in Interest of N.D.O

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
July 22, 2021

2021COA100

No. 20CA0214, People in Interest of N.D.O. — Juvenile Court —
Delinquency — Special Offenders — Violent Juvenile Offender;
Criminal Law — Complicity

In this appeal by the prosecution, a division of the court of

appeals concludes that complicitor liability can support a crime of

violence finding — a sentence enhancer — in juvenile delinquency

proceedings. Because the trial court instructed the jury to the

contrary, the division disapproves the court’s ruling.

The division also concludes that the jury’s general verdicts

finding the juvenile guilty of aggravated robbery did not establish

that he committed a crime of violence. Accordingly, the trial court

was not required to adjudicate the juvenile a violent juvenile

offender, and the sentence imposed was not illegal.
COLORADO COURT OF APPEALS 2021COA100

Court of Appeals No. 20CA0214
Jefferson County District Court No. 18JD483
Honorable Gregory G. Lyman, Judge

The People of the State of Colorado,

Petitioner-Appellant,

In the Interest of N.D.O.,

Juvenile-Appellee.

RULING DISAPPROVED AND SENTENCE AFFIRMED

Division IV
Opinion by JUDGE NAVARRO
Brown and Martinez*, JJ., concur

Announced July 22, 2021

Peter A. Weir, District Attorney, Colleen R. Lamb, Deputy District Attorney,
Golden, Colorado, for Petitioner-Appellant

Nicole M. Mooney, Alternate Defense Counsel, Denver, Colorado, for Juvenile-
Appellee

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2020.
¶1 In the proceedings below, the juvenile, N.D.O., was

adjudicated delinquent. The prosecution raises two arguments on

appeal. First, the prosecution argues that the trial court incorrectly

stated the law by instructing the jury that complicitor liability

cannot support a crime of violence finding, which is a sentence

enhancer. Applying the combined force of our supreme court’s

decisions in People v. Swanson, 638 P.2d 45 (Colo. 1981), and

People in Interest of B.D., 2020 CO 87, we agree with the

prosecution and disapprove the court’s ruling as to that instruction.

Second, the prosecution contends that N.D.O.’s sentence is illegal

and asks us to remand with directions to sentence him as a violent

juvenile offender. We deny that request because N.D.O.’s sentence

is not illegal given the jury’s findings.

I. Factual and Procedural History

¶2 Several teenagers stole a car and committed armed robberies

of four gas stations. The prosecution alleged that N.D.O. was the

getaway driver for two other teenagers who entered the stores and

demanded, at gunpoint, that the clerks empty the registers.

¶3 The prosecution filed a petition in delinquency charging

N.D.O. with (1) four counts of aggravated robbery with a

1
confederate; (2) four counts of aggravated robbery while possessing

any article used or fashioned in a manner as to convince a person

that it is a deadly weapon; and (3) one count of conspiracy to

commit aggravated robbery while possessing any article used or

fashioned as a deadly weapon. See § 18-4-302(1)(c)-(d), C.R.S.

2020 (aggravated robbery); § 18-2-201, C.R.S. 2020 (conspiracy).

The petition also alleged that N.D.O. was a violent juvenile offender

under section 19-2-516(3), C.R.S. 2020, because the robberies

involved the use, or possession and threatened use, of a deadly

weapon (i.e., they were crimes of violence), see § 18-1.3-

406(2)(a)(I)(A), C.R.S. 2020.1

¶4 N.D.O. exercised his statutory right to a jury trial. § 19-2-

107(1), C.R.S. 2020. At trial, the prosecution did not allege or

present evidence that N.D.O. personally entered the gas stations.

Instead, the prosecution argued that he committed the aggravated

robbery offenses as a complicitor.

¶5 The trial court instructed the jury on the elements of

complicitor liability and instructed the jury that complicitor liability

1In addition, the petition charged N.D.O. with possession of a
handgun by a juvenile and aggravated motor vehicle theft. Neither
of those adjudications is pertinent to, or affected by, this appeal.

2
could apply to the aggravated robbery offenses. In addition, on

each verdict form for the aggravated robbery and conspiracy counts,

the court submitted the following interrogatory: “Did the juvenile

use, or possess and threaten the use of, a deadly weapon?” During

deliberations, the jury asked, “Does complicity apply to the yes/no

[deadly weapon] question on the Aggravated Robbery charges?” The

prosecutor asked the court to instruct the jury that complicitor

liability applied to the deadly weapon interrogatories. The court

decided that the original instructions did not answer the jury’s

question and, thus, a supplemental instruction was necessary. But

the court rejected the prosecutor’s position and told the jury instead

that, while complicitor liability applied to a substantive offense, the

“theory of complicity” did not apply to the deadly weapon

interrogatories.

¶6 The jury found N.D.O. guilty on all counts, but the jury found

that he did not use, or possess and threaten the use of, a deadly

weapon to commit any offense. The trial court adjudicated N.D.O.

delinquent and sentenced him to two years of probation, with

forty-five days of detention as a condition thereof.

3
II. The Complicity Instruction

¶7 N.D.O. does not appeal the delinquency judgment. The

prosecution, however, appeals the trial court’s decision to instruct

the jury that the theory of complicity did not apply to the deadly

weapon interrogatories relevant to whether N.D.O was a violent

juvenile offender. The prosecution asks us to disapprove the court’s

instruction. See § 19-2-903(2), C.R.S. 2020 (“The prosecution in a

delinquency case may appeal any decision of the trial court as

provided in section 16-12-102, C.R.S.”); § 16-12-102(1), C.R.S.

2020 (“The prosecution may appeal any decision of a court in a

criminal case upon any question of law.”).

¶8 Under the Colorado Children’s Code, “a trial court normally

has broad discretion to craft a sentence it deems appropriate for a

particular [juvenile] offender.” A.S. v. People, 2013 CO 63, ¶ 15.

But for certain classes of juveniles called “special offenders,” the

Colorado Children’s Code imposes mandatory sentences. See § 19-

2-908, C.R.S. 2020. One such class includes a “[v]iolent juvenile

offender,” a person who “is adjudicated a juvenile delinquent for a

delinquent act that constitutes a crime of violence as defined in

section 18-1.3-406(2).” § 19-2-516(3). A violent juvenile offender

4
“shall be placed or committed out of the home for not less than one

year,” with an exception not applicable here. § 19-2-908(1)(c)(I)(A).

A trial court has no jurisdiction to depart from this sentence absent

a statutory exception. People in Interest of M.M.O.P., 873 P.2d 24,

26 (Colo. App. 1993).

¶9 As noted, the petition alleged that N.D.O. was a violent

juvenile offender because he committed a delinquent act that

constituted a crime of violence as defined in section 18-1.3-

406(2)(a)(I)(A). That provision defines aggravated robbery as a crime

of violence if the offense was “committed, conspired to be

committed, or attempted to be committed by a person during which,

or in the immediate flight therefrom, the person: (A) [u]sed, or

possessed and threatened the use of, a deadly weapon.” § 18-1.3-

406(2)(a)(I)(A) & (2)(a)(II)(F).

¶ 10 The prosecution asks whether a trier of fact may find that a

juvenile’s delinquent act constituted a crime of violence (e.g., the act

involved the use, or possession and threatened use, of a deadly

weapon) under a complicity theory. See § 18-1-603, C.R.S. 2020

(defining complicity). We answer that question “yes” and thus

disapprove the trial court’s ruling and supplemental instruction.

5
A. Invited Error

¶ 11 N.D.O. argues that the prosecution invited the alleged error by

tendering the original complicity instructions without specifying

that complicitor liability applied to the deadly weapon

interrogatories. We disagree.

¶ 12 The invited error doctrine prevents a party from complaining

on appeal of an error that he or she has invited or injected into the

case. People v. Rediger, 2018 CO 32, ¶ 34. N.D.O. is correct that a

party can invite an error by tendering an erroneous instruction.

See id. And, while the record does not make entirely clear who

tendered the original instructions, the prosecution does not dispute

N.D.O.’s claim that it submitted them. The original instructions

specifically applied complicity to the aggravated robbery charges

(among others) but not to the deadly weapon interrogatories. The

original instructions did not follow the advice of the Model Jury

Instructions, which counsel that, in cases involving complicity, it

may be appropriate to modify a crime of violence interrogatory by

adding the words “or a complicitor” when asking if “the defendant”

used, or possessed and threatened the use of, a deadly weapon.

COLJI-Crim. ch. 1.3 cmt. 2 (2020).

6
¶ 13 As a result, the original instructions were, at the very least,

ambiguous as to whether complicity applied to the deadly weapon

interrogatories. We thus understand why the jury asked its

question and why the trial court found that the original instructions

did not answer the question. Still, the jury’s question gave the

court and the parties the opportunity to clarify the original

instructions and to correct any erroneous impression left by them.

¶ 14 The error asserted on appeal is not in the original complicity

instructions but in the court’s supplemental instruction answering

the jury’s question. Because the prosecution objected to that

supplemental instruction, we do not discern invited error, and we

turn to the merits.

B. The Merits

¶ 15 In our view, the combined force of two decisions from our

supreme court compels the conclusion that a juvenile can be held

accountable under a complicity theory for a crime of violence.

¶ 16 Under a complicity theory, “[a] person is legally accountable as

principal for the behavior of another constituting a criminal offense

if, with the intent to promote or facilitate the commission of the

7
offense, he or she aids, abets, advises, or encourages the other

person in planning or committing the offense.” § 18-1-603.

¶ 17 In People v. Swanson, 638 P.2d 45 (Colo. 1981), the supreme

court decided that complicity liability applied to a substantially

similar version of the crime of violence statute. That is, the court

rejected the notion that the crime of violence statute applied “only to

a defendant who personally used or possessed and threatened to

use a deadly weapon during the commission of a crime.” Id. at 49

(citing § 16-11-309(2), C.R.S. 1973 (1978 Repl. Vol. 8)). The court

emphasized that “[t]he mandatory sentence for conviction of [a]

crime of violence is based on a recognition of the increased potential

for harm arising from the manner in which the crime was

committed” and “[t]his heightened danger is present regardless of

which robber held the gun.” Id. at 50. The court thus concluded

that “an accessory to [a] crime of violence may be charged, tried and

punished as a principal.” Id. (holding that, “[b]ecause we determine

the principles of complicity apply to a crime of violence,” the trial

court’s contrary instruction was erroneous).

¶ 18 In People in Interest of B.D., 2020 CO 87, the supreme court

applied the complicity theory in the juvenile context. Several boys

8
broke into two homes, one of which was owned by a man

considered an “at-risk” victim. Id. at ¶ 1. While B.D. waited

outside, the man returned home and happened upon another boy

stealing from his home. Id. B.D. was adjudicated delinquent, on a

complicity theory, for theft in the presence of an at-risk victim. Id.

at ¶ 3. B.D. challenged the sufficiency of the evidence on the

ground that, to prove complicity liability, the prosecution had to

show that he was aware that the at-risk victim was present during

the theft, yet no such evidence was presented. Id. at ¶¶ 2, 5, 12.

Rebuffing this challenge, the supreme court held that, because the

at-risk victim’s presence was merely a sentence enhancer of the

theft offense (not an element), B.D. did not have to be aware of the

at-risk adult’s presence to be subject to this sentence enhancer. Id.

at ¶¶ 2, 15, 26.

¶ 19 In so holding, the court also rejected B.D.’s argument that,

because the complicity statute makes a complicitor accountable

only for the principal’s criminal offense, a complicitor cannot be

subject to sentence enhancers given that they are not part of the

offense. Id. at ¶ 16. The court explained that “complicity is a

theory of liability, not an offense” and “once a defendant is found

9
guilty of the underlying offense, he ‘is legally accountable as

principal . . . for [the] criminal offense,’ including any sentence

enhancers related to the nature of the offense.” Id. at ¶ 16 (quoting

§ 18-1-603) (emphasis added). Accordingly, the complicity statute

put “B.D. on equal footing with his principal regarding the

circumstances accompanying the commission of the offense, which

then allow[ed] any relevant sentence enhancers to apply by their

own force.” Id.

¶ 20 Applying B.D. and Swanson to this case, we disapprove the

trial court’s supplemental instruction as to the crime of violence

sentence enhancer.2 Neither the complicity statute nor the

Children’s Code indicates that complicitor liability applies any

differently in juvenile delinquency proceedings than it does in adult

criminal proceedings. And our supreme court has applied the

complicity statute to a juvenile in the same way it applies to an

adult. See B.D., ¶ 16. Because complicitor liability can support a

crime of violence finding in the adult context, see Swanson, 638

P.2d at 49, complicitor liability can support a crime of violence

2We acknowledge that the trial court did not have the benefit of the
decision in People in Interest of B.D., 2020 CO 87.

10
finding in the juvenile context. In other words, the complicity

statute puts the juvenile complicitor on equal footing with the

principal regarding the circumstances accompanying the

commission of the offense, including those making the offense a

crime of violence. See B.D., ¶ 16.

¶ 21 N.D.O.’s arguments do not convince us otherwise. He argues

that the plain language of the violent juvenile offender statute

applies only to the juvenile’s own conduct, and not to another’s

conduct — especially not to the conduct of any adult involved in the

crime. (One teenager who robbed the stores in this case was

eighteen.) N.D.O. notes that section 19-2-516(3) addresses an

adjudication “for a delinquent act that constitutes a crime of

violence,” and he contends this delinquent act must be committed

by the charged juvenile because the statute does not expressly

permit complicity liability. In support, he cites Allman v. People,

2019 CO 78, ¶¶ 29-33, which concluded that, because the

probation statute does not grant courts the power to impose

sentences to both imprisonment and probation in a multi-count

case, a court may not impose imprisonment for some offenses and

probation for others. But cf. People v. Keen, 2021 CO 50, ¶¶ 1, 22-

11
39 (limiting Allman’s reach where a defendant is sentenced to

probation under the Colorado Sex Offender Lifetime Supervision Act

of 1998).

¶ 22 Yet, N.D.O does not appeal the jury’s finding that he

committed aggravated robbery under a complicity theory. See

People v. Ramirez, 997 P.2d 1200, 1207 (Colo. App. 1999) (“A

defendant is not convicted of complicity, but rather is convicted of

an offense under a theory of complicity as the means by which the

offense was committed by a particular defendant.”), aff’d by an

equally divided court, 43 P.3d 611 (Colo. 2001). It is that

delinquent act for which he is accountable to the same extent as

the principal. See B.D., ¶ 16. And, as noted, section 19-2-516(3)

expressly permits a juvenile to be designated a violent juvenile

offender for a delinquent act that constitutes a crime of violence.

The only question left, therefore, was whether N.D.O.’s delinquent

act constituted a crime of violence.

¶ 23 On that question, N.D.O. points out that the crime of violence

statute does not mention complicity; it includes only an enumerated

crime that is “committed, conspired to be committed, or attempted

to be committed.” § 18-1.3-406(2)(a)(I). To reiterate, however,

12
complicity is a theory by which a person commits a crime. Given

that the crime of violence statute applies to an enumerated crime

committed by one who used (or possessed and threatened to use) a

deadly weapon — and considering B.D. and Swanson — we

conclude that the jury should have been instructed to consider

whether N.D.O.’s delinquent act constituted a crime of violence

under a complicity theory.

¶ 24 N.D.O. also seems to claim that, pursuant to the applicable

statutes, complicity liability cannot apply to (1) juveniles generally;

(2) sentence enhancers with which juveniles are charged; or

(3) crime of violence findings because they are not elements of an

offense. To the extent he raises these claims, we reject them as

foreclosed by B.D. and Swanson. We must follow our supreme

court’s precedent. See In re Estate of Ramstetter, 2016 COA 81,

¶ 40. Relatedly, we are not persuaded by N.D.O.’s suggestion that

Allman conflicts with Swanson and, thus, Allman implicitly

overruled Swanson.

¶ 25 Finally, N.D.O., in arguing that juveniles should not be treated

the same as adults, cites federal cases addressing constitutional

limits on sentencing a juvenile as an adult. See Miller v. Alabama,

13
567 U.S. 460, 467 (2012); Graham v. Florida, 560 U.S. 48 (2010);

see also Lucero v. People, 2017 CO 49, ¶ 15 (“Graham and Miller

apply only where a juvenile is sentenced to the specific sentence of

life without the possibility of parole for one offense.”); cf. People in

Interest of T.B., 2021 CO 59, ¶ 74 (holding that mandatory lifetime

sex offender registration for offenders with multiple juvenile

adjudications constitutes punishment and is cruel and unusual in

violation of the Eighth Amendment). But N.D.O. does not raise a

constitutional challenge or contend that any statute is ambiguous

and must be construed to avoid constitutional infirmity. See People

v. Ross, 2021 CO 9, ¶ 35 (“The ‘doctrine of constitutional avoidance’

. . . applies only when courts interpret statutes that are

ambiguous.”). So those federal cases do not persuade us that we

may depart from our supreme court’s application of complicity

liability to juveniles. See B.D., ¶ 16.3

3 We also find inapposite the decision in J.D.B. v. North Carolina,
564 U.S. 261, 264-65 (2011) (“[W]e hold that a child’s age properly
informs the Miranda custody analysis.”).

14
¶ 26 For all these reasons, we disapprove the trial court’s ruling

and resulting instruction to the effect that complicity did not apply

to the crime of violence interrogatories.4

III. N.D.O.’s Sentence

¶ 27 Next, the prosecution contends that the trial court’s “failure to

designate N.D.O. as a violent juvenile offender when he was

adjudicated delinquent for a delinquent act that constituted a crime

of violence as defined in section 18-1.3-406(2) resulted in an illegal

sentence.” See People v. Anaya, 894 P.2d 28, 31 (Colo. App. 1994)

(recognizing that the People may challenge an illegal sentence for

the first time on appeal); cf. Crim. P. 35(a) (“The court may correct a

sentence that was not authorized by law or that was imposed

without jurisdiction at any time . . . .”). We disagree.

¶ 28 We review the legality of a sentence de novo. People in Interest

of J.S.R., 2014 COA 98M, ¶ 12. “An illegal sentence is one that is

not authorized by law, meaning that it is inconsistent with the

sentencing scheme established by the legislature.” People in

4 Because the issue is not before us, we do not address the
requirements of complicitor liability on which a jury must be
instructed in this context. Cf. People v. Childress, 2015 CO 65M,
¶¶ 29, 34, 39 (addressing complicitor liability generally).

15
Interest of J.C., 2018 COA 22, ¶ 14 (citation omitted). The legality of

N.D.O.’s sentence raises questions of statutory interpretation,

which we also review de novo. B.D., ¶ 8.

¶ 29 Initially, we note that, even if we concluded that the trial

court’s instructional error affected the jury’s decision to acquit

N.D.O. of the crime of violence charges, we could not remand for a

new trial with correct instructions. “Any prosecutorial appeal under

section 16-12-102(1) is necessarily limited to questions of law only.

This section does not give the People a basis upon which to

challenge the trial court’s assessment of the evidence.” People v.

Martinez, 22 P.3d 915, 919 (Colo. 2001) (citations omitted). Hence,

an “appellate court is limited in its review to determining whether

the trial court erred, and it may not order a new trial if an error was

committed and the defendant was subsequently acquitted.” People

v. Allee, 740 P.2d 1, 8 (Colo. 1987); see § 16-12-102(1) (“Nothing in

this section shall authorize placing the defendant in jeopardy a

second time for the same offense.”).

¶ 30 The prosecution, however, does not request a remand for a

new trial. Instead, the prosecution contends that it does not matter

that the jury answered “no” to the deadly weapon interrogatories

16
because — unlike when an adult is charged with a crime of violence

— such specific findings are not necessary to designate an accused

a violent juvenile offender (i.e., to conclude that a juvenile

committed a crime of violence). Cf. § 18-1.3-406(4) (requiring the

jury to make “a specific finding” as to whether the accused used, or

possessed and threatened to use, a deadly weapon). Therefore, the

prosecution continues, we need only look to the jury’s general

verdicts on the substantive offenses. According to the prosecution,

the jury found N.D.O. guilty of crimes of violence because the jury

found him guilty of eight counts of aggravated robbery and “[e]ach

of those counts required a deadly weapon finding as one of the

elements of the offense.” So, the prosecution concludes that the

“jury necessarily found the use of a deadly weapon when it found

[N.D.O.] guilty of each of those counts.”

¶ 31 We need not decide if we agree with the prosecution that no

specific crime of violence findings by the jury were necessary. Even

if the prosecution were right, we would still reject the prosecution’s

conclusion because the general verdicts do not show that the jury

necessarily found the use of a deadly weapon.

17
¶ 32 The jury convicted N.D.O. of the following forms of aggravated

robbery:

(1) A person who commits robbery is guilty of
aggravated robbery if during the act of robbery
or immediate flight therefrom:

...

(c) He has present a confederate, aiding or
abetting the perpetration of the robbery, armed
with a deadly weapon, with the intent, either
on the part of the defendant or confederate, if
resistance is offered, to kill, maim, or wound
the person robbed or any other person, or by
the use of force, threats, or intimidation puts
the person robbed or any other person in
reasonable fear of death or bodily injury; or

(d) He possesses any article used or fashioned
in a manner to lead any person who is present
reasonably to believe it to be a deadly weapon
or represents verbally or otherwise that he is
then and there so armed.

§ 18-4-302. Robbery occurs where a person “knowingly takes

anything of value from the person or presence of another by the use

of force, threats, or intimidation.” § 18-4-301(1), C.R.S. 2020.

¶ 33 Neither form of aggravated robbery described above requires

the use, or possession and threatened use, of a deadly weapon.

Subsection (1)(c) of section 18-4-302 requires the presence of a

confederate armed with a deadly weapon who has the intent to

18
harm another person if resistance is offered or who, by the use of

force, threats, or intimidation, puts any person in reasonable fear of

death or bodily injury. Simply possessing a deadly weapon with the

intent to use it does not satisfy the applicable crime of violence

definition. See § 18-1.3-406(2)(a)(I)(A). Nor does subsection (1)(c)

require that the confederate use force, threats, or intimidation with

a deadly weapon — in contrast to subsection (1)(b) of the same

statute (“by the use of force, threats, or intimidation with a deadly

weapon puts the person robbed or any other person in reasonable

fear of death or bodily injury”). § 18-4-302(1).5

¶ 34 Likewise, subsection (1)(d) does not require the use of an

actual deadly weapon. Id. Rather, “a defendant may be convicted if

the robbery is committed with the use of an item in a manner in

which the victim would reasonably believe it to be a deadly weapon

(i.e., a simulated deadly weapon).” People v. Palmer, 2018 COA 38,

5 In full, section 18-4-302(1)(b), C.R.S. 2020, provides that a person
who commits robbery is guilty of aggravated robbery if, during the
robbery or the immediate flight therefrom, “[h]e knowingly wounds
or strikes the person robbed or any other person with a deadly
weapon or by the use of force, threats, or intimidation with a deadly
weapon knowingly puts the person robbed or any other person in
reasonable fear of death or bodily injury.”

19
¶ 19; see People v. Manyik, 2016 COA 42, ¶ 50 (noting that section

18-4-302(1)(d) does not create a per se crime of violence).

¶ 35 Not surprisingly, then, only conduct falling within

subsection (1)(b) constitutes a per se crime of violence. Terry v.

People, 977 P.2d 145, 151 (Colo. 1999); see § 18-4-302(4) (“If a

defendant is convicted of aggravated robbery pursuant to

paragraph (b) of subsection (1) of this section, the court shall

sentence the defendant in accordance with the provisions of section

18-1.3-406.”). N.D.O. was not found guilty of violating

subsection (1)(b).

¶ 36 Because N.D.O. could have committed aggravated robbery

under subsections (1)(c) and (1)(d) without using, or possessing and

threatening to use, a deadly weapon, such a crime of violence

finding was not implicit in the jury’s guilty verdicts as to those

offenses. See People v. Lutz, 803 P.2d 184, 185 (Colo. 1990)

(“Because the two crimes require different elements of proof, the

jury could reasonably find, from the same evidence, that the

elements of aggravated robbery were present, while the elements of

crime of violence were absent.”). Therefore, the jury’s verdicts do

20
not establish that N.D.O. was adjudicated for a delinquent act that

constituted a crime of violence.

¶ 37 As a result, the trial court did not impose an illegal sentence

by failing to designate N.D.O. a violent juvenile offender with a

corresponding sentence.

IV. Conclusion

¶ 38 The ruling is disapproved, and the sentence is affirmed.

JUDGE BROWN and JUSTICE MARTINEZ concur.

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