on behalf of this defense attorney included that constructive possession and that wasn't the issue when did he ever argue well possession is a common term it shouldn't it should be misunderstood either happen or you don't know he objected to it and if you look into the use of constructive  point one six advised not to offer an instruction defining possession less either constructive or joint possession was at issue and those was at issue in this case so it seems to me based on what's in the and probably a lot of us in the room may have done something differently so a lot of us like to play armchair quarterback of course it's easier to look at it in retrospect and say what you would have done if there sufficient for an ineffective to court i want to just briefly ask if the court has any questions on the first issue which is the reasonable doubt issue that defense counsel raised if there is any questions i'd like to get to that otherwise i will start right off with the second issue which indicate that at the record at four forty one in regard to the question are the jurors the defense counsels that he wished no instruction to be given so that would definitely  be an error as well as from the start to finish of the trial it was always his possession or his position excuse me that the jurors should not be instructed on the question are on the issue of what the definition it sort of changed their position and maybe for that reason that the court then looked at the merits the case did counsel here for the defendant ever say we don't need this because possession is such a common term they're going to understand it or possession he certainly did not seem to mind any definition on possession and when you think that the jurors came back at the point that we're really looking at the jurors came back and asked they did the ask what is actual possession they asked w and the committee comments which defense counsel referred to suggest that you don't get a condition it is just actual possession you only give it when there's a constructive possession type of issue constructive and after and certainly the entire the entire i p i four point one six could have been good but the fact that it wasn't didn't hurt the defendant if anything it help possession under the theory that they wanted the jurors to half and the way they did that is to say no constructive possession is at issue here and we're narrowing it just to an actual possession type of thing and the comments actually say something to the effect of i added to the case the case doesn't exactly say this but the committee come and say if you're only talking about actual possession you don't even need you don't necessarily need instruction on the wrist what have is just what is commonly considered to be possession it's a needed and exclusive position you don't say i possess something if you know you're going to get it in the week that's not the normal definition it's not the definition of lester's which i included in my actually would have supported constructive possession after he dropped that if that's what the jurors were looking apps you know they didn't know you know if in fact that matter that he had dropped to turn thrown down so that only goes to you could the state have asked  that's one of the strategies may have been confusing the jury or the jury yet i don't anticipate it i don't think confusing the jury is that he really wanted to but certainly he wanted to narrow it in a way that would benefit and more likely result in the will and that is to say we're only looking at this particular piece when he's running with it when he's money with it is it him or is it not him because they had you know an argument that it was that the identification was not good and so if we're only looking at we don't know what the source of their concern is so have to believe that they may be looking at you know what's to go forward he's holding that they may be looking at a point later what is on the ground we have to give him that that we have to give them the entire  closing argument both attorneys argue we know of course defense attorney said it wasn't him right but the state's attorney said it was him he's had in his hands and he dropped it ever said he could have come back to get it i mean it was just he had it he dropped it wouldn't be confusing and of use now we put a definition of constructive as well as joint and there was never any evidence about it or argument about it there was never any argument about it i believe you are correct you would have been confusing to inject jointing constructive well you know here's where i don't know whether i maybe diverge from milwaukee or ok in the end perhaps i don't know whether research has been done on this point but it seems to me that