believe i argued that the burden of proof beyond a reasonable doubt demands more than common sense and speculation and that's what i think the state is asking this court to do is to speculate about the evidence that was submitted through the officer's testimony and through the picture of the collected material and to then make a judge speculate that surely there was at least thirty grams that's because the state has already conceded that they can't prove more than five hundred grams even though what jury found that although they say we can't do that now in good faith but please find out the result least thirty grams there and i argue that because the state conceded and because there is not enough evidence to prove that weight beyond a reasonable doubt that this court cannot make that inference that it's not a reasonable inference it's instead a speculation and assumption or conjecture about the weight of the cannabis that was present that day now this court must consider the evidence and give the state the benefit of the doubt give them excuse me not the benefit of the doubt but look at the evidence in the light most favorable to the state but i think that even in doing that this court still cannot find that there any evidence as to the weight of the collected cannabis when it was collected in its three separate bags and that's because it was discovered and collected in three separate backs the investigating officer  these substances before sending it to the technician and in doing that the results of the technician reaches are tainted they're not an accurate estimate of how much cannabis was really there in that separate form and that's because there could have been just a little bit of cannabis present that day with quite a bit of some other substance and when you mix so substances together that little bit of cannabis will rub and contact all the other substances and all of a sudden a grammar two of cannabis turns into over a thousand brands as determined by the technician but this information is not enough to convict mr mccurdy guilty of a felony beyond a reasonable doubt now he admits that he's there the state can prove possession of certainly there's some amount of fair that's why it shows up in the test but that he should only be subjected to a misdemeanor conviction because the prosecution lost any basis to charge the defended with the felony possession because it was the basis to charge of any specific quantity of substance when it was mixed and there's plenty of case law this court can turn to that's a separate container should be tested separately should be considered separately even if the contents resemble each other it's simple when the police see separate bags sees them they should keep them separate they should test them separately and that didn't happen here now because of that failure i argue that there's not enough proof that there's not enough proof to determine the weight of the drugs that were collected and that weight is an essential element that the court must consider and so further investigating officers failure to consider that in collecting the evidence the state's hands are now bound there is there is really no way to remedy that error and time see the thing in the record that indicated that there was any testing done prior to the whole reviewing is that accurate testing done by the officer that's correct your honor there's no testing at the scene you certainly says it's nels like cannabis and he thinks of looks like cannabis but notably he doesn't say that each specific back that he was certain it was cannabis or that he this court to act in a sense in the sentencing court and enchants back to the class three due to the fact that it's a subsequent conviction but we don't know we don't know the state of the cannabis in the car whether it was all cannabis or what even all book like the officer didn't testify that the back to the same shaver the same size the officer didn't testify how full the facts were because perhaps if you had said that we could then assume how much was in fact we could make that speculation that the state  to the records show your explanation of who are the officer green groups you know your honor i don't think the record does the officer just admits that he did mix the substances i don't believe there's an explanation no sir and the officers testimony never says anything about weight not even an estimate of what the bags would have weighed had they been weighed separately and it be the photograph that is admitted in evidence does not show the materials in the state in which it was collected there are plastic bags in the background but it's difficult to see how many are there or if they are the same size and the material that the picture shows shows that it's in a different format some of it is compressed in a brick form some of it is loose senator just all over the table and while certainly it is a substantial pile of some substance because of the error and collection the stage found that they can't charge anything other than a mistake because we would just never know what was what we'd never know what was legitimately cannabis and wildlife since we never know if possibly one bag only had a couple grams senate and the others were rather full because that was perhaps what was going on that day we just don't know because the evidence that was introduced at trial doesn't tell us anything about the weight the weight in the separate bags when they were collected occurred i think the state's hands were bound that they could only prove the low it's the political offense and at that time it was a classy misdemeanor less than two point five grams and i think that this court can rely on a great deal precedent both from cases that have come before this court dealing with other drugs mixing of those drugs and from the supreme court that dictate that the law says that once this happens the state's hands are tied that they can't prove more than the mis r and i think that's the correct result in this case now the state's concession i think is something to consider very closely because they got that conviction for five hundred grams and so i would think that they would say that was the proper conviction here but they don't they say we can't prove that we can only prove thirty grams and i think that this court should remember that the burden of proving the weight of the element the weight of the substance beyond a reasonable doubt that that burden doesn't change whether it's five hundred grams or thirty grams and that when the state tries to prove possession of five hundred grams the burden isn't any harder and when the state tries to prove thirty grams the burden isn't any eas sentencing according to that statute if there are any questions i'm happy to entertain them or happy to address them in rebuttal if not i asked if you grant mr mccurdy use request to reduce his conviction thank you crimes thank you point eight well each bag was not individually weighed but that does not mean that there was no evidence or reasonable inferences to be drawn from the evidence regarding how much weight of substance was in there was a large amount of suspected cannabis inciting a large like bag there were two of those on the back seat there was also a gallon sized the black quote filled with cannabis on the front seat for board and he also says that all this came to this came from compressed brick form he also said that the partially due substance in the people's exhibit number four in the photograph also came from a compressed brick so when we have a total of one thousand and fifty three gra that's the total wing that was in only three bags well ted one thousand and fifty three divided by three is over ten times thirty grams and so based on the assumption that all of the ba contain this we if how do we know that it's based on the fact that these are all leafy substances which the reasonable inference would be have a similar weight it's not like we're comparing the stats fence and lead weights like fishing weights or something we're comparing leaky substances that appear to be similar in nature according to photograph and according to testimony appears to be canvassed to the officer thirty gram minimum case and that that is the major powerful message that commingle and should not happen to but should except the defendant's position contrary to common sense which i'm not sure of th this is contrary to common sense to think that the contents of one of the bags could have been less than two point five grams of substance when these were all large bags they were all compressed bricks that essentially filled the bags it's like a controlled substance case it cannot if a defendant chooses to keep a small amount of cocaine mixed in with baking soda for example then he's still guilty of a larger weight because he can go to consult but the problem is he did we get back into what the state does have to prove with the scientific testing that these bags come in gold contains candidates so the question was essentially comes down to did the state prove that there w on the descriptions of them being wired to males and being killed and being large bags there's no way a jury could've rationally if it was like a bench trial or a jury trial and the question of whether the finding of thirty to five hundred would be upheld on appeal this court would have to affirm that finding a thirty to five hundred based on this evidence because there is at least thirty grams of substance nish back and the scientific testing has proved beyond a reasonable doubt of each of the backs so if we had a situation where the officer said well there was one bag that just had maybe i don't know a smidgen of a substance in it right and in the other two bags were really full and now they're all combined yes would that change your analysis because of course one could argue what if he only can of this was in the very small bag with the smidgen and you have these other two bags  don't have any cannabis and now they've been clean gold would you still make the same argument you're making probably not or the standard was three hundred grams instead of only thirty which is a  if it worth if it were one thousand fifty three grams in the three bags and it had to be over three hundred grams this would be much harder to make because a thousand fifty three divided by three is much much closer to three hundred than it is thirty or even two and a half gra divided by one thousand and fifty three means that it's not at all likely not be down to reasonable doubt that any one of those bags was at least five hundred grams particularly the one that would have the cannabis that was tested to be positive so we cannot prove that any of these bags had over to five hundred grams but it seems overwhelming based on at the photograph and the description of the bags that each of the banks contain at least thirty grams of substance so there if there were in fact from england by both the defendant into one of these bags that contain cannabis and then the police put all three together the defendant is responsible for the commission killing in each of the bags that were in that was seized and then the police are been responsible for the three bags in the one but if there's at least thirty grams of substance beyond a reasonable doubt then it doesn't matter if there's only a small amount of cannabis and not one bag that had like say three hundred grams sen couldn't anywhere be close enough to be a tenth time factor difference it can be really fair label to compress a brick with one thousand fifty grams and three bags and have one of those compressed bricks feel less than thirty grams not with that responsible for at least invention of of a substance of at least thirty grams containing panics and that's not encouraging mingling that is paralyzing the state for coming going because we're losing a conviction of over five hundred grams and we're only going down to thirty which is a lot further away from five hundred and so this is major pountney from yngling and this is not at all encouraging mingling so that's the state's position is that this court just simply review the evidence as if it were a conviction a jury finding and juries can use common sense the judge can use common sense thing in a bench trial and i'm sure if the defendant is asking this court to throw out common sense it's part of the review of the evidence but it certainly sounded photograph of it shows the following in respect of volume of each of the bags so to infer that the relative volumes are almost the same and then say that while the growth to wait should be almost the same because these are almost these these ok well maybe it would be a little more speculative to say that maybe one of the weights was not three hundred but where he it's thirty thirty is ten times different from three hundred and when the defendant is asking two and a half if these were equally divided bags and there were definitely filled with similar weights if that's a reasonable inference to accept and to go all the way down to thirty grams or two and a half grams that is such a large difference that would be limited by ignoring common sense and that's not something that should be encouraged in the law so for those for those reasons the state requests court to reduce the degree of the offense to a violation of section four subsection d of the cannabis control act and city has made an argument that the defendant is a subsequent offender and the case i cited robinson and i did go back and look at that and preparing for the argument and robinson was a bench trial on person pre merger the defendant that case was convicted of  trial of involuntary manslaughter and then given a class two felony conviction because it was a family member and supreme court of only rejected this claim that he was being convicted has been charged offense because and documents are a family member was still involuntary manslaughter and was i would understand if this court was reluctant to make that finding in the first instance because in robinson the trial court at the sentencing hearing made the finding of the family member an involuntary manslaughter case so if this court were so inclined it could also instead subsequent offender under the cannabis control act but that is another option if this court did not want to make finding itself so i think you for your time  the state bears the burden of proof to each essential element and they may not leave essential elements to conjecture or assumption i've been using the word speculation as well your honour's and i think that's what the court would have to do to grant the state's request saying it's reasonable to reasonable to infer that each bag had thirty grams if not even three hundred grams just take a thousand to five by three but we can't do that here yes we have testimony that there was a large amount  and we have testimony that there was a gallon sized bag that was filled but we don't have testimony that they look the same that they were the same size so all we know is that there are two that there are three plastic bags and that there is a large amount certainly of a material but we don't know what that substance is until it's tested and we can't make any assumptions about whether those bags were the same size or whether they contain the same amount of a substance without that evidence in the record we don't have that from the officer's testimony and we don't have that from the picture that was submitted so at some point i think your honour's we're asking well what if the statute segments were organized differently and that the minimum amount was three hundred grams instead of just thirty grams i believe the states have sure we could still prove that we can still prove three hundred grams of cannabis because the thousand divided by three is three hundred grams but we don't know how much is in each back and i believe in response to that same question arranged that way but it just doesn't matter it doesn't matter if that were the case and it doesn't matter whether or not the bag could have held that much not to mention that we don't have any of that testimony in evidence it doesn't matter because once it was law from the supreme court the law from this court says that the state lost the ability to charge anything bought the lowest misdemeanor the lowest charge for possession and so i think that this court is obligated to consider that precedent and consider that argument in the light that the law on the burden doesn't change whether he's convicted five hundred grams or thirty grams the burden is the same and the state didn't meet that burden here and i think this court is also going to have to consider how much weight to give the officers testimony certainly he says with cannabis there and there's a lot of it and it's in three bags but i asked this court to consider the question of how thin and conclusory and officers testimony can be and still prove something beyond a reasonable doubt because if this court finds that that picture and that officer's testimony is enough to prove wait beyond a reasonable doubt i think that this court will be disagreeing with cases that it's seen already and that the supreme court  end one last point that the state also says that the testimony in the picture should allow you to reach the reasonable inference that it was all cannabis i just don't think that's reasonable i still think that speculation and those assumptions based on the officer's testimony and on the picture and so i ask that you reduce the conviction to the misdemeanor and remain percent in saying i did not directly address the state sentencing argument and i don't think that this was there originally and that binds the state charging only the lowest class misdemeanor the classy so that's why i ask in this case your honour's thank you for your time thank you council will take this ma