target store that's what i'd like to start talking about i think the important thing in this case is to see the testimony of mr lewandowsky the state's sole witness in context because what happens here is he gives detail recitation of what he saw on the day of his retail theft he talks about how he followed these people because they look suspicious there was a man and woman he talks about where they went in the store what they did how he surveilled how close he got to them he watched takes diabetic testers from shelf he watched them he washed them and put it in the woman's purse he watched them as they walked out of the store without paying so he gives some fairly detailed testimony about what  he says he got within five feet of them at some point in time and then he says you know i'm the person to call the video operator and told him the focus on these people start to take and then the prosecutor plays the tape in from the witness in front of the jury and he says this is an accurate tape of what happened these are the people on these ladies and gentlemen these are the people who committed the t asked the man they're here and then the prosecutor says ask him sir do you see the same person that same man sitting in the courtroom case because these are rather unusual facts because number one again witnesses there he is on the tape i see him now then he looks out into the courtroom and says no i don't see it was a white man pakistan's white male generally fit the description of how he remembered that day well the problem is there's hardly any description of well sure here maybe a goatee that's it to say there was no good t v it's been awhile since i've seen them take i'm not certain but i needed such a sparse description i think he says something about a buzz cut as to his hair i mean i don't recall that on the tape but in any event it's such a spear description you know it could match many many many people and the problem here is again the problem from our perspective is that one moment he sees this person on the tape and there's no identification in the courtroom he looks right at the defendant he says that you know i can't say that's the same person well no that's not one set he and i we don't know from this record if he does look at the defendant we know that the prosecutor says do me see that person here in court and he says i don't recognize him we don't know if he was looking at the ceiling there's nothing in that record that courtroom and usually isn't in the courtroom there's usually a motion to exclude witnesses prior to the beginning of trial so that witness wasn't in the court since the trial began presumably the witnesses you know called in right before they're ready to testify very reason and i didn't have identifications amazingly but i think but that the record indicates mr larson is there could be sitting next to the judge for all i know wh well being so how do you presume that the witness test closed his eyes or doesn't look around the court room to see who's in there he still has a view of whoever is in that room and sa i don't see the same person anywhere here to answer your money and no one gets to the question just a minute ago but what is the problem you have with the jury looking at that videotape and to including that they are one in the same person that the defendant is the person on the videotape why what would you repeat what sure enough one what i was just talking about where the witness affirmatively says i don't see that person in the tender witness this is the individual giving testimony producing evidence in the courtroom and she says i don't see that person here i can identify him he's not the same guy as on this videotape it's should have been a reasonable doubt is that the contention you're making the contention is a witness says it's not the same per person as far as i can tell and be the videotape is so poor that you can't identify a particular person independent of the witness's testimony the i don't know if you've seen the video yet you're on but on this tape there are four saying it's the people in different areas of the the three of them you can't see the faces at all so you see them from the back until kind of clothing they're wearing and they're just walking along doing different things the one segment that shows the person who's now from the rear the last about fifteen seconds most of the time either you can't see his face or you can see a profile for a second or two he walks along there's posts and different instructions between the camera and the individual so sometimes the view is blocked because he's walking other or lighting or whatever there's never a full face view of him there is never a stationary yes in contradiction to what the witness said because it puts the jury in the position of the prosecutor wants to put the jury in the position of saying well this witness you know he didn't identify him he said it wasn't he didn't recognizing how can the jury do that now when you keep saying i don't recognize it as the same person you're driving in france correct because what the question was the individual that you on the floor of target and on the video is that no evidence connecting the license plate number connecting the car to the defendant there's absolutely no testimony or evidence that this car was registered to the defendant there is no  felony convictions at least one for the defendant innocent and also correct the judge the record reflects that the trial judge asked that the state during the sentencing hearing ask for an extended term that there was no objection by the defense counsel at that time that he wasn't eligible for an extended term nor did defense counsel make any objection to i guess when they were  that there's no way for us to know from the pre sentence whether there were convictions for class three felonies or greater because there's no indication in the document law presented reports of course never considered to be sufficient to demonstrate prior convictions and other evidence but my recollection is that those cases always deal with situations attorneys read them and look at the information and are prepared for the sentencing hearing if there is something in there that is around in a once an extended term sentence was this for at the sentencing hearing i think we have to isn't but in the motion to reconsider that sentence it wasn't so much that he should not have got an extended term as it was he judged trial judge didn't consider the media giving factor sufficiently i mean that's one of the specific allegations and i think the and that we rely on afghan to say ok we don't have an affirmative identification something which would help the prosecution obviously but what we do have is a take the foundation of which is not at issue you know even here everybody agree that  jurors looked at it does have an evidentiary value but here it's not much because it's grainy because you don't see him for or a certain amount of time that type of thing well our answer to that is the  camera one point you certainly can see his face and it's not a matter of you know five seconds isn't enough time seconds is enough here it's the journey looking at that they have to decide it in front of them obviously they can watch this now throughout the trial time and there's some indication that you know his appearance may have changed him saying some indication and sense of closing argument by the prosecutor i think referred to the fact that despite the identification being a man with a buzz cut which is inserted neither here nor there because that know we don't have a physical description of here's what the defendant looks like in court but the jurors have him in front of them they can look at this they have at least fifteen seconds maybe twenty or thirty by the time the string certain parts of the tape together with their last card and they can see does this man at this man is this the same person now that's an interesting issue that you just raised we don't have a description of the defendant in the courtroom as he sat there assuming he was there is how how can't say that no rational trier of fact could have found them and the defendant who's sitting there with them to be them and on the team because we don't know how to get her some look like and i'm sure you would say that it was at that point defense counsel to be their argument because it once you get to it you know you can't compare it doesn't compare something there and it fails we don't know what the defendant looks like a chance that we can judge there ourselves and we have to be judging in any way under the proper standard which is you know would any case and we have one witness who testifies i can't recognize him after she goes through what i think is mr ware director really generally this was the take this accurately reflects the of the you know our foundation is usurp the jurors function because they also can take this out and to be looking at it and make their own determination and that's what we rely on is the fact that ok we have a person who you know we would have liked him to make the identification certainly the jurors are aware that he didn't and it goes to their determination of whether they believe that tape is strong enough evidence that this person is the defendant sitting in the courtroom but they have that information and they did that determination and having done and i don't believe there's any way on this record that th can be reversed i mean on us as a matter of course this tape is just the sobering words that you know it's so deficient in some way and i don't believe it is it's got at least a fifteen second section at the end it's got a few seconds here and there before that you see him coming closer you down and i think one of the honors already said this and i pointed out in my break he said we were trained to follow and survey out from behind and i saw him throughout i mean at one point he goes into a different island to make sure that he's not noticed but now say ok because the state didn't go further in never having been asked to go further and you know and showed it in one of those convictions actually was something you know something or to show additional facts to establish that has been totally waived and what we have now is this ambiguity ambiguity is not an error what we have is something three i think three retail theft as i recall and an aggravated battery all of which could be class three all of us have sentences which are consistent with class three us to determine are they you know for the defense to make the argument that this court can make that into an error i believe they haven't shown the error could be with the state's what's the state's position on the fact that w apparently the defendant did not show up for several of the proceedings would that be sufficient to impose an extended term the fact that they were going to meet with a death obviously something the court could consider and it appears that the court did from the never specify why they were coming up with the extended term that is you know that is the fact they never stand the court never stack we're looking at priors you know and that's where we get the extended term from but not if there was some confusion no i don't know i don't think i'll go there but i also think that it's not necessary when you have parties every message i mean i think this is the perfect case where you have to say it's a waiver when everybody police and start to finish this out last sunday sion when there was an objection insisting that the court tired to see the prosecution and it several different ways then one of the things that they got out when they were trying to establish a foundation for you know a cash register receipt and then and said i first of all went and looked at the shelf i knew about the share shelf of the diabetics just was stopped ahead of time and i then looked after they left and knowing how they were stopped and looking at the hall i could determine  theory they suggest that it seems to be computer generated it would be you know certainly are you that it is computer generated not computer storage it's not like somebody money in typed in certain values and that type of thing and then have a computer printout w data input this is a computer generated type of function it through the scans through the borrow books is somehow through our computer program is able to read that information and put it into useful information in terms of is clearly working properly and is accurate if it comes up with the same number of boxes start reading this that is reading and so is our position that there is sufficient foundation for intact for th authority or anything we can use more closely out more recently since this brief survey prepared that says if the jury cannot observe that same piece of evidence and having where the supreme court says hey there was no identification to the fact that people with the same names were located at the scene of the crime yet your only connection to the defendant that's not sufficient enough in the closest case is that i person but a month point is what his defense counsel supposed to do is he supposed to make a record for the prosecution i mean i think he did exactly the right thing that's what i would that this jury he could look at that tape and find otherwise and that being the case i'm not suggesting that defense counsel should stand up in front of the jury and say now ladies and gentlemen i want the record to reflect on what i've been an interesting strategy but there are some bars and there are other situations so that you could not you personally but defense counsel could preserve a record in the what he believed to be unlikely event his client was found guilty but every time he would do that he testified i know that the value was four hundred forty dollars for i know each individual tester worth approximately so much money he never explains how the lb pilot  bar code and then pushed the button are there any standards currently out there as with our breathalyzer machines in our radar guns that indicate that these have to be calibrated or checked on  deal with inventory issues which is how this was set up i don't recall seeing anything of the things that specific all the cases that i saw are dealing with computer generation of computer storage have either one standard or another standard for a foundation depending on how restrictive you know the type of device it is but all of them say you gotta tell us that it works right