principles are number one the definition of actual possession number two the definition of constructive possession and number three the defense of the state or accident which is included in the definition of knowledge the facts are relatively straightforward and just real quickly traffic stop defendant in the back seat of a vehicle gun under a blanket in the back seat of the vehicle statements by the defendant and for us the key fact that we focused the court on that mr jason sweat passenger in the vehicle testif why guns i put him in the car mr anderson didn't know about mr anderson who picked up the gun said what's this the driver said the police are behind us and the gun went  legal concept of actual possession and is different than the legal concept of instruction for constructive possession there is an additional element there that element is the mental state and the mental state is knowing and number two that mental state of knowing includes a defense of absence or the state so the question then becomes for us how is that mental state of absence for mistake going to plan when the jury asked the question the jury is asking is there a mental state with that that's where the trial court went wrong that's where the trial court went off when the jury asked for clarification of controlling legal precedence is is this a valid legal defense and the jury asked for clarification of controlling definitions of we go into the case the defense of knowledge the court is required to give those instructions the court is required to clear up that confus as the scenario comes together and i think the problem gets to be it all gets translated into these two issues or merge decisions you have it's really talking about is what they prove enough to push you over the line and i'm not surprised the district judge didn't try to take on the jury question in the sense that i'm not sure what he would have given them without answering providing the verdict how you want to answer the question so i i get to the same question i guess in the other form what is it that tells us that what your client is supposed to have done based on the evidence was offered isn't enough to cross the line is not to represent knowing possession my problem with this is i don't think he's saying gee isn't said tooth brush or is it something else i think it's pretty apparent when he's holding the thing up he knows what he's dealing with there and at that instant he knows he's in possession of something he's not supposed to have and that's translates into a conviction what you come into possession of it by absence or mistake you have to retain possession but you don't retain possession and so talks about in order to prove construct possession describes what that is says mere proximity is insufficient knowledge that  that sort of thing happened in this case there is a specific legal answer that should have given that specific legal answer was the answer that you targeted which was the answer of knowledge should have been told possession of that weapon referred specifically that that instruction instruction number sixteen the knowingly discussion what you already did but that's the point i think i was trying to set forth in the government's brief in the arizona versus johnson case which even though the facts are somewhat different the types of crime i think it's very similar to what happened here is the jury sends a note says somebody in custody you consent was a kidnap rape case by the by a border patrol agent who had an illegal alien in his car and in that case the judge did what happened here maybe not even a little more simply just said the further back to the instructions that have already been given to you and didn't answer on possession instruction number thirteen instruction twenty three and i think it's significant to point out here that in those instructions when the judge gave a limited form or when he read it about the knowledge portion he does talk about knowledge knows of its presence when he's talking to them in his notes back to them and there knows and has intention to control and he's using that word knowledge and he refers them back to all of the instructions and of course one of the instructions that the very first instruction is a matter of fact is one of those that says you can't single out any instruction that you got to consider amal and i think that's my point in the arizona versus johnson case is the court this court stated in that case that i just want to go fine line when you start to spin singling out instructions because a jury may if you put undue emphasis a dreamy i think the judge who has the last word here what he's given in this last instruction to make too much weight on that and that's i think what happened here good the defendant receive a fair all i can say is that anytime that i'm trying to case and i think that i can argue both theories and i want to i want to be able to argue any jury instruction i think's going to help me and just as i argued here to you even i mean back up i don't know i didn't try the case your honor all i can say is that from reading the defendant's brief he does not object to any of these instructions and states that they were proper instructions and to answer has to be along those lines but i wasn't there at the trial and i i don't recall seeing in the record that the object of that specific instruction  emphasis is been made on that and maybe that's exactly what happened but i think the jury was entitled to say well wait a minute maybe they just made this story up because we got pulled over by the cops we've got to come up with stuff we've got to that sounds  we've got that again and so whether those facts are true or not i don't know the jury resolve the those in francis in favor of the government by returning the guilty verdict and i think the evidence is well sufficient to support you have to instruct them basically in the context of this case that was a defense and they're asking is that a valid theory there were parts where the prosecution was arguing in this case picking up the gun is enough as the judge instructed you and our position is that there is the path of absence of a mistake that depends only in a case of actual possession and the jury has to be told that that was their question was the answer that was proposed by defense counsel the question is first answer combined some intent language because if there wasn't and just generally speaking in the record for one nine and generally speaking it goes along these lines that when you when you have that someone has to possess it can't be by accident or  on our position is that if you had testimony as to a b and c and the jury does not believe see that doesn't mean i mean you can't get there on these records that this was some hold up on the second street you just get there i mean the jury may come back and say these are bad guys they're bad felons we all know what's going on on this record with this evidence if you don't believe anything you say you