hari's smith that it's the instantaneous decision and the courts in the cases that i've held on violence heart self curry said by the state all the testimony has been within arm's reach two to three feet at stop turn around and run back to that from a distance of fifteen feet to get there i does not timely control or immediate access under any decision cited by either party in today's case and so that's what we're asking to do is distinctive legislative findings and all the supreme court cases discussing it that high only controlling meet access is narrow it is not constructive possession that was reduction content that was discussed and harm smith and they've all agreed that constructive possession a much attempt to abandon the weapon at all until the police have already kind of come up to mr callaway abandon that couch before the police have entered the door because the breaching officer the first eyes in the very narrow asked asked of the door never saw him he was gone away from the gun before that door was always open the other officers rushed in that's what happened in smit the officers saw the defendant said holding a handgun dropped out the door and the court was very clear that when the police entered the apartment there was no possibility for deadly confrontation that up help it turns aspect of armed violence which is what happened in today's case as well for mr callaway it was not a hoss ability of any immediate potential for armed confrontation and up holding the violence conviction is what we're asked in this war today that's consistent with smith it is consistent with which also held that there was no possibility for this for this kind of deadly confrontation even though there were thirteen guns in the house number in the kitchen feet of it otherwise our immediate reach none of those facts exist in today's case and so for that reason we really think that this is a straightforward application that and one final thing to keep in mind and there's been some discussion the most recent cases from the district court dealing with armed violence is that the deterrent effect is not a solo endeavor in condit in har in smith the courts talk about the idea of a confrontation between the defendant and law enforcement the criminals or the victim that means there has to be someone else there present one of the things that the state talked about in their open and their closing arguments was that before the police broke the door down mr hadley might have been sitting next to the gun that is completely the street with drugs and i'm armed and i commit armed violence before i've met any person i'm going to do a drug deal with if you're on the way to a drug transaction that would be that would be on fines and that's exactly found on hard but there's no confrontation well  police or watching you when they see that you're on the way to a drug transaction yes there has to be enough evidence to establish you're on the way to the drug transaction yesterday but that would be on violence here but again out in the public there that's what the ledger talked about in the confrontation bystanders could be hurt someone by themselves in the apartment i mean i'm sitting in my scenario the police never confronted they just surveillance video and arrested and the next day but they had him on video with a gun and drugs kids out walking with the drugs but still he's going so far as well some are exactly but that's and that's what's different from all the cases you've talked about here is that this is someone inside their house there's not a drug transaction going on independent of your hypothetical that's something we have here this is someone inside their house doing that in smith itself rejecting the point is that is this no it's not the moment arrest oh absolutely yes is the moment of interaction with another person the interaction where the person can make the bad decision the instant thing the decision going on especially and this is circumstantial evidence if you're outside the apartment walk with drugs going somewhere back be on the way to the drug transaction in horror kind of pieced out these two separate concepts the idea of immediate access in control of which was when he was standing next to the car in your region there but they went on two thousand nuff to establish on park but they went on to talk about further evidence in the car which is different from condon the man there was in the middle of a drug transaction were driving up to the house to drop off a bunch of drugs and so you can your your hypothetical daughter of move walk in the street having on bonds that's a closer case a lot of it would depend on the specific circumstances and the facts produced by the state as evidence but here the evidence here is mr callaway up into the gun just like in smith that found even though the police saw him holding a weapon inside his house when he was constructing repossessing tubs was not enough and the chording condon express rejected that argument by the state that because there was an ongoing possession of all the drugs in the house and he presumably moved around the house because there was drugs there were guns in bedrooms in other places they rejected that was enough to prove  consist with all of the all incisions that we've cited today and with the legislative findings that just by yourself is not enough because that's been rejected by the illinois supreme court to turn to fact just that encourage people not have guns or not have weapons and that way sure but if there is a weapon around instantaneously showing that i do not want to go to congress i decided pursuant to own violence to eliminate a potential thing plays a role in whether there should be a conviction for that too but a lot of it really is the entire fatality of the circumstance but we know has pretty detailed roughly the findings of what we want this criminal offense to do the idea of just possessing a gun is covered by unlawful use of a weapon by a felon or otherwise on perpetual criminal so the idea on violence is to narrow it down to the idea the recognizing that it takes two to tango there can't be a deadly confrontation if someone is confronting you or resisting you or not doing what you want if you were by yourself there's no crime there once someone gets involved please the court counsel the problem with the arguments today is not only nor in the backs of the case but ignoring the standard of review contrary to the opening in the reply brief this court is not to be reviewing these they are to be replied to respond in the light most favorable to the state here's what happened below the police officers had a forced entry into the second floor of the apartment it took them several seconds to breach the door when the door time is seen flinging according to the police officers rushing doherty he's leaving wrong the living room into the kitchen which puts him according to exhibit number eight in  defendant was fifteen feet from the gun he was fifteen feet from the op a circle and mission reach the door that's on record even the thirty six and thirty seven there is absolutely no evidence about how much just and there was from the defendant to the gun in the transcript but what is clear is one on the sense who is it is it something that has to be proud of i mean i get into that ok but officer because ski front door and then a living room right behind that the dining right now that is running from the living room into the dining room was like running towards the couch where the gun is he's running he's running towards the dining room have been running this way toward the couch to get into the dining during that five to seven seconds when they're attempting to breach the door cable my understanding i could be wrong that's why we have oral argument is is that was certainly the state's theory of trial because he was on the couch and then he started running and you're saying well he  wasn't necessarily going to sway way from the couch he could have it going this way sort of not maybe directly to the couch but it would show action to show but if he's but the two things can't both be true he can't have been on the couch and be coming from this direction yeah i don't the transcript is very because we have a standard of review that requires that this court look at the other than see the light most favorable to the state and let's also keep in mind what the defense at this trial was because we were in a different land here on appeal the defense was that the defendant was never on the second floor hartmann he claimed he was on the first floor this is it in his aunt's sickboy front and that the police executed the search warrant went down the first understand that but even the light in the light most favorable of the people and in the stryker this is why the trial transcript although it's granted not terrific there was no doubt in the jury's mind because they're probably instructed as to what our  says what's required for on violence and they found him guilty that's a that's a i know fact i don't know when these officers testified how they were motioning or anything like that and neither does this court which is why do you know review so inappropriate but most importantly at the motion for a new trial defense counsel asked about this in the judge actually sat i believe yet actual possession of the government officers for each of the door the judge record shows that his back was turned to the couch and he was running away i don't know that either you don't think the record shows that i don't get that out of the transcript that's interesting ok but what if you did front door right which stands to reason if you're going from the police and he was running from the calicoes right next to the from the he's going if they're in the south end and i don't know i don't know the north south it right there on the south end he was running for now i understand quite a bit so how does that show there's not a lot in the point spreads but again we don't know how the officers were motioning whether they were using pictures to display this but this wasn't really a legal or white smith says so i don't think christmas was just his house was suggesting that otherwise i think his point was that speaks to the direction he was running and he you know the police officer came through the front door the couch is right there what you're telling us the record might suggest that his friend was running towards the police officer there is nothing in the record that i'm aware of where the plate any police officer remotely suggested that they were that the any kind of a way threatening or otherwise the defendant was towards them i mean the only evidence we have is the star you know he's running he's running right if someone is coming toward you you don't say he's running you say that when he's running away from you you say let's go get him everybody we're going to chase someone secure the gun let's go catch this guy you know they yell says the defendant is fifteen feet from me well there that's to the right or to the law ok i don't know i don't know i mean but again the evidence and taking the light most favorable the state does not require and actually precludes this court from finding the opposite these are findings of fact made by the jury in this case after being properly instructed i do wish this record was clearer view from the experience talking about  not being that can't be objected to washington already the defendant is and i quote leading from the living room into the kitchen area he's in the the living room at the point of breach their living room if you look at exhibit eight is a really tight space may not even be thrusting feet wide that's all we really know and that the gun is sitting on the  officers art repeatedly ranting the door they asked me to take five to seven seconds to breach the door and yet even with that this the benton is still in their living room by the time well i mean if i could have this wrong but i think it would be moved i mean if the bedroom is here and the couch in front door i'm sure the living room was here and the kitchen is here he's going like this to leave right i mean he made come infer or credibly determinations that you cannot make granted the striker is not the bast but it is absolutely sufficient so for miles conviction based on this record based on all of the reasons we table into the living room itself gives you a better perspective and the reason why we know that mr callaway could not have been running a what chords the gun is that the breech officer the man who open broke open the door he testified that there was a knock on the door by officer by the seven seconds later they broke the door down to him or five or seven seconds they just broke the door down which of course counsel said that's when we look at the moment that door swung open the police who sergeant gay testified went left sergeant because he's the person who meet the saw mr callaway running and said he's running yes the breach officer yelled gun but on there was yelling going on the second officer it officer standard for every single case that we've discussed today in our briefing in additional cases for that reason we'd ask you to reverse the conviction or on violence mr callaway and consider also the issues raised in other issues thank you thank you