i'd like to request about fifteen minutes umbrella and a bottle of lotion from a car that was completely told this car was another wreck it had been left on the street for multiple days with no windows and after been wrapped around a pole it was completely inoperable now mr brooks has raced for issues in this appeal and i'm happy to discuss any of those arguments that this court wishes to discuss however i want to focus this morning on arguments one in two concerning the sufficiency of the evidence of the mental state element and counsels and effectiveness gunner's for in order to prove that our books are guilty of perjury the state had to prove beyond a reasonable doubt that he intended to commit effects when he reached into that car that is the state had to prove that he knowingly intended to deprive an owner of those items again and the other words seem to prove beyond a reasonable doubt that he was consciously aware that someone owned that umbrella and that bottle of lotion this is a subjective standard where  defendant has a bona fide belief that the items that he took were abandoned that negatives is the intent required to prove fast and thus also in court required to prove perjury here the evidence was insufficient to prove their approach guilty of burglary normally these cases involve involving the mental state for theft or burglary revolve entirely around circumstantial evidence however in this case we also have direct evidence and that direct evidence is for burglary however see all the car able to say that the lotion was in the right answers she she actually did could remember if she left the bio motion in the car if you remember leaving the umbrella in the car she said that the car was so regular so much broken glass inside the interior that it wasn't worth it to her retrieve these items from the backseat and she then left those items exposed in the back seat to anyone who walked by for multiple days why can't i draw an inference from the fact that mr brooks had someone else's or from from those onto another person's property to retrieve items that he believes are abandoned he's entering someone else's property and that was true in moore said in the us supreme court case when the defendant said he was consciously aware that he was going on to government property where it said no no interest in taking these items that he believed they were going to and the key here is that where there's evidence of a defendant's explanation of his mental state when he took the items that's an important factor in sure to look to in these cases the circumstantial evidence and almost all of the circumstantial evidence in this case supports mr brooks is a statement that he believed those items were being primarily that's the condition of the car this car as i said was utter wreck the owner actually practically admitted on the stand that she abandoned those items in the backseat because it worked it was worth it to her to retrieve those among the among all the broken glass in the interior of the car so owner permanently of these items your position alternately is the state or the burden of proof imam yes absolutely had to prove beyond a reasonable doubt that he intended to deprive an owner of those items and that beyond reasonable doubt that mistake of fact now this court can reset issue as a reason as part of a reasonable doubt claim under one b but also arguing that this is because this was take effect was inherent in the state's evidence counsel had a duty to identify a letter from a defense and present it to the trial court and clarify it in argument clarify the exact issue for the court counsel by this record apparently had no idea that this affirmative defense was available didn't raise it for the trial judge didn't presented an argument now that may not be prejudicial in some circumstances where the judge might know what the form of defenses is in front of him or her but here the records also silent on that there's no indication that this trial judge knew that this have defense was presented from the evidence there's certainly reasonable probability that had counsel presented this argument to the trial judge that the result would have been different because the state would have had that additional burden to disprove circumstantial evidence in this case supports for the state the belief i was looking also quit the court to the circumstantial evidence that wasn't presented in this case first there was no forced entry this is the key factor that divides mr brooks his case and his cited authorities from the state's cases every one of the state's cases involve someone who broke into someone else's property to the tree by tim's work presumably retrieve items all the cases we have on our side in mr b that i believe that particular testimony was not admitted against my client but i guess i was right so he did not run away from the police he did not try to hide himself he did not try to hide the evidence he did not give the case of answers all those reviewing the evidence in the light most favorable to the people any rational try of facts could have found offending guilty of burglary beyond a reasonable doubt in this case the people have met their burden and to show that defendant did indeed burglar burglarize the victim oteri a websters car as it sat on a residential block in late april of two thousand and eleven one to see it and that negates the defendant's state of mind where he says i thought this car was abandoned everything in it was just as mason the defendant's intent was proven by the people circumstantially indirectly first directly when he says i admit i took these items they were not mine he said that the officer prez that at the station and in circumstantially it was eleven fifteen at night under the cover of night defendant had these item he admitted that things were not hit as he was walking down the block an officer a live virus approached him for a field interview he dropped these items not coincidentally he maintained his grip onto a cd player which later he said at the station was his item so that means he only dropped the items that were not his that were from the victim otay websters car out of consciousness of guilt in an effort to where's the evidence they had just proves beyond a reasonable doubt that at the time he reached into the car with all its windows broken and mccoy us all over the interior of the car that he did not believe the car was aband the evidence to show that he didn't believe that the car was abandoned is mostly circumstantial evidence that the trial court heard during the trial from the testimony of the officers and from the victims from the victim and was able to make a determination that defendant statement to the officer at the station was not credible and if you listen to all of the evidence that was presented such as the time of night it was the fact that the defendant lived within three or four blocks of this that the that the neighbors called this in as a as a burglary in process that the police were responding to a call of a burglary in process that the car was a two thousand and one lexus it wasn't some displaced or not out doesn't mean that she abandoned the car she herself said i had the car towed to in front of my sister's house that i watched it as i came and went until i could have it repaired i was in the process of trying to have it  to be able to have it repaired this was on april twenty fourth close to the end of the month you know definit would have this quiet place a value on this woman's property a single street because it's not in pristine condition but the statute the burglary statute doesn't have a value limitation or a minimum just because for some people this might not have been worth much doesn't mean that it wasn't against the law to enter this car and take items that didn't belong to the defendant and we know that he knew they didn't belong to him because he admitted it at the station and then later just stuck him stances under which he took it again at night off of a residential street other people calling in the other who were called in and said there's a burglary in process didn't believe that it was an abandoned vehicle to the effect of the system council claim opposed defense attorney would have this court believe that because the trial counsel did not raise the mistake of fact as an affirmative defense that he didn't raise it which is not natural at all he raised it in the closing so the trial court did hear the mistake of fact are you meant from the trial defense attorney he considered it and he rejected it and how do we know he rejected it because he found defendant guilty of burglary lack of belief that was abandoned beyond a reasonable doubt they never made that argument yes just justice mason you're correct however by i doing enjoying his closing that there was a mistake of fact he didn't have to elaborate on it because the trial court is presumed to know and follow the law so the child quote is presumed to know bed then the burning wood chip so that was presented at trial and it was considered and it was rejected the people met every element of this crime beyond a reasonable doubt that the defendant without authority as we heard from the victim into the car with the intent which was proven circumstantially to commit even though the car didn't have its windows and miss webster didn't retrieve her items from the car because it wasn't worth it at the time not meaning that the car wasn't worth it or that the items weren't worth it but you know in a rational trier of fa including that she meant it was it was making her hand in a pile of glass for because she intended to get that car repaired later that this car sitting on this lovely residential block didn't have any tickets on it it didn't have any boots on it it didn't have any of the signs that happens to a car when it has been abandoned it only been two days and it was at the end of the month so for ther defendant didn't meet his burden to present any photos of this car at trial so we don't have any photos to see you know in what condition this was in there are no inconsistent answer here's the presentation of photos w abandoned based on its condition and it wasn't all we had is her testimony in the testimony of the officers that corroborate her and one statement from the defendant made through an officer which was i just want to say very brief on the reason without argument that every single case that involves the taking of property in both probably did not belong to the defendant prior to the taking that's the act involved here but this order is about the mental state it's what my client believed at the time that if those items and his statement was that the umbrella he believed the umbrella by allusion were abandoned almost all of the circumstantial evidence in this case supports that stated belie the fact that he dropped the items is minimally produce of his mental state when he reached into the car it's almost entirely probative only of his mental state when he saw the officer approaching him moments after reaching into the car and realizing at that point that he may be now in trouble for that and finally on the ineffectiveness argument just one comment counsel did not raise a mistake a fact offense to take effect is a codified affirmative defense that when raised when properly raised must be rebutted beyond reasonable doubt by the state