honor's this morning i would like to focus my argument on the first issue raised in the brief that the state failed to prove mr smith guilty beyond a reasonable doubt of aggravated u w because they cannot establish that he was either not a resident or a social invitee with permission at the property where he was arrested with a gun mr smith was convicted of two counts here in the state concedes that the first count falls under aguilar but argues that the second count his possession of a gun on this property that was in his without have work explained if you look at the statute the the first section the second section of the statute which is the basis of the entire statute so the wording of that is that the that the defendant can now if he's not on his own land or not a social invitee and possesses a god those are the elements of the first part of the statute the rest of the factors there has to be another fact to present it here it's on case unloaded on case loaded and accessible is one factor in not having food card is another aggravating factor so the forward hypothetically your position is that if someone is in their own home or invitee in someone conditions that they have to those are the elements of the fence they have to prove in addition to not having a foid card and that's because of the conjunctive use of the word right there is that if the first two are or and then it's and one of these other factors and one of them property with somebody holding a gun and the police were looking for the origin of reported gunfire in the neighborhood they saw mr smith sitting on the porch he saw them in his hand when these two gentlemen saw the police that's when they went in the house mr smith went up to the second floor apartment he was admitted you holding a gun he the police officer followed him and saw him throw the gun out the window the state's chance argued that those actions indicate that he was not a resume or social invitee of this property however all this indicates is he didn't want to police to see him with a gun he was admitted into the apartment fifteen or twenty people there was probably new year's eve party there was no indication that he broke into this apartment all the evidence shows that he published decision that that decides that question it is our contention that either way because he walked into the second floor apartment holding a gun and he was sitting on the property with a gun that he had permission to be there and people knew he had a gun so i think it's that that question right does not have to be decided because the evidence shows that they the people in the apartment knew he had a gun so he was there with permission the state and you said he weighed this issue because didn't raise it a tr however this is an affirmative defense whether he's a resident or social invitee that's that's that's an element that the state has to prove and this is the element supreme court case people versus lobster it which is the preeminent statute holds the state to prove senate denied making that admission so it really came down to conflicting testimony between the two officers and the defendant and the home in order to resolve these this conflict in the testimony the court made credibility determination and determine the defendant was not credible rather the best this is a question of legislative intent and the best indication of legislative intent are the words of the statute given their plain and ordinary meaning section twenty four two plainly states of the burden of proof in this exemption rests on the people and that both of those statutes and in order to do that we have to essentially interpret twenty four two as meaning what it says it means the only way that we would dom be disharmonious or cause any any sort of police see him with a gun in his hand he goes up to the door and acts he's got the gun in his hand isn't that enough to establish a prima facia affirmative defense no your honor because so few reasons tell me what tell me what it's perhaps not a fact that probably characterization of the facts respectfully but if it was being chased by a police officer pounded on the door in the door open and you ran through the sparkman and it's not clear whether or not the owner of this apartment saw that he had a gun or anyone really g to understand what the state and hands of define it would have to show that there would have to be affirmative evidence that there was some kind of station or other interaction with the owner of the property where says and then like only basically says you can did you give this person permission to come in your house you can cause there are fifteen twenty people in that apartment they could have called somebody and said found a rented it did mr smith have permission to be in your house with a gun simple question put a witness stand it's kind of it's pretty clear that the state was kind of unaware of the of the amendment because the indictment didn't charge the social invitee language at all so and there was no evidence presented by the state about this about this element so i i'm thinking that maybe perhaps it was an oversight by the prosecutor nevertheless it was still there byrd is first henderson goes on he asked me about that earlier also the case in henderson the source in in my t l you know was made in that case it was actually not addressed at all by the court and that it that it actually pending emerick hearing right now that the fact that the court ignored that argument completely so that yet that has yet to be decided in that in it so the i as an aside said if it had the fact that the defendant said i didn't have a gun negated any kind of burden of proof for the social invitee but that's and has no presidential value and we have a different case here we have evidence that the defendant walk into the building went into the apartment when the door opened was holding a gun went into a bedroom that had boxes of clothing in it which supported his testimony that he was in the process of moving out of that apartment