about six weeks the charge alleged that the the guy the expectations are taken quote during a continuous course of conduct unquote instead of the required quote in furtherance of a single intentional design and core element of the case went to a stipulated bench trial all this all the evidence came in by situation defendant presented no evidence at all centrally the evidence was that mr all would take his need to take games home like taking home if you like that the games are individually worth anywhere between eighteen and just under fifty dollars apiece and apparently occasionally paid for a game counsel at the stipulated bench trial argued correctly that the continuous course of conduct language contained in the charge wasn't anywhere in the section didn't didn't properly aggregate anything it did it wasn't a proud element in that all the stated proven misdemeanors no one you know what you know the state may had no response to this you know on the on the legal sufficien charge and the court took the case under advisement the court then rendered a verdict finding if any guilty of a felony without any discussion of the problem with the state's charge council then files a post trial motion a motion to rest a judgment will be denied and that's a quote no case lies yet been cited on the supporting proposition that you can you can stick turn a continuous course of conduct in as a substitute for further it's of single attention to design i believe  is required in this case mr i'll continue currently stands convicted of a felony and a case where the state improperly charge that felony the trier of fact never applied the proper aggregating element to the actual controversial part of the case design and i think it's very clear that it's an element the appellate court here even agreed though finding lack of prejudice which i'll get to in a moment agreed that the the the charge was deficient and that single intentional design is not stated by during continuous course of conduct because counsel did not make this did not make this challenge pretrial it's under the prejudiced standard quadro which is that a charge is sufficient though insufficient even though any deficiencies overcome or reversals are required if at a price the key is the offense charged with sufficient specificity compares defense in this case the prejudice was well there were several aspects to it the improperly charge element to the heart of the case this was an uncontested aspect of it but this went to what counsel was trying to argue about whether this was a felony or series of mr meters there's no mention of the proper element in trial in fact the judge never applies this never once you know says counsel you know you're right and i considered that and i and i find this really wasn't for those of single intentions i despite the fact the state didn't charge it there was no acknowledgement that there was any mistake by the court and when the court says  best part of it also well i think that's the ultimate prejudice your honor and i realize it doesn't go to counsel i mean i also counsel didn't because of this the element is not in the charge and in fact the only it would not be found in the retail theft statute cited in the state's charge so counsel didn't even have the proper standard to argue at trial because it wasn't in the charge and it would have been found there and then on top of that well it doesn't it isn't it isn't exactly the defendant's the fed his ability to present defen the error goes so far that the court doesn't even apply it which i think is even worse than the defense counsel not being able to argue with the proper element is that that distinguishes felony from misdemeanor i mentioned in my excuse me because unlike this case the record there show the counselor had actual knowledge of the proper element there i believe the state had the charges and solicited rather than the required element of procured but counsel actually argued and this was not in furtherance of a single intention design i found the state's mistake he says i don't know what the stern of course conduct is that isn't anything that i'm that applies to retail theft at this point there are no further questions i'll stand on the with your honor the afternoon may please the court i'm assistant attorney general eric levin on behalf of the people i think i will start where opposing counsel just left off where he is discussing the fact that or as he alleges the trial court never actually found a single intention and design element at first i think i should point out that i don't think that issue framed that way was fairly raised in to defend its opening brief the defendant in his opening brief argued first that the evidence was insufficient to find the single intention and design element and he argued secondly that the information was insufficient and that therefore under the prejudiced standard he was entitled to relief on the grounds that the errors in the information prejudices ability to raise a defense and we trust both of those issues in our brief pointing out one that the typical jackson standard for sufficiency of the evidence applies to this case and under that standard the evidence here clearly was deficient and second we point out that under the quadro standard he would have he has to show some way in which the not you have to show more simply more than simply that the information was not strictly in compliance with the law or in some way technically incorrect but he has to show that the errors in the information the information was so imprecise that it did not alert him to the precise offense with which he was charged which was it was clear to the parties that they were he was the defender has been charged with felony retail theft which is retail theft of property and in excess of one hundred fifty dollars and that in order to prove that the state was attempting to aggregate those charges to defend  argument at trial was that they had not linked these up they had not this was nothing more than a bunch of misdemeanors it was not a felony and is opposing counsel pointed out the defense counsel was aware that time that continuing course of conduct was not the technical language but he did not he did not point out at that time that it was what the correct language was i think about three weeks later after the guilty finding he filed the post trial motion where at that time he does point out that single intentional design is the correct language and he rejected the post trial motion which i think is a clear indication that the trial court said i did consider that and it was fine he said he rejected the argument that the evidence was insufficient and he rejected the argument that the defense was correctly that presumption is only rebutted when there's affirmative material in the record to demonstrate otherwise here we this is not a case where the trial court himself affirmatively misstated the element the trial court didn't say i found that this that your actions were as part of a continuing course of conduct the only statement we do have in the trial court is the rejection of the post trial motion which seems to me to indicate that he either recognize one that i did find that or that essentially these standards are the same and my finding of a continuing course of conduct necessarily as a finding that these acts were done in further for that's a single intention design  here that was also included in some of his statements that were stipulated to in addition to taking games home from his own personal use the fifteen games that he's charged with stealing he was also accused of not technically accused but you know all this came to light initially when the when the electronics boutique discovered that he was sort of selling games under the table and pocketing the money for himself so in that respect i believe the record indicated that his intention for doing that course of conduct was his desire for money his intention for the charged conduct was his desire to take these games home first personal use which he did with each game which what's the standard review this is the standard of review for the sufficiency of the of the evidence is the traditional jackson standard even in light of the fact still yet just because the defense counsel argues that all of the facts were undisputed and that's not the case the basic underlying facts were undisputed that he took the fifteen games but the ultimate factual question in this case was whether or not those basic facts could lead to the further court says that it's it's the trial it is the fact finders responsibility to resolve conflicts in the testimony to weigh the evidence and to draw reasonable inferences from basic facts the ultimate facts and that's precisely what yes that's that that's correct the ultimate fact is the finding of law as to what those facts say no i disagree with that the white well let me put it this way why is the trial court in a better position to make that conclusion that the facts in question were the result of a single intention and design and why is that why is a trial court better able to do that than we are looking at precisely the same facts t necessarily many worse off position to make the factual in france but the case last clear that those factual inferences are things that are delegated to the trial courts to make in the people of the suit as this court in defining what inference is says that an in not a case involving a one hundred percent stipulated well technically this was not a one hundred percent stipulated trial all of the evidence the state presented was by stipulation but there was a key disputed factual issue which is whether or not these seemingly otherwise disparate acts were all a single act that's some might say that's a question of law where brown is here says that the single intentional design element is a question of  it was it was i would agree that it was technically deficient if this had been a case where the defendant pretrial had moved to quash the information on the grounds it did not strictly comply with section one eleven dash three he most likely would have would have won he could have said that you know these and this is not in strict compliance but the question here he has to prove prejudice under quadrata he and the defendant does not i don't think the defendant has contested the fact that the trial court did find that all of these acts were done during a continuing course of conduct and he hasn't really contested the fact the evidence was sufficient to show that the question then is how different are those two standards is there something he could have done differently had the information used the phrase trusting the single the single intensive design well he says the information the evidence was insufficient to find that fact but he hasn't explained how evidence that would be sufficient to find during the continuing course of conduct would be insufficient to find single touch and design and i think a good way to to look at this is he defendant says that during a continued course of conduct just relates the conduct or actions whereas a single intentional design is a mental state and he takes that that's just from the third district decision and honorable there's no other case law defining that as a mental state but i think the correct way to look at both of these elements is a way that to link up otherwise discreet conduct in essence to say that to say that otherwise separate actions were all part of a continuing course of conduct is to say that each one of those constituent acts was done with the same intention and following the same design which is why the state in this case could have aggregated all of the facts by way of selling games under the table pocketing the money with the thoughts which were by way of taking games home for personal use those reach done for different intention and by different design each of these acts of taking within a span of i think forty one days he took home fifteen games which is a you know century maybe one game every third day he would take a game home for his own personal use his modus operandi was the same intention was the same defense counsel argues that the intention was somehow different it was each one was just an impostor i want to take this game home but i think that's looking at it you know with the intention in each case was to take home a game for your own personal use i don't think there would be any requirement that each game had to be the exact same game so in this case had this been a jury trial and the charge been just it is now if this was done during a continuing course of conduct and had the jury been properly instructed that that was one of the elements that they were going that this action stand yes it could as your honor the situation you mentioned is the situation for meter versus united states it's actually a it's it's actually a better situation from the people standpoint in either versus united states if the jury is never asked to find whether this was done in furtherance of a single this is a case is suppose this isn't a jury trial this is a case where we wouldn't even say that the jury had been had not been instructed at all on the aggregation element but that they didn't miss and structed which the united states supreme court in  analyze it too and again i would point out that i don't believe this was raised in defendant's opening brief but in any event i believe that it would deprive standard to apply would be needed versus united states the people would have to demonstrate that beyond a reasonable doubt misson struction on the element did not contribute to the verdict and in that case i think where the defendant is not shown how how is reasonable to say that a trial court or a fact finder could find that all of these disparate acts were done during the continuing course of conduct but then at the same time that trial court were not necessarily find that each one of those constituent acts was done in furtherance of the same intention and design i think for all practical purposes there's really no difference between those  briefly if there are no further questions on that issue i'd like to briefly address the stipulations issue i think that issue is clearly foreclosed by this court's decisions and both campbell and phillips which clearly say that are required is where the state's entire case is presented by stipulation and the defendant does not present or preserve a defense i think i think that's clear now especially after campbell that that was the whole especially after  games and then from there the parties argued the ultimate factual issue which was what was the evidence presented by someone other than that there was no evidence presented by somebody other than the state but that doesn't mean the defendant can present or preserve a defense other than by putting on testimony or evidence his his defense was one of the most basic defenses that a defendant can put on is which is that i agree with you know this i've been if the state is presented but under that evidence you haven't shown the key factual thing that you have to show evidence argument that well that was argued but that's a defense that was his defense there is there's really no way to make that defense by presenting it in this case  proceeded believing they had a felony and exactly and the misdemeanor wasn't charged so the defendant's argument is i'm not guilty of this felony and that's why we can see that from his closing argument i just want to point out that i think defendants argument here is trying to make an end run around strickland the proper way that she you challenge your counsel's tactical or strategic decisions is to allege that it was ineffective assistance of counsel and even the  alleged in what way that was deficient what counsel could have done to challenge those undisputed facts or how he was prejudiced by the failure to challenge those facts and  defense which this court is clearly held in philips is the only time other admonishments are required here because the defendant did present and preserve a defense this was not the functionally equivalent of a guilty plea i think by looking at this court's language especially in campbell the right to confrontation was a personal right that can only be waived after admonished once in the court held that that's not the case and then from there i think the i think i think this is important the court was concerned with situations where stipulations actually are not tactical or strategic decisions but actually amount to a guilty plea and that's if you look at the for the stick on the on the first prong that that the stipulation is that the evidence is sufficient to convict that came from horton and it's now been incorporated in ru for to the second prong that all of the state's case is presented by stipulation and the defendant is not present to preserve the defense this court seemed to look to burckhardt the janice the u s supreme court case where the court talked about how in that case it was just a trial where there was no real contesting of guilt again something that's the functionally equivalent of a guilty plea which would require admonishment here that's simply not the case this there was a vigorous contesting of the defendant not by contesting the basic underlying facts which there was really nothing to contest but contesting what further factual inferences could be drawn from that and if there was any problem with that the correct way to deal with that problem is through strickland i see my time is up  of an offense especially when the missing element relates to the main issue at trial guilty of a felony or guilt of a misdemeanor i did raise it in my brief however the state has not raised in its brief its and its argument now the oral argument that no difference between continuing a course of conduct and and single intention to design it didn't take the it didn't make any argument the appellate court was wrong which you would have had to to make that argument in fighting the the deficient it didn't make any argument that these two phrases are synonymous i mean single intentional design even has the word intent in it the third district is absolutely correct that it describes a mental state course of conduct plainly describes a course of conduct  recall there may even be an ip i instruction on knowledge which defines knowledge in two separate ways either like as a matter of what the person's intentions were or wanted to whether it describes their conduct they are two different things they're not s the state hasn't shown how again the judge here never considered this is an this is an important fact the judge never considered the appropriate element and applied it it was never mentioned it trial counsel even correctly points out that during a course of conduct doesn't charge anything judge just finds the guy guilty when counsel presents it the judge doesn't say you're right as a reasonable judge would your right i write but i could well i consider that it just says you know i looked at that you're wrong this denial of the motion means it didn't agree with the fence counsel because the labor the standard of review is she run it by your honor you know it seems to me that where you have a stipulation where all the all the facts are stipulated and were defense counsel in fact gets up in trial and says you know your honor the facts really aren't in dispute here the state didn't call him on it no one called him on it it's only now when it makes a difference to the standard of review that we want to say to try and conflate a legal inference you know with a  words plain that is sufficiency of the evidence review that this court is undertaking and the second reason is that as i pointed out in my more in more detail my reply brief jackson presupposes the jackson versus virginia deferential standard presupposes a properly instructed trier of fact and here we don't have that the proper element is not alleged it's not mentioned at trial it's not mentioned at the verdict it's not mentioned to the post trial motion and the judge doesn't even admit there's anything wrong doesn't even say you know what you're right defense counsel but i consider that when i did my very good i reconsider that or let's start over again or something just know you're wrong as for the state's reliance on meter it's completely an app is it needed or involved the u s supreme court case on harmless error where there's a missing element opposite as for counsel's remarks about an end run around strickland essentially the way i saw this issue was that it was the state's fault for not actually putting the correct language in the indictment in the first place and they chose to frame the issue that way i didn't believe it was defense counsel's fa defense counsel even correctly pointed out during the trial you know that it is a story of course of conduct and this doesn't charge anything i don't believe that by trying to reframe the issue as a strickland issue to to to have that standard apply phillips also like like campbell involved a mix of live testimony and stipulation and so i believe it's just some short simple admin admonishment your counsel has wonder stipulate not to stimulate all the evidence in advance do you agree to the stipulation knowing that by doing so you waive your right to be confronted with the state's witnesses and to cross examine them yes and there are no there's your loser on the record waiver it doesn't take much it doesn't take much time and that's all you'd need any furthe