my mind is that it's an issue that confirming it through the other issues that we've raised in this appeal so i asked the court to consider this case from an object of standard based on the record what do we have here we have a theft from an a t m machine two people clearly have access to the machine one is the defendant the defendant gets in a dispute with her employer and after being asked to apologize personally to the employer she resigns her position with obvious hard feelings between her and the company owner the company owner happens to be the sheriff's brother and the sheriff's job meaning they sell gasoline to the sheriff's gas station that he owns all of the sudden in about a week or a few days afterwards money's determined to be missing and it's being investigated n the the defendant says to the investigator that the machine malfunctions and i reported it several times it was to say she is arrested the physical evidence in this case your iras consisted of three pieces of physical evidence of that what we want to call one of them is records that are transmitted from the a t m machine over the internet to what i guess i'm going to refer to as the cloud some giant mainframe computer system that is the tail where the money's being  the other bit of physical evidence is printouts that i must i would so similar to what we get when we go to an a t m machine they're printed out we slip in our pocket we know what our balances that's the second the third item of physical evidence this case was the machine itself specifically the dispenser that dispenser is a part of the machine as you might imagine spits the money out and if that thing's malfunctioning because this machine is so unique what it is you're not going to get a lot of people complaining depending on which way it's malfunctioning two weeks after resigning two to three weeks after resigning my recollection is correct two of the three items of physical evidence are on at the time of the trial we have a summary of the records that were contained in the cloud but those details when they're called because it malfunctioned obviously but it's nowhere out so we have no ability here to examine this machine and it's found in the record on page four fifty six now it's also interesting when we look at the facts in this case there is testimony at the record on two twenty seven the two twenty eight by the state's expert that this company had paid out of the past because of the sponsors consistent with what the defendant in this case was saying it's a very important point i would also submit in this case if we are going to look at the balance of evidence aspect of it what i ask you to look at there's two people with access to it but gentleman's name is see right and he's the manager and billy max's the worker the other person that have access to it the and i do respectfully submit to the prosecute counsel for the prosecution if there is one fact on this record they would indicate that billie may ask had more or different types of access or any evidence that indicated outside of what the same evidence would be against seabright there isn't it's exactly the same evidence this case boils down to the a t m machine someone's the firm and with the missing evidence that sixty thousand plus dollars are stock and that's the end of it even though these two individuals stand in perfect equal standing as to having the ability to take things out of this machine no one sees anyone take money out no one does a cash on of either agency in this case and i mean no disrespect to anyone but there could have been a potential bias in the investigation of this case i have to put it in the simplest terms and i would ask you if someone has a problem with your brother do they have a problem with you and that's what we have in this particular case you had an individual employer who had been asked to apologize to the boss and she said no there's no reason for me to apologize so in our estimation we submit that the the evidence is fairly close in this case and getting on to the remaining articles i guess to the take in consideration as it goes to the heart of hearts argument before a step not a phrase that necessarily would automatically raise not at all in someone's mi say hey you know what do you mean a heart of hearts that's not it doesn't seem to be in family inflammatory in any way but in this particular context i would submit to the court it does raise the standard what it would have made a difference to the jury there's no question that this phrase heart of hearts directs itself more to the emotional than to the logical but maybe really the context is the key not the phrase and i asked the court to indulge me for a moment phrase number one when you weigh the evidence and you apply your common sense and your life experience you'll know in your heart of hearts that we have we all know better second that compared to this we all know better in our heart of hearts exactly what went on and when you know inside your heart of hearts you know we have met your burden of proving billy maps guilty beyond a reasonable doubt and we don't have to show where she spent the money we don't have to show where she brought the car we don't have to show that she brought a wardrobe we don't have to show up showing that she brought any of that stuff so in the context of what was presented it's really being presented a this case is used the heart to make decision and don't worry about the evidence we don't have to prove it in essence beyond a reasonable doubt is change from a focus on the quantity and the quality of the evidence to  feeling without regard to what may or may not have been proven and this in that regards your honour's that i submit that that particular argument in this context raised to the level of more especially in the absence of the evidence in this case  in our brief but it's unique because i have to say this if i didn't put in the record your honor i would be waiving my argument about the state waiving its argument regarding away from i apologize directly or has that made this transcript up but that's the truth but the bottom line here is that this state made no argument on the motion for new trial either the original or the supplemental on the issue of waiver of objection so i guess and i thought to myself does the standard that the defendant has hold to the state doesn't the state at the waive rate raise waiver at the hearing for a motion for a new trial or is it waived when he goes further than that and mr ellis makes an interesting move on page eighty nine eight forty nine of the record and i believe this may have transcript and testimony of the original trial incorporates it all into the motion for a new trial now i'll leave it to this court's judgment what effect that may or not have had them we would urge the court that that possibly open the door and release the waiver argument why would we need to incorporate all of that evidence and i don't motion for new trial by way of judicial notice and that would mean in my mind as if it was present during the trial will allow me to proceed this is an issue that kind of permeates the entire case as i would submit from start to finish but i would ask the court i think we can boil down the issues in this case and i despise the special prosecutor she goes to asking ourselves just a few questions and the first is is this should this sheriff be investigating crimes where his brother is the victim secondly should the sheriff be investigating crimes where the victim's company has a financial relationship with his private business and that relationship can have a financial impact on him thirdly there's the two facts taken together result in the appearance that a conflict may really abayas would be the best answer  have existed now this is where i think it goes for if the sheriff not being a lawyer has to make the decision to decide you know should i be doing these cases i mean this is my brother's company  idiotic he goes prosecutor he goes to the state's attorney his lawyer to advise him is that whether he would have a conflict or not in the case law in this regard is your honour's well no it's not about the integrity of an individual in the system the special prosecutor rules involve the integrity of the entire judicial system and that would of course incorporate any sheriff's office if it would be in this case so what we're alleging in this particular case if you look at it up the whole things we start to finish we have a financial relationship between these two individuals we have a family relationship between these two individuals we also have a different department that should have been investigating this case that was not that was actually transferred into the conflict so my suggestion to the court would be that in this particular instance it would have been proper to make a motion for a special prosecutor to look at it to raise the issue because of where these are multi user is we've got an effective assistance lead in here t required to make that decision or he could have simply sat let's give it a special prosecutor and let him make a decision because the point would be a special prosecutor may actually look at it say that's trivial and i state police in here or let's let's do something different let's preserve the  dispenser for example let's preserve our document those records that were destroyed in the fall what i'm saying is you know judge you can't get a special investigator is your honor well knology you can't you know something about the sheriff's department the only recourse in this the defendant might have would be to seek the appointment of a special prosecutor and then have that person globally review it as far as the investigative force and all the other things involved it's that would be my answer to your question  general question of law that the court is confronted with in this particular case is it in effect if not to document your sidebars if you're a trial lawyer i will be honest with the court and say i didn't notice any of the objections to be kind of devastatingly against defendant in this case but the sidebars were not documented and i want to say that's regardless the lawyers all know what's going on to judge almost what's going on we can put faith in that they're battling their sides and they will their jobs but here's another problem that th of the expert i have to say to the court i mean it's so easy and it's not it is so easy to look back as of monday morning quarterback and look at other people's work what should have been different but the expert is important they had an expert that said that the ready to testify that this you don't review the machine you cannot tell if it's the stenson now miss navarro decided not to call that witness but that witness was was so important for multiple reasons pretrial motions if expanded it into a class type situation and thirdly the expert could have been used just simply to attack the state's expert to say as i said earlier you have to look at that spencer in order to see if it was dispensing improperly and there was evidence in the argument specifically i would argue as presented in the brief and heaping in mind that favorable standard for the prosecution the college standard there is zero evidence your honour's that mr seabright took the money to put him in here is truly a red herring turning to the issues in the order they were raised in the brief not in the or in the recent brief after i'd discussed one more thing about reasonable doubt i've told you how cursed the evidence was indeed in our reef in argument one i set out the evidence in more detail simply stated there was no way sixty four thousand plus was lost because the machine might have that asian only over dispensed over dispensed sixty four thousand argument you know the off point here is as i do the two projects in my brief i won't bore you with more of that at trial the prosecutor says great latitude in osing argument that then it would give him very minor latitude there was no new trial because prove the defendant guilty beyond a reasonable doubt that was said by the judge and by the prosecutor in his argument the argument was proper in of itself it did not attempt to define reasonable doubt it did not attempt to minimize reasonable said in explaining that the people did not have to prove what the defendant did with the money it was invited by defensible scum defense counsel's argument that he made and i suppose i may well have made it to that nothing showed the defendant spending beyond her me the prosecutor pointed out a that's not part of our bird he was just saying the high burden of proof beyond a reasonable doubt he said it was i've heard has been met i've discussed with you already why the evidence was not closely balanced in my brief in my comments here today and to the state's attorney's reelection campaign runty county after a conviction is meaningless it's a small county everybody knows we're going to county isn't sizes businesses often contribute to a local state's attorney's campaign that  here in saying you should visit her special prosecutor is for policy one should not be able to steal from a victim who has a relationship with the sheriff and then prickly preclude rather the main prosecutor the prosecutor most zero in the records of course ineffective assistance of counsel and not making a record of sidebars again is why are there could not there was no need for a special prosecutor there could have been ineffective assistance by definition in that regard the mob ineffective assistance your honour's all the stricken standards set out my brief i won't bore you with it again regarding the back side bars the defendant suggests that there was suggests no where he doesn't mention any or that would have been put before this court had there been sidebars this is no error that occurred in the sidebars it was not brought out the defendant did not attempt to make a bystander's report were to read statement of facts perhaps with the help of the prosecutor together to come up with what went on in the defendant's responsibility to present a sufficient record also clearly there was no we're here based on what counsel himself said when questioned about this he said it was his practice to make a sidebar record if there was an issue necessary to preserve on the it was a strategic choice as counsel explained mr navarro not to have an expert witness regarding the a t m even the defendant herself testified that the proposed expert told counsel that the paper trail of numbers was accurate but just without seeing the a t m there was no way to state without a doubt exactly what was meant by a faulty dispensing that's all she said to defend dan said the expert agreed the last was sixty four thousand plus that's the same as the people's life or mine or yours you cannot see white house all could decide this is my expert no way am i putting her on the city and there's certainly enough there to make his decision on that point bank records she got all she asked for to do her investigation he said that if called she would not have said that witnesses actually seen this a t m that without i'm sorry she would not have said that with out actually seen the a t m it would not be possible for one to determine whether or not it improper with this man's money she would not accept that it was never an absolute requirement with the expert that the expert view the machine stated opinion he chose not to call her as she was not favoring this is all his testimony i'm wagering he said the defendant told him someone once received one or two twenty dollars twenty's and he called them more than they should have got from the a t m but that can be verified the dispenser by the time of trial is not the same condition as when the defendant were there he asked many times of the defendant if more than one person said he got extra money from the a t m and no one he he stated as no one no one could recall that happening the judge hearing the matter found that counsel did not call this expert and she was not helpful to your honor's that was obviously in my humble opinion the correct result but in any event under the standards strict it was a reasonable result it was a strategic choice councils and title to me it made the judge those that council did a good job he simply made a strategic decision which he should  department which we submitted a potential bias directed at her and all the guns were pointed in that direction hence the way it went in the very beginning and that's i think it's part of the issue in this case as far as the expert witness is concerned i do want to note one last thing to the court and that is accurate he says the paper trail passed back yes and they had a mock karate for the numbers terry figured out he asked and she indicated the idea that she could not address was the issue of whether there was a fault in discussing because i don't know where it is she wouldn't if she didn't but all i know is this they dispense his money occasionally over that's all i know and i made complaints about the complaints were verified but a choice was made the choice was simply made by this the partment the machine is working properly and this is in the states brief i think on page nine to make sure that the machines working properly and the third reason for doing the audits the balancing is to see if anyone saw think about those three things so if something's wrong it's either something's wrong with the machine or somebody stole it it's one or the other and based on the facts in this case you can't tell which one it is and you also can't tell which one of the two because there's no evidence pointing the finger   the how closely balance these facts really work and i should thank you for listening this afternoon