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Old July 14, 2011, 04:49 PM   #126
OldMarksman
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Posted by Double Naught Spy: I do believe that self defense statutes are still in place in OK that state one may act in the defense of others.
So do I.

There is apparently one common jury instruction for use in cases involving justification of the use of deadly force for self defense, but it seems to encompass more than self defense per se. It does address shooting at a felon, but not the defense of a third person. It is OUJI-CR 8-46, DEFENSE OF SELF-DEFENSE -JUSTIFIABLE USE OF DEADLY FORCE. It says this:
Quote:
A person is justified in using deadly force in self-defense if that person reasonably believed that use of deadly force was necessary to protect himself/herself from imminent danger of death or great bodily harm. Self-defense is a defense although the danger to life or personal security may not have been real, if a reasonable person, in the circumstances and from the viewpoint of the defendant, would reasonably have believed that he/she was in imminent danger of death or great bodily harm.
The committee notes refer to the relevant statute and discuss various justifications, including self defense, defense of a third person, prevention of a felony, preventing escape of a felon, suppressing a riot, or disturbing the peace. The notes go on to discuss appellate cases and to conclude that the deadly force in pursuing a felon, preventing a felony, suppressing a riot, or preserving the peace is only justified when the situation presents imminent danger of death or great bodily harm to the defendant.

There is no specific conclusion on defending a third person in that instruction, but there is more: This one, OUJI-CR 8-2, DEFENSE OF ANOTHER - JUSTIFIABLE USE OF DEADLY FORCE says this:
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A person is justified in using deadly force in defense of his/her husband/wife/ parent/child/master/mistress/servant if that person reasonably believed that use of deadly force was necessary to protect his/her/husband/wife/ parent/child/master/ mistress/servant from imminent danger of death or great bodily harm. Defense of another is a defense although the danger to the life or personal security of his/her husband/ wife/parent/child/master/ mistress/servant may not have been real, if a reasonable person, in the circumstances and from the viewpoint of the defendant, would reasonably have believed that his/her husband/ wife/ parent/child/master mistress/ servant was in imminent danger of death or great bodily harm.
Other instructions address deadly force in the case of an intruder, battered women, situations that start out with the actor being the aggressor, and so on.

This should all teach us two things: (1) relying on a single statute without knowing the case law is a dangerous proposition; and (2) one should only rely on a practicing criminal attorney in the jurisdiction at hand.

Is the DA wrong? I do not know. Can one properly employ deadly force to defend a third person if one's own life is not in imminent danger? Yes, but whom? Perhaps a practicing criminal attorney from Oklahoma can help us here.

I do know this: shooting a handgun at a fleeing felon in an urban setting is a recipe for disaster, whether one is charged or not, in large part because of the risk to others.

As I mentioned before, some DAs have said that they thought that getting convictions would be difficult, and the DA in Oklahoma may have been trying to paint a simpler and more clear case for potential jurors and the public; Ersland had a lot of sympathizers after the shooing. I have not been one of them.

Also as I mentioned before, I do think that the DA would have had a different opinion had Ersland's actions led to the death or serious injury of a third person through his reckless disregard of the safety of others.
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Old July 14, 2011, 04:50 PM   #127
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I think we’ve all been around people – especially at work, who are functional and competent at their job, but everyone gets a sense that they’re “not all there”. Listening to Ersland’s interrogation – I get the feeling he has some cognitive or emotional problems or both – he’s just not all there. He would have been much better off trying a totally different defense. I don’t think he’d have a problem convincing a jury that he’s mentally defective and was temporarily insane when he shot that kid. He might have gotten a different sentence.

Ersland will be OK, he’ll end up working in the pharmacy in a federal prison. He’ll probably be a little sad because he won’t be able to play with guns anymore, but he’ll get by…
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Old July 14, 2011, 04:56 PM   #128
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I do not think that Ersland will serve his term in a federal prison.
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Old July 14, 2011, 05:21 PM   #129
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^ that's too bad they could probably use a good pharmacist in the pen.
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Old July 14, 2011, 05:21 PM   #130
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Jury instruction is fine, OldMarksman, but I didn't ask about it. I asked you about the case law. What case law are you talking about?
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Old July 14, 2011, 06:06 PM   #131
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To my knowledge, the man was convicted in a state court, so his sentence will be served in a state prison.

Why would the DA praise or exonerate Ersland for his conduct up until he fetched the second gun and shot the wounded robber as he lay defenseless?

Simple.

The DA knew he might be dealing with gun rights types in the jury box. He had to show the jury that Ersland was not on trial for being a gun owner, or for being a gun owner who shot at bad guys. He had to sell the jury that the crime was committed after a series of lawful acts involving Ersland and his gun, and the distinction between the lawful and the unlawful was therefore a clear, bright line. Nice and tidy.

This was a good strategy.

On the other hand, the DA had a video of the man shooting an unarmed, wounded 16-year-old, so he likely could just as easily have said, "roll tape, move into evidence, the State rests."
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Old July 14, 2011, 09:33 PM   #132
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Posted by Double Naught Spy: Jury instruction is fine, OldMarksman, but I didn't ask about it. I asked you about the case law. What case law are you talking about?
The jury instructions that I quoted were based on case law; the case law was cited in the summaries in the links that I provided.
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Old July 14, 2011, 10:02 PM   #133
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its wrong what he did afterwards I will agree...but shooting him on the floor was his decision and he alone should only be able to judge what he did was right or not...
That's not how the system works, and we should all be thankful for that fact.

Do we REALLY want people to be able to do whatever they think is right and then let them be the final authority in terms of judging whether what they did was right or not? I certainly don't.

When someone is murdered, the murderer is the WORST possible person to adjudicate the rightness/wrongness of his own actions.
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Old July 15, 2011, 12:25 AM   #134
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Was the robber moving? The coroner says NO. Pooled blood from the head wound and related evidence no doubt also showed that there had been no significant movement, otherwise the defense would have mentioned this attribute.
i haven't read anything in depth about it as you seem to have. the video doesn't show a whole lot. if he did indeed execute the scumbag when he wasn't a threat, that obviously is a violation of the law and he should be convicted.


at the same time, the defense can bring in their own experts to say the pool of blood can be interpreted different ways. no smears in the blood around his head doesn't mean his hand wasn't raised with a gun in it. there's just too many factors to consider.


this is just a cursory observation, i haven't done any serious reading into the trial transcript, so i can't tell you what was said or done.

what was the definitive proof that led to his conviction anyway?
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Old July 15, 2011, 05:19 AM   #135
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There was no gun to raise as he was unarmed. Even if he had a knife, he was on the ground. Ersland was mobile and walked back over to him.
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Old July 15, 2011, 06:33 AM   #136
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Lol..that's not how the system works...the only time I ever seen the system working first hand I was about to be getting screwed by it...and only saved not from the system but because my brother woke up and was able to tell them....so you preaching to me how good and true the system is would be like a catholic priest asking a muslim to go to church....I know you have seen things to make you believe the way you do johnska...but I have also seen things as well..and no I don't believe the system works at all.....someone in here asked me what would I do if somone broke into my house while I was sleeping but in a attempt to rob me or kill me fell down the stairs and landed unconscious....I would laugh at the irony as I am a humorous person and call the cops...however I have to ask you a question..what would you do if the same thing happened except he wasn't fully unconscious his gun laying safely at your feet and he looks up and says the cops can arrest me now but ill get out in a couple years pleading insanity and when I do ill come back and kill your wife and kids while you are at work one day.....are you going to roll the dice and see if the system works..or commit cold blooded murder and shoot him..because you and I both know it would be a shaken house owner found robber laying on floor and executed him.....in my opinion ersland pretty much did the latter...if that guy with the head wound ever recovered he would have probably wanted revenge for being so messed up and stuff...so no I say it was his call to make and he did...you can say this is all some wild theory but nobody knows what was going on through his head that night...was ersland scared of retaliation or not..idk but I say it was his call
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Old July 15, 2011, 06:38 AM   #137
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what was the definitive proof that led to his conviction anyway?
  1. Video that showed him returning to the building after having left for a place of safety, obtaining a second weapon, walking over to the victim, and firing multiple shots at him at point blank range;
  2. forensic evidence indicating that the unarmed victim, though alive, had not been not moving and did not pose an imminent threat of death or serious bodily harm; and
  3. multiple entry wounds fired at the victim while he was lying on the floor.
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Old July 15, 2011, 06:47 AM   #138
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Posted by chadstrickland: ...if that guy with the head wound ever recovered he would have probably wanted revenge for being so messed up and stuff...
"Would have probably wanted revenge" is a long, long way from posing an imminent threat of death or serious bodily harm.

But let's weigh the risks anyway, and see if murder would have prevented that or other possible future harm. So, the murderer is imprisoned. Who will protect his family against the thousands of other violent criminal actors roaming the streets and alleys?
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Old July 15, 2011, 07:23 AM   #139
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Very true..there are thousands of them..but he only shot one of those people in the head and only one of them would have been permanently screwed up for life..and that's the one he killed
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Old July 15, 2011, 07:36 AM   #140
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i haven't read anything in depth about it as you seem to have. the video doesn't show a whole lot.
Okay, for the second time in this thread, see the following video. Prater specifically states that there is evidence from the medical examiner and forensic evidence from the scene that the downed suspect wasn't moving about.

http://www.news9.com/video?C=116601&...edirected=true

Quote:
at the same time, the defense can bring in their own experts to say the pool of blood can be interpreted different ways. no smears in the blood around his head doesn't mean his hand wasn't raised with a gun in it. there's just too many factors to consider.
They could have, only they didn't have an expert to testify that the suspect remained perfectly still while still raising the imaginary gun that he didn't have that would have been necessary to justify Ersland shooting him.

So this gun that the expert would testify the robber raised. Where did the robber get it? It wasn't seen in the video when he came in. And what happened to this gun? The only indication that it was ever there was based on Ersland's statements. Of course, Ersland's statements have been full of fabrications such as claiming that the suspects shot at him and that he was shot by them. He claimed to have killed lots of people in Desert Storm and been wounded in a morter attack whilst his service record shows he was at Altus AFB in OK.

So since you are so sure the downed suspect had a gun as well, how about producing it. Nobody else can.

Quote:
what was the definitive proof that led to his conviction anyway?
LOL, aside from what OldMarksman has covered well in summary and which is all public information and covered multiple times already, a better question would be what proof do YOU see lacking? The jury had no problem with the information, so what is it that you know that indicates that Ersland fired those 5 shots in self defense? Was it is casual demeanor as he walked by the unconscious suspect multiple times? Was it how he turned his back on him several times? Was it how he casually walked over and executed him?
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Old July 15, 2011, 07:43 AM   #141
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When I look at a crime like this I have a lot of different feelings. I personally feel threatened and vulnerable because it highlights the fact that there are criminals out there and in my mind I feel that I could be in store one day when criminals decide to initiate a robbery. I feel anger at the perpetrators because I hold them responsible for my loss of feeling secure. At the same time I feel anger toward society in general.

An incident like this become a focal point for my anger at society because I don’t like the way our society handles poverty, and crime. My personal feelings are that we have programs in this country that seem compassionate and good a first glance, but the programs tend to keep hundreds of thousands of people in the country in a cycle of poverty. My feelings are that my tax money is being used to incent women to have babies – women who are not capable of raising a child, that these children are raised in an environment that tends to perpetuate the past pattern and gives rise to career criminals, an environment that gives rise to the kind of criminals who attacked Ersland.

In some sense I feel like a citizen who protects himself or herself - is acting like my agent to deter potential crime in the future. It's easy to have some part of me that identifies with Ersland. And those feelings can confuse the logic of what actually happened. If I'm strongly identifying with Ersland because of my own fear of criminals, or my anger over how society is dealing with criminals or how society is dealing with poverty. It’s very easy for part of me to start rooting for Ersland and it’s very easy for me to feel hatred toward the criminals. I also can start to have this sense of thinking that – even though I don’t like the fact that the robber was executed – maybe it will send a message to the other criminals out there. If I am strongly identifying with Ersland for these reasons and he ends up getting prosecuted by society – I can get even more feelings of anger because it seems like it’s adding insult to injury. Society hasn’t adequately dealt with the poor underclass and criminals and then society is spending resources on punishing a guy who I identify with on some level. I sometimes have this feeling that if enough citizens arm themselves and “dispose” of enough of these thugs and punks, then the rest of them will either get the message and stop attempting to victimize us, or “we” will just keep at it until they are all finally dead – problem solved either way. But that’s not a rational line of thinking. For one thing, criminals are stupid and they don’t learn either from the mistakes of others or their own mistakes. And criminals are like Doritos, you can kill as many as you like – somewhere, someone is making more of them.

When I look at this situation rationally, I realize that Ersland murdered that robber. And I am left with my anger over the fact that we have laws and policies in place in this country that seem to perpetuate and protect – even nurture criminality in this country while hindering and hampering citizens from protecting themselves. The trick for me is to not let my emotions over it confuse my logic over what happened. And just because someone logically comes down on the side of the verdict in this case – I have to tell myself – they’re not giving validity to all the wrong-headed thinking that we have going on in society the thought that it’s somehow morally better to be a victim than to use a firearm to protect one’s self… If someone agrees to the verdict in this case it’s just a recognition of the truth, that in this case Ersland murdered that robber.
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Old July 15, 2011, 07:49 AM   #142
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Countzero...you just took the words right from my heart
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Old July 15, 2011, 08:26 AM   #143
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A tad bit confused right now. Not trying to start thread war so just bear with me on this please. chadstrickland, in your first post on this you agreed that the first shot was right (which i also agree). You also said the 5 shots after were wrong. Then how after making those statements can you say Ersland was right? Just trying to understand, not offend. And whether we agree with the verdict because of or what we feel in spite of society's ill's, the jury has to come to a verdict based on the rule of law, the facts as Sgt Friday was fond of saying. Again, not trying to criticize anyone's way of thinking. Simply curious how some people can see the the same events so differently
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Old July 15, 2011, 08:46 AM   #144
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Posted by C0untZer0: And I am left with my anger over the fact that we have laws and policies in place in this country that seem to perpetuate and protect – even nurture criminality in this country...
We do have a lot of crime, but the only laws I am aware of that "seem to perpetuate and protect – even nurture criminality in this country..." are laws that afford diplomatic immunity to some foreign nationals who take advantage of their status. Perhaps you can cite some other examples.

Regarding policies that do that, there are many, and if one looks at crime reports from El Paso and Phoenix one can see some of the major ones.

Quote:
...while hindering and hampering citizens from protecting themselves.
That's an issue in California, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, New York, and the District of Columbia, and in colleges and universities.

However, no law in Oklahoma hindered or hampered Ersland from protecting himself--until he became a felon.

Good post, by the way.
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Old July 15, 2011, 08:47 AM   #145
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I think the reason this case sparks so much debate is the life sentence. OK, he murdered the robber- no question about that. But most people can see some attenuating circumstances that make the sentence seem harsh. It is a case of dura lex sed lex.

Had he gotten 20 years, this would not raise as many hackles, IMHO.
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Old July 15, 2011, 08:50 AM   #146
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I don't think it matters, I think there is some venting that goes on in a lamentable situation like this. What does it matter if every single person sees evry single facet of this case logically and that all of their statements are completely consistent logically?

There's a lot to be ****** off about in this incident.

Logically I know that the mother of the deceased has a right under the law to sue for her loss. Probably the coporation behind that pharmacy is going to make her rich... I can't help being angry about that too. She "raised" a fricken hooligan who ran wild on the streets terrorizing society, obviously she had other priorties instead of tending to his upbringing otherwise would he have turned into a murderous theif? But now all of a sudden she's just a grief striken momma - grievin over her po baby... It's hard to say on the one hand that yes - under the law she has a right to sue for her loss and to even say that logically if you understand the law and it is adjudicated properly - she should be compensated, and then also on the other hand have all the emotion that comes behind it in that she's getting rich off of this situation. It's hard to be completely logically consistent in these debates.
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Old July 15, 2011, 08:52 AM   #147
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I can sympathize with the retribution aspect. When our son was in high school,
for whatever reason, some kids found a "target" and went out of their way to make his life miserable.

One day, he was riding his bike around the neighborhood and they caught him and assaulted him.

I had to take him to the ER to get checked out and we filed a police report.

That was not enough. Those same kids started taunting him at school.

I finally got a copy of the police report and it had the name and number of the parents.

I checked the phone book and sure enough, the number was unlisted.

I called the father and he said he would have corrected the behavior of his son had he known what was going on. He asked me why I did not call and I asked him if his phone number was listed. Long pause. . .

I told him that I was fed up with the threats and taunts.

I told him if the threat did not stop, I was going to file charges against his son again. This time it would not be a first offense.

I also told him that I have been around enough to know how the game is played.

I told him that if there were ANY repeats of threats or taunts, I was going to pay him a visit. I also told him that I was going to hold him responsible for any damage done to my property whether done by his son or if done as a result of his son calling in favors from friends to come over and pay me a visit.

I explained to him carefully and in detail that he needed to get the message to his son and to friends of his son that I had had enough and what would happen if he did not.

It was not the smartest thing I have ever done, but the message was delivered and we never had a problem after that.

The code on the street seems to be if you defend yourself, the friends of the would be criminal, take it upon themselves to punish the victim for having the will to resist.

The pharmacist, IMO, was wrong to shoot the perp on the ground after he was down and posed no immediate threat, but I cannot see first degree murder.

I think he will spend some time in prison and will walk after an appeal and retrial.


At least I hope so.

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Old July 15, 2011, 09:17 AM   #148
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This is where I'm flabbergasted. If everyone thinks its wrong to have shot the robber after he came back, isn't that the the very definition of 1st degree murder? He thought about it, and did it with malice. That's first degree murder! It wasn't reactionary. It wasn't a crime of passion. It was done with forethought. Why advocate someone getting off early in a case such as this but not with others? All convicted murderers should get off in 20? I ain't buyin it. This was a revenge killing. No better or worse the gang retribution killings which so many of us decry. And just because the robber was black, is that really a need to try to demean how we percieve he or his family talk? In some sort of ebonic slang?
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Old July 15, 2011, 09:22 AM   #149
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Icedog88...im not offended..and im sorry for trying to insult you earlier ...I do agree with the first shot..and if I said the other five where where wrong I ment I understand them to be illegal..I agree with them as well...I am a law abiding citizen...and the reason thats so is because I have never been in a situation that I had to choose from doing somthing that is right but illegal..and I hope I never have to....as I said before I truly believe in the idea of the law and what it stands for..but it has done been corrupted and perverted to the extent that it is not always right..and it will be a very cold day in hell before I do time for somthing I didn't do..I promise you I have rarely been that scared when I thought and almost did go to prison for something I didn't do..why wouldn't they believe me detectives that I used to believe in so dearly telling me that the evidence was saying I shot my brother...I couldn't understand it..I thought the law would save me from this..no way a innocent person could go to prison like that....I will never trust it again..ever.....I come from a place where things are black and white ( not being racist ) right and wrong....I did not see anything wrong with what the pharmacist did...at worst a mercy killing...just like when you run over a snake with your pick up truck and you get out and shoot it....I don't agree with paying the robbers medical bills the rest of his life when there are good people that havnt did nothing wrong that need it more than he does....
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Old July 15, 2011, 09:48 AM   #150
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The Saturday after the verdict went down, I was taking an Oklahoma Self-Defense Act course (CC prereq) at H&H Gun Range in OKC. Part of the course is an attorney (relatively experienced in these type of cases and a CC holder to boot) going over the Act with a fine-toothed comb. During one of the breaks, someone asked him about the shooting, and he felt the guy could have walked if he had kept his mouth shut. He could have testified (you can't be cross-examined on lies you don't tell) and they could have brought in expert testimony to point out that people in high-stress situations don't always do rational things. But then he had to blab to every media outlet in the lower 48 and shot that line of thinking all to hell.

During the lunch break, several attractively dressed young ladies were walking around the store with a petition to ask for a pardon. Didn't seem to have any reaction when I told them I agreed with the jury verdict.
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