so i am and carol marcus and i represent the f b i and all the chatter chatter was convicted session of a controlled substance with intent to deliver it was a class one founding we maintain that the state's evidence does not prove beyond a reasonable doubt that he mr cole who's the informant went and asked the clerk do you have this product and he said oh no we have something similar and he offered him this old obree which i should know looks apparently like a green paint many plants like material there  register this is important fact because it shows that this product is being openly sold there is no known areas conversation that had to take place a product of it's right there mr patel didn't go into some secret location to retrieve it and the product product was then sold to mr cole the police then testified it and then get a warrant this is also important they couldn't tell by looking at this product that it contained a controlled substance the police testimony actually  flo found that you know he did take measures to investigate this product but he knew that's what the trial court found that the evidence is inconsistent with there is no evidence whatsoever director circumstantial that he learned from his wholesaler man named mohammed that a certain type of these products were going to be you legal because the fact of january first was outlined outlined forty different chemical and so convenience store asked for this type of product and would have been offered by the clerk as this court also identified him to tell it's important to that there is no evidence that this product was sold off the books would be would be indicative of him perfectly legal to sell that are higher end brand that would be more costly i think it an issue here too is that he did have it under the counter and there was legal products for sale next hour but i think the photograph shows that this five hour energy drink which consequence of what you pay the wholesaler for we just don't know the state could have presented that evidence at trial they didn't do that it's also noteworthy that police testimony was that they didn't bother checking with the wholesaler so investigate him a to keep behind the counter which makes sense because if you have staff flippers in the store you probably don't want to shoplifting you're more expensive i think another thing you know cigarettes can be behind the counter dirty magazines can be behind the counter so the fact that this is behind the counter t shirts from him those were diners yes he went out of his way to get a lab report which you know he was under no obligation to do store owners are required to do that he chose to do that because he's someone who compliance with the law there's no reason that someone like him who's never been cited for alcohol to minors or cigarettes to minors and took other products off the shelves when he learned that they were going to and then you know suddenly decide to sell this product and get a lab report or it just doesn't make any sense it's not there's just not enough evidence to say you had to respond out that you knew this the spanner is not that he should have known and i don't even think based on this evidence he should have known he got the lab report a not for human thing something that doesn't mean people aren't using it incorrectly or for example who could smell that but that doesn't mean you can't sell your convenience store and i think by virtue of the fact that he doesn't send a salad to children shows that he's trying to comply with  product fans on it there's you know he's being responsible individual and he has no record of being involved in any sort of illicit trade there's just nothing there in this record that would suggest that he knew this  product had a controlled substance and i think that's i mean say it very well illustrated in the decision by this morning how which identifies several reasons why the fire and yes we have the owner in the circumstances then eventually decided a stack of products but as this court identify there's reasons why a storage room might put certain products at certain locations and here he said i don't sell to children but it says in the container keep out of reach so how do you  so that's the first thing second of all the court also pointed out that this isn't something that the police could even identify there's no field test for it you can't smell it and identify it in fact i think it was one of the officers at trial was  he doesn't know and it's not that the burden isn't that he should have known he doesn't have to do this prove he doesn't have the burden of proof but here the state has to prove that he knew and there's respond out that exists in this case for the reasons that nothing there there's not enough to sustain i his conviction in this case of the register he specifically testified that those were not in plain view from where somebody somebody in the public so if they were in plain view then well the plain you thing is again of course it's well settled knowledge is hardly ever proven by direct evidence it's all it's always circumstantial here the fact that definitive sided not to put this stuff on public display but how should this court view the st what i think that's what they were getting at when they said that the defendant was sort of being willfully ignorant of the situation again no reason for business man would would believe this wholesaler saying it didn't even have a make sure i'm not doing everything it would be illegal i would do specifically what this so called letter said to do and contact my local representative or at least maybe the police not a smoke shop in town and deal with whoever is the first person that picks up the phone again that's not that's not a really due diligence and finding out this stuff is illegal especially when this guy's first of all him even calling and taking steps shows that he had some suspicion that this was not on the up and up to he knew but there could be based upon his experiences morris where there was a city or well you didn't sound anything like the cities for our store for two months yeah stuff had become illegal at the beginning of two thousand well and he still sort of goes through the motions i guess you could say if you want to believe this stuff legal only by way believe that it was a story here they did not believe defendant had did the requisite due diligence or had any intention of actually discovering the legality of the product  especially from the skeptics viewpoint from a reasonable business man's point and a product it just became illegal two months ago and then he gets this this letter that that simply isn't enough that's a barrier head in the over your eyes for something like cocaine or or marijuana or something like that to really have a reasonable belief that that stuff illegal the presumption that you're involved in hilla galatea is pretty strong and here the major fact is the stuff was not on display there's a reason and she and defendants argues that it well it was wrong out wrong up just like any other product other real products have bar codes they don't have not every product has a little barcode on the side of the register they get scanned and then no receipt given to the customer not every product i think mr chavis steady paid nine dollars for it and and sold it for twenty seven or something like that again not every product activist after i got this bottle here would you would you test it for me so i don't think they're going to win again where your base we're basically saying that a bury your head in the sand approach would work here well though i would ask you what would be the reasonable you think if he off my shelf two months prior and then my wholesaler comes around again i would make sure that it was legal before i started selling it and especially if i didn't want to cause the reasonable inference of selling a legal product or knowing that i'm selling  illegal product i would at least put it on public display was in n y c or same product that he took off the shelves i'm in the lots i mean it was this instead instance that looks a lot like marijuana i mean from the same wholesaler it might be called a different name but again the the trial court the reasonable inference that he had the knowledge that he was selling something illegal controlled substance was it was a reasonable  illegal i think that the fact that the public it was not in public display a reasonable inference can be made that he knew this stuff was a controlled substance of resigned public display you wouldn't be here the case would be not built it clearly there be i it's on public display so do you dispute that there were cans or containers that is planted on the counter and that they were covered by you know as i said their specific testimony yes and there are pictures in the record i just like this actually it's on the other side of the cash register on cross examination detective fritz was asked specifically about the six canisters on top of the counter were those available were those viewable in plain view  evaluate the overall evidence the common experience of life in that context i'm wondering about how does that we have here seems to be totally inconsistent with my he'd say forty six years experience the criminal justice system i'd literally have never seen anything like this in the it's routinely made illegal say by state i mean i don't know how many are now but it is professionally packaged as you as the record shows however if it's professionally package wise enough on the shelf every other product has to tell says well there's many reasons for not having certain legal products on of leaf display like alcohol tobacco here definitive admits and and the picture shows  alcohol and cigarettes are on public display there behind the counter but there you will as as is the pipes that you regularly smoke people regularly smoke this stuff out of her that are marijuana or whatever those pipes are on public display as well in even in the display case the largest lake case notably absent anywhere on public display is this stuff clearly looking at this evidence in the light most favorable prosecution a reasonable inference law banning that stuff i guess that be something that the hardware store the drive to deal with as of now that's not on the books this one is in fact this one was knowledge this one was common knowledge even to the defendant here he knew that this synthetic cannabis was illegal that's why it's under the counter that's why it's not in public view reasonable inference can be made that he knew he was selling a controlled substance clearly he has the knowledge of what he struck the truck with he has the knowledge of the legality of the product the stock is struck with and especially if defendant struck the truck underneath a floor boards that would show reasonable inference that defendant ha knowledge this was a controlled substance and that's the distinguishing factor between this case  contact your local representative well guess what the police came in here they looked at the substance they can figure out what was contained what is coming from tom pounds that had to be sent to a chemist so had he done that which he was under no obligation to do that i want to help them trying to stay the step ahead of all these chemical compounds that get out perhaps but mr chapman stocking this product in the store and he's taken all these measures which he didn't have to do there's no statute says the shopkeeper has to test every product that he effective january first when he found out some compounds were going to be outlawed in december he removed those products from miss his other stores he got out or i think he got it letter in the more stores saying don't tell us what did  selling it so then the wholesaler says we have a new legal product well that would tell anyone that they made an adequate substitute that complies with obama he checks around ok it's sold somewhere else  businessman who's trying to run it can be a store it's got so many products including six of us that are can i think he says to his testimony i'm a businessman i want to sell products i mean there's no reason i hate it someone came in and asked for something different that was the target was a jury trial and all the same evidence came in and the jury found him guilty they'd be evaluating his credibility just like the traffic for if the trial court evaluates his credibility he concludes that how really is that we make our inclusions based on body language use of language answering questions directly those sorts of things and things i think this guy do something was hunky about the pride and i just don't believe that he state could have gone and sought out mr muhammad a wholesaler i'm not sure what else he's effectively getting punished for taking extra measures that shopkeepers are not required to do and when i say punished i mean with regard to the lab it doesn't look as sophisticated as something you might hear from dupont chemical or company like that well he's a small business owner he went beyond what was required of him by the law wholesalers that we have a new legal product adequate substitute for the old product that he willingly took office shell and then he you know there's nothing that the way it was sold there is no dry case where i've seen where they're standing on a bar you know it's getting mixed in with all the were going to go on the story and they thought they're getting it right and then cite is this right they seem it seems to me like the chemist knew something was going to be coming but that would be the case every day if you feel they know there's going to be a murder or rape or something