Oregon Court of Appeals

2020

January 20 summaries

State v. Arnold

"[T]he rules for personal service under ORCP 7 'do not require actual in-hand delivery, or a face-to-face encounter with an acknowledgement of identity from the person to be served,' because '[t]o so require would allow a defendant to defeat service simply by refusing to identify himself or accept the papers.'" Business & Prof. Adj. Co. v. Baker, 62 Or App 237, 240-41, 659 P2d 1025 (1983).

Area(s) of Law:
  • Civil Procedure

State v. M. J. M.

Once a court finds a person is mentally ill by clear and convincing evidence, if the court finds that person is “willing and able to participate in treatment on a voluntary basis” and they “will probably do so” the court must order their release under ORS 426.130(1)(a)(A)(i)-(ii).

Area(s) of Law:
  • Civil Commitment

The Bank of New York Mellon v. Lash

To maintain an FED action, the entry must have been by force and the holding of the property must have also been by force. ORS 105.110; Kerr v. Jones, 193 Or App 682, 687, 91 P3d 828 (2004).

Area(s) of Law:
  • Property Law

Central Oregon Landwatch v. Deschutes County

An amendment to a county’s acknowledged comprehensive plan, which did not directly or indirectly influence the misclassification of a land, cannot be a basis for requiring review of the amendment in a goal noncompliance claim. Urquhart v. Lane Council of Governments, 80 Or App 176, 180-82, 721 P2d 870 (1986).

Area(s) of Law:
  • Land Use

Friends of Yamhill County v. Yamhill County

In a specialized zoning context, "'incidental and subordinate to' means more than that the accessory use occurs less frequently than the primary use," and in statutory context, ORS 215.283(4)(d) was intended to spark a comparison on the nature, intensity, and economic value of proposed agri-tourism events rather than solely relying on frequency of activities.

Area(s) of Law:
  • Land Use

State v. Lorenzo

“Disobedience to a subpoena or a refusal to be sworn or to answer as a witness may be punished as contempt by a court before whom the action is pending or by the judge or justice issuing the subpoena. Upon hearing or trial, if the witness is a party and disobeys a subpoena or refuses to be sworn or to answer as a witness, such party’s complaint, answer, or reply may be stricken.” ORCP 55 G; “Except for offenses based on municipal or county ordinance, in a criminal action the State of Oregon is the plaintiff and the person prosecuted is the defendant.” ORS 131.025.

Area(s) of Law:
  • Criminal Procedure

Walton v. Myrick

"ORS 138.550(3) places a ‘limit on successive post-conviction proceedings’ and is meant to disallow ‘serial litigation’ of post-conviction claims." Bogle v. State of Oregon, 363 Or 455, 458, 476-477, 423 P3d 715 (2018). "The fact that a represented petitioner failed in his or her effort o raise additonal claims in the original post-conviction proceeding . . . will not justify the filing of a new, successive post-conviction petition under ORS 138.550(3)." Id. at 477-78.

Area(s) of Law:
  • Post-Conviction Relief

Yann v. Bowser

In reviewing the trial court's grant of summary judgment for legal error, the Court determines “whether there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Evans v. City of Warrenton, 283 Or App 256, 258, 388 P3d 1167 (2016); ORCP 47 C.

Area(s) of Law:
  • Post-Conviction Relief

Restore Oregon v. City of Portland

Under ORS 197.850(9)(1), LUBA orders are reviewed to determine if the decision was "unlawful in substance or procedure."

Area(s) of Law:
  • Land Use

Shriners Hospitals for Children v. Cox

“We balance four factors in determining whether a court permissibly exercised its discretion [over a petitioned leave to amend]: ‘(1) the nature of the proposed amendments and their relationship to the existing pleadings; (2) the prejudice, if any, to the opposing party; (3) the timing of the proposed amendments and related docketing concerns; and (4) the colorable merit of the proposed amendment.” Ramsey v. Thompson, 162 Or App 139, 145, 986, P2d 54 (1999) rev den 329, Or 589 (2000).

Area(s) of Law:
  • Civil Procedure

State v. Keyes

"[A] 'sentence imposed' under ORS 137.717 is a sentence initially imposed upon conviction, and not a sentence imposed at the time the probation is revoked." State v. Orcutt, 280 Or App 439, 446, 380 P3d 1105 (2016), rev den, 361 Or 525 (2017).

Area(s) of Law:
  • Sentencing

State v. Mast

"Whether post-Miranda statements must be suppressed when the Miranda warnings are belatedly given turns on whether the state has established that the warnings were 'effective.'" State v. Vondehn, 348 Or 462, 480, 236 P3d 691 (2010). "To determine whether belatedly administered Miranda warnings are effective, we consider 'all relevant circumstances.'" Id. at 482.

Area(s) of Law:
  • Criminal Law

Dept. of Human Services v. F. Y. D.

ORS 419B.100(1)(c) provides that "a juvenile court has jurisdiction in a dependency case when a child’s ‘condition or circumstances are such as to endanger the welfare’ of the child.” “A child is endangered if the child is exposed to conditions or circumstances that ‘present a current threat of serious loss or injury.’” Dept. of Human Services v. A. L., 268 Or App 391, 397, 342 P3d 174 (2015).

Area(s) of Law:
  • Juvenile Law

Schnitzer v. Schnitzer

"Dictionary definitions… ‘do not tell us what words mean, only what words can mean, depending on their context and the particular manner in which they are used.'” State v. Cloutier, 351 Or 68, 96, 261 P3d 1234 (2011).

Area(s) of Law:
  • Family Law

State v. Barrett

The Court may "decline to address constitutional questions where the record was 'too inconclusive to justify the adoption of the constitutional rule urged by defendant.'" City of Portland v. Juntunen, 6 Or App 632, 635, 488 P2d 806 (1971).

Area(s) of Law:
  • Constitutional Law

State v. Guynn

“A person commits the offense of ‘following too closely’ if the person ‘[d]rives a motor vehicle so as to follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of the vehicles and the traffic upon, and condition of, the highway.” ORS 811.485(1)(a). “A driver has the duty [to all cars] to not follow the preceding car so closely as to create an ‘unreasonable risk’ to others under the driving conditions present.” Garland v. Wilcox, 220 Or 325 (1960).

Area(s) of Law:
  • Traffic Infractions

State v. J.W.

"A person may be committed to DHS for care, treatment, or training if the court determines that (1) the person has an intellectual disability; (2) because of the intellectual disability, the person is either (a) dangerous to self, (b) dangerous to others, or (c) unable to provide for personal needs and not receiving care as is necessary for the person’s health, safety, or rehabilitation; and (3) voluntary treatment and training or conditional release is not in the person’s best interest. ORS 427.290.”

Area(s) of Law:
  • Civil Commitment

State v. Kirkpatrick

“[A]n offense in another jurisdiction is only considered comparable to an Oregon felony sex crime if the two have ‘elements that are the same * * * or nearly the same.’” State v. Carlton, 361 Or 29, 43, 388 P3d 1093 (2017).

Area(s) of Law:
  • Sentencing

State v. McCarthy

The automobile exception requires “(1) that the automobile is mobile at the time it is stopped by police or other governmental authority, and (2) that probable cause exists for the search of the vehicle.” State v. Brown, 301 Or. 268, 274, 721 P2d 1357 (1986).

Area(s) of Law:
  • Criminal Law

State v. Swartz

“[A] person commits the crime of IPO ‘if the person, knowing that another person is a peace officer[,] … [r]efuses to obey a lawful order by the peace officer,’” ORS 162.247(1). Passive resistance means any “noncooperation with a lawful order of a peace officer that does not involve active conduct.” State v. McNally, 361 Or 314, 339 P3d 721 (2017).

Area(s) of Law:
  • Criminal Law

February 26 summaries

Dept. of Human Services v. L. J. W.

“ORS 419B.337(2) grants the court the authority to order a parent to submit to a psychological evaluation to help design services needed, if there is ‘a rational connection between the service to be provided and the basis for jurisdiction.’”  State ex rel Juv. Dept. v. G. L., 220 Or App 216, 223, 185 P3d 483, rev den, 345 Or 158 (2008).

Area(s) of Law:
  • Juvenile Law

M & T Partners, Inc. v. Miller

Under ORS 197.829, LUBA "'shall affirm a local government interpretation of its comprehensive plan and land use regulations,' unless LUBA finds that specified conditions are satisfied."

Area(s) of Law:
  • Land Use

Reister v. City of Portland Bureau of FPDR

“An ‘FPDR Two Member whose employment with the Bureau of Fire or Police terminates after completing five Years of Service shall be eligible to receive the benefit on vested termination.’ That benefit ‘shall be the FPDR Two Member’s retirement benefit accrued […] to the date of the FPDR Two Member’s termination of employment’ and ‘shall be payable monthly for the life of the FPDR Two Member commencing on Earliest Retirement Date.’" Portland City Charter § 5-305(b), (c).

Area(s) of Law:
  • Administrative Law

State v. Gallegos

“Plain error is an error that is (1) one of law; (2) obvious, i.e., not reasonably in dispute; and (3) apparent on the record.” State v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013).

Area(s) of Law:
  • Remedies

State v. Simmons

“A confession or admission of a defendant, whether in the course of judicial proceedings or otherwise, cannot be given in evidence against the defendant when it was made under the influence of fear produced by threats.” ORS 136.425(1). "Any communication made with the idea of some 'temporal benefit or disadvantage' for the criminal defendant is enough to run afoul with the statute." State v. Linn, 179 Or 499, 504-07, 173 P2d 305 (1946); State v. Bell, 281 Or App 208, 383, P3d 327 (2016).

Area(s) of Law:
  • Criminal Procedure

Anantha v. Clarno

The proposed measures must satisfy the two-part framework: 1) whether a “unifying principle” can be identified, embracing a single subject, and if so 2) whether “other matters” contained within are “properly connected” to that principle. State ex rel Caleb v. Beesley, 326 Or 83, 91-93, 949 P2d 724 (1997).

Area(s) of Law:
  • Ballot Titles

Dayton v. Jordan

“In order to subdivide or partition any property, the declarant shall include on the face of the subdivision or partition plat, if a partition plat is required, a declaration […] stating that the declarant has caused the subdivision or partition plat to be prepared and the property subdivided or partitioned in accordance with the provisions of this chapter […] any public or private easements created, or any other restriction made, shall be stated in the declaration.” ORS 92.075(1).

Area(s) of Law:
  • Property Law

Miller v. Elisea

"[T]he inquiry into the admissibility of evidence of medical causation focuses on the differential diagnosis and whether the particular use of the differential diagnosis to determine causation has met the general test of scientific validity." Jennings v. Baxter Healthcare Corp., 331 Or 285, 307, 14 P3d 596 (2000). 

Area(s) of Law:
  • Evidence

State v. Drew

"A wound on the forehead and scalp that is four to six inches in length and half an inch wide after five staples had been used to close it is a 'disfigurement' as the term is ordinarily used," and, if it is "readily apparent to others, qualifies as 'serious.'" State v. Kinsey, 293 Or App, 208, 213, 426 P3d 674 (2018). 

Area(s) of Law:
  • Sentencing

Vukanovich v. Kine

When neither party requests a de novo review, and the case does not appear to warrant doing so due to exceptional circumstances, the court reviews a trial court's legal conclusions for errors of law and its factual findings to determine whether the findings are supported by evidence in the record. ORAP 5.40(8)(c); Vukanovich v. Kine, 268 Or App 623, 633, 342 P3d 1075 (Vukanovich II), adh'd to as modified on recons, 271 Or App 133, 349 P3d 567 (2015 (Vukanovich III). 

Area(s) of Law:
  • Civil Procedure

Dept. of Human Services v. P. W.

“ORS 419B.387 authorizes the juvenile court to order a parent to submit to a psychological evaluation, but only after ‘the establishment of a need for treatment or training at the evidentiary hearing.’” Dept of Human Services v. D.R.D., 298 Or App 788, 799, 450 P3d 1022 (2019); see also Dept. of Human Services v. T.L.H., 300 Or App 606, 453. P3d 556 (2019).

Area(s) of Law:
  • Juvenile Law

Growing Green Panda v. Dept. of Human Services

“When an agency has interpreted its own rules, ‘we give significant deference to that interpretation and are required to affirm it if it is “plausible,” [as long as it’s consistent with itself, its context or other source of law].’” Boatwright v. Dept. of Human Services, 293 Or App 301, 304-305 (2018).

Area(s) of Law:
  • Administrative Law

State v. Middleton

“The test for whether an encounter is a ‘seizure’ is whether the officer ‘intentionally and significantly restricts, interferes with, or otherwise deprives an individual’s liberty or freedom of movement,’ or whether ‘a reasonable person under the totality of the circumstances would believe that [that] has occurred.’” State v. Fair, 353 Or 588, 594, 302 P3d 417 (2013).

Area(s) of Law:
  • Criminal Procedure

Stau v. Taylor

Under Article I, section 11, of the Oregon Constitution, a party may prove that trial counsel rendered inadequate assistance if they prove (1) a performance element, or a failure to exercise reasonable professional judgement, and (2) a prejudice element, that the party suffered prejudice as a result of the inadequacy. See Johnson v. Premo, 361 Or 688, 699, 399 P3d 431 (2017).

Area(s) of Law:
  • Post-Conviction Relief

Int. Assn. Machinist, Woodworkers Local W-246 v. Heil

"When determining whether the offer of judgment under ORCP 54(E) was more favorable than the judgment, the court must compare both amounts." Mulligan v. Hornbuckle, 227 Or App 520, 523, 206 P3d 1078 (2008).

Area(s) of Law:
  • Attorney Fees

Menten and Deatherage

"ORS 107.105(6) explicitly authorizes parties who have an undivided interest in real property pursuant to a dissolution judgment to maintain a proceeding for the 'partition' of the property." See Abrahram v. Goff, 85 Or App 595, 597, 737 P2d 971 (1987).

Area(s) of Law:
  • Family Law

OR-OSHA v. A & B Sheet Metal Works

"As set forth by a leading treatise, federal law dictates that the agency must show, in the absence of proof of actual exposure, that it is reasonably predictable that employees, by 'operational necessity' or otherwise (including inadvertence) in the course of their work or associated activities (e.g., going to rest rooms) will be in the zone of danger created by the cited condition." OR-OSHA v. Moore Excavation, Inc., 257 Or App 567, 577, 307 P3d 510 (2013).

Area(s) of Law:
  • Administrative Law

Porter v. Veenhuisen

If an action is first filed within the statute of limitations and then “involuntarily dismissed without prejudice on any ground not adjudicating the merits of the action,” a new action based on the same claim or claims may be filed within 180 days of the trial court’s entry of the judgment of dismissal of the original action, notwithstanding that the statute of limitations has run during the interim. ORS 12.220.

Area(s) of Law:
  • Civil Procedure

Portland Fire Fighters' Assn. v. City of Portland

“’Collective bargaining’ means the performance of the mutual obligation of a public employer and the representative of its employees to meet at reasonable times and confer in good faith with respect to employment relations for the purpose of negotiations concerning mandatory subjects of bargaining…” ORS 243.650(4). “Mandatory subjects of bargaining are those that affect employment relations.” ORS 243.650(4). “Employment relations ‘includes, but is not limited to, matters concerning direct or indirect monetary benefits, hours, vacations, sick leave, grievance procedures and other conditions of employment.’” ORS 243.650(7)(a).

Area(s) of Law:
  • Labor Law

State v. Colman-Pinning

“[T]he automobile exception is a subcategory of the warrant exception for exigent circumstances, necessitated by the fact that a vehicle that is mobile can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” State v. Brown, 301 Or 268, 275, 721 P2d 1357 (1986). “The mobility of the vehicle creates a per se exigency, meaning that there is no need to establish other exigencies or that a warrant could not have been quickly obtained.” Id. at 276.

Area(s) of Law:
  • Criminal Procedure

State v. Formby-Carter

“Evidence of defendant’s previous criminal convictions and the underlying facts was relevant and admissible to prove ‘defendant’s mental state, as well as * * * absence of mistake or accident.’” State v. Johns, 301 Or 535, 725 P2d 312 (1986); OEC 404(3).

Area(s) of Law:
  • Evidence

State v. Keys

"In the absence of indictment, preliminary hearing, or waiver, the circuit court lacks jurisdiction to try the defendant and any judgment rendered in that case is void.” Huffman v. Alexander, 197 Or 283, 301, 251 P2d 87 (1952); OR Const, Art VII (Amended), section 5.

Area(s) of Law:
  • Criminal Procedure

State v. Oxford

To determine whether the trial court abused its discretion, the Court took the context of the case into consideration along with other factors. See State v. Evans, 211 Or App 162, 166-68 (2007), aff’d, 344 Or 358 (2008) (Whether the prejudice was so great a mistrial was the only legally acceptable alternative, whether the prejudice was cured by jury instruction, and whether the incident was sufficiently isolated).

Area(s) of Law:
  • Criminal Procedure

State v. Snelgrove

“If the defendant does not comply with the conditions of the release agreement, the court having jurisdiction shall enter an order declaring the entire security amount to be forfeited. [...] If, within 30 days after the court declares the forfeiture, the defendant does not appear or satisfy the court having jurisdiction that appearance and surrender by the defendant was, or still is, impossible and without fault of the defendant, the court shall enter judgment for the state, or appropriate political subdivision thereof, against the defendant…” ORS 135.280(3).

Area(s) of Law:
  • Criminal Procedure

State v. Spieler

“The ‘court’s speaking verdict and other comments must be considered in context, taking into account the circumstances in which the court made its observations.’” State v. Reed, 299 Or App 675, 689, 452 P3d 995 (2019).

Area(s) of Law:
  • Criminal Law

State v. Stacey

Plain-error review has three requirements: (1) the error was one of law; (2) the error was apparent and not reasonably in dispute; and (3) the error appeared on the record. State v. Coverstone, 260 Or App 714, 715, 320 P3d 670 (2014).

Area(s) of Law:
  • Appellate Procedure

March 17 summaries

Dept. of Human Services v. M. E.

“If the involvement of friends and family members sufficiently counters the risk to a child otherwise presented by a parent’s deficits so that the child is safe, dependency jurisdiction is not warranted.” Dept. of Human Services v. J. G. K., 298 Or App 398, 402, 449 P3d 531 (2019).

Area(s) of Law:
  • Juvenile Law

Dept. of Human Services v. T. J.

“‘Under ORS 419B.100(1)(c), jurisdiction is warranted if a child’s condition or circumstances are such as to endanger [that child’s] welfare’—that is, if they ‘give rise to a threat of serious loss or injury.’ DHS must prove that the threat is current, nonspeculative, and causally connected to the allegedly risk-causing conduct or circumstances.” Dept of Human Services v. D.W.M., 296 Or App 109, 117-18, 437 P3d 1186 (2019).

Area(s) of Law:
  • Family Law

Fleming v. SAIF

Under ORS 656.289(4)(b), "[i]insurers or self-insured employers who are parties to an approved disputed claim settlement under this subsection shall not be joined as parties in subsequent proceedings under this chapter to determine responsibility for payment for claim conditions for which settlement has been made."

Area(s) of Law:
  • Insurance Law

Johnson v. Premo

"If the party arguing against mootness can identify practical effects or collateral consequences that flow from the underlying challenged decision, then the party advocating mootness must show that the effects and consequences identified are either legally insufficient or factually incorrect." Garges v.Premo, 362 Or 797, 802, 421 P3d 345 (2018).

Area(s) of Law:
  • Post-Conviction Relief

State v. Brownlee

“A search incident to arrest is valid where an officer has probable cause to make an arrest, the search would likely uncover evidence of the crime of arrest, and the search is reasonable in time, scope, and intensity.” State v. Mazzola, 356 Or 804, 811-12, 345 P3d 424 (2015). “Whether a search incident to arrest is reasonable in scope and intensity is not dependent on an arrestee’s immediate possession, but whether the items searched was immediately associated with the arrestee at the time.” State v. Burgholzler, 185 Or App 254, 260, 59 P3d 582 (2002).

Area(s) of Law:
  • Evidence

State v. Phillips

To determine whether circumstances are compelling for purposes of Miranda warnings, the court asks “whether the questioning occurred in a police-dominated atmosphere.” State v. Turnidge, 359 Or 364, 402, 374 P3d 853 (2016), cert den, 137 S Ct 665 (2017).

Area(s) of Law:
  • Criminal Procedure

State v. Rieker

“…ORS 137.106 did not prevent the court from imposing restitution [beyond the 90-day deadline] in order to provide the victim a remedy by due course of law, after it was discovered that her constitutional right to restitution was violated.” State v. Wagoner, 257 Or App 749, 395 P3d 528 (2013).

Area(s) of Law:
  • Sentencing

Braun and Braun

“When a party seeks modification or termination of spousal support, the trial court ‘must determine whether there has been a substantial, unanticipated change in the economic circumstances since the time of the earlier award.’” Davis and Lallement, 287 Or App 323, 327-328, 401 P3d 1230 (2017). “If there has been, the trial court ‘must determine what amount of support is just and equitable under the totality of the circumstances.’” Id. at 328.

Area(s) of Law:
  • Family Law

M. D. O. v. Desantis

"Each contact 'must give rise to subjective alarm and that alarm must be objectively reasonably, and the contacts, cumulatively, must give rise to subjective apprehension regarding the petitioner's personal safety or the personal safety of a member of the petitioner's immediate family or household, and that apprehension must be objectively reasonably.'" Blastic v. Holm, 248 Or App 414, 418, 273 P3d 304 (2012).

Area(s) of Law:
  • Civil Stalking Protective Order

NV Transport, Inc. v. V & Y Horizon, Inc.

"An interference in another party's contractual or other economic relations is tortious only if it is 'wrongful by some measure beyond the fact of the interference itself,' such as by improper means or improper motive." Northwest Natural Gas Co. v. Chase Gardens, Inc., 328 Or 487, 498, 982 P2d 1117 (1999).

Area(s) of Law:
  • Tort Law

State v. Adams

The Court ruled it would “…not presume an implicit finding where the record does not support it or shows that such a finding was not part of the trial court’s chain of reasoning forming the basis of its ultimate legal conclusion.” See Pereida-Alba v. Coursey, 356 Or 654, 671, 342 P3d 70 (2015).

Area(s) of Law:
  • Criminal Law

State v. Arnold

"To be 'within the immediate view and presence of the court' is to personally witness such conduct." State v. Blackburn, 283 Or App 843, 845, 391, P3d 929 (2017).

Area(s) of Law:
  • Criminal Law

State v. Davilla

Under Miller, when a juvenile faces a de facto life sentence, the sentencer is required to “take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Miller v. Alabama, 567 U.S. 460, 479–80 (2012). Failure to do so violates the Eighth Amendment of the United States Constitution.

Area(s) of Law:
  • Sentencing

State v. James

Under the plain meanings of “reliable” and “authority,” the Court understood the phrase to mean a source, widely used within that community, whose propositions or opinions are trustworthy and deserving of the community’s reliance and acceptance.

Area(s) of Law:
  • Criminal Procedure

State v. M. A. S.

Under ORS 419C.450, “adjudication” and “disposition” are distinct phases of delinquency proceedings and adjudication hearings are to determine jurisdiction, thus, presenting restitution evidence at a dispositional hearing is too late.

Area(s) of Law:
  • Juvenile Law

State v. Rockett

"When a trial court is presented with a request to exclude evidence as unfairly prejudicial under OEC 403, the court should (1) consider the quantum of probative value of the evidence and consider the weight or strength of the evidence; (2) determine how prejudicial the evidence is and the extent to which the evidence may distract the jury from the central question whether the defendant committed the charged crime; (3) balance the prosecution's need for the evidence against the countervailing danger of unfair prejudice; and (4) consider whether to admit all the proponent's evidence, none, or some portion of it." State v. Anderson, 363 Or 392, 423 P3d 43 (2018).

Area(s) of Law:
  • Evidence

State v. Smith

Plain-error must be: (1) an error of law, (2) obvious; and, (3) “apparent on the record without requiring the court to choose among competing inferences.” State v. Vanornum, 354 Or 614 (2013).

Area(s) of Law:
  • Criminal Procedure

April 1 summary

State v. Strickland

“The legal standard for assessing the reasonableness of a person’s belief about the need for force or the extent of force necessary turns on an objective evaluation of the circumstances in which physical force has been used or threatened, and not on the perceptions of the individual defendant.” State v. Bassett, 234 Or App 259, 228 P3d 590 (2010).

Area(s) of Law:
  • Evidence

May 0 summaries

June 0 summaries


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