because mr to his use received ineffective assistance of counsel when his trial counsel failed to object to a critically important and constitutionally flawed jury instruction on the elements of the charge defining the crime of delivery as it did and saying that the crime is in effect elevated from simple possession to possession with intent to deliver as long as these examples these facts pieces are delivery even when no actual transfer is shown that that seems extraordinary to me but that's not what you're complaining about not complaining that oregon in that it does not have a possession with intent to deliver crime as such elevates possession to the offense of completed delivery if certain attributes are show so so therefore the rest of and that it has and that's a critical element of there's an element charge but it's not everything because it also has to intentionally engage in that contract so it's not about intent see that that's why this instruction is different from the one in the is it the boyd case right because this one doesn't say in this one only says that these examples are examples of a substantial step they're not examples of an attempt to transfer well first of all boyd was not anyway go ahead so what but but this doesn't say that if you prove this maybe this is a matter but it doesn't say that if he proves as you've proven intent to transfer well there's two additional elements that elevate a simple possession to a completed crime of delivery the person has to have the intent to take the substantial step to deliver the drugs and has to actually take a substantial step well that happened here i mean i guess my question is what difference did any of this make in terms of a harmless error analysis there was a lot of evidence that your client was working on selling the methamphetamine that he stall you stole big bags and then made them into little bags and so have so forth so i'd like you to talk to me about prejudice first of all i'm prejudiced the harm is taking that factual issue away from the jury it deprive the defendant of his defense on whether he had the intent to that doesn't answer my question how could the result have been different no matter what the instructions said if it was exactly precisely what you wanted it to be how would it how would the result have been any different the result of the i would say that this court confidence in the verdict is undermined for this reason the defendant had these drugs in a safe there were  conclusion the jury could draw but the evidence was not overwhelming the state already that the evidence that the evidence was that that the drugs had been repackaged and related to it and that they disagree your honor that there was evidence about reweigh in those packages they found certain items that were in addition to what was stolen from the victim of the robbery have goes back to my problem with what you're complaining about about the s but but the fact that they were in fact these little baggies that that he in fact possessed because it was in his his safe a large amount of a controlled substance not for personal use but consistent with trafficking is really not debatable and what might be debatable is what he meant to do with it but that's not part of the example of the fact that there was all what could be considered a large amount do it and that's not in the example well both elements need to be proven the state needs frank groovin turned as well but that but i think church person's point is that the instructions already told the jury that it was their job to find whether or not your client had that intent and that's a correct statement of law well i would agree that the more substantial sa error the more substantial winter up winship error is effectively directing a verdict on substantial step the judge and contrary to what the state says in that brief on page eighteen that these examples can lead to a finding of substantial step the judge says they are but that's why you've run into a harmless error problem because the question is could any reasonable jury have have been not found that he did possess a large amount of a controlled substance consistent with trafficking whether he actually meant to try to traffic is a different question but there was the stuff made of what was the debate about the jury could still find that he possessed them without the intent to transfer or that he did tell us about intent and there is nothing about in town that is supposedly directed it just says a person has to intentionally engage in conduct that constitutes a substantial step and that's a correct statement of law doesn't direct anything so intent is never in your words directed here i think that's the problem with well again i think that the greater problem is with the directed verdict effect of directed verdict on substantial step in the state even had to call an officer and emphasizes fifteen years of experience and the state's words that this was a larger amount than they typical user would use if that's the state's proof that's not overwhelming thank you counsel here you've used your time that we asked a lot of questions so you may counsel would have looked at the delivery definition instruction in this case and concluded that like since truman v montana it directed a conclusive presumption on an element of the case and taking a look says examples of a substantial step include but are not limited to possession of a large amount of a controlled substance for personal use but consistent trafficking so that had been recently discussed in a case called state the schwab a month before criminal trial now the constitutional question was not the precise question in that case but what the court of appeals did say is language that was virtually identical to that language was a correct statement of law and if something is a correct statement of the correct statement of law but if that you're a finds it but doesn't the question is whether the jury has to be allowed to find well two things first if something is correct as a matter of law and it wouldn't be a factual well that would be my second point the first point would be as a legal matter the legislature or a cork constrain a statute can certainly define something as a legal matter and then it's not a factual finding they can direct that use and i'm not really sure i understand why it's directed that they're told the what a substantial step means but it doesn't say and there is one because it doesn't say whether the amount was large or small in this case or whether it's consistent or inconsistent that still have to be proved well and so that was going to be my second point that you that you made it still there is still room for gertie scratching to find facts even with even if you look at this as a factual determination as you said the jury has to has to find if it is a large amount or if it's consistent with personal use or trafficking so there are facts for the jury to find within that sentence and the same is true of the second sense but the second sentence there are even more reasons a reasonable counsel could decide that that was not objectionable me context of the case because the second sentence are not even items that are involved in this case except for perhaps arguably the the items associated with drug trafficking so perhaps that could apply to the baggies but that's not a directed factual finding because a jury would have to consider that term and would have to look at the evidence in determine whether those baggies were or were not items associated with drug trafficking but other things like razorblades scales or large sums of money or not even evidence in the case so even if those were a direct a factual finding which i don't think they are because the jury would still need to determine those razorblades those scales are large sums of money were related to drug trafficking or were just personal use items but for that reason that these things don't even involve evidence in the case what's being directed else i don't think it's relevant to this case particularly is that this is these things are substantial steps presumably a jury  substantial step could be a fact finding that a jury would have to make so maybe a jury would think wow this person had a large amount of a controlled substance and it was consistent with track tracking but we don't think that's a substantial step it's not close enough to the actual crime i would agree with that and would just point out that that still leaves the jury well no it doesn't because it says examples of substantial step include so that they are being told that if you find that he had a possession of a large amount of controlled substance not a person yes but consistent said it was trafficking then you have to find that that's a substantial step you can find is not a substantial step right that you would still need to find those facts as if you still need to determine whether those were in fact for personal use or were i understand that i'm just saying that there is something that is being directed that i think is a fact and not a legal question but i'm not sure about that and i what constitutes a substantial stead and i would agree there is some there is some degree of direction there however i doubt i would think that a reasonable counsel could conclude that it wasn't on constitutional not just harmless here but leaving that aside why isn't it a direction as to what constitutes a substantial step because those are examples that you know of so to use an example of a case that a substantial step and the parallel is exactly parallel i would just i would differ just to say that i still think there is room in there for them to for jurors to determine ok we have a large amount of drugs here is this a large amount of drugs because this person uses a lot of drugs or is this a large amount of drugs because this person intends to sell some of those drugs that's a factual finding that the jury needs to make that's not a direct on what's a substantial step well i think we can maybe agree to disagree here and put it in the context of what all reasonable counsel would think because this isn't about whether this instruction violates due process is whether all reasonable counsel would have come to that conclusion and additionally that the harmless harmless error issue is one that goes to prejudice but would also go to performance because if there was no use in objecting to this instruction when you're trying to case that involves other serious offenses and an objection it would futile in the sense that it wouldn't make a difference in the jury's verdict then that's also another reason that it's not you know even assuming that the   no there would not your honor because for two reasons the first being that there was overwhelming evidence of trafficking and there were i believe six bags that had small amounts point three zero user amounts of methamphetamine and you had larger bags that had much larger amounts and given the way that they were packaged in the large amount of drugs and the fact that this instruction no one saying it's not a correct statement of the law that's undisputed the product the state could have argued the very thing that was said in the instruction is so it's not and we're not looking at structural error here a direct a conclusive presumption it's not structural air and we have to examine stricklin prejudice which is whether it's a reasonable probability well you are adding a very issue of the view that the evidence is pretty thin you said the evidence is overwhelming that's just opinion or how do we sort that out well i think it's i don't know how much more evidence you could have of this kind of a delivery than that i mean maybe you could have other you know sometimes you see drug pay books and you know scales and things of that nature but decides that this is about i mean this is garden variety evidence of a delivery and it's not as if the giving of this instruction would have overwhelmed the jury's ability to take a look at the evidence and come to its own conclusion about it and again this is strickland prejudice which is we're looking at whether the whether the deficiency would have undermined verdict which is which it would not be here given that the jury was correctly instructed on the law ask you to look at our to afford are over six which is the prosecutor summation the prosecutor emphasized that he called a police officer who testified then hit him in the officers fifteen years of experience that these were more drugs than a typical user would possess if that kind of evidence is necessary with that kind of officers expertise then the evidence was not overwhelming and i don't know about that i think there's in a drug cases ordinarily expert testimony provided died it doesn't it is not testimony of the guilt of the defendant the question is whether is consistent with the office experience which is seems to me is pretty close to what you've said and that is you present the facts when you have an expert to come in and said i've done this for fifteen years this is consistent with and consistent with as not overwhelming that the terms are definitely not in fact i don't understand why that matters because he finds a supposed there isn't an overwhelming finding that it was a large amount there still is an overwhelming finding that he took the amount he had and put it into little is of the kind that are sold so maybe there was not a lot of it but it's set up to be solved and there was another evidence from which a jury on a sufficiency test could find guilt beyond a reasonable doubt the instructions only applies if there is a large amount if they find it isn't a large amount which nobody stopped them from doing they still could have found a substantial step but what if that isn't that just yet anyway well what the instruction does is it took the element of step because they had to find it was a large amount you're saying well do they there wasn't a lot of evidence that there wasn't a large amount fine and that may be the case and therefore they would find this example but but there still was  pretty overwhelming evidence that this was a set up to be trafficked the way and that the way it was you know divided into little bags of a certain weight and of the kind of the weight that this usually sells and so on even if it's a small amount and i would submit the baggies were part of that mandatory presumption because if you look at the final five words of the instruction after going through other items that constitute a substantial step like razor blade and a lot of money he says or things of those type of thing that the case just argued is submitted and we appreciate very