i was like i can't believe we're making a customer at wal mart be responsible for the transaction being accurate even in the in the argument to prevent the directive finding the state the failure to produce the authentic video brings up the general proposition that when evidence in one party's control is missing or destroyed an inference may be drawn that the evidence was detrimental to harden in effect as the true evidence was  and it was distorted because it was added and not only that as well my my expert was able to he was told by one of the supervisors linda anderson the first page of his report he wrote he put in a safe mode whenever it was hauled out of the line and it should remain in the state line it wasn't one of these where you automatically recycle it was deliberately it was just automatically put in the safe mode in the only way it could have been deleted was intentional and that is what happened afaik along shows that this that this was a setup this was a right this this match johnson knew he wanted to give my g fact the other thing that i could not that is incredible in the record is that the fact that the trial attorney did not test this you know his client repeatedly tol him this is not an accurate depiction now the state attempts to argue that it was that it was trial strategy but i don't i don't understand how could be trial strategy if we he did and that also goes to ineffective assistance because it wasn't the accusation it didn't show the whole scenario didn't show the clerk leaving her station two times even the transcript  and my client all testified and they said you know i did she left the station twice this doesn't show up on the video and that should have alerted the trial judge there's something wrong with this video if that's from your branch just but it was also from the customer service manager she also said you know other than just having her way the clerk went back and forth and it doesn't seem to show up on the video but she also testif the you know if if my client is repeatedly telling his trial attorney this video is not right it's not right and he not only does not get the video tested by an expert but he didn't object he didn't even attempt  to allow the state to come up with the foundation granted it's not the most difficult thing in the world to get a video it made it into evidence especially when you have a willing judge but he should have objective especially when his client repeated told them there was something wrong with that the fact that this that there was a finding of guilt given that there were there were two references minimum that th s the the events were not did not show up on the tape there was confusion that was obvious you could either be an intent intent to steal or there could be confusion so of my client saying you know there are two transactions left or enough and he's saying eighteen and eighteen and the clerk brings up nine and nine that's confusion and if there's confusion it's reasonable doubt the fact that if th telling the clerks let us go through let us go through don't verify anything you put that all together and you have you have a security guard who wants my client to be found guilty the fact that the post trial attorney put in his his motion for a new trial repeatedly this this and this video was not right it wasn't complete it was it was edited and then he goes to court and the judge outright asked him well did are you saying that this video was and that's it and he says no and my client had been sitting there saying are you kidding me i just kept telling you this video was edited then the next grab but the attorney has posed trial attorney says well actually i didn't look at the video i mean this was the smoking gun in the case and his post trial attorney did not did not  as far as and then finally the fact that the judge didn't order the new trial once it was brought to light that the state was edited and then deliberately erased by the same clerk who determined that my client was suspicio said i'm going to hire you five hundred dollars he gives me a number of and i don't open it and then when he leaves i open it and there's like four hundred there i call when i go down to the police station i want to file it or the first thing they would ask judge used this video as substantive evidence also supports the notion that there just wasn't evidence missions to convey the assistance of counsel it was an effective performance was absolutely deficient he did not neither one of them did took the actions to to get to get the fact that he edited video in front of the court the track of the post trial attorney did not prejudiced you the defendant because i was able to step in and bring to light this edited video but the first attorney if he would have been able to show the cour this this video you know stunk to high heaven maybe the the court could have put it all together and said you know we do have bias here thank you and finally be the court here and not multiple times in different issues in the brief the fact that there was no prejudice was even let's say hypothetically that this original tape did exist but the people believe that no version of this tape would have any effect on the the  the elements of this case because the crux of this case was the verbal exchange between the friend and the cashier the cashier testified that that it's walmart procedure in the the c s and that the customer service manager that's why this is a walmart procedure is to have the the cashier the stand one of the items answer in the quantity and then take the match or the competitors price whatever that was the you could exceed the limit for each transaction so there's really no question he he thought about this before he did if you knew that i can exceed i believe the number was twenty four you could see twenty four so we threw that as a twenty four service manager to inform the cashier that a lot of a lot of what or where it was i don't know your honor i don't really care if you know i don't believe so i don't i don't think he had maybe council could have has a better recollection of that i don't believe he was started putting them up there and i'm assuming she said i don't believe this was clear in the testimony you know i'll answer the quantity so you don't have to i'm paraphrasing i'm sure but something to this wal mart also of from what i understand yes testified that he does this often he does this to him to buy quantities at lower prices and then resell them so the defendant likely knew going to this wal mart hey wal mart they don't make you put the cans up there so i can just put a few cans up there say and correct number eyes i don't really want to speak on that i believe that that's kind of irrelevant to this issue but i guess i kind of equated it when i was doing this brief to assuming there was something to that there can't were in plain sight they were in the in the cars all he had to do was just tell her the right the right the correct number and then let's say  it wasn't prejudicial to my client and you say yes if you put it in front of a rational trier of fact it would have been prejudicial because if a rational trier of fact would have heard oh not only did the security guards set it up profile edit it and then delete it so no one could ever catch him you know once they found out all this and it was brought to light i don't think a twelve person jury would ever convict my client and so the whole of those one was joe that's what i'm saying in your honor is that because because this was a bench trial in front of an irrational trier of fact he was not shocked he was not shocked by this this trial court was not shocked by the fact that this this video was at its it and then it was deliberately deleted and so that's why or where you know you can't show prejudice because the the trial court did the same thing before and after you found out that this tape was video was edited and so i'm saying that if this was put in front of a rational trier of fact there is not sufficient evidence and i want to just go through a couple points when my client said the cashier made a mistake it was his first reaction to me that is plain as day that he knew that he did nothing wrong as far as walmart transactions in order to do price match and he did have three families to resell to and i don't understand why that was a big hang up and finally if my client said to the clerk you know after the first transaction was completed and he had two other families to take care of and he said she asked how many of you have and he says eighteen in eighteen she hears eighteen and rings it up nine and nine ok so let's her fall but yet my client has to bear the brunt of this because there is confusion and i submit that the fact that there was confusion and all this just the fact that the the witnesses and it's not you know that there's no there's no basis for conviction is insufficient evidence because there is confusion that's reasonable doubt