will we will proceed if you are ready at counsel for appellant could you say your last name for me yes it's malice and malice act all right thank you and so mr mouse back when you are ready you may proceed thank you of an electronic communications device while driving which results in an accident causing again either a fait ality or a serious injury here there was there was unfortunately if a calorie from the accident as well as a serious physical injury we have two reasons why this these conditions should be rivers i'll summarize them briefly and then and then delve into them the st is that the state's evidence does not prove beyond a reasonable doubt that mr delahaye was using his cell phone at the time of the accident and therefore could not be the proximate cause of the accident as the statute requires there was no eyewitness to mr delis use of anything in the in his truck at the time of the accident and mr del had exercised his right not to testify at trial therefore the state was required to rely on circumstantial evidence to show that mr galloway was actually using his cell phone at the time of the accident and we believe that it's plain that we believe that evidence is much too imprecise to be proved beyond a reasonable doubt taken at face value it is our position that the state's evidence shows that mr l hay last used his cell phone about twenty seven seconds before the accident and since he was traveling at over sixty miles an hour that was roughly a half mile before the accident the nd argument we asked the court to grant the person the convictions is that the state reduce speed to avoid the accident mr della pled guilty to that received a sentence and then after that the state brought these delany and misdemeanor charges and at the trial of those serious charges they used his conviction and guilty plea from the st proceeding the state relies upon the supreme court decision people versus jackson jackson to say any any litigation any criminal litigation that begins with a uniform  but jackson is distinguishable on the facts here jackson was based upon a situation where the state st brought the traffic violations there was a guilt if they were guilty pleas to those and  was about ready to be sentenced when the state said well wait we're actually going to proceed with more serious charges so we're vacating the initial charge the traffic violation and the guilty pleas and then they proceeded to the trial on the more serious charges so there was no tactical use by the prosecution of that st proceeding those are the facts here here the the state brought that st proceeding the traffic violation and emphasized that a trial so we decided to aside from that letter factor which is different when you have here is similar in this case regionally he was charged with a traffic citation he went to court and pled guilty ok then after the phone had been inspected by a forensic analysis done the charges were added later correct that what you're i know the the state the police took mr delve a cell phone on the day of the accident yes within a week they had it taken to a they used to celebrate machine which extracts all the data from the phone and they had that within a week or ten days later there was no rush to judgment on the cell phone to cause the accident well why do you say then the absence the absence of braking certainly suggests inattentiveness and one might argue support circumstantially the idea that he for example was using his moment to read texts then it come in twenty three or is and say twenty seven seconds before well what actually happened was  there is no doubt about the fact that he was distracted the question is how was he distracted was distracted directed by the use of the cellphone or was distracted in some other way for instance looking for a clipboard that he used in his business and his guilty plea and sentencing hearing on the traffic violation the state's attorney said to the judge what happened here is that mr galloway was looking for his clipboard was police detective mcmahon who did the extraction from the cell phone told sergeant vanko who did the reconstruction mr devlin was either using his cell phone at the time of the accident or he was looking for his clipboard we also know that mr del hay spoke to officer nelson who was the st policeman at the scene of the accident spoke to him this year officer nelson testified at trial but was not asked what mr galloway said it's pretty clear that the police knew that this is elliot position was i i was you i was looking for the clipboard it wasn't a phone call and you raise a very good point because the it would be it gives an alternative explanation for why the accident happened for instance mr deli isn't trying to absolve themselves of the responsibility for for accident it's what caused the accident and if if he wasn't using a cell was he's not going to plead guilty to doing that and the state has the burden of proving that that's what they failed to do and what will to do what they will to prove that he was using a cell phone at the time well the fact that he was maybe not physically texting out or physically receiving a text and does not mean that he was not otherwise the accident occurred about a minute before the nine hundred and eleven call but twenty seven seconds cannot be fully explained by him doing something else with the phone he sent the text  shows that he received a text from crystal daniels four seconds later there's nothing after that showing him using the phone in its brief here the state says well maybe he was drafting a response and that would take some time reading into an drafting response but detective mcmahon who testified about the extraction said the extraction with pick up everything imaginable that was on the cell phone but it didn't pick up any draft tests so that i think is pretty conclusive he was not drafting a response to krystal daniels after he received are you saying that the law would have to be his fingers would have to actually be on the phone in order to be found guilty of this just as hutchinson says he couldn't be looking at the text that came in or just have completed the text isn't that issues for the t well i think it's more like flipping a coin i mean if there is no evidence past is sending of the tact that he was doing anything with the phone so he could have placed it down trying to look for his clipboard if there are there are other things that he could be doing within that time other than using as a force and i'm sure that's what was argued at trial he may be the same argument you're making to us it was probably made at trial in the other thing i want to point out is in wasn't just one t mean for the four minutes leading up to the last text the defendant received from danielle and twenty three seconds before the accident for the foreman to period the defendant and danielle had exchanged ten tacks it's over four minutes twenty three seconds before the accident the last text comes in to the defendant couldn't the jury reasonably infer that the defendant was reading the t formulating his response given the fact that there had been ten tax cuts over a four minute period leading up to that i mean you know just have this one text in isolation we have an ongoing fight or conversation between these two people delis last text that he read it it came in four seconds it's a very short text it would take just really two or three seconds to read it there is no proof though of anything after that he crashed in your car at sixty miles an hour without braking again but that but that's the ultimate question was it because he was looking at the phone or was he was he looking for the clipboard and obviously  that he was looking at the phone it was engaged with the phone so are you asking us to substitute our judgment for dead or try to affect you know i think the we're not i'm not it's that the standard of reasonable doubt just hasn't been met the the that twenty seven nd gap is a huge period of time for this type of case he's travelling over sixty miles an hour so literally he could be could have been a half a mile away from the accident scene when he last used his phone that's better that raises a question of reasonable doubt how can you decide that he was what he was doing if you don't have either eye witness testimony his own testimony or some technological evidence that shows he was using his phone call if you well know that at the end of the day the analysis when there's a challenge in a sufficiency of the evidence is whether in that considering all the evidence in the light favorable to the an inference that it's both rational and it's more likely than not it's really the ultimate question what the state is asking the court to say is we could prove that he was using the cell phone up to twenty seven seconds before the accident if you can make a rational inference that he therefore continue to do it over there is no actual evidence that he did that's the i think is begging the question that's going too far that's the ultimate question in the case precisely to the nd what he was doing in the car before the crash missing used his fingers again have to be on the phone is there have to be prove he's actually in the middle of a text him self to prove this case is that your position i think it is because they would have to have evidence showing that he was distracted by use of the phone our marketing somebody from behind would know breaking at sixty five miles an hour doesn't that imply that his district it implies he was distracted but it doesn't it doesn't still circumstantial evidence is as long as it's reliable can be used to find someone guilty beyond a reasonable doubt do you agree with that  certainly there are cases where nd that can be provided it's correct and if he is writing and saying i want honesty write it down as soon as possible is isn't it reasonable to then infer that he's going to keep looking at that phone to see what she's going to write down there not in there having a lover's quarrel it appears and accident and there are other problems with the state's evidence other than the fact that they only that they can't close this twenty seven nd gap they had no expert looking had his his cell phone to determine whether the timing in the phone was working properly what timing system apple uses for cell phones they then try to get message together with the timing from the nine hundred and eleven call but they had no expert evidence as to what timing system is used by the nine hundred and eleven system so we really don't know if it was twenty seven seconds or thirty seven seconds or seventeen seconds but the evidence was just not there and that was the stage bird that was in mr galleys or to disprove it they had to show that this hiding evidence was accurate and reliable and they they didn't they didn't all they had was a detective mcmahon who think the state had an obligation to try to show how the how the times from her phone for those text lines up with the text from his phone we just don't know right counsel we have used your time at this point and you have an citations written by uniform traffic and so that's the st basis for this court quite simply to reject a compulsory during their argument and then nd even if a traffic citation could be applied to compulsory to understand the several offenses must be known to the proper prosecuting officer at the time of commencing the prosecution and when the traffic citation for failure to reduce speed  written on a sober eleven no one knows what is on the phone defendant turned over a spot but without the extraction the officers would have never gotten access to the text messages because defendant  deleted them so really defendant is the one that caused in the bill as a between gathering the text message evidence and the traffic citation and moreover you know for a felony case you would expect the state's attorney to do due diligence and that's exactly what occurred you have the state moving very quickly to get the cell phone data and interview of crystal they know on october th if they meet with extraction as you indicated much sooner than the complaint was filed i mean is there any case out there that says you can only wait x amount of months or you can or you have to do it within a significant or within a whether the several offenses are known and this is quote at the time of commencing the prosecution so that would be at the time of commencing the initial prosecution are the several offense of no to the proper prosecuting authority the traffic citation was issued on october th so based on the statute itself that was at the time defendant of course of all sorts of other remedies you know a pre indictment that way if the state look you found everything in one search once you prosecute the drug charge you need to also prosecute the firearm charge but again here the state when the failure to reduce speed citation was issued on october  did not have the evidence to be and this is also the standard from people st lucianne all the evidence has to be known and that means the conscious awareness has sufficient to give the state a reasonable chance to secure a conviction and i'll turn to the sufficiency of the evidence argument and your honour's this defendant alludes to the clipboard being a possible alternate theory but there was no evidence introduced at trial that the defendant was actually looking at a clipboard  defendant size two is guilty play but that the only reason that it's in the record is because it was in the litigation of the compulsory jointers that was not introduced at trial and so there really was no evidence that the defendant was looking at a clipboard outside of an officer saying it potentially was while we're investigating it that is certainly not something the trier of fact would rely on you rogers how do you respond to the argument that meeting so if there was any doubt about the accuracy of that conversation beginning directly before three pm and then she says the responses are almost immediate and then she confirms that the communication stayed calm so there was no break in the communication and defense counsel i believe responded that well have i was you know how could she be that actor while defendant lets her know the night of the accident that he's in a serious collision and then it's going to cause lots of legal trouble so that certainly would give mr daniels a reason to kind of a lock in her mind what happened that day on the intersection her car is completely covered in debris and soil shift playing the like a bucket of water dumping over her car she had to proceed through the intersection of the safeway park and then she had to back to the crash  and at that point she says she was going to call nine hundred and eleven but she happened to hear others doing it and she didn't want to be disruptive she says that the call could have occurred between one of two a maximum of two men so based on that testimony we have a window from scene being the very earliest that this could have occurred in three o two hundred and eighteen being the latest and then that one minute period you have four messages two from each part person and  so it's clear defendant is using a phone all the way up and so last seconds before this closing kind of occurred and it's important to look at the nature of these communications because defendant just argued that krystal dani last message is the real one hundred and fifty five of the relatively short messages and so they've been read but the actual text message is you can be as mad as much as you can but it's not all my fault you have a lot to do and that's really the message it looks like they're getting more heated defense last message i can stand a line to my face there's no indication in these messages that there's a about to be a break in the communication there is if anything getting more heated is obviously a dispute about something within the relationship and it's certainly reasonable to believe that defendant continued to act that they had for the prior foreman keyboard in order to be convicted of this offense no your honor and i believe he was simply does have to be utilizing the electronic communications device i believe would cover a very wide range you could be texting you could be reading a text you could be taking a picture or you could be filming a video i mean you could be doing any number of things utilizing the electronic communications device and that would all be covered under the statute and the i was looking for and at this point there isn't there a st district case right about two thousand and seventeen it says it's logical to infer that if you get a text message and you've been in a conversation you will it is likely you will be looking at the responses or waiting for additional responses something of that nature i can't remember the name of the case but it's like something within am i'm sorry i can't find it right now your honor i'm not sure if i saw a case i know there are cases there's a case out of it this forget about taking a picture driving down the road or taking a picture of that constituted utilizing but the statute certainly doesn't read in a narrow manner that you have to be sending a communication or receiving a communication and i think i cited general case law for the proposition that a trier frag doesn't have to decline to use common sense if a defendant is engaged in a four minute conversation with ten is there anything and again i maybe i missed anything in this record that indicates when these texts were deleted with reference to the timeframe of the accident no your honor but it would can we take that action or that fact as well though it may be it hasn't been decided that way in the case yet but the fact that the officer didn't delete them and the only other person who had control of the phone was the defendant that that might be some evidence of his concern or guilt concerning using the phone or using the text yes your honor i think yes obviously in the digital age now but it wouldn't be much different than disposing of any other evidence or flight evidencing a consciousness of guilt you know if the defendant was to be believed that he put the phone down half a mile from the collision and he's looking at a clipboard one would think it would on your mind to delete the text messages on the way to the hospital where that you're actually engaged in the conversation during the pleasure and you might you know if you think the leaving the text messages might be beneficial to the investigation from and once again the judge heard all of these things absolutely are and you know defendant does a pretty good job of isolating all the evidence you know if you just look at the text transcript if you just look at the reconstruction if you just look at the consciousness of guilt none of those independently are going to prove a defendant's guilt but when you put them all together you have really four or five pieces of strong evidence all linking up and all telling the same story the defendant was using a cell phone in the moments essentially they're pretty circumstantial correct other than maybe mr daniels relating to this is the timing that i recall most of it then is circumstantial yes  of confirming that information and then you have the reconstruction which really places in context what was going on with the vin defendant vehicle how fast it was growing whether there was any breaking so it is a large part  circumstantial case but it's a very strong one that tha the accident that that i think typifies the state's case in terms of imprecision when you talk about a possibility of a range of one to two minutes you're talking about a mile from the from the accident scene and that certainly raises questions about reasonable doubt when the entire takes turns of precise timing the evidence as to be similar and i am trying to recall i case that we have a precise time when something occurred other than when we have for better or for worse an admission from the defendant that's not required the state is not required to provide that provide precision in fact in certain child sexual abuse cases it just has to be within a general range of mon years so i don't understand where you're getting this issue that there has to be this this perception in this particular case and i guess if you can give me a case i'll certainly look at it well that's that's a think this will be one of the st cases on these types of issues i certainly haven't seen any but the but the precision is required by the nature of the statutory charge and by the fact i mean you that the state has to prove beyond a reasonable doubt that use the phone was the proximate cause of the accident isn't the jury entitled to give some serious consideration of the fact that the defendant deleted these tax dress that issues your st it's important to note that the trial judge here did not rely on the consciousness of guilt concept which the which the prosecution really pushed at him he said i am not relying on in my guilty verdict i'm not relying on anything that mr health bill they may have done after the accident so he didn't find it probative and i think that was that was correct because of the other facts in the record if mr del he was so intent on eliminating evidence of his text because he thought that's that shows that i was i was using my cell phone at the time of the accident the st thing he would have said to krystal daniels that night was gosh you got to get rid of all the text on your phone that we that we had today i got rid of mine you get rid of yours he didn't say that he didn't say that at all so it wasn't on his mind to try to get rid of this evidence and the state argued in the deleted they chose they were read so mr mr del had read them but he didn't delete them so they're looking straight at the police when they looked at his phone for the st time was crystal daniel's name and her phone number so there was there l unless the police would have deleted his messages which would make no sense at all who would have deleted them i don't think it's an issue about who deleted them here i think there's a rational in there's there is a deference to the trial judge who saw all the witnesses as really studied all the documents any any came to that conclusion which which to me was very striking that he would make that a point of his decision so there could be many reasons why someone believes tax after he read them if mister which had used it was looking for his clipboard when the accident occurred trying to hide evidence of his use the text messages would not have been a an issue for him so and his fear is decision not to delete those two final texts from crystal daniels i think speaks volumes he was not trying to hide the fact that he had text messages in fact her text messages if you look at him i was clearly referring to earlier text messages so the police looking at that would not have been  have you looked into the legislative history of the stand general i was not able to find any your honor and it would seem to mean i'm curious as to what the legislature intended by the phrase unlawful use focusing on the term use of a phone you seem to be arguing for interpretation that you should be confining the person actually in the act of texting in order to be guilty of the statute is that your position you know i would think if it could be proven which you can hear that he was doing something with his phone that distracted him and therefore caused the accident that would be sufficient well that could never really be directly proved couldn't i mean how well this is this is an unusual case that way you know it's a prosecutorial discretion as to why they chose this case the one of the st hundreds but they they had no eyewitness testimony they had no testimony from the defendant so they they really were pushed back on a technological case and so i think in this court's ruling it would be very important to give guidance to police departments on this important issue that you should have an expert in these communications ready to go when a serious case like this hi so we can examine the phone make sure it's reliable that the timing is accurate do testing of the nine hundred and eleven system to see how it coordinates with the the cell phone timing system alleviate all these these problems that we have now in the of degree and here i think it's a big leap to go from what the state actually presented in terms of the timing evidence to saying that mr galloway was was using his cell phone at the time of the accident i can  summarize you may do so yes i do know i think if it's a crucial case for this court to give guidance to prosecutors and courts throughout the state as to how this statute should be applied and i think the message here is it shouldn't be applied the way it was done in this case you really need expert testimony to resolve these questions if it shows that if the defendant could not have been using a cell phone at the time of the accident that's