this obligation includes knowledge of the law and criminal procedure as it pertains to all our specs of the case as this knowledge informs all decisions made during the trial in this case trial counsel's failure to understand that a motion for directed verdict on a failure of proof for a critical element of the charge would most likely result in the state's ability to fix their error was a mistake that caused serious harm to the smith when the state brings a charge of delivery of a controlled substance with ten thousand feet of a church to the facts that must be proven or that the church the building was in use as a church on the date in question in this case the state was twice given the opportunity to prove this element and failed first the same state presented the evidence of officer hockaday to prove that the building at twelve twenty two east grand street was a church how c testimony only related to his actions on november first two thousand and ten when he measured the distance between twelve twenty two grand street and the spot of the alleged drug transaction he took no pictures or documented anything about the building and did not even remember the name of the church you know addition to the fact that this occurred on november first two thousand and ten and the date of feel edge drug transaction was august twelfth two thousand and nine following the close of the state's case defense attorney filed a motion for directed verdict arguing that the state has failed to prove that the building was in use as a church on august twelfth two thousand and n trial court has incredibly wide discretion to allow the state to reopen its proof on l any element of the so the state closes its case defense counsel then present his case closing arguments goes to the jury at that point if the jury returns a version of guilt defense counsel files post trial motions alleging that the state failed to prove that the building was in use the church on the  this defense counsel is not obligated to file a drug a motion for directed verdict no because the issue is simply that the state didn't present sufficient evidence to prove the charge i mean that that is the issue we regularly have situations where we raise on appeal that the state has not presented the evidence on a particular charge and in this case that evidence would be in the building was in use as a church on august twelfth two thousand and nine it's clear that the court agreed with defense counsel because the court asked do you believe that there was any testimony as to whether or not it existed as a church on the date in question this question was posed to the state the answer to which is no there was no testimony on that on that fact so as a result the state reopened its case and presented the of the testimony of officer hale officer hale was a patrol officer in that neighborhood from two thousand and five to two thousand and ten he testified to that fact and testified that he was familiar with the property at twelve twenty two miscreants street and identified it as a fellowship missionary baptist church but officer hill also testified that  sometime between two thousand and five and two thousand and nine the use of the building changed it went from an old school to a church he did not know what date that occurred on he just knew it happened sometime in that time period he also testif that it was a church on august twelfth two thousand and nine but he couldn't be absolutely positive about that he didn't remember going there on that date he had no documentation so he was not sure at what time between two thousand and five and two thousand and nine the building changed use you just know you just knew that it did now again it's the state's burden to prove that the building at issue was a church was in use as a church on the date in question now two thousand and nine continues for another four  months after august twelfth two thousand and nine so the the building may indeed have changed use during that time but we don't know when what if it what if that occurred on september fifteenth the state did not  this case is different than people versus sims which is another case of this court where this court found that the police officers testimony was sufficient to sustain that element that the building and in question was a church the difference here is that there is this factual question as to when it went from being a school an old school to a church and there's no evidence on this error with any smith's case is not the only current trial in addition the trial court aired when it allowed the state to present unsubstantiated other crimes evidence at trial as evidence of identity of any smell the evidence in question was allowing the confidential informant teresa william smith to testify that she had purchased drugs from eddie smith in the past and after many discussions between a trial court in the state where the trial court said i need a little more information about this all the state could come up with was the information supplied for the over here application and that was and i had joe advised that pat had purchased crack cocaine from at least smith approximately ten to fifteen times over the past six allegation is simply too unsubstantiated to be admitted as other crimes of other crimes evidence need not be proven beyond a reasonable doubt prior to admission to trial but it must be more than a  as this court has stated the measure of proof that the defendant is guilty of the other crime has been variously described ranging from so sufficient to support a finding by the jury to a preponderance of the evidence to substantial to clear and convincing level of clear and convincing substantial or preponderance of evidence those are absolutely no facts to back up this allegation the trial court further abused its discretion when it found that this evidence was more probative th prejudicial the main theory of defense of the case was that the person on the video facilitating some sort of exchange was not ready smith so identity was clearly an issue in the case however trees away and smith had personally know as a family friend for five or more years that evidence was certainly relevant and probative on the issue of identity in contrast to the bare bones propensities testimony that teresa had purchased cocaine from the past under a balancing test the testimony that teresa william smith had previously purchased drugs from eddie is much more probative on the issue of eddie's propensity to sell drugs than that theresa knew who eddie was where she also testified that she had known him for about five years and this evidence was far more prejudicial than probative this evidence would not come in under a theory of design either which is alluded to or common or modus operandi or essentially theory of design which the state alludes to in its brief both people versus coal and people versus davis involved a tremendous amount of information and facts about the transactions which occurred in each of those cases and we simply don't have that here we have no idea what the design is we have very little information if this court has no further questions we would ask this court to vacate at least miss conviction and sentence based upon insufficient persuasive because the issue their words how tenuous the in princes were in that case the the fact that the victim was ultimately stabbed and that was that minute his other crimes evidence without any actual proof that the people denied that they had committed stabbing so therefore they were there was only a mere suspicion that think gold was responsible for the stabbing and therefore that other kind of evidence was improper prevented in that case but in this case however the  witness the informant witnessed resul william smith had possibly testified directly that she had she said that the defendant had in fact a liver of her cocaine on multiple prior also the other requirement is that they have has to be relevant other than for penske there are two forms of relevance although the trial court admitted it only for the purpose of being relevant to bolster the identity i of the defendant there was an additional element of relevance under the cold case which is to explain the otherwise unrealistic ease that which the informant can complete requesting complete of purchased cocaine from the defendant and so when the when the witness calls up the defendant and says can i have a hundred and shows up later and and after a very simple transaction walks away with six bags of cocaine for a hundred dollars it's definitely relevant show i knew the defendant i knew the defendant well enough to recognize the voice why do you have to go into the fact that oh yeah he also sold me cocaine which is exactly the crime that he's being charged with now well it's still probative for identification because to say that to be limited only to the fact that they were that she was a family friend of his for so many years doesn't put any of their interactions in any sort of context and so at this time of her scuse me this evidence however proves the identification much more strongly in a case where the main fence was misidentification of the accused based on whether his tattoos were that he says he had at the time were reflected in the video i'm so in this case the state should not be limited to simply just one form of proof of identification or bolstering the witness identification in the form of just simple information that she she knew the defendant already and in the form being  prejudicial but the fact is that there are ways this is actually probably puts up a school really it is very traditional but except for the fact that the courts do recognize that limiting instructions here which were provided to the jury substantially verified the information he provided to probation officer and the other half of them would be if that had been independently verified with the helpful to the then it would have been stronger but it's disregarding not fact there was all to lease proof beyond a reasonable doubt of the required element that this was within thousand feet it was i think about four hundred measured the the real dispute was whether it was in use the beach as a church on the day of the fence august twelfth two thousand i think there was a reference to hale says it was had been a church for some period prior to august twelfth two thousand and nine that's with respect to brother he did not know what date to change from being a school to a church from two thousand and five to two what these the defense attorney knew about the particular trial judge's views or experience with that judge in terms of whether he or she typically grants or deny states motions to reopen groups after directed verdict motion then also it doesn't seem that the record would support the defense's claim that somehow the defense attorney failed to understand the law at all with respect to whether to say could reopen the what the defense is asking for is to is to say that his attorney should be as well as advocate for him that's the type of thing to say that he should be required to sit on his hands and do nothing doesn't seem to be as honest those advocate but making  court might go back to the transcript and somehow infer from the detective hockaday testimony concerning the use of the church on the date in which the business was measured and then infer back and say that if there were no  indications of a change in the use that that somehow would be const would be sufficient proof there's there's no guarantee the law in this area maine may or may not change as well and in the future so to say that the if he's asking for an outright reversal or an acquittal as his remedy and that situation where he was in fact proved guilty beyond a reasonable doubt and he's not claiming that the trial court of his discretion and granting the state's motion to reopen proved it seems like what he would be asking for in an equivocal outright acquittal and no new trial would be in fact a windfall for him and that's not the sort of thing that a tenant can get for sixth amendment violation and so with respect to the last issue i won't be speaking with about sensing unless this court has questions the last show i talked about the sufficiency of the evidence with respect to defense identification here is not just defendant being identified on the video after the fact he was identified smith had a chance to see him in person and hear his voice not only at the time of his livery but on the phone that detective jeffrey hockaday also identify the defendant by voice from the telephone call when they were setting up this transaction hockaday also examine the recording as well as officer hale officer hale identified the defendant from a drive by based on the description provided by in the state's brief on page eleven states says hill was reasonably definite enough about the character of the property as a church on that day but it's that's not beyond reasonable doubt that is well officer hill does testify that it was a church on august twelfth two thousand and nine but he also testifies that he doesn't remember being there on that day he has no documentation that he was there on that day and he does testify that the use of the building changed this between an old school and a church sometime between two thousand and five and two thousand and nine all of that is in the record that is not guilty beyond a reasonable doubt that is not sufficient proof as to what the use of this building was in addition the state talks about the other crimes evidence and the state argues that this should have come in to show identity but teresa william smith knew eddie smith because she knew him not because she had purchased drugs the bases of her knowledge of him as a person and what he looked like and what he sounded like was the fact she knew him and she'd known his family for five or more years the evidence it made the other crimes evidence and it made in this case is  admitted on the on the grounds of propensity and in fact the state actually uses the term in their brief on page seven those arguments imply that the cocaine might not have been delivered to william smith by anyone else and we've won three but the fact of defendant's preview consisting supplier relationship of her tends to refute that implication well that's propensity of that's evidence that they he's a drug dealer and then use older drugs and this evidence was admitted to show that he was a drug dealer it was simply should not have been admitted not only because and it was unsubstantiated and  mere allegation but because it was way more prejudicial than probative on the on the grounds for which it was admitted and there wasn't enough facts to admit it as that's common d the state state asked you had prior dealings with the defendant this is that my students brief page thirteen you had prior dealings with the defendant yes and when you say yes you had made prior purchases of the cocaine for mr smith's teresa yes could be done there if it was just identity more than one yes money it's because there was an they claim it was because there was an ongoing drug investigation the target of which was a man by the name of one briton that is all on the record and so they waited until they were done with the whole task force but as a result the fact of what the building was in use force is cloudy or because the trial takes place several years after the drug transactions