really they should be separated out so we have his skin leads march fifteenth excursion into st louis where she sighed over from various people all of whom work pains it's of her own she negotiated for douglas so that's also in march of two thousand and eleven on the second fourteenth the fourteenth again and so it seems to me that what the state has done as it went about its time to prove its case is that they sort of crowded all of these issues together but the agreement at issue is actually march fifteenth along between mr douglas's testimony  have evidence put forward that the appellant sold well cocaine or ecstasy and other substance after we got the lab report back that wasn't even a he didn't didn't say what she was going to do here what you well she was going to going to purchase cocaine and the question if i understood your honor was do you want to put in money to purchase more is how i it's it's really blown out of proportion i think conflated with other sales where i'm not and we should look at what was the actual agreement and what was its objects and we know that that that hass if we're talking about girls for the purpose yes she did say that she was given two hundred dollars but i think that it doesn't take it out of the main of merely arranging to purchase  user and she doesn't you know she makes no qualms about that and so when she ends up purchasing whether she believed it to be for her use or whether they'll be some left over for resale i don't really know but we have to have evidence that in fact there is some sort of preexisting plan and there's i think there's no way to draw fair inference from her testimony in her text messages that she was conforming to any planet off her own or anyone else's i mean it's a and the court held there that his mere presence at the scene was not sufficient to establish conspiracy for the sale of controlled substances what we have here is tyson's presence message where he tells her to give up and go home and has to ask her what she's doing several times because the plan whatever that may be something that she's making up she goes and so isn't into that there's no evidence of new green i can tell you what they would have have waited their turn and the cross examination could have gone forward and that b and in fact that the impact of the testimony was altered and i'm driven by the fact that the state g honour's we raise a claim of vindictive prosecution which is something i certainly don't take lightly but it does seem to fit in this case that the controlled sales were alleged just prior so they had a most serene consider it was denied after hearing on the motion and then the state comes back seventeen days later with an indictment for conspiracy as to go same x there is there's no dispute in the state decided they would come around to the back door with the trump card and instead  which certainly they can do because of the rule of law her does not prevent them from doing so by what they have done is then punish the appellant for exercising sad story in constitutional rights they've also managed to sidestep out of what you know the ramifications of discovery violation which is i think it galling actually read and so what we have is really a prosecution that uses an encoded offense as a trump card where they can get out of the penalty for discovery violation and the prosecuting anyway and it it seems to undermine the credibility of their office but also to sidestep you already in court  obviously to buy cocaine and st louis bring it back to illinois which was the charge this time was for the witness and the defense has not presented from preparing its place to counter this additional testimony here this additional testimony was consistent with his original testimony that it was actually clarifying his original testimony  so it didn't contradict a very just the money defendant had an opportunity to cross examine the witness or recall testimony but failed to do so although counsel did ask the agent around ventilation and finally this was during the state's case in chief so obviously although the testimony was consistent which i don't see how it would have changed since theory at all they had ample opportunity to hear based on this serious his original charges for delivery of substance were one class x felony three class two felonies a class three and a misdemeanor present charged with a single class one he was eligible for classic sentencing based on pri fictions but in any rate these charges are any more serious than the original and they're obviously less in the amount of charges than the original charges so both of the whole requirements for  but that's because the defendant never alleged this at all in any proceeding before this appeal the state could be expected to provide facts for an argument the defendant didn't make and honour's her or her text messages are revealing of her intentions but not of an agreement she says that she going looking for the drugs that i want that she explains that when she was asked you know what are you doing she said quote sorry he was quote asking me if i'm looking for the cocaine i want to purchase those are her words she wanted it and she she makes one reference that or bring it back and along with you know susana sell it make some money there's no pronoun actually i don't know if she's different brands ace orders of cocaine and i don't think that you can or that the jurors could fairly lead to an inference that there was an agreement to resell cocaine because two of these guys well they weren't where the inference is that they have a prearranged plan for her to scavenge and then resell cocaine i do not know and if we then don't allow the state to sort of broaden the scope into these other sales and we just in march fifteenth we have evidence of some of her scattered thoughts that will be don't have is evidence that there was an agreement to resolve because we don't know at what price or even how much i don't know how you can plan to resell something if you don't know if you're getting it from where how much or any of those factors i just i wanted to add that on the record it's five point four your honor that addresses the statement of mr douglas that you referenced to me earlier in appellant simply being a boyfriend he is aware he knows what she does he checks on her but to take that concern even statement as to he can't get jacked there's no reason to think  not a reference to household income because if she loses money where is she supposed to get money to be frozen it's more likely from him because that's how couples do so certainly i can't afford for a partner to dissolve their money if i don't have