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Commonwealth v. Pfeiffer

Supreme Judicial Court of Massachusetts, Suffolk

May 1, 2019


          Heard: September 6, 2018.

         Indictments found and returned in the Superior Court Department on March 8, 2011. The cases were tried before Janet L. Sanders, J.

         The Supreme Judicial Court granted an application for direct appellate review.

          Rebecca A. Jacobstein, Committee for Public Counsel Services, for the defendant.

          Colby M. Tilley, Assistant District Attorney (Julie S. Higgins, Assistant District Attorney, also present) for the Commonwealth.

          Marguerite T. Grant, Assistant District Attorney, for district attorney for the Norfolk district & others, amici curiae, submitted a brief.

          Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          LOWY, J.

         Following an argument with her boyfriend, the defendant set a bag of his clothes on fire inside their apartment, then fled the building without calling for help or warning the occupants of other units. One person died in the resulting two-alarm fire. Three others, including two firefighters, were injured. A Superior Court jury convicted the defendant of arson of a dwelling house, G. L. c. 266, § 1; felony-murder in the second degree, G. L. c. 2 65, § 1; and two counts of injuring a firefighter, G. L. c. 265, § 13D1/2. The defendant appealed, and we granted her application for direct appellate review.

         The defendant raises several challenges to the arson conviction, which served as the predicate for the other charges: that the evidence was insufficient to prove that she specifically intended to set the apartment building on fire; that the trial judge erred, as a matter of law, in instructing the jury on an "alternative theory" of arson, namely, that she also could be found guilty if she accidentally or negligently set the fire and then wilfully and maliciously failed to extinguish or report it; and that the Commonwealth expressly waived the right to pursue that alternative theory by its response to her pretrial motion for a bill of particulars. Moreover, she challenges the conviction of felony-murder in the second degree on the ground that the judge declared, as a matter of law, that arson is an inherently dangerous felony, rather than letting the jury determine whether her conduct evidenced a conscious disregard for the risk to human life. Finally, the defendant argues that the verdicts should be vacated and the indictments dismissed because the Commonwealth declined her request to instruct the grand jury regarding the elements of the offenses.

         The parties, both in the trial court and on appeal, have treated the charge of arson under G. L. c. 266, § 1, as a specific intent crime. As discussed herein, however, arson under § 1, which is derived from the common law, is a crime requiring general intent with malice. We accordingly provide an appendix containing a model jury instruction for arson of a dwelling house under G. L. c. 266, § 1, which has been unanimously approved and recommended by this court.[1]

         Concerning the defendant's claims on appeal, we conclude that the evidence, viewed in a light most favorable to the Commonwealth, was sufficient to establish that she specifically intended to burn the apartment building. The court unanimously agrees that the instruction on the alternative theory of arson was erroneous, and a majority concludes that the error, whether it is viewed for prejudice or for a substantial miscarriage of justice, does not warrant overturning the verdicts. As there also is no merit to the defendant's other arguments, the verdicts are affirmed.


         The facts developed at trial are as follows. On December 24, 2010, the defendant was living in a ground-floor unit of a two-story apartment building in Chelsea with her boyfriend, William Brewer, and their two year old son. Early that evening, the defendant dropped their son off to spend the night at a relative's home, arriving back at the apartment at approximately 9 £.M. Immediately upon the defendant's return, she and Brewer engaged in a heated argument that resulted in Brewer leaving for a nearby bar. Approximately one hour later, he returned and found that the defendant, still angry, had locked him out of the apartment. From the sidewalk outside, Brewer spoke to the defendant through a window and attempted to calm her down and persuade her to let him in. Being unsuccessful in both regards, Brewer departed again, this time looking to buy marijuana.

         Approximately fifteen minutes later, Brewer returned again. This time, as he approached the building, he observed the defendant running out of the building. When he asked her what she was doing, she responded that his clothes were on fire. The defendant had lit a piece of paper on fire and tossed it on a duffel bag full of Brewer's clothes, which was sitting on the floor in a corner of the apartment. She had then changed out of her night clothes and left, locking the exterior door of the building behind her, [2] and without calling for help or alerting other occupants. As she then stood outside arguing with Brewer about what she had done, flames were already visible inside through one of the apartment windows.

         As the two argued, a passing car came to a halt, and a woman and three men jumped out. The woman immediately used her cellular telephone to call 911. She then asked what had happened, and the defendant replied that she had set Brewer's clothes on fire. Meanwhile, one of the men, believing that Brewer had said there were children inside, attempted to enter the building. He broke down the locked exterior door, only to find that the fire had already become so intense that it was not safe to go inside.

         While this was occurring, a man and a woman who occupied the unit directly above that of the defendant attempted to leave the building using the interior staircase, but the fire had already rendered it impassable. Trapped on the landing at the top of the stairs, they began shouting for help and taking turns trying to breathe through a small window. The man, his upper body already covered in burns, squeezed through the window and jumped to the street below, suffering a broken ankle and spinal fracture in the process. The woman, meanwhile, remained trapped on the second floor until firefighters located her, unconscious; she died of smoke inhalation and thermal injuries. Two firefighters also were injured.

         The woman who had called 911 confronted the defendant. The defendant again stated that she had set Brewer's clothes on fire, and added that she was angry that he had left without her to purchase drugs.[3] She also stated that it was not the first time she had done something like this. She destroyed personal items belonging to Brewer on several prior occasions after the two had argued. She had even set a bag of his clothes on fire once before, but Brewer quickly managed to extinguish the fire.

         Through the cross-examination of witnesses at trial, the defendant challenged whether the Commonwealth could prove beyond a reasonable doubt either that she set the fire or, if she did, that she did so with the specific intent to burn the dwelling. She also called one witness, a forensic psychologist, who opined that the defendant suffered from low cognitive functioning and posttraumatic stress disorder (PTSD)[4] that "quite likely" impaired her ability to fully appreciate and understand the consequences of her acts as compared to the average person. He further opined, however, that she had the capacity to appreciate the wrongfulness of her conduct and to conform her conduct to the requirements of the law at the time she set the fire (i.e., she was, in his opinion, criminally responsible for her conduct).[5]

         At the close of evidence, the jury considered charges of arson of a dwelling house; felony-murder in the second degree; murder in the second degree based on malice; involuntary manslaughter; and two counts of injuring a firefighter.[6] As to all charges, the jury were instructed on the options of finding the defendant not guilty or not guilty by reason of lack of criminal responsibility. The jury found the defendant guilty of arson, felony-murder in the second degree, and injuring the two firefighters.[7]


         1. Intent necessary to prove arson.

         "Few areas of criminal law pose more difficulty than the proper definition of the mens rea required for any particular crime." United States v. Bailey, 444 U.S. 394, 403 (1980). As the present case makes clear, this is true for the crime of arson of a dwelling house under G. L. c. 266, § 1, concerning at least whether a conviction requires proof of specific or general intent and whether a conviction can be secured against someone who accidentally or negligently sets a fire and then wilfully and maliciously fails to extinguish or report it. We use this opportunity to clarify those issues.

         The "venerable distinction at common law between general and specific intent has been the source of a good deal of confusion" (citations and quotations omitted). Commonwealth v. Gunter, 427 Mass. 259, 268 (1998), S.C., 456 Mass. 1017 (2010) and 459 Mass. 480, cert, denied, 565 U.S. 868 (2011). As noted, the parties here have treated arson under G. L. c. 266, § 1, as a specific intent crime, requiring proof that the defendant not only "consciously intended to take certain actions, but that [s]he also consciously intended certain consequences." Id. at 268. See id. at 268-269 & n.l2 (discussing distinction between common-law concepts of "general" and "specific" intent). To date, we have not had occasion to address squarely whether G. L. c. 266, § 1, requires proof of specific intent.

         "As with all matters of statutory interpretation, we look first to the plain meaning of the statutory language. . . . Where the language is clear and unambiguous, it is to be given its 'ordinary meaning.' ... Of course, this meaning must be reasonable and supported by the purpose and history of the statute" (citations and quotations omitted). Commonwealth v. Mogelinski, 466 Mass. 627, 633 (2013) . To secure a conviction for arson in this case, the statute required proof that the defendant "wilfully and maliciously set[] fire to, burn[ed], or cause[d] to be burned ... a dwelling house." G. L. c. 266, § 1. To establish that the defendant acted with a culpable state of mind, therefore, required proof that she acted "wilfully and maliciously."[8]

         Although our jurisprudence has not addressed whether arson requires specific intent, we have had occasion, in arson and nonarson cases alike, to consider the meaning of the terms "wilfully" and "maliciously." Recently this court, interpreting another statute, noted that the term "wilfully" has not been defined consistently in either dictionaries or across our jurisprudence. See Millis Pub. Schools v. M.P., 478 Mass. 767, 775-776 (2018) (in context of analyzing statute that forbids wilfully failing to attend school, noting that some dictionaries and appellate decisions focus on actor's purpose, others on whether actor's conduct was voluntary or intentional) . At its core, however, it "means intentional and by design in contrast to that which is thoughtless or accidental." Commonwealth v. McGovern, 397 Mass. 863, 868 (1986) (wilful and malicious destruction of property). For purposes of arson, malice "comprises only three components .... 'The wilful doing of an unlawful act without excuse is ordinarily sufficient to support the allegation that it was done maliciously and with criminal intent.'" Commonwealth v. Dung Van Tran, 463 Mass. 8, 26 (2012), quoting Commonwealth v. McLaughlin, 431 Mass. 506, 513 n.6 (2000).[9] Although both "malicious" and "wilful" require that a person act intentionally, the definitions shed no light on whether the statute requires specific or general intent.[10]

         It is true that in certain nonarson cases we have suggested that "[c]onduct is wilful when the actor intends both the conduct and its harmful consequences." Commonwealth v. Schuchardt, 408 Mass. 347, 352 (1990) (wilful and malicious destruction or injury of personal property, dwelling house, or building of another under G. L. c. 266, § 127). See Commonwealth v. McDonald, 462 Mass. 236, 242 (2012) (considering term "wilfully" in criminal harassment statute, G. L. c. 265, § 43A). Here, a specific intent instruction was requested by both parties and utilized by the trial judge.[11] Yet, such an interpretation has never been squarely adopted for § 1.

         In Dung Van Tran, 463 Mass. at 12, 27, the defendant was charged with arson after he poured gasoline in such a manner that it landed on himself and two others, as well as on the floor of the apartment, and then ignited it. He argued that the evidence established, at most, that he intended to burn himself and that the resulting burning of the apartment was accidental. Id. at 26. This court disagreed and concluded that the evidence was sufficient for the jury to "have found, consistent with the [trial] judge's supplemental instruction on [wilfulness], that the defendant intended not only his conduct, i.e., lighting the fire, but also the resulting harm, which . . . was the burning of the apartment" (quotations omitted) . Id. at 27. Although the supplemental instruction clearly required a finding of specific intent, Dung Van Tran was a sufficiency of the evidence case. It did not involve a challenge to the propriety of the supplemental instruction or consider whether proof of specific intent is required for a conviction of arson.

         Ultimately, although "'willful' may have several meanings when read in isolation, its meaning in any particular statute may be determined from examining the act itself as well as the larger statutory scheme." Franklin Office Park Realty Corp. v. Commissioner of the Pep't of Envtl. Protection, 466 Mass. 454, 463 (2013). Accordingly, we view the term "wilfully" in the context of the broader phrase "wilfully and maliciously," as used historically in the crime of arson. "At common law the offence of arson consisted of the wilful and malicious burning of the house of another" (citation omitted). Commonwealth v. Lampthe, 343 Mass. 417, 419 (1961). See A. F. Curtis, A Treatise on the Law of Arson § 57, at 71 (1936) (Curtis); W. R. LaFave, Criminal Law § 21.3, at 1365 (6th ed. 2017). The same common-law language -- wilfully and maliciously -- appears in the current version of § 1, enacted in 1932. See St. 1932, c. 192, § 1.[12] The same language also appeared in every predecessor version of § 1, dating back more than two hundred years. See, e.g., St. 1784, c. 58, § 1; R.S. (1836) c. 126, §§ 1-2; Pub. St. 1882 c. 203, § 1; Rev. L. c. 208, § 1 (1902); G. L. c. 266, § 1 (1921); G. L. (Ter. Ed.) c. 266, § 1. Quite simply, the crime of arson in Massachusetts, including the requirement that a defendant have acted "wilfully and maliciously," has deep roots, and, as this court has previously acknowledged, to ascertain the meaning of the words in § 1, "we must turn to the common law, for the statute was undoubtedly drawn against that background." Lamothe, 343 Mass. at 419). See Commonwealth v. DeCicco, 44 Mass.App.Ct. Ill. 127 (1998) (common-law understanding of arson was "engrafted in § 1") .[13]

         Common-law arson has been widely acknowledged as a crime of general intent. See, e.g., People v. Nowack, 462 Mich. 392, 406 (2000) ("Common-law arson is a general intent crime"); Linehan v. State, 476 So.2d 1262, 1265 (Fla. 1985) (same); Veverka v. Cash, 318 N.W.2d 447, 450 (Iowa 1982) (same); United States v. Doe, 136 F.3d 631, 635 (9th Cir. 1998), cert, denied, 526 U.S. 1041 (1999) (same); United States v. Acevedo-Velez, 17 M.J. 1, 2-3 (CM.A. 1983) (same) . See also D.A. Dripps, R.M. Boyce & R.M. Perkins, Criminal Law and Procedure, at 383 (13th ed. 2017) ("if without justification, excuse or mitigation, one sets a fire which obviously creates an unreasonable fire hazard for another's dwelling, which is actually burned thereby, the result is common-law arson even if this was not an intended consequence"); W.R. LaFave, Criminal Law, supra at § 21.3(e), at 1375-1376 (common-law arson involved either "intentional[ly] burning" dwelling house of another or "intentionally doing an act [e.g., starting a fire or burning his own premises] under circumstances in which the act created a very high risk of burning the dwelling house of another, where the actor knew of that risk but nonetheless engaged in the risk-taking act"); R.M. Perkins, Criminal Law, at 175 (1957) (state of mind required for common-law arson, "assuming . . . there are no circumstances of justification, excuse or mitigation, is either an intent to burn the dwelling of another, or an act done under such circumstances that there is obviously a plain and strong likelihood of such a burning").

         In other jurisdictions where the "wilful and malicious" language was adopted by statute or code, courts have uniformly followed the common law and interpreted the language as seting forth a general intent crime. This is true at the State level, see, e.g., State v. Scott, 118 Ariz. 383, 385 (Ct. App. 1978); People v. Atkins, 25 Cal.4th 76, 84-85 (2001); Linehan, 476 So.2d at 1264-1265, State v. O'Farrell, 355 A.2d 396, 398 (Me. 1976); State v. Doyon, 416 A.2d 130, 135 (R.I. 1980); at the federal level, see Doe, 136 F.3d at 634-635 (interpreting 18 U.S.C. § 81); United States v. M.W., 890 F.2d 239, 240-241 (10th Cir. 1989) (same); and even under the code of military justice, see Acevedo-Velez, 17 M.J. at 7 (interpreting art. 126 of Uniform Code of Military Justice).

         By contrast, in jurisdictions where arson has been declared a specific intent crime, the statutes have been drafted or amended to achieve that end. For example, in Wyoming, the statute was drafted to provide that a "person is guilty of first-degree arson if he maliciously starts a fire or causes an explosion with intent to destroy or damage an occupied structure" (emphasis added). Keats v. State, 64 P.3d 104, 107 (Wyo. 2003), quoting Wyo. Stat. Ann. § 6-3-101(a). There, the court held that the statute "can be categorized as a 'specific intent' crime." Id. In Maryland, the statute is still drafted in a form akin to that of the common law, see Md. Code Ann., Criminal Law, § 6-102 (LexisNexis 2012), but the Legislature has expressly defined "maliciously" as "acting with intent to harm a person or property," id. at § 6-101 (c), and "willfully" as "acting intentionally, knowingly, and purposefully," id. at § 6-101(e). See Holbrook v. State, 364 Md. 354, 371 (2001) (given "the plain language used to define 'maliciously' and 'wilfully,' we conclude that the Legislature intended for arson to be a specific intent crime"). Contrast DeBettencourt v. State, 48 Md.App. 522, 523-524, 532 (Md. Ct. Spec. App. 1981), cert, denied, 290 Md. 713 (1981) (prior version of Maryland arson statute containing no definitions of "wilfully" and "maliciously," followed common law intent).

         Here, the Legislature has given no indication in more than two hundred years that it intended to deviate from the common-law general intent requirement for the crime of arson. Moreover, if the Legislature had intended to require specific intent, it would have used more explicit language as it has in other criminal statutes, including a provision involving burning of insured property. See G. L. c. 266, § 10 ("Whoever, wilfully and with intent to defraud or injure the insurer, sets fire to . . ." [emphasis added]); G. L. c. 265, § 18 (b) ("Whoever, being armed with a dangerous weapon, assaults another with intent to rob or murder ..." [emphasis added]). We conclude, therefore, that proof of general intent with malice is all that is required.

         To be sure, § 1 is still far from being some form of strict liability offense. Requiring malice "ensures that the act is done with a design to do an intentional wrongful act without any legal justification, excuse or claim of right. . . . [The] willful and malice requirement ensures that the setting of the fire must be a deliberate and intentional act, as distinguished from an accidental or unintentional ignition or act of setting a fire" (quotations and citations omitted). Atkins, 25 Cal.4th at 88. See Commonwealth v. Ely, 388 Mass. 69, 74 (1983) ("requirement that the act be wilful eliminate[s] accidental or negligent fires" from reach of statute). See also Curtis, supra at § 2, at 3 (throughout arson's long history "distinction between intentional and accidental fires has always been maintained, the latter never forming a basis for a criminal prosecution").

         Moreover, we conclude that, even in the absence of proof that a defendant acted purposefully to set fire to or burn some portion of a dwelling house, the intent element of § 1 still may be satisfied by proof that a reasonable person in the defendant's position would have known that there was a plain and strong likelihood that some portion of a dwelling house would be set on fire or burned. See, e.g., Atkins, 25 Cal.4th at 89 (incendiary act must be committed "under such circumstances that the direct, natural, and highly probable consequences would be the burning of the relevant structure"); Nowack, 462 Mich, at 408-409 (act done in "circumstances where a plain and strong likelihood of [the burning of a dwelling house] exists").

         2. Sufficiency of the evidence.

         In this case, we conclude that the evidence was overwhelming that the defendant acted with general intent and malice for purposes of arson under G. L. c. 266, § 1, when she set fire to a bag of clothes located on the floor inside an apartment for the purpose of exacting revenge against her boyfriend. Because the defendant described her conduct and motivation to more than one person immediately after she left the apartment building, we can say for certain that the fire was not the product of an accident or negligence. It was set intentionally, without justification or excuse, and for an unlawful or injurious purpose or motive. Moreover, a reasonable person, under those circumstances, would have known that there was a plain and strong likelihood that some portion of the apartment building would be set on fire or burned.

         To the defendant's benefit, the jury were not instructed that arson was a general intent crime. Instead, the trial judge instructed that there were two alternative theories by which the Commonwealth could prove that the defendant acted with specific intent for purposes of satisfying the mens rea requirement for arson under G. L. c. 266, § 1, which we shall refer to as the specific intent theory and the failure to extinguish or report theory.

         The defendant argues that, even viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the evidence was insufficient to establish that she had the specific intent to burn the apartment building, not just Brewer's clothing. We disagree.

         The arson statute, by its plain terms, does not require extensive damage to the dwelling house -- e.g., that it be "consumed" or "destroyed" by fire. See Commonwealth v. Tucker, 110 Mass. 403, 404 (1872). It requires proof only that some portion of the dwelling house actually was on fire or burned. Id. The mere charring of some portion of the dwelling house is sufficient. See Commonwealth v. Mcintosh, 10 Mass.App.Ct. 924, 925 (1980). Although specific intent requires proof that the defendant intended her conduct and its consequences, it does not require proof that the consequences she intended were as extensive as those realized (i.e., that the apartment building be consumed or destroyed by the fire). Rather, specific intent requires only that the consequences she intended are among those covered by the statute (i.e., that some portion of the apartment building actually be set on fire or burned) .[14] See Gunter, 427 Mass. at 269 n.l2 ("in a specific intent crime, the defendant must intend that the particular consequences constituting the crime follow from his act or conduct"). See also Curtis, supra at § 62, at 78-79 ("not necessary that the burning effected correspond precisely with the intent or design of the accused").

         The evidence, viewed in the light most favorable to the Commonwealth, established that the defendant, in a fit of anger, intentionally lit a piece of paper on fire and threw it on a pile of Brewer's clothes that were located on the floor inside the apartment. A reasonable jury could infer from this evidence alone that the defendant was aware that her actions would result in the burning of not only Brewer's clothing, but also some portion of the apartment building. See Dung Van Tran, 463 Mass. at 27 (where defendant poured gasoline in such manner that it got not only on himself but also on other people and on living room floor of apartment, jury could reasonably infer he was aware when he ignited it that he would do more than simply light himself on fire); Commonwealth v. Martinez, 393 Mass. 612, 613-615 (1985) (defendant who lit newspaper on fire inside tenement building and threw it at another occupant, thereby igniting fire, guilty of arson); Commonwealth v. Roy, 2 Mass.App.Ct. 14, 16 (1974) (defendant who lit apartment curtains on fire after fighting with roommate, resulting in fire, guilty of arson).

         After setting the fire, the defendant left without attempting to extinguish the fire or call for help. The evidence, when viewed in the light most favorable to the Commonwealth, further established that she locked the exterior door of the building as she left, thereby making it more difficult for anyone to escape or to enter and attempt to extinguish the fire. Therefore, the jury reasonably could have inferred that the defendant acted with the requisite specific intent at the time she set the fire. See, e.g., Dung Van Tran, 463 Mass. at 27-28 (defendant's failure to attempt to put out fire or to sound alarm was further proof of his intent to burn apartment); Commonwealth v. Cavedon, 301 Mass. 307, 314-315 (1938) (jury could reasonably infer defendants intended to commit arson from their failure to make any effort to extinguish fire or sound alarm).

         "We are mindful that in arson cases the Commonwealth often can prove guilt only by a web of circumstantial evidence that entwines the suspect in guilt beyond a reasonable doubt" (citation and quotation omitted). Choy v. Commonwealth, 456 Mass. 146, 150, cert, denied, 562 U.S. 986 (2010). Here, that web was sufficiently woven.

         3. Instruction on failure to extinguish or report fire.

         Before trial, the defendant filed a motion for bill of particulars to determine whether the Commonwealth's theory of liability was based on her having set the fire, having failed to extinguish or warn of the fire after she started it, or both. At the subsequent hearing, the Commonwealth represented that its theory was based on the setting of the fire, not the failure to act after the fire was set. Based on that representation, the motion judge, who was not the trial judge, endorsed the motion as follows: "Upon hearing, the Commonwealth representing that it will proceed on a theory of 2nd degree felony murder, the underlying felony being the crime of arson by intentionally setting fire to or within an occupied dwelling, further particulars are not required."

         At trial, the Commonwealth largely abided by its prior representation. During the trial, the Commonwealth filed a proposed jury instruction on arson that focused on the defendant's intent at the time the fire was set and made no mention of failing to extinguish or report a fire. Later, it filed a final set of requests proposing essentially the same instruction. While arguing in opposition to the defendant's motion for a required finding of not guilty, the Commonwealth restated that the theory of liability was that the defendant intentionally set the apartment building on fire, and that any evidence that she failed to extinguish or report the fire was relevant insofar as it reflected on her intent at the time she set the fire.[15]

          However, during the charge conference, the trial judge, without prompting from the Commonwealth, suggested she was inclined based on the evidence to provide the jury with a supplemental instruction that, in its final form, stated as follows:

"If an act is accidental, it is not a crime; that is, the requirement of willfulness means that accidentally or negligently caused burnings are not arson. However a person may have the required intent for arson if he or she negligently or accidentally causes a fire and then willfully and maliciously makes no attempt to extinguish it or to report it. In that circumstance, the necessary criminal state of mind for arson, willfulness and maliciousness, may be formed after the fire starts."[16]

The Commonwealth agreed and requested that the supplemental instruction be given. The defendant objected, arguing that the Commonwealth had waived the right to seek such an instruction, and that, in any event, there was insufficient evidence to justify providing it. Although the Commonwealth did not specifically argue in closing that the defendant's failure to report or extinguish the fire constituted arson, the judge provided the supplemental instruction. For the first time, the defendant argues that the supplemental instruction was improper because G. L. c. ...

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