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State v. Spinks

Supreme Court of West Virginia

June 16, 2017

STATE OF WEST VIRGINIA, Plaintiff Below, Respondent
PAUL DARREN SPINKS, Defendant Below, Petitioner

          Submitted: May 3, 2017

         Appeal from the Circuit Court of Nicholas County The Honorable Gary L. Johnson, Judge Criminal Action No. 14-F-87

          J. Steven Hunter, Esq. Robert P. Martin, Esq. Steve Hunter Associates, l.c. Lewisburg, West Virginia Counsel for Petitioner

          Patrick Morrisey, Esq. Attorney General Zachary Aaron Viglianco, Esq. Assistant Attorney General Charleston, West Virginia Counsel for Respondent


         1. "Except for willful, intentional fraud the law of this State does not permit the court to go behind an indictment to inquire into the evidence considered by the grand jury, either to determine its legality or its sufficiency." Syllabus, Barker v. Fox, 160 W.Va. 749, 238 S.E.2d 235 (1977).

         2. "'Most courts hold that as a general rule, a trial court should not grant a motion to dismiss criminal charges unless the dismissal is consonant with the public interest in the fair administration of justice.' Syl. Pt. 12, in part, Myers v. Frazier, 173 W.Va. 658, 319 S.E.2d 782, 786 (1984)." Syllabus Point 4, State ex rel. Pinson v. Maynard, 181 W.Va. 662, 383 S.E.2d 844 (1989).

         3. "'Dismis[s]al of [an] indictment is appropriate only 'if it is established that the violation substantially influenced the grand jury's decision to indict' or if there is 'grave doubt' that the decision to indict was free from substantial influence of such violations.' Bank of Nova Scotia v. United States, 487 U.S. 250, 261-62, 108 S.Ct. 2369, 101 L.Ed.2d 228, 238 (1988) (citing United States v Mechanik, 475 U.S. 66, 78, 106 S.Ct. 938, 945, 89 L.Ed.2d 50 (1986) (O'Connor, J, concurring))." Syllabus Point 6, State ex rel. Pinson v. Maynard, 181 W.Va. 662, 383 S.E.2d 844 (1989).

         4. "'[A] trial court's evidentiary rulings, as well as its application of the Rules of Evidence, are subject to a review under an abuse of discretion standard.' Syl. Pt. 4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998))." Syllabus Point 1, State v. Varlas, 237 W.Va. 399, 787 S.E.2d 670 (2016).

         5. "'Generally, out-of-court statements made by someone other than the declarant while testifying are not admissible unless: 1) the statement is not being offered for the truth of the matter asserted, but for some other purpose such as motive, intent, state-of-mind, identification or reasonableness of the party's action; 2) the statement is not hearsay under the rules; or 3) the statement is hearsay but falls within an exception provided for in the rules.' Syl. Pt. 1, State v. Maynard, 183 W.Va. 1, 393 S.E.2d 221 (1990)." Syllabus Point 3, State v. Morris, 227 W.Va. 76, 705 S.E.2d 583 (2010).

         6. "It is within a trial court's discretion to admit an out-of-court statement under Rule 803(1), the present sense impression exception, of the West Virginia Rules of Evidence if: (1) The statement was made at the time or shortly after an event; (2) the statement describes the event; and (3) the event giving rise to the statement was within a declarant's personal knowledge." Syllabus Point 4, State v. Phillips, 194 W.Va. 569, 461 S.E.2d 75 (1995).

         7. "When offering evidence under Rule 404(b) of the West Virginia Rules of Evidence, the prosecution is required to identify the specific purpose for which the evidence is being offered and the jury must be instructed to limit its consideration of the evidence to only that purpose. It is not sufficient for the prosecution or the trial court merely to cite or mention the litany of possible uses listed in Rule 404(b). The specific and precise purpose for which the evidence is offered must clearly be shown from the record and that purpose alone must be told to the jury in the trial court's instruction." Syllabus Point 1, State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994).

         8. "Where an offer of evidence is made under Rule 404(b) of the West Virginia Rules of Evidence, the trial court, pursuant to Rule 104(a) of the West Virginia Rules of Evidence, is to determine its admissibility. Before admitting the evidence, the trial court should conduct an in camera hearing as stated in State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986). After hearing the evidence and arguments of counsel, the trial court must be satisfied by a preponderance of the evidence that the acts or conduct occurred and that the defendant committed the acts. If the trial court does not find by a preponderance of the evidence that the acts or conduct was committed or that the defendant was the actor, the evidence should be excluded under Rule 404(b). If a sufficient showing has been made, the trial court must then determine the relevancy of the evidence under Rules 401 and 402 of the West Virginia Rules of Evidence and conduct the balancing required under Rule 403 of the West Virginia Rules of Evidence. If the trial court is then satisfied that the Rule 404(b) evidence is admissible, it should instruct the jury on the limited purpose for which such evidence has been admitted. A limiting instruction should be given at the time the evidence is offered, and we recommend that it be repeated in the trial court's general charge to the jury at the conclusion of the evidence." Syllabus Point 2, State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994).

         9. "It is presumed a defendant is protected from undue prejudice if the following requirements are met: (1) the prosecution offered the evidence for a proper purpose; (2) the evidence was relevant; (3) the trial court made an on-the-record determination under Rule 403 of the West Virginia Rules of Evidence that the probative value of the evidence is not substantially outweighed by its potential for unfair prejudice; and (4) the trial court gave a limiting instruction." Syllabus Point 3, State v. LaRock, 196 W.Va. 294');">196 W.Va. 294, 470 S.E.2d 613 (1996).

         10. "The plain error doctrine contained in Rule 30 and Rule 52(b) of the West Virginia Rules of Criminal Procedure is identical. It enables this Court to take notice of error, including instructional error occurring during the proceedings, even though such error was not brought to the attention of the trial court. However, the doctrine is to be used sparingly and only in those circumstances where substantial rights are affected, or the truth-finding process is substantially impaired, or a miscarriage of justice would otherwise result." Syllabus Point 4, State v. England, 180 W.Va. 342, 376 S.E.2d 548 (1988).

         11. "'The question of whether a defendant is entitled to an instruction on a lesser included offense involves a two-part inquiry. The first inquiry is a legal one having to do with whether the lesser offense is by virtue of its legal elements or definition included in the greater offense. The second inquiry is a factual one which involves a determination by the trial court of whether there is evidence which would tend to prove such lesser included offense. State v. Neider, 170 W.Va. 662, 295 S.E.2d 902 (1982).' Syl. Pt. 1, State v. Jones, 174 W.Va. 700, 329 S.E.2d 65 (1985)." Syllabus Point 3, State v. Wilkerson, 230 W.Va. 366, 738 S.E.2d 32 (2013).

         12. "'Jury instructions on possible guilty verdicts must only include those crimes for which substantial evidence has been presented upon which a jury might justifiably find the defendant guilty beyond a reasonable doubt.' Syl. pt. 5, State v. Demastus, 165 W.Va. 572, 270 S.E.2d 649 (1980)." Syllabus Point 1, State v. Leonard, 217 W.Va. 603, 619 S.E.2d 116 (2005).

         13. "The function of an appellate court when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of the defendant's guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt." Syllabus Point 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

         14. "A criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy burden. An appellate court must review all the evidence, whether direct or circumstantial, in the light most favorable to the prosecution and must credit all inferences and credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save that of guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility determinations are for a jury and not an appellate court. Finally, a jury verdict should be set aside only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt. To the extent that our prior cases are inconsistent, they are expressly overruled." Syllabus Point 2, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

         15. "When a criminal defendant undertakes a sufficiency challenge, all the evidence, direct and circumstantial, must be viewed from the prosecutor's coign of vantage, and the viewer must accept all reasonable inferences from it that are consistent with the verdict. This rule requires the trial court judge to resolve all evidentiary conflicts and credibility questions in the prosecution's favor; moreover, as among competing inferences of which two or more are plausible, the judge must choose the inference that best fits the prosecution's theory of guilt." Syllabus Point 3, State v. LaRock, 196 W.Va. 294');">196 W.Va. 294, 470 S.E.2d 613 (1996).



         Petitioner Paul Darren Spinks ("Petitioner") appeals the November 1, 2015, order of the Circuit Court of Nicholas County sentencing him to life imprisonment without the possibility of parole for the 2007 murder of his wife. Petitioner asserts that the trial court erred by: (1) refusing to dismiss the indictment returned by the grand jury based upon fraud; 2) improperly admitting evidence of prior domestic violence, marital discord, and threats made by Petitioner against his wife; 3) refusing to instruct the jury on lesser included offenses; and 4) denying his motion for judgment of acquittal when the evidence presented at trial was insufficient to support his conviction. Upon consideration of the parties' briefs and arguments, the submitted record and pertinent authorities, we affirm Petitioner's conviction.


         The evidence presented at trial was that at 1:06 p.m. on October 31, 2007, Petitioner placed a 911 call claiming that he and his wife, Elizabeth Spinks, had been shot from a distance by an unknown shooter while seated on the front porch of their home. According to Petitioner's recorded statement taken by police at the hospital, Petitioner and Elizabeth were seated on their front porch smoking when Petitioner heard what he thought was a "firecracker", and Elizabeth "stood up and grabbed her . . . neck and fell down on the porch in front of [him]."[1] Petitioner stated that upon seeing Elizabeth drop to the ground, he ran into the house to get their cell phone to call 911, came back out onto the porch, and while bending over Elizabeth to check her and talking to the 911 dispatcher, he likewise sustained a gunshot wound to his left thigh.

         Petitioner stated that after calling 911, he went back into the house and into their bedroom, where he continued to talk with the dispatcher and tell her what had occurred. According to his recorded statement, Petitioner then got Elizabeth's gun, a .300 Winchester Magnum, out of the gun cabinet and went into the bathroom to hide for fear that the shooter would come into the house and try to kill him. He remained in his home and made other telephone calls while waiting for an ambulance and officers to respond to the scene.[2] He contended that during the wait, he passed out twice. He also stated that he dropped the phone and had to look for it in the pool of blood on his bathroom floor.

         Petitioner was still inside the residence when emergency personnel arrived. He emerged from the home when the 911 dispatcher instructed him to exit the house. The officers who responded to the scene, West Virginia State Police Sergeants Ron Lilly and Anthony Webb, testified that when Petitioner exited the residence, his hands appeared to be clean despite the fact that his leg was bleeding very heavily. Moreover, while Petitioner was lying on his back as paramedics prepared to transport him from the scene, Petitioner, stretching back and pointing up over his head, called Sergeant Lilly's attention to a bullet hole located on the front of the house. Petitioner was flown to the hospital for medical treatment.

         In his recorded statement taken at the hospital by Corporal B.J. Wriston, a West Virginia State Police trooper, Petitioner indicated that when he was out on the porch calling 911, he saw an older model white Chevrolet truck sitting in the lower end of the parking lot of a nearby elementary school. He surmised that the shots possibly may have come from that truck. When Corporal Wriston asked if Petitioner and Elizabeth had been having any marital problems, Petitioner denied any. When Corporal Wriston asked if they had any problems with anyone else in the past, Petitioner stated that a man named Harvey Hersman had been calling Elizabeth's cell phone in the last six months threatening Petitioner, claiming that he was going to burn down their house and garage. Petitioner indicated, however, that Mr. Hersman had not made any calls threatening him for approximately the last month. When asked if Mr. Hersman had ever specifically threatened to shoot Petitioner during these calls, Petitioner replied that "[h]e had told some other people that, and it got word back around to me, but he - he's the type of person I figure he'd get somebody else to do it. . . . But my wife never done nothing." Before concluding the statement, Corporal Wriston asked whether Petitioner had anything to add, and Petitioner said, "I'd like you to check my hands for powder or whatever they do . . . because I didn't fire no gun. She didn't fire no gun."

         At approximately 4:15 p.m., a West Virginia State Police crime scene response team arrived at the Spinks' residence and thoroughly investigated the scene, collecting numerous pieces of evidence. Corporal H.C. Mitchell, a West Virginia State Police trooper, testified that he collected a fired .22 caliber bullet from a bookcase located in the living room of the residence, which appeared to have traveled through a plastic chair on the porch and the siding on the front of the house. Corporal Mitchell also recovered a Savage Model 110E, caliber .222, Remington rifle from a gun cabinet in the bedroom. West Virginia State Police Sergeant Robert Richards collected a second fired .22 caliber bullet from the front porch and another gun, a .300 Winchester Remington Model 700, located on the bathroom floor.[3] Sergeant Ron Lilly, a detachment commander for the West Virginia State Police who was the custodian of the evidence in this case, testified that several other guns were seized and taken from Petitioner's residence. However, only three were submitted to the West Virginia State Forensic Lab for testing because the wound that Elizabeth suffered appeared to be from a smaller caliber gun.

         West Virginia State Police Sergeant Bruce Clendenin, the lead investigator on the case, testified that there was a significant amount of Petitioner's blood inside the house, on the floor of the bathroom, and in the bedroom. Moreover, various witnesses testified that although there was no trail of blood leading from the porch into the house, there was a pool of blood in the bathroom leading into the master bedroom and less toward the front door. Sergeant Clendenin testified that one thing that stood out as odd to him that day was that the bathroom sink was wet, freshly used. Sergeant Clendenin took several measurements at the crime scene, in particular of the bullet hole in the siding of the house in relation to the green lawn chair that also appeared to have a bullet hole in it. He noted that there was no blood on any of the porch furniture or the walls, and that the majority of the blood was underneath Elizabeth's body and nowhere else.

         Sergeant Clendenin also testified that when he and other officers were searching Petitioner's home, he observed a small hump or "puffed up" disturbance in the carpet on the bathroom floor, so the carpet was cut back in that area and he observed what he believed to be an apparent bullet hole in the bathroom floor. The portion of the particle board floor containing this hole was cut out by Sergeant Anthony Webb and was placed into evidence. Sergeant Lilly testified that the piece of carpet laying over the bullet hole did not have a hole in it. Sergeant Clendenin also testified that officers conducted a search underneath the home to retrieve a bullet, but because there was a large amount of nails and metal debris underneath it, their metal detectors were unable to locate anything.

         The question of whether the hole in the bathroom floor was caused by a bullet was in dispute at trial. Philip Cochran, a firearm and tool-mark examiner employed with the State Forensic Lab, testified that he could not confirm by the presence of chemical residue that the hole was caused by a bullet. However, he testified that the damage to the wood and the size of the hole were not inconsistent with having been caused by a bullet. He stated that if a bullet had passed through carpet or padding before going through the wood, any of the residues that he would have been looking for would have been removed, and thus, he did not rule out the possibility that the hole in the bathroom floor was caused by a bullet. He also determined that of the guns submitted to the State Forensic Lab for testing, none of the firearms matched the two bullets that were found at the scene.

         Additionally, Koren Powers, an employee of the State Forensic Lab who worked in the trace evidence section, conducted gunshot residue testing and determined that no gunshot residue was found on either Petitioner, Elizabeth, or the piece of carpet that was removed from the bathroom floor by investigators. Meredith Chambers, a DNA analyst employed with the State Forensic Lab, testified that she tested swabs collected from the bathroom carpet, the Remington 700 rifle taken from the bathroom floor, and Petitioner's cell phone and that the results identified from the swabs collected were consistent with Petitioner's DNA.

         Petitioner subsequently gave another recorded statement to police on January 7, 2008, and provided details about the events that occurred on the night of the crime that were consistent with his prior recorded statement. In that second recorded statement, Petitioner offered, among other things, further details regarding the nature of his strained relationships with Elizabeth's father and sister. However, Petitioner again denied having any prior domestic violence incidents with Elizabeth. He also offered further details about his relationship with Harvey Hersman and his belief that he was responsible for the shooting.

         Mr. Hersman was interviewed by Sergeant Clendenin, who determined that Mr. Hersman had a plausible alibi at the time of the murder because he was with his wife that day. Sergeant Clendenin interviewed Mr. Hersman's wife and she confirmed Mr. Hersman's alibi. Sergeant Clendenin also testified that Mr. Hersman's cell phone records indicated that he had not called either Elizabeth's or Petitioner's phone, contrary to Petitioner's statement. Thus, Mr. Hersman was ruled out as a suspect.[4] No arrests were made following the initial investigation of the crime.

         Seven years later, James Milam, Nicholas County Prosecuting Attorney, wrote a letter in June of 2014 to Lieutenant Colonel Jack Chambers with the West Virginia State Police requesting that they reopen the investigation of Elizabeth's murder on the basis of "evidence which has come to light in another murder in the Birch River area." The case was re-investigated by Corporal D.P. White, a West Virginia State Police cold case investigator. He testified before the grand jury on September 9, 2014.

         At the grand jury hearing, Corporal White testified that although Petitioner bled heavily on the day Elizabeth was shot, and although he told police that he dropped his phone while hiding in the bathroom and fumbled to recover it in his blood pools, his hands were relatively clean when he met officers at the door. He testified that prior to leaving the residence for the hospital, Petitioner pointed out a bullet hole on the side of the house and said that he believed the shooter was in a white pickup truck in the parking lot of the school adjacent to his house. He also testified that a bullet recovered from the vicinity of Elizabeth's body adjacent to her head, and another recovered from the side of the house, had no human tissue and blood on them.

         Corporal White testified that pursuant to the autopsy report, the projectile track of the bullet recovered from Elizabeth's body was inconsistent with the manner in which Petitioner described the incident. The projectile tract was from front to back, left to right and downward. Although there was a pool of blood underneath where Elizabeth laid on the porch, there was no blood spatter anywhere. Furthermore, no blood spatter was found on the porch where Petitioner stated he was shot, and there was no path of blood where Petitioner stated that he turned toward the door. Corporal White testified that there was also what appeared to be a bullet hole in the bathroom floor where Petitioner told police he hid, along with a substantial amount of blood. There was also a blood trail from the bathroom leading back out to the front porch.

         Corporal White also testified that following the murder, Petitioner's house burned down, and it remained an unsolved arson case. However, despite the fire, the original concrete porch remained intact and a new mobile home had been attached. He testified that using a laser rangefinder, the distance to Petitioner's porch from the school was 262 yards, and would have required the rifle to be held "three inches high" to hit Elizabeth as it did. However, automobiles were parked between the school and Petitioner's porch when Elizabeth was shot. He testified that Petitioner's pants were found to be negative for gunshot residue and positive for LeadFree. He testified that he believed LeadFree was a cleaning solvent used to clean firearms. The bullets that passed through both Elizabeth and Petitioner were not recovered.

         Corporal White testified regarding the domestic violence petition that Elizabeth had filed against him in April of 2007, wherein she stated that Petitioner had shoved her around, slammed her to the floor, and threatened her, making her fear for not only her life but for the safety of their kids. He also testified regarding the divorce papers that were found hidden in the springs underneath the driver's seat in Elizabeth's car that indicated that his Elizabeth was planning to file for a divorce.

         With respect to Petitioner's allegations that he believed Harvey Hersman had shot them, Corporal White stated those allegations were not true. He indicated that Mr. Hersman, who had an alibi, was now deceased and had been killed in an unrelated case. Although Petitioner told police that the shot that wounded him came approximately twenty seconds after the shot that killed Elizabeth, Corporal White told the grand jury that upon his re-interview of every witness, neighbor and various teachers at the adjacent school, these witnesses told police that they heard shots approximately three to eight minutes apart, with the first shot being loud, as if it was outside, and the second shot muffled, as if it was inside.

         Corporal White also testified about the allegations Petitioner made in a third recorded statement given in 2014, after Corporal White told Petitioner that based upon the trajectory of their wounds, they could not have been shot from the school parking lot. Petitioner surmised that his neighbor, Mike Butcher, a known alcoholic, may have shot them from an upstairs window in his home. Corporal White indicated that although Mr. Butcher was deceased, having died from natural causes, he interviewed the woman that Mr. Butcher lived with at the time of the murder, Lexy Cutlip. Ms. Cutlip remembered that Mr. Butcher was heavily intoxicated on the day in question. She granted Corporal White permission to come into their home and operate a laser rangefinder from the upstairs window targeting Petitioner's front porch. Corporal White testified that he determined, once again, that it was physically impossible for the bullet to strike Petitioner and Elizabeth from that location, based on the trajectories.

         Corporal White testified that he never received any specific information from the prosecutor regarding the new evidence that had come to light in another murder investigation in the Birch River area, other than that he was told "it was due to receiving a conversation with one of the defense attorneys here on - on another murder, and that's what led him to bring this to me." While Corporal White knew that there was only one other open murder investigation in the Birch River area, he did not obtain any evidence from that investigation or speak with the attorneys involved in that case. Based on the testimony of Corporal White, the Nicholas County Grand Jury returned an indictment in September 2014.

         In December 2014, Petitioner filed a motion to dismiss the indictment on the ground that the grand jury testimony of Corporal White was speculative, misleading and tantamount to fraud. During a hearing held by the trial court on January 16, 2015, Petitioner's counsel provided lengthy argument concerning portions of the grand jury transcript and the State objected to the motion. In an order entered March 25, 2015, the trial court denied Petitioner's motion finding that Petitioner had not shown that Corporal White's grand jury testimony was willfully or intentionally fraudulent, and therefore, the court was not permitted to "go behind an indictment" to inquire into the evidence considered by the grand jury.

         Prior to trial, the State filed a motion to admit intrinsic evidence of domestic abuse. Specifically, the State sought to introduce evidence of: (1) prior domestic violence between Petitioner and Elizabeth that occurred on April 22, 2007, resulting in an emergency domestic violence protective order obtained by Elizabeth, and other prior incidents of domestic violence occurring in November 2006 and March 2007; (2) ongoing marital problems between them; and (3) threats made by Petitioner to Elizabeth. Petitioner opposed the motion, arguing that the April 22, 2007, incident was isolated, the domestic violence proceeding was voluntarily dismissed by Elizabeth, and that Elizabeth told the family court that she was "angry" when she filed her petition. An in camera hearing was conducted on June 12, 2015, and the court heard testimony from Sergeant William Nunley, a Nicholas County Sheriff's Department officer, who responded to the April 22 domestic call; Tabitha Hooker, a domestic violence advocate who assisted Elizabeth in filing the petition for domestic violence protective order; Catherine Gregory ("Catherine"), Elizabeth's sister; and Michelle Cowger ("Michelle"), Elizabeth's daughter.

         On August 7, 2015, the circuit court entered an order granting the State's motion and admitting the evidence, finding the evidence of domestic violence on April 22, 2007, intrinsic. However, the court found statements made by Elizabeth to Sergeant Nunley and Ms. Hooker regarding the April 22, 2007, incident to be testimonial in nature and barred by the confrontation clause. Each of the four witnesses presented were permitted to testify as to their observations and actions. The court determined that Catherine and Michelle were permitted to testify at trial about statements Elizabeth made to them. The court found the instances occurring prior to that event to be "too remote to be intrinsic" and engaged in a Rule 404(b) analysis, ultimately determining that petitioner's prior violence against Elizabeth was relevant and more probative than prejudicial. [5]

         At trial, the State elicited testimony from Dr. Zia Sabet, the State medical examiner who conducted Elizabeth's autopsy, indicating that the entrance wound on Elizabeth's body was near her clavicle and the exit wound on her "mid-lower back." No bullet was found in Elizabeth's body upon autopsy examination. Dr. Sabet opined that if she had been sitting upright when the bullet struck her, as Petitioner alleged in his prior statements, and if the shot was fired from the distance Petitioner claimed, the only way a bullet could have entered and exited Elizabeth's body in the manner it did was if that bullet had been fired "from the top or . . . third or fourth floor on some building or maybe [from an] ...

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