pleased the court i am rebecca hers i'm arguing on behalf of mr warne franklin morning mr franklin asserts that the district court erred in failing to give to the jury what is referred to as a mere presence  mr franklin was stopped by the police while driving a vehicle due to his erratic driving officers noticed that the vehicle smelled of marijuana one of the officers also noted that there was a vial of he in the console area beside right here call was not registered mr frank but it was registered for mr franklin's defense was that he did not knowingly and that he or the other drug related items firearm not enough there must be something more is required there must be some other incriminating statement attempt to destroy the gesture implying commingling of personal property and w did the defendant when he was sitting in that car with the p c p the firearm the other drug the have the ability to make those but them in direct role of course they're all within arm's reach him pick them is in being too quick to say that properly phrased instruction if those are given that we can just rule out any need to get what about the board case so i think for the two thousand and fourteen case stand for the proposition that exactly those things you just identified a correct statement the birth the burden of proof correct statement of the elements and a correct statement of what possession means is good enough and that you don't need something more and and there's in addition to the war there are other cases that kind of say that  were were more closer to what you're arguing for than they were and for in particular my understanding of the furtive directors is it said that to convict him he had to knowingly possess the contraband which is pretty darn was unable to argue with the instruction given but was there anything new that he desired to argue that he felt constrained from being able to because of the difference in the instruction and that case they didn't look to see they didn't really discuss whether or not it was a mere president's case they really said judge could have given the instruction within his discretion but all of the instructions case  various batters and whatnot and i submit that that goes to the st day st issue is it really a mere presence case and generally speaking we're talking about there is you know you're a police bust into a room and there's a bunch of people around maybe a people with drugs or more commonly a situation where a number of people are in a car where there's drugs found in the questionnaire they just happen to be there i think it's hikers or you know are they somehow involved in this case we have an individual who he's the only person there there's p c p in the and they odor of marijuana wafting from the bar you got a backpack right behind him it's got these more cigarettes that are that are connected p c p and johns and just a ton of drug paraphernalia he runs admits that he new is going to jail he's got i d d in his glove compartment lots of things that associated with the car instructions adequately cover the defendant's defense then you fuck and in this case the facts really weren't in dispute the only fact in dispute was did he know what was in the bar that was the issue that was para from the outset of the case the opening statements discussed that the evidence of course focused on that the closing argument discussed that that was the sole factor in this case this wasn't a situation where you had multiple crimes it was one of many amends and maybe this could have gotten lost in the wash something know this case was tried on the question of whether or not this individual knew what was there and three other british directing instructions regarding possession with intent to sa didn't know was there and i think i'm accurately characterize the argument st can say otherwise but on page seventeen of your brief it seems to me that she's pretty clearly suggests that the case was against her and say they were still faulty reasoning in arguing that the jury wouldn't understand the concept struck better but not only do we have an instruction but you know the parties talk back just like if i put all the stuff in the back with him i may not be holding it at the time but i know which there i put it there i constructively possess it that is the law that is incorrect statement but somehow they twist that into saying that if it's there and i could basically access it then i have constructive possession that was not our argument that was nobody's art and as i said this is a situation where the structure i heard the where it's an item left in a vehicle i don't think that that argument is particularly big bass or not at all unusual over the head polls have multiple drivers parents kids but that's anyone any