please the court opposing counsel and arrive on behalf of opponent believe the case here is a case of identity we have a phone a cell phone that was used to send a deceiving indicating a possible drug transaction we don't know who was using that phone i think that's the crux of the case we don't have the identity of the person who was using the descendants name on it it had been used to down with child pornography the court ruled that because there were other individuals who had access to that laptop we couldn't say that the defendant was the one who download child pornography in this case we have the same basic set of facts is there a difference between a that he's carried on a person and a lot top that's accessible i suppose failing to see how that's insufficient to prove me at the inference beyond a reasonable doubt that the defendant and t but we don't know who was driving the car until we know who was driving the car we can't say that the owner of the car was responsible for the hit and run that's the situation no  pellet using his phone that night we don't even know where the phone was there was no cell tower location data presented by the governor but isn't there a question for the jury and in your argument assume say appears to me to rely on a determination that a jury could not draw is a reasonable inference from that testimony that there was communication between ewing indeed correct but they did what is your best case to show that that is that's not a proper inference that is within the jury's parata to have to draw if i understand your question correctly that the government has the burden to show that the appellant was using his phone not the other way around know what do you thing the probabilities are that someone other than the owner of is using it to speak has ever used it they'd be talking to whoever they needed to talk to presumably not to back contact us right these were text messages these are young people but they have a different good i'm just struggling with where we are in this case this was a jury determination sir your argument requires that we hold that the failure to establish that someone saw ewing josh g use his own telephone to call this as a matter of law that is insufficient evidence to take the case to the jury correct the judge that's all i'm asking you do you have any cases that would support the jury you should not be allowed to guess that josh was using your zone that night and this is just the first hurdle of the government has to get across is who was using the phone again back to that car analogy you know i don't let anybody drive my car but somebody might drive my car and if my car's is proven to run somebody over the government house to prove that i was driving before i can be convicted for vehicular homicide so it's it's a frustrating point to be sure but one that is i think very clear consider the phones not as some fungible thing they handle rihanna it is something that is really important that they are functioning churn on a pretty constant basis i think the analogy does hold if you go back so when people started driving cars they were very personal not everybody knew how to drive one but again the government still would have had to proven that the person operating the the owner of the car was actually operating the car if they were in somebody over on the road well that it's not there is evidence here that goes beyond the mere fact that mr di die from drugs and evidence that links your client to the transaction you just are saying it's insufficient there's i'm not sure i understand but i'm just if you find a car and there's been an accident you do have to go back there have to be additional proof but if heard sure absolutely and we have a good deal mower and we have the communication between josh and the data and we have the content of the messages was one prior conviction for using heroin was a drug addict himself and is now looking to spend the rest of his life in prison i think that there should be more because your client you know no because your client had one prior drug conviction and because he's spending the rest of his life in prison it's the sun or i mean that's that's the system where i understand drugs are you arguing that there is insufficient evidence of causation of the particular drugs assuming they were sold yes your argument there yes i'm running out of time but i'll go ahead and answer but he was indicted for selling heroin in fact on which caused the death the corner of the state of kentucky determined that the cause of death mix with heroin but not always and we don't know if what was sold that night was the stash that caused the death so please the court i'd like to start off with this this identity issue i can and i'd like to point you to the rule twenty nine motion that is being appealed here his record thirty nine page idea one twenty three third paragraph they concede this point that joshua ewing sold the drugs that night but that there is no identity issue council ward for purposes of reiteration acknowledge that the facts appear to be that someone in the late evening hours of february seventh a drug transaction transpired between the defendant and deceit and at the initiation of the deceit it so that part of issue number one has been conced we can we can talk about the facts and the record and that's the way we we did things on the breach we didn't rest on this concession but we can but we i did want to point that out it's mister  according to the appellate opinion the government proved that pornography was downloaded using a certain computer and according to the appellate record the government did not put on proof that that there was one particular person the defendant who had downloaded that in the fax where there were three people living in the home and that it seemed like all of them had access to the computer so that's a different set of facts than what we have here here we have for identity we have the text messages to a contact in the victim's phone named josh let's assume that that that that was sufficient to get to the jury then the question becomes is there sufficient evidence that ewing sold dayton the drugs that killed him and it seems to me that there's some real issue with the toxicology report in that report there is no heroin or heroin metabolites the proof and the basis of the in his blood which would seem to indicate that it was that was not the conveyor of the fenton all that killed him and there's a tanguay out there isn't there he there was a sale in the evening which the argument of your opposing counsel is that people who buy drugs by him do use them right then right and then what was found in when he was found the next morning what was found in his blood was cocaine and finton all either of which a lot i think the proper wording on that report was sufficient to have killed him putting burrage aside how have shown a connection between the sale of heroin laced with to a death that does not show any evidence of heroin going to try to answer all of those questions is are you know i'm trying to get out now right i do have the whole scenario on the table because that's what i want you to answer and i don't agree with all of this facts but it planted by one who wrecked me where i'm wrong if i don't answer one of them remind me the time of the transaction was around eleven thirty or eleven forty at night according to the testimony of the tech the girl he was found it according to the defense related report he was he was dead around eight am the next morning in his blood and i just want to try to clarify this what was found was not cocaine there's no cocaine found in his blood metabolites from cocaine and the testimony of of the toxicologist for the government ward was that means that the cocaine would have been ingested at least eight hours prior but there are no heroin metabolites or heroin if fintan all was in the blood it is present in the conveyor of that was heroin wouldn't you have to have had both i don't remember the record on the point of whether the heroin was in the blood or not oh yes it was i'm sorry i wasn't what it was i mean that to a lay person that seems like it might be pretty significant and i kept right you don't think that that's in the record i don't i don't i've read the record and i don't recall an affirmative statement that there was no heroin in the blood what what was talked about what was there was the fenton on that it was folk that was that was what was seen as that as the but for cause of his death you're right it several times i can't remember whether i'll read the medical report or not it was the toxicology report and my understanding is that ewing expert was not contradicted at trial and testified that the lack of heroin metabolites in his blood makes an unlikely that he used heroin in the hours leading up to his due to the testimony so how do you make the connecting evidentiary requirement that it was in the heroin which you charged i mean that's the key you could charge something differently to charge heroin infant mom and so the question becomes if there's no heroin they are how have you made the connection to show that it was that sale of drugs that cost his death well i think i would point to the fuel a record of the all the testimony it's record sixty six page five hundred he sold heroin laced with all right and that you say i'm indicting you for that proving that you did it and that caused his death well then when you get to the place of your eviden which you the toxicology report shows that there was not heroin nor heroin metabolites in the blood then the conclusion of the opposing expert is it wasn't the text message string shows a sale of a gram of something a g of something according to detective ross testimony for one hundred seventy dollars which detective brought testified was the price of heroin one fifty to two hundred dollars per gram and then i think we're in the and then i just want to get to the next point he was found in his garage with a syringe and between his feet and his arm sleeve pulled up next to a spoon with a heroin and fentanyl residue on  heroin and fentanyl residue on it so help me understand if that was the immediate calls a day while the toxicology report says there is no heroin and no heroin metaboli in his blood it's a metabolite would be if so those are two separate things the metabolite would be if it had been metabolize and here is what the residue of of it is so then there shouldn't been pure heroin in his blood if that was what caused his death i just i don't i didn't see anything in the record that indicated it wasn't there but if it wasn't there then i don't have an explanation for that heroin is mixed with fentanyl that's how it's put into the body in the in the body had fentanyl in it and we're not saying as to th timing issue the government didn't present a theory as to whether he took it all at midnight or whether he took it it or whether he took it in multiple doses throughout the evening defense brief talks about this quite a lot and i mean it seems to me you know i could think of a number of responses i mean but i know it's not for me to to devise arguments for the report it's likely brock or if it's right to set costs and doubt over whether he actually ingested what had been or you know to could do his body what had been so by mr ewing i think that's the speculation that the jury has to do here there was no autopsy there were tests run on the blood in the  i don't recall there being affirmative testimony of this sort but if there was then i think the jury has to decide who they're going to believe or they're going to believe the government's testimony that fentanyl killed this person and feel himself concedes that as well the government testified in that cocaine wasn't present in a lethal amount and feel that testified that as well that it was unlikely that cocaine would have caused this because it wasn't concentrated that was the defendant's witness i think that's the evidence that they for issue on record sixty six page four thirty three fentanyl was in the body in a fatal amount that's record sixty six page four fifty eight but towards testimony and fiola testifies to it in record sixty six page five hundred the testimony that the cocaine was not in a pressure present in a fatal quantity its record for sixty six page four fifty one four fifty two feel that testifies to it record force record sixty six page four ninety seven  that would be those or be some of the citations would point you to which your best case for showing that it was adequate to your burden as a legal matter to show to charge and prove the sale of heroin i don't know of a case that describes that exact facts that assuming there wasn't heroin in the body assuming that was it a correct an affirmative finding in the record i don't recall that finding in the record and what your best legal argument fenton all or another sale of drugs from anybody else that caused the death since there was no sign of the heroin that you have proven ewing sold in the body of the man who died my argument against that theory would be that the jury found at trial that the fountain all killed him and that the jury heard at trial that friends and i would be mixed with either half a gram or one four gram which is about five doses it's about that would that's what detective roll testified i doze of a heroin is about one tenth of a gram so that he would have taken this this drug over the course of the night  we don't have a the burrage involvement cases or the cases that we rely on for but for cause that was and and the testimony that with that the government that the government presented a trial that the jury would have heard is that sixteen point eight nanograms per milliliter offense and all is lethal if this is in a close case as described in burrage of volkmann where the addition of the drug alone would it wasn't  lethal amount but in combination with everything else it was the straw that broke the camel's back here the fenton on there's been no evidence of any other sale of any think of of any others not from this guy just not from healing well the jury any and alternative defense theory as well so if we're evaluating the rule twenty nine motion and rule twenty nine ruling this is the evidence or rational fact finder could have found the elements beyond a reasonable doubt phua said that cocaine certainly could have caused the death and most importantly the state of kentucky determined the fish a cause of death was a combination of toxic combination of cocaine and  yeah yeah i think that the defense did what they did not put a witness on there was no witness that was put on to say that that there could have been another sale at another time from another dealer however there was evidence from detective grol that there was another contact in the phone that pedro that had been contacted or tried to be contacted there was no return text but that pager was the fact a drug deal so we do have tolerance so they can wind up using quite a lot it at one point not be fatal to them where is would be fatal to somebody who you know doesn't do it frequently  again getting back to dr mccarthy he said that it's both both cocaine and and all and at the time of his death his heart was beating at three hundred fifty three beats a minute eighty is normal for for the government conceded that both cocaine and sentinel were the contributing factors to the death so that again supports the state of kentucky is determination that it was cocaine mix cocaine metabolite that cocaine metabolizes so quickly that it's hard to tell how much and when but the fact this heart was beating it three hundred fifty three beats a minute inconsistent with the fact that he took heroin license fintan no earlier it would just mainly then probably took some cocaine to lob why right right yeah ok you know i think your time's up it is we thank both of you for your argument will consider the case carefully mr avalon we now take you been appointed to represent mr ewing under the criminal justice sac and we are very appreciative of your having excepted that appointment and of your zealous and good representation of him today thank you so much