diane holik house address

So long as the trial court operates within the boundaries of its discretion, there is no abuse of discretion and its decision will not be disturbed on appeal. We conclude that the evidence supporting the finding of guilt is not so weak as to make the finding clearly wrong or manifestly unjust, nor is the verdict against the great weight and preponderance of evidence. Brewer is factually distinguishable from the instant case. While the title appeared suspiciously suggestive and implicitly of a sexual nature, it did not appear to be criminal or of an incriminating character in and of itself. We have the court reporter's affidavit stating that the penalty stage record is available, but that appellant's first appointed appellate counsel did not request the transcriptions of that portion of the record. He then sat down and covered his face with his hands. The Gray court concluded that under the circumstances, it was reasonable under the Fourth Amendment for the special agent, in his routine preliminary file review, to open the JPG file, and to cease the search and obtain another warrant after viewing the nature of the material. Fletcher v. State, 852 S.W.2d 271, 277 (Tex.App.-Dallas 1993, pet. Medina v. State, 7 S.W.3d 633, 643 (Tex.Crim.App.1999). The victim, an IBM at home supervisor, was found in an upstairs bedroom lying face down. Rule 403 more strongly favors admissibility than did many of the earlier formulations of the appropriate balancing test, with the opponent of the evidence bearing the burden of showing that the probative value is substantially outweighed by countervailing factors. 1 Steven Goode, Olin Guy Wellborn, III & M. Michael Sharlot, Texas Practice: Guide to the Rules of Evidence, 403.1 (3d ed.2002) (citing Yohey v. State, 801 S.W.2d 232, 236 (Tex.App.-San Antonio 1990, pet. ref'd). 5. After a keyword search of certain terms proved negative, Id. This inference is not negated by evidence of an alternative motive that a jury could rationally disregard. ), to support his argument. 401.Rule 402provides:All relevant evidence is admissible, except as otherwise provided by Constitution, by statute, by these rules, or by other rules prescribed pursuant to statutory authority. Subsequently in the conversation, Barajas recalled that Holik panicked when she realized that she did not have her engagement ring and said, Oh, my God. Barajas heard retreating foot steps after Holik put the phone down. Each membership was paid with a credit card traced to appellant. After reviewing Carey, Walser, Gray, and other authorities, the Rosa court wrote: We agree with the reasoning of these cases. In his fifth point of error, appellant urges that [t]he trial judge erred in the admission of extraneous conduct evidence from other8 homeowners and realtors under Tex.R.Crim. Her daughter awakened and screamed. Still further, in a murder case, the intention of the victim to go somewhere or to meet someone may be proved by evidence of the victim's out-of-court assertion of intent. The jury as the trier of fact is the sole judge of the credibility of the witnesses and the weight to be given the testimony and may accept or reject all or any of a witness's testimony. All these witnesses, except Bob Reynolds, were women. 403. ref'd))). ref'd). Cranford had just gotten her children down for a nap. Dogs inside the house appeared to have left fecal matter on the carpet, indicating that they had been confined for some time. Rule 803(1) requires that the declaration, if not simultaneous with the event, be made immediately thereafter. Immediately may permit only a slight lapse of time. We need not reiterate the evidence. Diane Tasker-Holik. She saw a gold or champagne-colored minivan pull up to the for sale sign in the yard. On Thursday, November 15, 2001, after some difficulty in reaching Holik that morning for their weekly conference, Barajas talked to Holik in her home on the phone about 12:45 p.m. Austin time. 403. Brown, 552 F.Supp. There was evidence that appellant's wife inquired about property in Bastrop County. He left the black-and-white flyer behind. There were no trial objections to the subject matters advanced in this point of error. Appellant simply asserts that because the encounters occurred either six months or three months before the offense on November 15, 2001, the evidence is too remote to be relevant and should not have been admitted. If you have questions, please contact [email protected] Email not found. Investigators say the murderer stayed in Diane Holik's home for a bit to "erase" any sign of them being there. The record reflects that the police were able to learn from Joe Schwaleberg of Generic Systems, Inc., who operated the necrobabes.com Web site, that on February 28, 2001, Janet Russo paid for a six-month subscription to this erotic asphyxiation Web site, and that on July 21, 2001, Tony Russo paid for a six-month subscription to the same Web site. Appellant argued that [s]uch evidence can only prejudice the defendant and distract the jury from the material issues of fact before them.. The Brewer court pointed out that there was no evidence to show that a theft or a robbery of the victim took place or that the defendant was implicated in the offense. He claims that the fact that Holik's undisturbed purse was found in her car in the garage dispels any notion of a robbery at the scene. The Web pages viewed by appellant included manual and ligature strangulation. Tony Russo is a pathological liar & murderer. Appellant's telephone number was given and identified. Appellant overlooks the fact that at no time did he advance any relevancy objection at trial as required. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State's case-in-chief such evidence other than that arising in the same transaction.Tex.R. Evid. 19.03(a)(2) (West Supp.2006).1 A jury found appellant guilty of capital murder. The State urges that the temporary Internet files relating to necrobabes.com were not opened before the issuance of the search warrant on November 18, 2003. As earlier noted in the discussion of the fifth point of error, a general relevancy objection does not preserve an extraneous-offense claim under Rule 404(b) of the Texas Rules of Evidence. 2. The trial court submitted to the jury both theories of capital murder alleged in the indictment, that the murder occurred in the course of (1) a robbery or (2) a kidnapping. The proponent of evidence usually has the original burden of showing that it is relevant and admissible. Evid. She was in daily and weekly contact with certain IBM coworkers across the country in the same supervisory field. Appellant relies upon his hearsay objections at the hearing to preserve any error, because he made no further objections when Barajas testified before the jury shortly thereafter. On November 17, 2001, there was a church staff meeting. He stood quietly with his attorneys upon hearing the verdict. The facts of Carey are not the facts of the instant case. Teena Fountain, an IBM coworker from Oak Park, Illinois, testified that on the morning of November 16, 2001, she was contacted by coworkers, Diane Kapcar of Dallas and Cynthia Barajas of Los Angeles, California, who reported that Holik had missed a scheduled meeting, and that they had been unable to contact her by any available means. ref'd); Schexnider v. State, 943 S.W.2d 194, 198-99 (Tex.App.-Beaumont 1997, no pet.). The sixth ground of error is overruled. at 680; see also Saldivar v. State, 980 S.W.2d 475, 495 (Tex.App.-Houston [14th Dist.] Carey is factually distinguishable. Nethery, 692 S.W.2d at 706; Thompson, 59 S.W.3d at 808. Cranford told him that her husband was not home often as he was a busy man, but that they had a realtor. If error was preserved, it was during pretrial hearings. The indentations appeared to have been made by plastic zip ties or flex-cuffs once used by police to bind prisoners' wrists together. Several of the witnesses described a vehicle nearby at the time as similar to the champagne or tan-colored van shown to have been driven by appellant. He urges that the execution of the search of the computer's contents exceeded its scope with the search of a computer file relating to necrobabes.com. It is argued that the search should have been limited to the computer's contents involving real estate as authorized by the search warrant of June 18, 2003. Cathy Vance, a forensic analyst with the white collar crime unit in the district attorney's office, analyzed appellant's financial records. If there is evidence, however, from which the jury could rationally conclude beyond a reasonable doubt that the defendant formed the intent to obtain or maintain control of the victim's property either before or during the commission of the murder, then the State has proved that the murder occurred in the course of the robbery. Russo. A search warrant was issued to enter the defendant's home and seize his computer and related items. The State has interpreted appellant's contention likewise and has briefed only the sufficiency of the evidence relating to the aggravating element of the capital murder. Dr. Coons's expert opinion was that the facts given to him showed a motive of sexual gratification through ligature strangulation. Such motive is not inconsistent with evidence of intent to commit robbery during the same incident where the intent to rob is timely formed. 403. Appellant's hearsay objection was overruled. Though the death case murder is still a mystery. Rector examined the computer with a program called Encase, which is designed to recover any data located on a hard drive, whether it is an active computer file or a previously deleted file. Guevara, 152 S.W.3d at 49. Appellant cites no authority to support his contentions. Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App.2000). He indicated that the material from the erotic asphyxiation Web site tended to reveal the motive for the killing of the victim, which was sexual sadism. She. Contact us. Plenty of dogs at Midland Animal Services are waiting for their furever home. Upon discovering the child pornography, the agent ceased his search and obtained a second search warrant to search the computer for child pornography. Commonwealth v. Marshall, 287 Pa. 512, 135 A. The prosecution is not required to prove motive in any case. Matamoros v. State, 901 S.W.2d 470, 474 (Tex.Crim.App.1995); Brewer v. State, 126 S.W.3d 295, 297 (Tex.App.-Beaumont 2004, pet. at 1271, the detective began to browse through the file directories in Carey's computer and stumbled across a JPG file18 and opened it. Donald Ray Holik, 56. These are the same cases that the Amarillo Court of Appeals analyzed in Hall v. State, 970 S.W.2d 137, 141 (Tex.App.-Amarillo 1998, pet. ref'd). Texas, 2001: Diane Holik is strangled in her home. Prosecutors said Russo posed a home buyer to get into Diane Holik's house in November 2001. Her $17,500 engagement ring was missing. In the jury's absence, Barajas testified that Holik told her that the man offered cash for her home. This was so because after the accidental discovery of the illegal pornography in the first JPG file, the detective opened subsequent JPG files expecting to find child pornography and not material related to drugs. In a search for tangible documents, it is certain that some innocuous documents will be examined, at least cursorily, in order to determine whether they are, in fact, among those papers authorized to be searched. Tex.R. Details. A trial court's evidentiary ruling on a hearsay objection must be upheld absent an abuse of discretion. 9, 4-5, 75, 81 [pretrial]; R. Vol. All persons inherit mitochondrial DNA from their mothers-so maternal relatives have the same M-DNA. Nelson examined seven hairs recovered from the victim's home. Diane Holik was born on 10 September 1958 in Bay Shore, New York, USA. Holik was engaged to be married and planned to move to Houston where her fianc lived. Rankin, 974 S.W.2d at 718. Dr. Coons was presented with a hypothetical scenario based on the evidence admitted at trial (except evidence of robbery). See Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988). The fianc and coworker were excluded, but Mills could not exclude DNA samples from the victim or appellant on the swab. Maldonado v. State, 998 S.W.2d 239, 243 (Tex.Crim.App.1999). Police officers searched appellant's church office on November 21, 2001. 803. 1998, pet. Contact Uploading & Non-Users; Settings; Activity log; According to Detective Rector's testimony, the unallocated clusters at some point were resident in the computer but had been deleted. ; Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.1995). The State was able to tie some of the viewings to the dates that appellant visited some of the female homeowners and realtors, in order to show intent and motive. The grave site of Diane T Holik / Plot 14310373. When she misses a meeting at work police are called to her home. Circumstantial evidence of intent is not required to meet the same rigorous criteria for legal sufficiency as circumstantial proof of other offensive elements. Barajas related that Holik gave an explanation for why she was late. In Walser, the officers obtained a search warrant to search the defendant's hotel room and computer for evidence of possession or sale of controlled substances. Thus, there was no probative evidence of an intent to rob. The books were purchased in memory of Diane T. Holik, our fellow classmate, who we all know now, lost her life tragically on November 16th, 2001. The name necrobabes.com was indirectly obtained from the computer search pursuant to the search warrant of June 18th, but that was a legal search and did not taint the acquisition of the name. Diann Holik. See Dillon v. State, 574 S.W.2d 92, 94 (Tex.Crim.App.1978); Skillern v. State, 890 S.W.2d 849, 880 (Tex.App.-Austin 1994, pet. P. 33.1. The trial court did not abuse its discretion in admitting evidence of the contents of appellant's computer as contended. In the absence of the jury, the trial court conducted a hearing on Barajas's testimony and made its rulings. As a result of the jury's answer at the penalty stage of the trial to the special issue concerning mitigating circumstances, the trial court imposed a life sentence. On this latter date, she took note of the license plate number on his van. After the initial discovery, and without obtaining a new warrant, the detective abandoned the search for drug trafficking evidence, and proceeded instead to download and view over 200 similarly labeled JPG files in a successful search for further images of child pornography. Proof of robbery committed as an afterthought and unrelated to the murder is not sufficient evidence of capital murder. See Watson, 204 S.W.3d at 414-15. Proximity in time and place may be a factor, but it must be considered along with other facts and circumstances. Ann. A violent thunder and rainstorm descended upon Austin in the afternoon of November 15, 2001. 75 Miss. He had pleaded innocent. That search was not abandoned in favor of an investigation into necrobabes.com.. The facts do not show that Detective Rector exceeded the scope of the search warrant of June 18 in violation of the Fourth Amendment. During the conversation Holik panicked when she realized that she did not have her expensive engagement ring on her hand. 803(3). Movies/Documentaries Six Degrees of Murder: Ties That Bind Motives & Murder: Death Knocks Dateline: After the Storm. 1. She was born in Bay Shore, Long Island on September 10, 1958 to Wilfried and Ingrit (Wauer) Holik. According to the pastor, Jim Fox, appellant stated that God had gotten his attention during the November 15 storm, and that it was a determining time in his life. Appellant does not claim that any one exhibit or one set of exhibits was irrelevant and prejudicial but urges that all the named exhibits fell into that category. Then multiple women report a man behaving strangely while looking at properties for sale or rent. Learn more about FindLaws newsletters, including our terms of use and privacy policy. The legal sufficiency of the evidence under the Jackson standard is a question of law. Id. Hon. Her nineteen-month-old son was in the master bedroom and her three-month-old daughter was in the nursery. In Brown, a maintenance worker at an apartment building was convicted of murdering a tenant's live-in girlfriend, Shelby Weinstein. Crime Mystery Docudrama. After viewing the video, the officer ceased the search on the hard drive and obtained a new search warrant authorizing a search for evidence of possession of child pornography. See Tex.R. Appellant argues that the evidence held appellant up to public ridicule and shame and had little effect upon a fact of consequence. If the computer erases the index, the file is still out there in the unallocated clusters until the computer reuses that space.. Cranford was close to him. Barajas knew about Holik's personal life, that Holik lived alone and worked from her home, that Holik had an upcoming marriage and wanted to sell her Austin home, and that Holik had Thanksgiving holiday plans with her fianc. It was an awkward situation. 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They worked as a team in managing new college hires for IBM. Cranford said that appellant's eyes somehow looked bigger and deeper and darker and that he seemed to be a different person. Penal Code Ann. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. An earlier membership had been issued on February 28, 2001, to a Janet Russo at the same address. 1. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. Maldonado, 998 S.W.2d at 243. Her valuable engagement ring was in her possession at 1:30 p.m. on November 15, 2001. There was no objection to this latter statement which was Barajas's opinion, not a present sense impression exception to the hearsay rule. Appellant's cell phone had calls at 3:30 p.m., 5:34 p.m., and 5:56 p.m. on November 15, 2001, and these outgoing calls originated in northwest Austin. He then stated that he and his wife could return the next day. ref'd); Miranda v. State, 813 S.W.2d 724, 733, 742 (Tex.App.-San Antonio 1991, pet. The evidence was relevant. 301, 304 (Pa.1926) (on morning of her death, victim told fellow passenger on train that she was going to meet defendant that evening). Appellant generally complains that all the exhibits were irrelevant, but if relevant, their probative value was substantially outweighed by their prejudicial effect. Under the Fourteenth Amendment, the task of the appellate court is to consider all the evidence in the light most favorable to the verdict and determine if any rational trier of fact could have found beyond a reasonable doubt all the essential elements of the offense. He makes no claim that the evidence was inadmissible because it revealed extrinsic acts or misconduct. More than 136 such documents in the temporary Internet files folder or unallocated clusters (deleted files) were located. at 1270. Susan Fox, the pastor's wife, testified about the same conversation. This was done with the consent of the Web site operator. at 224. In the first and second points, appellant challenges the legal sufficiency of the evidence to establish that the murder was committed in the course of a robbery or in the course of a kidnapping. Also known as Diane T Holik, D T Holik. Harmond v. State, 960 S.W.2d 404, 406 (Tex.App.-Houston [1st Dist.] At the hearing in the jury's absence, the trial court overruled appellant's hearsay objection to the this guy just left testimony on the basis of the present sense impression exception to the hearsay rule. pet.). View Diana Holik results including current phone number, address, relatives, background check report, and property record with Whitepages. Appellant was ready to submit to the authority of the pastor. Id. In assaying all the evidence under the Jackson standard of review, a reviewing court must consider all evidence, rightly or wrongly admitted, that the trier of fact was permitted to consider. All rights reserved. The instant offense occurred on November 15, 2001. His hands holding the flyer were shaking. 2737). Cranford went to the nursery to calm the child. He asked about the alarm system. A reviewing court may, however, disagree with the result to prevent a manifest injustice. We observe that a general relevancy objection, even though timely, does not preserve an extraneous offense claim under Rule 404(b). Cranford left the room and appellant stayed behind. pet.). Evid. Evid. He testified that he hypothesized the coincidental chances of obtaining the same nuclear DNA results in this case would be one in 16,817. Cranford told him that she did not use it during the day. Appellant appeared broken and downcast when making his statements. 19.03(a)(2), the legal and factual sufficiency standards apply to both the charged and underlying offenses. Appellant stated that the house was beautiful and that he was going to be selling a ranch and would be paying cash for a house. Appellant then asked several times when Cranford's husband would be home. Prosecutors said Russo posed a home buyer to get into Diane Holik's house in November 2001. The second portion of the fifth point of error is overruled.14. When Deem opened a JPG file, he viewed an image that he believed to be child pornography. So, Diane was looking to sell her previous Home and move to Houston, Texas, where he lived. Deem noted that it was common practice to manually open picture files because text (such as chat sessions) could be found in JPG files. Forty-three-year old Diane Holik is selling her home to start a new life with her fianc in Houston, then she misses a meeting at work and police are sent to her home, where they find her bruised and lifeless body. 2. Please try again. The search program permitted a search of the names and contents of the files. Id. Other evidence showed that several days before the murder, appellant accessed the necrobabes.com Web site which detailed a scenario that involved the ligature strangulation of a woman and the theft of her jewelry. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997). Appellant seeks to distinguish Bachhofer on the basis that the instant case did not include any criminal act by appellant during the encounters. To establish capital murder committed during the course of a robbery, the prosecution must prove beyond a reasonable doubt, in addition to the alleged murder, that the defendant possessed the specific intent to obtain or maintain control of the victim's property either before or during the commission of the offense. 19.02(a) (West 2003); Rey v. State, 897 S.W.2d 333, 340 n. 7 (Tex.Crim.App.1995); Brewer, 126 S.W.3d at 297. Tex.R. A homeowner from another subdivision saw the drawing in the newspaper and called the police. See Photos. Under all the circumstances, if error was properly preserved and presented, we conclude that the trial court did not abuse its discretion in overruling appellant's pretrial Rule 403 objections. United States v. Gray, 78 F.Supp.2d 524 (E.D.Va.1999), involved the federal offenses of unlawfully accessing (hacking) a computer of the National Library of Medicine (NLM) and possession of child pornography. Evid. The standard of review is the same for both direct and circumstantial evidence. The man told some that he would return with his wife on the weekend to see the house, that he had recently sold a ranch or some property, and that he would be paying cash. 37, 205.15 Detective Roy Rector, a forensic computer examiner with the Austin Police Department, first made a copy of the computer's hard drive, which is protocol for forensic computer examination. The company's filing status is listed as Forfeited Existence and its File Number is 0800520616. Stay up-to-date with how the law affects your life. The evidence shows that appellant and his wife had a $199,000 mortgage on their trailer home in Bastrop.4. 803(1). Glad he's in prison for life. The court added: This principle applies equally to a search for electronic files. On November 15, 2001, when Hebner was coming home, he observed a gold or brown van parked in front of Holik's home about 5:00 or 5:15 p.m. It has been said that three principal requirements must be met before hearsay evidence may be admitted as a present sense impression: (1) the declarant must have personally perceived the event described; (2) the declaration must be an explanation or description of the event rather than a narration; and (3) the declaration must be contemporaneous with the event. 404(b). A jewelry box, which contained a substantial amount of jewelry, including some very expensive pieces, was missing from the master bedroom. The Texas Rules of Criminal Evidence was superseded by the Texas Rules of Evidence effective March 1, 1998. The man asked for a floor plan, which Cranford did not have. The prosecution offered evidence of appellant's financial condition during the time period in question. Daniel J . See Tex. Whether to admit an out-of-court statement under an exception to the hearsay rule is committed to the trial court's discretion. We do not reach the second point of error claiming legal insufficiency of the evidence to establish that the murder occurred in the course of a kidnapping. In fact, appellant did not request that the court reporter's record be included in the appellate record. SID Number: 04127272 TDCJ Number: 00655871 Name: RUSSO, PATRICK ANTHONY Race: W Gender . In part because of his Necrobabes.com membership, Russo was found guilty of the November 15, 2001 strangulation of Diane Holik, who worked from her home in Austin and was hoping to sell her house . We need not recite all the facts and circumstances demonstrating the lack of remoteness. Rule 404(b) provides:(b)Other Crimes, Wrongs or Acts. The time frame of her death was placed by the medical examiner from 3:00 p.m. on November 15 to 3:00 a.m. on November 16, 2001. This information was given to the police after November 15, 2001. He then inquired whether there was a husband or boyfriend with whom he could deal. This address is linked to two people, Diane L Holik and Kevin G Holik. Templin v. State, 711 S.W.2d 30, 34 (Tex.Crim.App.1986). The email address cannot be subscribed. (internal quotation marks omitted). Cranford invited him into the house. A statement of the declarant's the existing state of mind, emotion, sensations or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will. Seaman: The Dog Who Explored the West. See Guevara, 152 S.W.3d at 50; Patrick v. State, 906 S.W.2d 481, 487 (Tex.Crim.App.1995); Dues v. State, 634 S.W.2d 304, 305 (Tex.Crim.App.1982). There were 1,200 images recovered. She put the phone down, but later returned and told Barajas that her rings were back on. The conversation eventually concluded about 1:30 p.m. Robert Hebner and his wife were neighbors and friends of Holik. See Conner, 67 S.W.3d at 197. The prosecutor requested Rector to determine if there was additional information of that type on the Internet history concerning necrobabes.com. Rector was to continue his search for matters relating to real estate and the sale of homes in the Austin area. Sign Up. The testimony presented before the jury showed that Holik planned and had the intent to meet the man who just left the following Saturday. See Tex.R.App. Moreover, objections based on remoteness go to the weight rather than the admissibility of the evidence. 193, 226 n. 100 (Fall 2005) (citing in the following order: Guest v. Leis, 255 F.3d 325, 336 (6th Cir.2001) (noting that computer users do not have a legitimate expectation of privacy in their subscriber information because they have conveyed it to another person-the system operator); United States v. Cox, 190 F.Supp.2d 330, 332 (N.D.N.Y.2002) (holding that there is no reasonable expectation of privacy in subscriber information provided to Internet service provider); United States v. Kennedy, 81 F.Supp.2d 1103, 1110 (D.Kan.2000) (no reasonable expectation of privacy in subscriber information); United States v. Hambrick, 55 F.Supp.2d 504, 507-09 (W.D.Va.1999) (individual has no reasonable expectation of privacy in his name, address, social security number, credit card number, screen name, and proof of Internet connection obtained from Internet service provider); State v. Evers, 175 N.J. 355, 815 A.2d 432, 440-41 (N.J.2003) (person had no standing to challenge warrant that obtained his subscriber information from Internet service provider); Hause v. Commonwealth, 83 S.W.3d 1, 10-12 (Ky.App.2001) (no standing for subscriber to challenge warrant that obtained his name, address, and screen name from Internet service provider); United States v. Ohnesorge, 60 M.J. 946, 949-50 (U.S. Navy-Marine Ct.Crim.App.2005) (no reasonable expectation of privacy in subscriber information given to Internet service provider)).

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