good morning you may please the court as i said my name is phil payne and i represent mr rymer who's the appellant in this case mr rymer xrays for issues on appeal and i welcome your questions on any of those issues at any time but i would like to begin with the due process violation that occurred before the grand jury in this case and if i have time i'd like to get to the sufficiency of the evidence and if i may i'd like to reserve a few minutes of my time for certainly thank you when presenting before a grand jury presenting prosecutor has a duty to inform that grand jury of the law that governs the charges in question and when the great when the prosecutor misleads or deceived the grand jury about those charges or about the law that governs them due process is violated because the grand jur person s what makes this a felony case versus a civil case for a civil court and that question of itself demonstrates the grand jury had doubts about indicting mr rymer they were asking what makes this a felony case when it looks like a breach of contract and in response to that question the presenting prosecutor relied upon a portion of the homer preferred statute that had been severed as unconstitutional ten years earlier now the state x ceased to excuse that deception on the basis that it might have been accidental the argument goes that the home repair fraud statute still contains the offending subsection so the prosecutor upon opening the statute book and scanning the statute and without doing any additional research no additional research when they stand before a grand jury but first it's important to note that the second instance of deception in this case was much more clear much more blatant and there's no explanation for how that might have been accidental that happened when the prosecutor was a blank about mr writers intent to finish the contract when he took the job and in response to that question the prosecutor said that's not an element of defense of which of course is absolutely false the only one supreme court has said that's the ultimate issue little ambiguous i'd say about whether the intent to not to finish needs to be present at the time of contract formation and that's an independent basis for this courtroom first remand for a new trial we when you're apply after taking whatever amount of money can still from people and then run away and that's not a criminal act but well says what you sense that yes you are going to begin what states that there needs to be an intersection between the intent not to perform and the time of contract formation and absent proof of that intersection the state fails to prove the defendant innocent or up a guilty beyond a reasonable doubt of home repair fund but before the grand jury and that didn't occur at trial i would note that the state did not advance focus only on the time of formation inches no it does not and i think it does but i know well i'm not certain i think that the states actually agrees based on what they stating in their belief that there are the home repair fraud act requires proof that the defendant intended not to perform when he entered the contract i don't think that they've ever disputed that notion i think the great the prosecutor before the grand jury was seeking to convince the grand jury that that  that mr reimers guilty of homewrecker yes your honor i believe that those factors make robots head of an intent not to perform under the contract at the time of contract formation for as the state says itself there's really proof of direct direct proof of intent but when you imbue those factors with a legislative important blessing by saying that this debt the statute actually lists these factors that you can find an intent not to perform and that's that question the the grand jury was led to believe that that set that question a statute is still valid and can be relied upon and that that's where the first instance of deception arose but the second instance of deception is much more clear and that's where the grand jury was told you don't have to worry about the defendant's intent at the time of contract formation that was false that was misleading and the state has not advanced any argument for how it might have been accidental after all this is a prosecutor we're talking about someone who practices the criminal law on a daily basis and who's standing can't dispense of the intent element when instructing the grand jury about a felony offense and prosecutors a favorite argument most prosecutors that i run into in my practice is that defendants are presume to know  that the defendant just presume to know the law and certainly a presenting prosecutor ought to be presumed to know the law under which he is attempting to obtain an indictment before the grand jury so when you take a step back from this case and you consider that the state wants t its use be deception in this case based on the basis that it might have been accidental that that is a very untenable position because what happens to the prosecutor's duty before the grand jury in that case it ceases to be a duty it becomes something we would really like prosecutors to do but if they fail to do so if they mislead the grand jury affirmatively then they don't face any consequences and that there is no waiver of forfeiture in this case the these these errors might have been inadvertent that does not constitute the affirmative waiver this it would have this case this court believed yes and affirmative waivers where you purposely take an issue out of the case by for instance stipulation this is not a stipulation in questions about the intent at the time of the contract formation the grand jury was asking what makes this a felony why are you asking us to indict this guy and what looks like a breach of contract and later more pointedly did mr rymer intend not to finish when he took the job and the grand jury was affirmatively misled and i would point this court to the case of people versus hunter where very similarly the grand jury or a granger asked the state's witness a very pointed question about whether the rope slipped in an involuntary manslaughter case whether he threw the couch out the window or whether the rope slipped when he was trying to lower it out and the pride and the witness responded with a patently false answer and that hunter quote stated and that i would like to quote that in light of the grangers question there's a distinct possibility that knowing de mint would have been returned had the state's witness responded truthfully those words applied with equal force in this case if the group if the four party the prosecutor had answered the four persons questions correctly and truthfully it is more than likely that mr rymer would not have been indicted in this case after all the evidence demonstrates that he reached the contract that he didn't commit home repair fr through as incompetent hearsay evidence through his below who had already testified misled to police officers to believe that mr rymer took all her money and did no work that's how this whole prosecution of the wheels got turned the intersection of whether mr rymer intended to perform or did not intend for him when he entered the contract and people versus wards is very instructive on this on this topic in that case the defendant entered to contracts for window installation in early november at some point between october and december of that year he was cut off from his window suppliers and the question was did he know that he couldn't honor those contracts when he entered them and the court reversed his conviction for home care fraud on the basis that the evidence was sketchy about whether he and whether he knew he had been cut off from his applies when he entered those contracts the evidence was sketchy in my case the evidence in this case is clear it's abundantly some work being done on his phone and it up being disconnected that he never notified her either by phone or in writing of a new address and when she went out to the address that she had for him that was  lot the tank also testified to defend it was supposed to install the cabinets but never ordered down and that it had to before that before the initial presentation ended the take of stated that the defendant admitted that he started the work it that they did not finish that defendant aside at some point it was not going to finish and that the defendant also admitted that he'd been paid a large sum of money and after that there's a series of questions and answers and two sets of those questions and answers of what the defense challenges today is shown that a defendant has no intention to complete the work agreed upon that is coming and that precedes the that's the first part of the first exchange and that is that that's a true answer that's a correct answer but as you point out the statu need five thousand dollars in five thousand dollars is all you know what i cash i repair all your windows and i'll give you a dormers and i would and he has fifty thousand dollars up front here for fifty thousand dollars please that's not a cause and that ruling find by some so there's some support for that in that even if there's a showing that there was an intentional misrepresentation that from the standpoint of the defendant it makes no difference correct he's there for justice for what he's  two separate indictments and in between the the indictments the state's attorney present in the case to the grand jury also presented the case and a motion aquash and in the grand jury  the the police officer testified that as an eye witness that and he created a net he created the belief that he saw the defendant exchanged cocaine with another man and that that wasn't that's that wasn't right and although the court now over said that intent isn't required they the court that court the second district thought not probable cause exists and that's a reasonable if whether or not a crime has occurred whether the defense first of committed that the people leave that there was enough evidence the defendant a victim enter into a written contract very briefly your honor as the stay just said the grand jury's task is to determine whether really whether there's reasonable belief to believe a crime has occurred and in this case the record indicates the grand jury was not convinced when they asked the questions that it had a reasonable belief that a crime had occurred because the grand jury asked directly did mr rymer intend not to perform the contract when he entered into it and that is what elevates a breach of contract to home repair fraud secondly as to mr pardon me to justice harris's question why should intent he required under this due process claim well under th you this case will be taken under advisement