by focus with your permission on issues one and three those being that the state failed to prove that meredith was intoxicated while driving and that the prosecutor's comments during opening statements and closing arguments diminish the reasonable doubt standard and of course be happy to take questions on any of the other issues and i did find out just for the argument that the state of file additional document had not received that or at time ok right i haven't i mean counsel showed it to me before but i've just request the opportunity to view the document and respond to it but regarding issue one the state failed to prove any fact a trial that would allow a reasonable inference that robert meredith was intoxicated while he was driving the state merely prove that he was intoxicated and that he was driving but it failed to link those two facts together the undisputed evidence was that a police officer saw meredith arrive in a car she saw him driving she saw a car and she admitted the trial she had no reason to conduct a traffic for about a half hour as he walked toward a retention pond the officer drove through the parking lots looking for mr meredith and didn't find him in any of the lots when she eventually did find him he was on the phone and told the officers waiting for a ride intoxication while driving the first being the initial officers observation and testimony that he would use for meredith was speeding when he was driving through the parking lot and it would simply and erratic driving no swerving nothing that would suggest intoxicated driving she said he was speeding i mean the united states supreme court has said you know speeding doesn't necessarily allow for inference of intoxicated driving and the  night obviously didn't feel like there was any need to approach this for merit or conduct a traffic stop the other fact the state points to is the mr maritz initial statement to officer  but at trial he admitted that this was a lie and he explained why you lie he was trespassing at the spawn and didn't want to tell the officers he was there there's no evidence corroborating if the state wants to use that as an admission there has to be evidence cooperating that evidence cooperate intoxicated driving if the only evidence of intoxicated driving this is alleged admission  evidence when he got out of the car does not indicate intoxication in any way so i mean the fact he made a statement if there if he got out of his car and stumbled or swerving always in the car then the some cooperation ok there's  pocket to take it to the pond i know i mean to say this that it's more likely that he would have not had it in his pocket or not driven than it is that he would have had in his pocket he's just guessing i mean the the fact could have had an object on him such as a bottle of rum that the officer didn't see that was still there and in fact that she did not see his cell phone but then later later did see him with it shows that suspects if that's dui or not she decides to monitor his leaving the parking lot where he was going right now at one juncture he said i was at a friends house we partied i had less than a dozen beers over a period of time and i got a ride back to the dealership one or two beers that's an odd way to express it so we have an admission even though mishal number was put out there by the officer with a drippy entitled to consider back and believe that he who line was part of that so i would want to talk about being on private property well sure that's not a did he say i lied about party in the afternoon are lies about statement was a lie that he said believe all state and so and then he eventually told the officer the truth he said i was drinking at the pond and you know i'm drunk i was drinking at the time i called taxicab and the taxi cab showed up well if a jury disbelieved this testimony could they have believed that his earlier admission contributed to his state corroboration showing that profession there happened the events happen if the only evidence of intoxicated driving is an officer's testimony that there was this admission there must be cooperate in evidence then saw the defendant walking toward the car according to the officer at trial the officer testified that he had asked the defendant did you drink after this accident and he said no  but at trial the defendant said that he was never asked that question the the appellate court found ultimately that because that statement is completely uncorroborated the officer's testimony to this alleged admission was did it or other famous crimes without some evidence beyond just what he said but it's a limited rule and it's one which hardly applies to case where you seem to be saying we have to have corroboration for all aspects of the criminal case that's not my understanding of this we just want your sense now i mean the portion of the statement that the city wants to use or is just characterizing it as an admission rule applies to cases other than burglary which would and it requires corroborating evidence of an alleged it mission well so while the driving is not car major deciding himself maybe he should be driving his car why doesn't all that connect back to an admission that he made about partying and drinking but he had less than a dozen beers simply because he later said well that was all live because i didn't want people to think i'd been drinking rum on private property i should have been down that interface right why does very race that his credibility is an issue in the stated reason of the initial statement i believe was a lie i mean that is not the right well it because under these cases that it's not more likely than not under house the one of the factors is that he missing from it's it's evidence and even if you buy that the state you know barely prove this case the prosecutor statements and opening closing arguments warrants a new trial here where they diminish the reasonable doubt  find that there was a reasonable doubt because they attend a improperly and attempted to define the recently doubt standard that's why and not me that actual statement by cross it was actually it was the final statement the prosecutor made to the jury so right at the end after admitting you know we don't have much evidence here also the standard isn't very high it's not some doubt it's not beyond all doubt it's not wild speculation it's not strange possibility  that's of those are extremely presidential comments based on the evidence on this in this case and where there's clear air and the evidence is close the case once a new trial on the plane or until thank you you have more time  council let him know that i would be filing not in the course he's not really addressed and credit in this argument to essentially the state's position is that the defendant was let out of jail the morning of june seventeenth received one day of credit for that is part of the man's the state does not object so with respect to the issue a reasonable doubt standard is the light most favorable to the prosecution and if there is in fact evidence of the defendant having  prior to him having been seen driving by officer actual and that's his admissions to jones that he had been drinking beer he quantify this less than a dozen and he also said that he had been partying at a house so that the jury can infer that there was no houses with parties occurring at the retention times in the middle of the morning on this stretch where there's all these car dealerships so when actual sees him driving in parked the car and get out and walk away and just hear behind the dealership at some points and then later find him standing behind the hottie of the ship telling tap on the cell phone the jury can reasonably infer that he was not at the house party at that time drinking beers he was in fact just hiding out from police because he drove essentially right by actual who was on the south side of the road he comes from port on the north side of the road and then parks on the access road so she would have seen and actual time that the defendant would have seen him and she was enough only that he would have seen evidence and defense argument for as well as and wallace are quote identical to this case fails to take into account the critical distinction here is that there is a conflict in the evidence there is the fairness of initial admissions which can be believed in whole or in parts and the parts that the defendant parked his car earlier in the day where drinking and then came back and was led off by his buddies the part of him parking earlier in the day and being dropped off by its buddies circumstantial evidence that the defendant parked on an axis road which is three dealerships away from this ponds his wife denied that they had any argument claim that this girl felicity had been away for more than a year or two so his whole reason for having taken a pint of rum after an argument meet court to look by rules so his admission can be considered as evidence proof so it's not solely a conviction based on his word alone opening statement and try to find reasonable doubt for the jury the defendant still has to has the burden of persuasion to show that this is the type of case in which his forfeiture should be excused and because the evidence is not closely balanced it's situation where this court should reject his request for clean air review and the fact that this was repeated in rebuttal argument but it did follow the defense argument which was improper which i advocated for t the jury to acquit if it had some doubt and so therefore the prosecution sensed this in rebuttal argument again so that for that reason even improper arguments by a prosecutor will not be reverse prosecutor then provided that personal opinion in response but that's would be ordinarily improper but because it was provoked and invited that was not considered clear with respect to the next issue which is  a charge when a challenge to it deficiency in the charging instrument is raised for the first time after trial there has to be some form of prejudice to the preparation of defense in order for the defendant to obtain any relief so even if the happened in the whalen case in which there was every man's for reset and staying on a lower class of crime and the state's position is that this fortune declined to provide that similar remedy in this case because it would result in the imposition of a legal avoid judgment because the defendant was in fact proved to have five prior to you i can violations and this was his sixth view i violation the only sentence that is legal under section eleven dash five  there's no question that the church should have included  but that's not the only crime i think was aggravated battery to trial or something was a similar type of crime where it went straight from a class a to a class x it can be a single enhancement even if it is double in hands with a legislative intent it's very clear and obvious that record the state wants to make an argument outside of the record so it's actually their burden to present those documents i didn't get additional documents from the jail that were basically the same the documents state the booking report it well i talked to him i mean you know what he what he told me is supported by the record and which is why i'm raising the argument that i'm not your way saying what he's time if i didn't believe he was in custody i wouldn't raise t s it's important because because it's his alleged it mission is only evidence and this isn't a case where a lot of times people prosecutors say go to sleep it's not snowing and you wake up in the snow on the ground universe you know it snowed overnight this is the situation's really more like you look out the window it's not snowing two days later you look out the window again and snow and you infer snow last name of course not we don't know because we're missing relevant facts and the relevant facts here it was the state job to present them and they didn't present any evidence of what happened during this thirty minutes or so were mr nobody was observing mr meredith any claims to be drinking at that retention so you know i would just test your honour's to