stat. § 15A-1321, the new N.C. Gen. Stat. § 15A-1321(a), or N.C. -21Gen. Stat. § 122C-168.1 they could have done so, as they did in § 15A-1321(b). legislature Instead, specified the a only particular acquittees unit were for those whom the committed under § 15A-1321(b). It makes sense that the legislature would determine that those insanity acquittees charged with a crime wherein inflict[ing] or attempt[ing] to inflict serious physical injury or death is alleged must be committed to the most secure unit, while leaving such determinations to the informed discretion of the treating professionals for other NGRI acquittees, subject of course to any other statutory and regulatory requirements. The statutes under which respondent was committed require him to be committed to a 24-hour facility. He was committed to just such a facility. Gen. Stat. acquittees § Nothing in the plain language of N.C. 122C-168.1 charged with forbids a crime the commitment wherein of inflict[ing] NGRI or attempt[ing] to inflict serious physical injury or death is not alleged to a forensic unit. N.C. Gen. Stat. § 15A-1321(b) does not change this conclusion. Respondent has not pointed us to anything else that would forbid his commitment to the forensic unit or require his commitment to another unit. Therefore, even assuming he is correct that he would not qualify for commitment -22under N.C. Gen. Stat. § 15A-1321(b), the trial court did not err in committing respondent to the forensic unit of Central Regional. VI. The support trial its court Conclusion failed conclusion. to make Nonetheless, sufficient there findings is to sufficient evidence in the record to support such findings, so we remand for entry of a revised order with appropriate findings of fact and conclusions of law consistent with those findings. We also hold that the trial court was not required to make a finding of whether conditionally releasing respondent was appropriate because it was presented with no meaningful evidence that his conditional release was medically appropriate. Further, recommitment to the forensic unit at Central Regional did not violate N.C. Gen. Stat. § 15A-1321. For these reverse and remand for entry of a revised order. REVERSED and REMANDED. Judges CALABRIA and DAVIS concur. reasons, we

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