seventeen years which is ten years above what the maximum for the offense would have been without buying our body armor elevated from a class to a special class x with  say that i don't know what i was thinking when i wrote in the brief as an alternative form of route relief that it should be sent back for a new trial i don't know what i was thinking over there really years since there was no evidence without any foundation since that opinion should have been excluded there would have been no evidence at all ciro that this thing was capable of functioning as a book proof vest what about  your body armor it was the level said it was made by the american body armor company but one of my colleagues reminded me that there's a company that makes underwear that's called under armor reasonable to infer from then that it probably was by no your honor it's reasonable to infer from the mr richardson thought it was by your arm or perhaps reasonable to infer from the policeman's testimony that he thought that what he was wearing  was body armor but the question here and from the label but the question here is really was it actually body armor within the meaning of the statute because for example in drug statute the legislature thought it was necessary has a look alike statute it's not sufficient that the stuff is white power that looks like a controlled substance it actually has to actually be the controlled substance brings us because there are too many items out there too many different substances that may be mistaken for cocaine or some other controlled substance and i personally think that it and why did they have to look at the statute as a whole and see the intent of the legislature in order to avoid being silly all over definitions refer to the material of the thing cattle are or similar material to the defendant's guilt beyond a reasonable doubt and it was not a necessary part of the state's case to prove the pistols were loaded with bullets containing a fiery had all been barrels or were otherwise you know offered to inoperable condition they i've seen pictures of it it's it's lightweight and flexible i understand it looks like a fabric really we know that counterfeit have learned sold because  the stuff is expensive and so if stuff is expensive just like with the drugs it's going to people get in the business of selling cheap stuff as as the real thing and as i argued in the in the brief it's serious enough that  there is legislation introduced in the senate because they are calling the soft on our soldiers and these people soldiers know that their lives are going to depend on it they are certainly familiar with bulletproof materials something that an ordinary person like a god i'd recognize a god you're not an ordinary person we don't see the other day we don't see it or we don't see it every day now the police officer did ok so if the police officer who did and we want to qualify who is an expert i would have perhaps a different argument but it's not clear even for the need to make today because he was not qualified as an expert and the judge even said making it explicit on the record might arrive that this officer had not been qualified as an expert so for him to offer an opinion his opinion has to be on something that anybody any moral person of normal experience would know and if cattle are something you have to be a police officer to wear it every day and be really familiar notice feels a little too slippery or a corner or something like that that you no if you were really familiar with the stuff a shirt now an expert testimony is necessary when the testimony is within the witnesses qualifications and experiences and beyond qualifications and experiences of the average her sorry so i think that pass the fish and because nothing in section two i understand that there needs to be some purpose it wouldn't be a tissue that would just be silly i agree with counsel but we don't have that here in the states we don't have to fend barking down the street and broad daylight wearing a bubble fast from the get out with a gun in titian in his pocket what we have is somebody in a trench coat with a weapon and what was found to be  customer that in other words if they were allowed to take it back into the jury correct was there any indication as to whether or not they attempted only just oh your honor that they didn't need to read or it didn't it how did it get to that during the pretrial motions when the state said that it would offer that it would bring in officers to testify about the firearm or defense attorney objected and said not unless we qualify or i would like to qualify the officers as experts in the trial judge that they don't need to be experts and jury back from the trial motion the prosecutor did point the judge to the or started to the relevant section body armor statute which was section two and the judge was aware of what exactly needed to be proven under section two and i think i can think of a situation where we would so this would have to have the police officers not refer to him and somebody on the ultimate issue and the judge said no i'm not going to grant because the state would be entitled to attempt the second time around since the evidence that are proffered was considered inappropriate to present appropriate evidence you know i'm not sure i understand your point about goes back to the status given at that juncture of the opportunity to present an expert and if they don't then maybe if the trial judge finds the defendant guilty and come back up here maybe the law case will say no  failed maybe the second time around so maybe either we give you a third chance or we don't give you a chance but the point is that so long as there's a problem with the evidence that's presented and there could be evidence that is presented then use claiming there is because an expert could testify as to whether or not this is or isn't kept right then the state would be given the opportunity to do that so if in fact he when he goes back for a retrial state's expert testified that the pills the food they look just like doesn't it and the court said that's not enough the state could have tested these things and what did they do they reversed they reversed th and the defense have an opportunity to present their arguments for a trial court that says we don't need an expert to prove this all the state goes forward twice a case that's different than the failure of the state during the course of trial to prove an element state attempted to qualify it officer can see you know it hasn't as an expert and the defense objected and said he was never what this is the first we're hearing this he was never disclosed to discovery