you please the court counsel mr maleev was convicted after a bench trial of four counts of one lawful sale of drug paraphernalia and we believe those convictions should be reversed two different items on two different bases for appeal however it's hard to divorce two because if you don't apply section six and draw all reasonable and commonsense inferences in favor of the or maybe i don't quite i believe so your honor and if i can explain what section six refers to is the factual inference is to be drawn generally it is the province of a jury and the fact finder to take a fact and draw whatever inferences they can reasonably draw from those facts this statute is different because it contains a mandatory inference that shall be drawn in favor of the good of the sea or the legality of the transaction that's in question before the court so the legislature has taken the after and i would argue unprecedented step in the criminal law of think i would agree that is the language on your own however i think in the context of of inferences there were reasonable and commonsense inferences that were stabbed to death it was  it was also undisputed that mr million going operated a tobacco store in this leo's tobacco and that was a fairly large retail store in a very open location in the city of pontiac in fact it was right in front of the super wal mart i'm in the same general lot of the super wal mart is right across the street from an arby's there was no way we had any concealment of the activity any possible hope of keeping the activity out of the purview out of the notice of law in a life favorable to the defendant and dual use items open in obvious locations no other cannabis drugs drug references found in the store and no verbal or written encouragement to use the items cted of this offense unlawful sale of the heat felt court on appeal reversed those convictions and made several a very strong statement in favor of be drawn with that be a reasonable time to answer a question with a question jeff but i don't think that's a reasonable conclusion that someone would would create an instruction with the specific objective should have known that the items in question were drug paraphernalia the illinois supreme court in a row said that doesn't work they said that essentially there have to be a requirement of santa to make the statu it be the defendant's conscious objective to achieve the criminal result in question now the state has argued against the application of that standard that there was a clear statement by the philip court and it was based on the illinois supreme black as a conclusion not a fact finder may but is not required to draw but the term shall be used in this particular section of the text i think changes that may language obviously shall english so if if an inference can be defined as a conclusion to draw from a fact a conclusion it can act i think that is what's being done now whether that's a presumption or what they what they were but even as a mandatory inference there were plenty of facts in this case that could cut both ways these would do with science there are no leak was involved in the criminal may lose the drug trade there was a full search warrant executed on this business not a trace of any illegal drugs you can see and that's the typical evidence you have these items be used illegally in and to get into the factual there was no specific reference to cannabis in any of the conversations with the two undercover officers that made my isn't this case both officers try to initiate conversations to get rich from the lake to discuss this and both of them fail one one officer went in and said thanks for saving a trip to a place known as mother murphy's in mclean county which he believed to also be what he called a head shot the response you got from this from the leak was my prices are better word marijuana i don't hear any slang terms for for those items being suggested had the officer come is a one hit or a sling term i think one hitter is and again i don't believe that term is overused by mr  mitnik the officer so you have like a one hitter and he went and got one that i believe you pointed to the item and i will rely on the record your honor if you tried it as a one as a one hitter when you instructed him to get it i  honor that's why i ordered a mission i would disagree with that because there are various things that could support this in a criminal case the commonly used case of confession in admission is from of course it may be the main one they interviewed mr moody and they didn't get a confession they had an opportunity to get that piece of evidence and he told them the whole time was for to back you could also have a can of this or marijuana found in the store and close proximity that would be strong circumstantial evidence again it was not present in this case you could also have an attempt to conceal the activity we're coming all cases all the time and we hear the phrase consciousness of guilt we see evidence presented this consciousness of guilt when you are doing what you're doing if you could have some things that would suggest a conviction that what they would support a position in the case from residue in the items drug culture references other places in the store again it was but in terms of the sufficiency of the state's evidence in other cases the simply even in the bill case where there was a reversal there were multiple witnesses that testified as to both the common illegal use the objects whack of legal use for the objects that was not present in this case the state did not call any witnesses that had any expertise in tobacco both state witnesses both officers testified that they were nonsmokers had no knowledge of hearing again no isn't that the common usage that was held fish and and and felt and does that and does that establish even circumstantially a specific intent on the part of the on the part of  the yes to answer your question yes i would only specify that with respect to that section that in the next possible items of drug paraphernalia the illinois legislature included the term intended please the court battle my name is john t from here on behalf of the state and defense council mentioned a couple areas and i will start with section six also and i think that all we need to do is look at the specific language of se the legal and unlawful use of cannabis and then section six goes on to say to that end to the end of proving beyond a reasonable doubt all reasonable and common sense inferences should be drawn in favor of the legitimacy of such items  it the question is in this case is whether the trier of fact in this case the sitting judge could make any reason more common sense and fergus's in favor of legitimacy of the items that were seized and to do that we need to look at specifically what the judge said when making when rendering his decision and the first thing he said in defense counsel looted to this that he actually made the statement that the section six did not add anything to the law and after that he talked about that  found the police officers testimony to be credible right after he said that section sixty not anything new to the law the judge said that he said that the standard remains beyond a reasonable doubt and so why why we might be able to go back in and maybe the truth would the judge excuse me would might have said things differently had gone back although he was saying if you look at the totality of his of the record and of his decision are you saying is that this does not change the standard the standard remains beyond a reasonable doubt and i believe i really do believe that that's what the trial judge was saying when you saying this does not add anything new to the law simply stating that i am still the trier fact i'm still basing this on whether the state prove beyond reasonable doubt in this defendant was guilty page twenty three of your grief talk about film which address argument dealing with what science is required and as you mentioned before that the previous statute the previous language actually had marketed for the market for language and in almost all the precedent that we can find and i cited in defense counsel cited dealt with how to interpret that market for language and i believe taking out that market for language and if you look at it you are talking about section three right now that there is no intent specifically written into section three of it says any person accused for sale office for sale sells or delivery delivers any commercial consideration any item of drug paraphernalia and the reason why i think that's important in defense counsel talked about how you would prove possession of drug paraphernalia under this under the statute and if you look at section three point five it actually talks about possession possession of drug paraphernalia and actually has the intent language directly written there and says a person who knowingly possesses an item of drug paraphernalia with the intent to use it and ingesting so i'm on what i'm arguing bite when a legislator took out the market for language market for language change the civic specifically regarding sellers the sellers are the one who markets and that's the justice turner mentioned the felt case and so how should we interpret the language of the bill section three so if we if we transfer the definition into section three it would read the person each for sale offers for sale or sells any item which are intended to be used unlawfully in introducing cannabis into the human body so i believe the intent the subject of attack the defense counsels argue that the subjective intent goes to the buyer of the drug and i believe that the newman's way of that is it should apply to this case is that the seller knows and i'm not saying the reason we should know that the seller knows this defendant is likely to use this for smoking or hailing cannabis and the reason why i believe that i think that's why i cited you know the poster's case has been distinguished by a few other a few other cases and if you had a president that we that we both sides too but all the cases that distinguish the poster space still had the market for language and even the supreme court in posters distinguish to distinguish that market for language to be intended for language and i was just struck by the similarities between the the federal statute that was discussed in posters and the current statute that we have before us and illinois and some of the things that i pointed to in my brief and i just want to go over again that one of the things that the supreme court mentioned was that the term primarily intended were could refer to the intent of non defendants and i believe that's exactly what the new illinois language does i believe by taking out the market for language they are taking out that that's the civic intent thanks and the reason why i feel like i can say that it is not good for language is so specific regarding sellers the sellers the ones who think there would still have to be some surrounding evidence as this is as it is present in this case were by the conversation the operators had surrounding that i think that if all you had was just that they sold this item that you know the store was clearly in like a lot of what's being discussed is that the trier of fact should have given should have drawn these in front says because there was a possibility that some of these items could have been used to smoke tobacco and section the specific language does not talk about the possibility it's talks about whether they're trying to make reasonable and common sense in for instance and the trier of fact in this case actually mention that he was using common sense several times and even mentioned that the items he's in this case based on the testimony have no no new smothered in the use with cannabis or controlled substances and the only testimony offered in this proceeding is set effect so i cannot believe legislator meant that if there was a possibility that these items could be used for a legitimate there's a possibility that you could smoke tobacco then they have to make an inference that they have to make an inference in favor of legitimacy i believe the last to be done is they have a once a week me i believe that if the trier of fact his discretion can make a reasonable and common sense in front so that direction not there's a possibility i believe that a reasonable inference could have been drawn if if there were some evidence besides what's presented by the state to counter these items signs placed there right i think another inference would be i'm revising you purchaser this must be used for tobacco otherwise it's an improper in the legal purchase right so there was an favor of the defendant i believe the discretion is still to the trial judge whether that is a reasonable and common sense and pretzel the language means nothing in the trial court was right i guess now i think the language means something i just gotta give the discretion to the trial court whether that oh yes i could not find any lead we talked about this actually before we came here we couldn't find any legislative history regarding section six it's never been extensively argued on how to give you know you know felt did say that there was a presumption but i just can't read a presumption in there because i just don't think that i feel like you're taking if you're giving too much of that power to the trial court i think you're almost taking away that with my words there i'm sorry but i feel like one of the problems with this could be that a trial judge and i feel like that's what's being argued a little bit today is if there's any p cash i believe in and i read this into it if i read the definition of drug paraphernalia my question is what is the mental state some fourth stage i believe it is an objective so there is no mental states a fourth science requirement that character what signed her quietly that the defendant who sold the drug paraphernalia knew that the buyer was going to use this item to ingest i think one of the difficulties now in the section thirty eight is that the legislature took out the explicit mental state which exists and i believe that if it was a subject of science or as it was before as defense counsel done but i think that when you look at the intent of this legislator to suppress the commercial traffic of items there are clearly and beyond reasonable down tender for the illegal market unlawful use of cannabis and when as in this case we have two police officers who have been in the drug enforcement business for a long time when you have them coming in and saying they've done hundreds of drug cases and they seen these particular items used over and over and they've only seen these items use for inhaling  with further guidelines having to prove the intent that is required by the statute and one way they can do that is obviously if the seller intends and i think this probably goes back to when the market for language was in there that if the seller clearly described this item is something that argument is still firm that the state proved beyond a reasonable doubt that this defendant was proved guilty and i don't believe that you can look at specific things and if we just quickly talk about a subjective intent defense counsel talked about the conversation one of the officers asked for a one hitter which i believe the slang for you know of cannabis and one of the optos testified that he cannot think of any reason and i can't think of any reason either why you take one hit and i see my time is up may i finish this well give me what interest tree about that no i did not believe so because i do not feel like the sellers he still said i don't know and i feel like in this case the defendant actually stated that people are passing their tests but what if the buyer than this and we don't have that kind of language in those statutes that have that have something i don't i would note it is also a jury instruction if all we're talking about here is the basic presumption of innocence in every criminal case the standard jury instruction as to those presumptions and burden of proof would be sufficient for jury hearing this case but we added the same language in section six to the jury instruction that tells me that this alters the factual analysis and isn't some kind of r putting primarily in there means multiple people who think multiple things it implies it implies the social view of the item and that's why i think the supreme court ruled as they did  boy listed not necessarily your honor i don't think this listing because the word intended modifies even the listed items have the officer but upon the said i'm going to go smokes and vote tonight or this is a really good for that