Introduction    |   Table of Contents

FELONY MURDER/LACK OF INTENT

The fact that a defendant might have been convicted of first-degree murder based on felony murder liability may be a mitigating circumstance in determining whether the death penalty is appropriate. 

Relevant Inquiry – Defendant’s “Intent to Kill”: The Arizona Supreme Court has made clear that the relevant issue in deciding the mitigating value of a conviction based on felony murder liability is whether the defendant lacked a specific intent to kill.  State v. Gillies, 135 Ariz. 500, 662 P.2d 1007 (1983) (giving of a felony murder instruction may only be mitigating where there is some doubt about the defendant’s intent to kill).  This is true whether the defendant was the sole actor and caused the death of the victim, or the defendant was a participant in a felony and the death was caused by “another.”  See State v. Atwood, 171 Ariz. 576, 649, 832 P.2d 593 (1992) (giving of felony murder instruction is not relevant mitigating circumstance where defendant is not being held accountable for the acts of an accomplice and no facts in the record indicate he had an intent other than to kill the victim).

The meaning of “intent” to kill encompasses more than a desire or purpose to achieve a result.  State v. Jordan, 126 Ariz. 283, 288, 614 P.2d 825 (1980).  When a defendant acts with the knowledge that his behavior is substantially likely to cause a result, he is considered to have intended it.  Id.   Therefore, the giving of a felony murder instruction is not relevant where the defendant intended to kill the victim or knew with substantial certainty that his acts would cause death.  State v. Zaragoza, 135 Ariz. 63, 70, 659 P.2d 22 (1983); accord State v. Soto-Fong, 187 Ariz. 186, 210, 928 P.2d 610 (1996).

The Felony-Murder Non-Statutory Mitigating Circumstance Distinguished From the (G)(3) Statutory Mitigation Circumstance:  The issue of felony murder liability as a non-statutory mitigating circumstance is closely related to the (G)(3) statutory circumstance of minor participation, and often both are asserted in cases where the murder conviction may be based on felony murder liability.  There are, however, some differences

The (G)(3) circumstance applies only in accomplice liability cases.  By the statute’s very language, the (G)(3) circumstance applies to instances where a defendant is held legally accountable under A.R.S. § 13-303 for the conduct of another.  The key issue is whether the defendant’s participation was relatively minor vis-à-vis the other participants. 

But felony murder liability may exist in cases involving not only accomplices, but situations where a defendant was the sole actor, making accomplice liability a non-issue.  In such cases, the evidence may establish only that the defendant had the intent to commit a felony (e.g. armed robbery or sexual assault), and in the course or furtherance of committing the felony the defendant caused the death of the victim.  The potential mitigating value there lies in the possibility that the defendant lacked the intent to kill, and not that the (G)(3) mitigating circumstance applied.

The Felony-Murder Non-Statutory Mitigating Circumstance Compared With the Enmund/Tison Inquiry:  In Enmund v. Florida, 458 U.S. 782 (1982), and Tison v. Arizona, 481 U.S. 137 (1987), the Supreme Court established a culpability floor of “recklessly indifferent to human life” for capital defendants who did not themselves kill the victim but were convicted of felony-murder for their actions.  Pursuant to Enmund/Tison, unless the trier of fact finds that the defendant convicted of felony-murder acted with at least this minimum level of intent, he cannot be subjected to the death penalty.

In today’s post-Enmund/Tison world, a relatively minor participant often is excluded from death eligibility on the basis of the Enmund/Tison threshold finding.  But finding that a defendant is death-eligible under Enmund/Tison does not exclude the defendant from raising “felony murder” as a non-statutory mitigating circumstance.  In essence, the defendant is saying that he’s still not as bad as someone who actually intended to kill or actually killed, himself (depending on the circumstances). For example, where a defendant’s conviction is based on felony murder liability, but he was the sole actor and is not being held accountable for the acts of another, the Enmund/Tison standard is met because the defendant caused the death of the victim, or “actually killed.”  But it is still possible that the defendant lacked the intent to kill, which may be a mitigating circumstance.  Likewise, where death eligibility has been established by the Enmund/Tison standard in a case where the defendant did act with accomplices, and did not, himself kill, the felony murder circumstance can be argued to show that he was not as bad as the accomplice who actually killed.  SeeState v. Henry, 189 Ariz. 542, 558, 944 P.2d 57 (1997).

FELONY MURDER/LACK OF INTENT

State v. Jordan (Jordan II), 126 Ariz. 283, 614 P.2d 825 (1980)
The evidence did not demonstrate the defendant's lack of specific intent to cause death. Intent is more than a desire to achieve a specific result. When a defendant acts with knowledge that his behavior is substantially likely to cause a result, he is considered to intend that result. The defendant gave a statement to the police indicating that he intended to shoot the victim and did shoot the victim in the stomach. It is reasonable to conclude, in the absence of any evidence to the contrary, that one who intentionally shoots another in a vital part of the body either had the purpose of causing death or had the substantial knowledge that death would result. No evidence was offered to contradict the natural inference from the defendant's act. The defendant argued that he did not know the victim and that there was no evidence that he intended to kill the victim at the time he entered the store. The Court noted that this shows a lack of premeditation rather than a lack of specific intent to kill. The defendant argued that the giving of the felony murder instruction indicated that the jury verdict did not support a finding of a specific intent to kill. The Court, however, did not believe that the defendant proved his lack of specific intent to cause death.

State v. Ricky Tison (Ricky Tison I), 129 Ariz. 526, 633 P.2d 335 (1981)
The record established that Tison was present when the murders took place and that they occurred as part of and in the course of the prison breakout and the continuous attempt to prevent recapture. The deaths would not have occurred but for his assistance. It is of little significance that he did not specifically intend that the victims die, that he did not plot in advance that these homicides would take place, or that he did not actually pull the triggers on the guns that inflicted the fatal wounds. The criminal association was formed, supported and carried out regardless of the probable consequences that human life would be taken to ensure the success of the criminal enterprise. At a minimum, he stood by, armed with guns, while his companions slaughtered the victims. The Court noted, without further discussion, that the trial judge found the fact that Tison's conviction was based on felony murder to be a mitigating circumstance. The Court found the mitigating circumstances were not sufficiently substantial to call for leniency.

State v. Raymond Tison (Raymond Tison I), 129 Ariz. 546, 633 P.2d 355 (1981)
The trial court found it mitigating that the convictions were based on the felony murder rule. The Court mentions this but does not discuss it further. The mitigating circumstances separately and together were not sufficiently substantial to call for leniency.

State v. Schad (Schad I), 129 Ariz. 557, 633 P.2d 366 (1981)
The defendant argued that a felony murder instruction was given and the evidence did not show that the defendant had the requisite intent to kill. The trial court found that giving a felony murder instruction might be a mitigating circumstance. It noted that in this particular case there was no evidence to indicate that the murder was a mere consequence of the felony. The Court agreed that a felony murder instruction might be a mitigating circumstance. The defendant argued that there was no showing of a specific intent to kill. The Court stated that when a defendant acts with the knowledge that his behavior is substantially likely to cause a result, he is considered to have intended that result. The victim died by asphyxiation by ligature strangulation. With no evidence to the contrary, it is reasonable to conclude that one who undertakes to strangle another human being had the purpose of causing death or the substantial knowledge that death could result. The defendant advanced a theory that the victim attacked him, which then resulted in the defendant killing the victim. Given the fact that the victim was 74 years old and the defendant 35 at the time of the murder, the Court found this "theory" implausible.

State v. Ortiz, 131 Ariz. 195, 639 P.2d 1020 (1982)
The Court noted that the trial court found that the defendant's alleged lack of intent was not a mitigating circumstance under the facts of this case. Without further discussion, the Court concluded that the defendant's mitigation evidence was not sufficiently substantial to call for leniency.

State v. Zaragoza, 135 Ariz. 63, 659 P.2d 22 (1983)
The felony murder instruction given in this case was not a mitigating circumstance. The fact that a case goes to the jury on a felony murder theory may be considered a mitigating circumstance if it is somehow relevant in determining whether to impose the death penalty. It is not relevant to that determination in a case where the defendant intended to kill the victim, or where the defendant knew with substantial certainty that his conduct would cause death. Here, the evidence established that Zaragoza repeatedly hit the victim on the head and left her bleeding in an alley, and there was no evidence that Zaragoza did not intend to kill the victim. It is reasonable to conclude that one who beats a 78-year-old woman on the head and leaves her bleeding in an alley either intends to kill her, or knows with substantial certainty that his actions will cause death. Zaragoza also argued that the directed verdict of acquittal on the charge of premeditated first degree murder constituted a finding by the trial judge that Zaragoza did not intend to kill the victim. The Court found no merit in this argument, noting that it was clear from the record that the trial court directed the verdict of acquittal only because the state failed to prove premeditation. The trial court did not find that Zaragoza lacked intent to kill the victim, and therefore Zaragoza did not establish lack of intent as a mitigating circumstance.

State v. Gillies (Gillies I), 135 Ariz. 500, 662 P.2d 1007 (1983)
A felony murder instruction is mitigating only where there is some doubt that the defendant had a specific intent to kill. Here, two men perpetrated the crimes upon the victim and each has accused the other of striking the fatal blow. The jury was instructed on both premeditated and felony murder and returned a verdict for simply first degree murder. This defendant's participation in the crimes was not minor. The defendant actively participated in the events leading to the death of the victim. He was present at all times during the murder and did nothing to interfere. He handed his accomplice the rock which was used to strike her and helped to bury her with rocks. The medical examiner testified that it would have taken the victim ten to fifteen minutes to die. The defendant's participation in the murder was substantial and intentional.

*State v. McDaniel (McDaniel II), 136 Ariz. 188, 665 P.2d 70 (1983)
The Court reduced McDaniel's sentence to life, finding that his lack of intent to kill was a mitigating circumstance sufficiently substantial to call for leniency. Whether a defendant intended to kill is an important consideration when deciding if the death penalty is an appropriate sentence. American criminal law has long considered a defendant's intentions, and therefore his moral guilt, to be crucial to the degree of his criminal culpability. McDaniel and several others participated in robbing, beating, gagging and tying the victim, then locking him in the trunk of his own car. The car was then driven to an apartment complex and abandoned. But there was a "good deal of evidence" suggesting that McDaniel and his accomplices did not intend to kill the victim. The car in which the victim was locked was left in an apartment complex where people would likely hear him inside the trunk. The windows to the car were left open and the keys were in the ignition so that someone walking by who heard the victim could let him out. Moreover, the jury's general verdict finding McDaniel guilty of first degree murder did not establish his intent to kill since the jury could have convicted on either a premeditation or a felony murder theory.

State v. Richmond (Richmond II), 136 Ariz. 312, 666 P.2d 57 (1983)
The Court made no real determination regarding this proffered mitigation evidence, but recounted what the trial court did and upheld the sentence. The jury was instructed on felony murder as well as on premeditated murder.

State v. Robert Smith, 138 Ariz. 79, 673 P.2d 17 (1983)
The giving of a felony murder instruction in this case was not mitigating because there was no doubt about Smith's intent to kill the victim. The trial court clearly found that Smith both killed and intended to kill. The record supported the trial court's findings. Smith and his codefendant Lambright discussed killing the victim. Smith began strangling the victim and held her while she was being stabbed. There was no doubt that Smith intended to kill the victim.

State v. Harding (Gage murder), 141 Ariz. 492, 687 P.2d 1247 (1984)
The defendant argued that he could not be given the death penalty because of Enmund, since it was not determined beyond a reasonable doubt that the defendant killed, intended to kill, or attempted to kill. The trial court found that Enmund would not mandate the imposition of a life sentence, but did not specifically make this finding beyond a reasonable doubt. The Court here found that the defendant killed the victim beyond a reasonable doubt. The defendant stuffed a washcloth down the victim's throat and secured that cloth with tape and strips of torn pillowcases. The victim died of asphyxiation because the washcloth blocked his breathing passages. Enmund does not bar the imposition of the death penalty in this case.

State v. Roger Smith (Roger Smith II), 141 Ariz. 510, 687 P.2d 1265 (1984)
The defendant claimed lack of intent in mitigation. The Court's opinion lists but does not discuss what the trial court found regarding lack of intent. The Court did not discuss lack of intent itself. Given the facts of the case, presumably lack of intent was not proven. The defendant and two others discussed robbing a store. When the two others could not decide which of them should commit the robbery, the defendant decided to do it, loaded the sawed-off shotgun, and entered the store. He pointed the loaded gun at the clerk who offered no resistance. The defendant pointed the gun directly at the clerk and pulled the trigger.

State v. Gillies (Gillies II), 142 Ariz. 564, 691 P.2d 655 (1984)
The defendant was convicted of first degree murder. This could have been either under a premeditated or felony murder theory. A felony murder instruction cannot be a mitigating factor if there is no doubt as to the defendant's intention to kill. The Court found no doubt about the defendant's intention to kill the victim. He drove her to the Superstition Mountains, at a minimum distracted her so Logan could crush her head with a rock, and aided in her burial. There was no merit to this contention.

State v. Nash, 143 Ariz. 392, 694 P.2d 222 (1985)
The trial court apparently considered but did not find the fact that this was a felony murder to be a mitigating circumstance. The Court did not discuss this in its review.

State v. Martinez-Villarreal, 145 Ariz. 441, 702 P.2d 670 (1985)
Lack of intent to kill is a mitigating circumstance. There must, however, be some affirmative evidence to prove that mitigating circumstance. Here, that affirmative evidence was lacking. The defendant's contention that he was only an unwilling participant was rejected by the jury in its verdict and by the trial judge in his finding. The defendant had said that someone else had gone berserk during the robbery of the two men on the ranch and that he was a lookout and was forced to drive the victim's truck. The only real evidence on this point was the defendant's statement that differed from the statement he gave to his friend. The defendant told his friend that he had killed because he was very "macho." Enmund was satisfied by the trial court's finding that the defendant intended to kill the two victims on the ranch himself or through his companion. The trial court's rejection of this mitigating circumstance was supported by the evidence.

State v. Roscoe (Roscoe I), 145 Ariz. 212, 700 P.2d 1312 (1984)
The Court found that the fact that a felony murder instruction was given was not a relevant circumstance in this case. Roscoe was not being held accountable for the acts of an accomplice and it was difficult to infer from the facts on this record that he had any intent other than to kill the victim. The trial court specifically found, in its special verdict, that Roscoe intended to kill the victim. That finding was supported by overwhelming evidence.

State v. Walter LaGrand, 153 Ariz. 21, 734 P.2d 563 (1987)
The Court considered evidence that the defendant and his brother may have killed the victim out of fear and surprise rather than as part of a calculated scheme. This was insufficient along with the other proffered evidence in mitigation to outweigh the aggravating circumstances.

State v. Amaya-Ruiz, 166 Ariz. 152, 800 P.2d 1260 (1990)
The Court listed several mitigating circumstances, including the defendant's lack of required intent, which the trial court considered but found insufficient to call for leniency. Without further discussion, the Court noted that these claims have been held insufficient to merit leniency in other cases.

*State v. Fierro, 166 Ariz. 539, 804 P.2d 72 (1990)
The defendant proffered the fact that he was not charged with or convicted of premeditated first degree murder as a mitigating factor. The Court noted this, but did not discuss it outside of its discussion of the victim's actions.

State v. Atwood, 171 Ariz. 576, 832 P.2d 593 (1992)
The giving of a felony murder instruction is a mitigating circumstance only where there is some doubt as to the defendant's specific intent to kill the victim. This is not a relevant circumstance when the defendant is not being held accountable for the acts of an accomplice, and no facts in the record indicate that the defendant had any other intent other than to kill the victim. This was not a mitigating circumstance where the defendant was the only participant in the crime and there are no facts to indicate any intent other than to kill the victim.

State v. Salazar, 173 Ariz. 399, 844 P.2d 566 (1992)
Salazar argued that the trial court erred in failing to find its felony murder instruction to be a controlling mitigating circumstance. The Court noted the trial court's findings, which appear to consider the felony murder instruction as a mitigating circumstance. But the trial court also found that Salazar either personally beat and strangled the victim, or at the least, watched or helped while his codefendant killed the victim. The Court agreed that the mitigating circumstances in this case were not sufficiently substantial to call for leniency.

State v. West, 176 Ariz. 432, 862 P.2d 192 (1993)
The Court rejected the defendant's claim that the fact his conviction was based on felony murder should have been a mitigating circumstance. Citing Zaragoza, the Court reiterated that the giving of a felony murder instruction may be mitigating if the defendant can show that he did not intend to kill the victim or know with substantial certainty that his acts would cause death. Here, the defendant repeatedly beat a 53-year old man on the head, left him bound hand and foot and bleeding in an empty house, and refused to seek aid, although he was urged to do so. It is reasonable to conclude that the defendant intended to kill or knew with substantial certainty that his action would cause death. The defendant argued "almost unbelievably" that the facts of the crime should have been considered mitigating. The Court "easily" rejected this claim.

State v. Styers, 177 Ariz. 104, 865 P.2d 765 (1993)
The fact that the trial court gave a felony murder instruction in this case was not mitigating. The giving of a felony murder instruction is not relevant where the defendant intended to kill the victim or knew with substantial certainty that his conduct would cause death. Here, the defendant conspired to kill the victim and then he killed him. There is not doubt that the defendant intended to kill the victim.

State v. Scott, 177 Ariz. 131, 865 P.2d 792 (1993)
The trial court evaluated the giving of a felony murder instruction even though the defendant did not suggest it as a mitigating circumstance. The giving of a felony murder instruction is not relevant where the defendant intended to kill the victim or knew with substantial certainty that his conduct would cause death. The defendant here was convicted not only of felony murder, but conspiracy to commit first degree murder. His participation was not insignificant and this nonstatutory mitigating circumstance was not given great weight.

State v. Gallegos (Gallegos I), 178 Ariz. 1, 870 P.2d 1097 (1994)
Gallegos testified that he only intended to molest the victim and that he did not intend to kill her. He claimed that while he was attempting to silence the victim, he accidentally suffocated her. But the victim was found with bruises and abrasions all over her face and body, some of which were pre-mortem, and she suffered a blunt force injury to her head, which caused a hemorrhage of the scalp. Gallegos was unable to explain these injuries. In evaluating whether lack of intent constitutes a mitigating factor, the Court has previously noted that the term "intent" may encompass more than a desire or purpose to achieve a specific result. When a defendant acts with the knowledge that his behavior is substantially likely to cause a result, he is considered to intend that result. Here, even if the Court were to accept Gallegos' claim that he did not desire to kill the victim, the fact remains that he acted with knowledge that his behavior was substantially likely to cause this result. The Court agreed with the trial court that this mitigating circumstance was inapplicable in this case.

State v. Gonzales, 181 Ariz. 502, 892 P.2d 838 (1995)
The defendant argued that his conviction for felony murder, as opposed to premeditated murder, constituted a mitigating circumstance. A felony murder conviction is not relevant to a determination of mitigation where the defendant intended to kill or knew with substantial certainty that his conduct would cause death. Here, the defendant stabbed the victim seven times when he tried to flee the victim's house after burglarizing them. This death was not accidental, but intended.

State v. Bolton, 182 Ariz. 290, 896 P.2d 830 (1995)
The defendant argues that his conviction for felony murder, as opposed to premeditated murder, should be considered in mitigation because it shows that the jury thought someone else killed the victim. The Court found that the jury necessarily determined that the defendant himself killed the victim. The evidence does not show that someone else was involved. The defendant argued that the giving of a felony murder instruction should be considered a mitigating circumstance. This is a mitigating circumstance only where there is some doubt as to the defendant's specific intent to kill. It is not relevant to mitigation where the defendant knew with substantial certainty that his conduct would cause death. The defendant stabbed the victim in the chest and left her in an abandoned automobile. He must have known that his conduct would cause death. The giving of a felony murder instruction was not a relevant mitigating factor here.

State v. Stokley, 182 Ariz. 505, 898 P.2d 454 (1995)
Stokley claimed on appeal that the giving of a felony murder instruction should be considered in mitigation, but there was no felony murder instruction given at his trial and the jury convicted him of two counts of premeditated murder. Stokley also claimed on appeal that there was insufficient evidence to show that killed or intended to kill one of the victims. But his own statement to police proved that he and his codefendant agreed that the victims (two young girls) must be killed. He acknowledged the agreement and admitted stabbing both girls. The jury, by its guilty verdict, and the trial court in its special verdict, found that he was an active participant in the killing of both girls. After reviewing the entire record, the Court agreed that Stokley killed one of the girls, and at the very least, intended that the other girl be killed.

State v. Roger and Robert Murray, 184 Ariz. 9, 906 P.2d 542 (1995)
A felony murder instruction can only be mitigating where there is some doubt regarding the defendant's specific intent to kill. Therefore, such mitigation is precluded where there has been a finding of guilt for premeditated first degree murder.

State v. Gallegos (Gallegos II), 185 Ariz. 340, 916 P.2d 1056 (1996)
At resentencing, Gallegos argued again that he did not intend to kill the victim. The Court again found that Gallegos failed to prove lack of intent as a mitigating circumstance because even if he did not desire the death of the victim, he still acted with knowledge that his behavior was substantially likely to cause that result. See also Gallegos I.

State v. Darrel Lee, 185 Ariz. 549, 917 P.2d 692 (1996)
There was no reasonable doubt that the defendant intended to kill the victim. He planned it, discussed it and participated in it. The defendant admitted his involvement to a mitigation specialist and admitted to the psychiatrist that he could have stopped his codefendant from killing the victim, but did not. There was evidence of his attempts to kill the victim by asphyxiation and manual strangulation. There was evidence that the defendant held the victim down while his codefendant inflicted the fatal blow. All of this evidence was cited by the trial court for its conclusion that the defendant intended to kill. The Court here found that there was no reasonable doubt that the defendant intended to kill the victim.

State v. Miles, 186 Ariz. 10, 918 P.2d 1028 (1996)
The Court simply listed the defendant's felony murder conviction as a nonstatutory mitigating circumstance without discussion. This was insufficient to warrant leniency. The Court noted that the state did not contest this finding and the Court accepted it as given.

State v. Miller, 186 Ariz. 314, 921 P.2d 1151 (1996)
Miller claimed that the evidence showed he lacked an intent to kill. The Court agreed with the trial court that this mitigating circumstance did not exist. The jury verdict and the evidence indicated that Miller intended to kill the victim.

State v. Dickens, 187 Ariz. 1, 926 P.2d 468 (1996)
The trial judge found that the felony murder verdict was a relevant mitigating circumstance, but was offset by the defendant's major participation in the planning and execution of the crime. The robberies were premeditated, planned on and agreed to by both the defendant and Amaral. The defendant furnished the gun to Amaral or knew Amaral had the weapon with him for the robberies. The defendant drove Amaral to the scene, picked him up after the crime, witnessed the destruction of evidence and did not report the crimes. All of these facts indicate that the defendant was a major participant. This mitigation was not sufficiently substantial to call for leniency.

State v. Soto-Fong, 187 Ariz. 186, 928 P.2d 610 (1996)
The giving of a felony murder instruction is not relevant where the defendant intended to kill the victim or where the defendant knew with substantial certainty that his conduct would cause death.

State v. Henry (Henry II), 189 Ariz. 542, 944 P.2d 57 (1997)
Henry claimed that the trial court erred by refusing to find that the felony murder instruction given at trial was a mitigating circumstance. A felony murder instruction may be mitigating where there is some doubt as to the defendant's specific intent to kill. Citing its earlier opinion in Henry I, the Court reiterated that the evidence supported the conclusion that Henry was an active, intentional participant in the killing. The record indicated that two people dragged the victim up the berm, Henry's clothes were spattered with blood, he hastily drove off after the stabbing, and later gave false information to the police. Therefore, the Court found no error despite some confusion in the trial judge's explanation for his refusal to give mitigating effect to the felony murder instruction. He said, "I go back to my finding that the Tison standard has been met in this case. . ." The Court pointed out that "obviously," a felony murder instruction may still be mitigating where death eligibility has been established under the Tison standard. "Concluding otherwise would render meaningless our holding in Bolton."

State v. Sharp, 193 Ariz. 414, 973 P.2d 1171 (1999)
A felony murder instruction may be mitigating where there is some doubt as to a specific defendant's intent to kill. The defendant's savage beating and strangling of the victim undermines any argument that he did not intend to kill her. In addition, the jury found the defendant guilty of premeditated murder as well as felony murder, so the jury found the intent to kill. This was not a nonstatutory mitigating circumstance in this case.

State v. Finch, 202 Ariz. 410, 46 P.3d 421 (2002)
Because the defendant substantially participated in the planning and execution of the robberies and murder, his felony murder conviction is not mitigating.

State v. Phillips, 202 Ariz. 427, 46 P.3d 1048 (2002)
Because the defendant substantially participated in the planning and execution of the robberies and murder, his felony murder conviction is not mitigating.

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