We're likely have a warm welcome for everybody in this room today.

The first case to be today would be the Commonwealth versus cast of the Shirley for oral arguments.

Mister you've indicated you are reserved 3 minutes of rebuttal time, correct, sir.

All right.

And Mister Bach, you argue your case 15 straight through.

Council Richard Percy.

Well, they will hear you first.

>> Chief Justice and may it please, the court.

My name is The help.

There's no good.

They're effective consent for people to steal.

This is true.

Even when they have self-checkout registers.

Statute defines effective consent.

And says that the consent is not effective when it is used for purposes other than that for which consent is given.

>> Walmart did not get its effective consent for missed Chasity surely to conduct her skin.

See it in 2 parts.

First, the Commonwealth proved that must surely did not have Walmart effective consent.

It is a trial and jurors could reasonably find this based on 3 sources of evidence.

First off, testimony from Walmart employees.

Second from the Shirley's admission on the stand.

From the jurors own common sense.

This case on appeal concerns whether Miss Shirley was entitled to a directed verdict.

To do so.

She must meet the Bend Standard, which says that the jury verdict is, quote, completely unreasonable.

The second part of my argument is that the public policy reasons is surely convince the Court of Appeals to adopt.

Reason to deviate from the plain text of the statute.

Gibson is very clear that the General Assembly defines crimes and set sentencing >> Were on lesser included offenses down the line about how much was stolen.

>> No justice vanmeter.

There are not any lesser included charges in the second question is is more to the You know, I believe that we need to decide the case in front of us.

But on the other hand.

Does the create?

Is is Jenner is computer us now almost everything.

So.

Almost any time anybody uses, you know, commit any crime that changed in May, they're going to be charged with a minimum, a Class C felony based on the rest.

Now, coming up next, under this statute.

That's the case just as fans meter.

And it's because of the statutory definitions and they require purpose.

>> Well, the computers have become more common.

The legislature has chosen to criminalize certain he uses computers and it's using that in order to defraud someone.

To obtain money, property or services for yourself.

So if you have a different purpose.

That would be covered by the computer use statute.

And there are 2 reasons for the General Assembly to write it this way.

It was discussed below that when you use a computer to commit the crime, you're putting a layer of technology between you and your product.

We're making it a lot harder to catch.

Now, here's course Miss Shirley was caught, but that's always the case.

When you have a a criminal prosecution hit.

>> Just for I my question deals with the which may.

apply the law.

We don't have the benefit of the record at this point.

And so on those facts as presented in your briefs.

But I was in her use of the the bar codes.

The Shirley said market did she swiped the toothbrush?

One time and then just take it out.

Did she removed the bar code from the 2 fresh or whatever this item was and put it on the other items it did.

She check the toothbrush?

3 times.

She had 3 items.

And can you clarify for me?

Now?

She perpetrated.

This is set.

>> Yes, of course.

And I want to know that this is key for former justice Venters to he was ruling on the motion after he took over the case.

Has introduced, showed that surely it the bar codes of the items.

So she took the bar which he testified was a toothbrush holder and please step barcode over the items.

And this is key for former justice Venters because it wasn't as if she hold the toothbrush underneath the couch cover and ran it over the scanner.

He's indicated that that might not involve the computer here.

She only had 2 items with her at checkout, which were the rug and the slip.

And when she scanned those items, the computer recognize the bar code for the toothbrush holder and bring it up as a toothbrush holder and gain the toothbrush holder fast, which she paid and then left the store.

This is why the use of the computer was integral to miss Chasity.

Sure that this kind of she had.

She could only do it with the aid of the computer.

>> And focusing on I don't think anybody disputes that a criminal act occurred here.

The question is what crime occurred and an underlying principle of the criminal justice system is that the punishment should fit the crime.

And as a consequence, our legislature like most legislatures has classified crimes into misdemeanors and felonies.

that's one of the things that concerns me about this case.

I don't understand the rationale for it.

Assuming you want to try.

This is an unlawful access to computer cakes and not as theft by unlawful taking.

On lawful access to a computer in the 3rd degree, too.

He's essentially everything as the first degree, except it focuses on the loss or damage.

It's in the 3rd degree instead of a scheme to defraud.

And so you use a computer and it results in the loss or damage of less than $300.

And that's a class.

A misdemeanor which corresponds to theft by unlawful taking under $5.

It is another unlawful access to a computer.

If that's your theory of the case, it seems like everyone below got hung up on affected consent and the use of the computer.

Well, let's let's say.

It is the use of a computer.

But then what has our legislature said about how cars and unlawful access to computer in the 3rd degree.

Again is appropriate when the loss.

Our damage is less than $500, which we have here.

Cause is our cause like an $80 differential, isn't it?

What was the differential?

$80?

And 87 houses.

And let me say one more thing in the half.

I'll be quiet.

What you talk when I when I look at this.

It occurred to me based on a case when I was a was a circuit judge.

There.

Plus, he come up.

Attorney prosecutes is unlawful access to computer in the first degree objects to a lesser included, which, by the way, Jeanne can says, if you could have a doubt as to all of the elements of a degree, if a reasonable juror could, then you need to instruct on the lesser.

But leave that aside for a minute.

It's prosecuted that way because the Commonwealth and system first great for whatever reason the trial judge would not give 3rd degree which seems to me to fit perfectly.

So you have this $80.

Incident at Wal-Mart.

Now, if you go down the street in Pulaski County and there's a jewelry store and someone goes in and thus what happened in my case, the the sales people, we're distracted doing other things.

Somebody comes and manages to get jewelry out of the display case and secrete.

They could take up to $10,000 worth of jury jewelry and they would not have committed the offense of the magnitude that this woman was charged with.

Because that would be a class, a felony.

Only if they stole jewelry between 10,000 and a million dollars, would it be a class C felony?

Just like Miss Shirley was charged with.

So I recognize prosecutor prosecutorial discretion.

But I also recognize that our Legislature has given us an entire penal code.

It's supposed to work in a logical and common-sense fashion.

So when you consider the jewelry store store incident with me magnitudes of last crater and that's a class D and then my final point is even if you have someone on the sentencing in life just as winners whose about how the criminal justice system works.

Even if you have someone who manages to off address it in the most.

Appropriate available at that point.

You still have someone with a felony conviction that can never be expunged for $80.

So that's a lot.

But to me, that's what this comes down to this, too.

Hit third-degree, unlawful access to computer, been given.

Odds are very good.

I mean, the jury Ms the jury knew that a criminal offense that occurred and they had no choice right?

They had no choice.

They had to convict or of this or acquit her.

And I did a quitter of the assault charge.

If I remember correctly.

Giving me a lot to answer before.

I answer that substantively, I want to answer it.

Procedurally.

>> In response brief, it was noted that Michelle Lee did not argue before the Court of Appeals that she should have received that lesser included charge, but just ask or to She did ask for it at the trial court that this court has noted that arguments not pursue the kind of feel our way.

You know, the 6th Circuit has its forfeiture doctrine as well.

It looks like this was forfeited by the fact that it should be noted it and did not even percent.

So some typically first.

Former justice Venters did assign it impose a 30 day conditional discharge sentence.

This jury was told not to commit any crimes for 30 days, which is not very heavy punishment at all.

Over the issue of expungement is not here before us today.

That would be a separate case.

And of course, expungement is always a matter of legislative race.

They don't have to offer that to anyone.

Addressing your more substantive concerns.

Areas in the penal code have set for Rush bowls for when something becomes a felony.

Often.

$100,000.

There are other crimes in the penal code that don't have that.

This was footnote for from the opinion below.

That don't have the same threshold and the fact that the Legislature did not decide to put one here, even though they clearly know how to set threshold shows that they did not intend for one to be here, but it does go down to unlawful access to computer in the 4th degree.

So there are 3 degrees of this.

>> Felony.

This tough stance below the one she was prosecuted for.

So they did set and 3rd degree.

It's less than $300 and second degree, 300 or more.

>> Yes.

And this court in math versus coming.

Well, one, 36 southwest 3rd for 34 adopted the familiar blocked for the test.

And that test says that it each crime includes an element that the other one does not.

Then they are lesser included.

And that's what Judge tap relied on.

And Judge Venters agreed with Justice Venters excuse me agreed with.

And that's because first-degree unlawful access has the COVID purposeful.

The some parts A and B, the 5th element.

Where is the other crimes?

Don't have that.

And in fact, they have damage from those that have to be shown in order to do that.

>> This surely in addition to proceed early, not being entitled to ask this court for the >> lesser included charges.

Well, and the lowest numbers in terms of that council.

>> Going back to your earlier analogy is particularly in light of consent.

Is surely had taken the.

The price tags, if you will, or the bar codes and change them that wind through the regular check out with the cash year using the traditional method that we're all used to be for.

The scanners came.

How is that different?

I mean, I'm having trouble falling apart and just shoes and now with and questions as to how this fits into the penal system.

It just seems like a theft to me.

And what if she had switch those bar codes in gone through the regular case, your life.

We just be looking at the death.

A regular straight up fast.

I think that's a very different question.

Just discussed.

>> Because it's not unusual that this looks like a theft.

And isn't that because the prohibited purposes that?

Constitute a lawful access in the first degree, our deficits using to see to get property for yourself.

It's obtaining money, property and services.

So the condition of theft or entirely logical and the legislature intentionally put those as part of the statute.

I think that would present a different case.

And this court has acknowledged in Hoskins the miracle that few exercises of government power our as inappropriate for courts to review as our charging decisions by prosecutors.

This is this is what section 28 means.

It's a public policy decision on behalf of the legislative the fall on that public policy piece.

In April.

This year, the General Assembly spoke and raise the threshold.

>> For felony theft.

So it seems to me like their policy statement that time was, you know, you've got to at least deprive someone of goods of $1000 before you reach the felony threshold now we're going back to the Shirley.

He's so old, $80.81 worth of.

Merchandiser.

That was the difference.

And the Commonwealth is seeking 10 years in prison.

I mean, I think there's policy concerns on probably both sides of this argument.

But I go back to if she stole our change the price tags and was able to deprive Walmart $80 in $0.81 worth of goods.

But did it walking through the regular cashier line?

This would just be a straight up that.

And I know.

And and to me that also.

Goes to your whole consent argument.

I mean, I think the consent is with you coming and they're consenting T purchasing goods and pay for them.

Whether be in the traditional human operating cash register place, which, by the way, are now computerized as well.

Through the south check-out computer line.

Whether we like it or not, most businesses, all businesses particular those big missed businesses factor into their business plan.

The cost of doing business is they're going to curse and theft.

So I really need to be convinced on your consent argument.

I just I just don't see it just as color.

We don't take that attitude with any other product.

Crimes, of course happened and nobody wants them to.

We don't say that while murders are going to I agree.

100%.

And so the same thing happens here.

Kentucky retailers don't consent to the stolen from.

This is not the cost of doing business.

This is something that we try to prevent Walmart employees testified.

The existence of Walmart Asset Protection Division alone should show that.

>> They don't consent to have people steal from.

And the General Assembly may be intentional policy choice to punish certain computer crimes more harshly than their then other theft.

And that there's a lot of good reasons for doing that, which this court has said it won't.

Second guess when the text is fleet.

What are the reasons that we talked about to shift several of those good reasons for mentioned below such as the layer of technology that's used to camouflage the crowd here.

Of course, Mister Lee was watch.

But that's not always the case.

When their computers.

Computer crimes can be notoriously difficult to track.

And just because someone happened to be watching here doesn't mean that you get off scot-free.

The procedural argument, but I still don't understand why a lawful access to computer.

>> In the 3rd degree doesn't apply.

And that keeps that keeps the offense.

She committed consistent across justice killers example of whether she walked through a human operator.

Check out.

Or she secreted in her purse and walked out with it.

However, she took it.

It's a class, A misdemeanor.

Yes.

So just as this is a class C felony.

Punishable by 5 to 10 years in the penitentiary.

But of course, judges can use 5.

33.0 1, 0, to impose.

>> Alternate sentencing plans like justice mentors to hear.

The instance of somebody putting something in their purse or in their pocket, that would be a totally different product.

The reason those 2 examples are consistent is that one bolles intent knowingly and willfully accessing a computer in a way you're not allowed to.

And another just involved human check out.

It's a lot more secretive to be able to use a computer to have fewer eyes on you or rather, the eyes are split among multiple first.

>> Zach now offenses are gather from what I've read about this.

The switch and tags is not unusual that that happens and loss prevention departments like Walmart and all Major retailers have are aware of that and are these across the Commonwealth of Kentucky.

And we do see a lot of these because prosecutors in all 120 counties instead of prosecuting for staff or for unlawful access.

In the 3rd degree, there, they're going to be looking for a 5 to 10 year sentence on everybody commits this admittedly criminal act.

Want to be clear.

I'm not taking up for what's going on here.

It's a common needs to be punished.

>> Grounding principle to me is that our penal code is supposed to be red and white with the punishment fits the crime.

>> 2 responses to that.

The first is, of course, to acknowledge what you said, which is that this is clearly a from it all.

And so.

The legislature doesn't count means that retailers don't give their effective consent to that.

The other is skins be miracle stands for the proposition that charging decisions are a matter committed by law to the prosecutors.

The judicial branch, determining guilt or innocence.

Gibson lays this out very clearly the role of each branch.

>> This agree with that.

And I think the prosecutorial discretion is.

What gives great power.

To our prosecutors across the commonwealth.

And that Han says the important the judiciary and in.

The the arbiter of fairness and find the laws fairly and equally to everyone because of that great prosecutorial discretion, which I also enjoyed at one point in my career.

But there's also the public policy concerns.

It.

The taxpayers of this Commonwealth.

They're the cost of the incarceration of every individual.

He's incarcerated.

In today's climate has a preview of incarceration rates in the Commonwealth.

And once again, I'm not condoning the festive $80.

I wouldn't condone the theft of $0.8.

>> Theft is staffed and it's wrong.

It's against the law.

>> The 10 years in the state penitentiary.

For $80.

I mean, I understand.

The business and retail lobby being concerned about this issue.

And also understand that.

But if the of the day the taxpayers pay all their all these birds, they pay the prosecutor salary.

They pay the judiciary salary and they pay.

>> We incarcerate individuals.

And this is a policy piece of this that we haven't yet discussed.

>> 10 years.

For $80 worth of merchandise.

It.

I just don't think I've seen this in mind.

10 years on this court.

And so it is a big thing.

It's a it's a big issue for us.

>> Yes, Justice Keller, I think readers just coming off this very clear the and the when the statute is clear and the U.S. it is not the place supports to make public policy exceptions to statutes, no matter how well intentioned it may be.

>> I agree that you were our policy, at least 3 different times from the podium.

So for a state nor the policy issues that are at play here I think is is for us to decide this in a vacuum.

It's not real post.

>> Counsel for Mister.

Why you have 3 minutes rebuttal remain.

The sport.

My name is Steven, but come on than 2% chance to share in this matter.

Today.

We'll talk a little bit about as for discussion.

The subject lessors has to get here.

Now this line Kyle's free.

This as a judge in our system does not 40 to pastors which grants to prosecute when the bust.

And that's true.

That's never been an issue in this case.

Workers had discretion would love to use it.

Was by one charging testy with the S E felony offense.

2 $1, much Charging with robbery.

We're bumping into warmer place of the story.

Big yearsley arguing against any lesser included structure is to go to the jury.

And 4.

Along the attorney general's office to exercise their discretion to push the discussion to this court, trying to reinstate a felony and they cut rates to record lows.

What we're doing today is using the power of you to decide whether the facts of the it stands for on its.

It's directed for the law inspect This court can substitutes few of the evidence base.

What below?

So before we time to jump into effect consent as well over the last really quickly.

The prosecutors argued against that was going on.

The reason I did not raise that why would you believe there was a minute's first degree?

Second due to report results of Pfizer's 3 Senate races because it's a court of appeals for even this court said we've got to Let me say remain.

A chance.

He could face a much more time.

30 days of just a specter skate.

I don't trust other judges states, especially in the situation.

So.

That's why that is that just because?

I want to pick the one, you know, believes that this is an issue be addressed.

But that's okay.

When detective consent.

The kind of this kind of tie always action to one that I think what really after is to Just took it to threshold or for the quarter, which is about.

She scanned it and she paid for it.

I think as she takes to the store, it happens all travel.

People pay for items actually bought the car will not a crime.

Right?

She paid for the item.

Has it?

She committed a second that she fully me first.

She took these 2 items.

Well, my heart walk ups store.

We couldn't consent.

She's pushing exact is intended for she pay for an item.

What do they want to get a $4 where they started?

They started to pour in stifling heat.

There's no last year $80 M from up there.

$80.

The value of the attempted theft.

Which test in is not about to start Just explain to us to be a charge of taken.

She's always wanted to kill.

There's been some courtroom where she stood up when, you know, she this one's got on the local K. A lot of people in situations too.

She she loved the corn, which is on display.

Judge staff has put down said he said the magic words were going to trial.

The Public Health Act on robbery.

They went back down this so.

You know, I just want to hear She has always admitted that no Just to clear some questions about the specific facts of the case.

Just spent his last in the same before I answer those questions about.

This is speculation on what they say was inside just as interested.

I trust that he was going to take over.

A case that finished well.

It was set to get just over time.

I think just she's a talk many times over years.

But the values of this court, which is we've all been circuit court judges.

We like them to run the way they want to.

We just expect us to the next best thing.

Let's not let's not overlook out West.

That is produced.

It's from the stats for 5 years to 30 days that I believe that state was loud and clear of it.

You know how you view the way this case is prosecuted?

Well, no other questions he did ask was the specifics of with this to go on with the sticker stand.

You know?

I don't think the other case tablets the exact mechanism by which this I don't think the parties are disputing the general idea that she just put a sticker on the product and then scanned the product of the guys choose scanning.

You know, the price tag.

It's hard for me to see the difference regardless because the computers access from for the purpose of buying the toothbrush.

Was also used for the purpose of being a slight up and it's always fun to shop.

And shoplifting is a slight of hand.

Whether you're kind cameras in the store where they can start something undershirt where these in the child's to carry something not mean.

It's always tough.

And it's always shoplifting has always done with the intent of knowing catching yet.

That's all the machine.

Is it just it served its purpose?

Well, chesty wanted to see secure.

>> I confuse me now on what was said before on how this was committed, that she actually take the bar code from the toothbrush and put it over top of the bar code on the items and she scanned the testimony.

>> Clearly established that.

I think that does make a status that the price of anything.

I think that S what cased and wish to expect when she did it.

I think there was generally in agreement.

What she did was wrong.

I think it she makes that too well.

The question actually?

>> Doing they put nothing over top of and scanned it or the slight of hand.

That's 2 different things.

>> I just knew that I know it.

I think because what she did.

She's paying for toothbrush.

And she's also stealing items.

And I think I think the way she did it.

You know, the machine serve the purpose to machines.

With that.

She told her what the barcode price was, except you're paying for it.

She didn't take with a toothbrush and a stand, whatever it was out of the store she had made the switch.

So the argument that she didn't misuse the standard and she just simply bought a toothbrush.

If she had bought the toothbrush, why did she walk out the door with it?

Walmart pays for a ham.

We put in the bag.

so Wal-Mart's not pick up the phone and asked the local press charges.

>> Okay, Stephanie, much less than this to light.

I think I think it's right there.

The ship walk-ups with the toothbrush.

She should pay for it.

When you go through one of the self-service lines, just like any other line, you get a receipt.

>> So presumably this transaction that she engaged and generated or received was that evidence at trial?

What the receipt and >> Well, so so what I'm questioning and I think that's what my colleagues up here trying to figure out.

Does it show she purchased item and it was this toothbrush holder when in fact, she either it take it or didn't take it.

But she took these 2 other items that can't remember what they were shower curtain or something else.

What does that?

I guess my understanding of the facts war that the 2 items she wanted and didn't want to pay full price for.

She used the wrong bar code for the O's and therefore she stole the difference between whatever Barco item she used and what the item was that she was.

And I don't know.

I can remember Justin, fully get out of the stores.

She was stopped.

But I guess what I'm saying is if we need to know what the facts are in it all she scanned was the toothbrush holder.

And but she's walking out of the store with 2 other items.

Then.

She didn't access the computer for those 2 other items.

She was just, you know.

Having an item go through so that it would show that she was doing something in the self checkout line.

So it does seem like the unlawful access.

It does manner where there are 3 items on the receipt, the toothbrush holder and the 2 items that she stole the We're that was there.

One item that toothbrush holder?

Where there are 2 items, both of which were passed off as a toothbrush holder.

But in fact, we're 2 different items.

I mean, there are a lot of permutations in the facts here that some would not implicate the unlawful access of a The easiest possible most burden.

He spent 4 steps.

So there's no receipt that shows how many items she paid for that our was intending to chaos and she used a credit card.

So she whatever.

Yeah, we don't know that you get it.

It the storm poise testimony was.

The evidence.

>> store security video?

Introduced what they do.

Just the same questions.

That part is kind of talk to him.

We don't know the specifics of the Senate.

Well, if you're going to show unlawful access to computer and misuse of the computer, wouldn't the receipt?

>> The the evidence it was misused along with what was found in her position.

>> I don't think that statue I think just choose right to the best evidence for one, if nothing else.

We what?

Why?

When you?

>> Why wouldn't that be introduced to?

>> It's it's it's quest for the That's because this is a question for the prosecution to what with debt, what would the prosecution from having charged her with 2 2 felony counts here.

She took to the items and then use a computer twice and maybe they missed one.

I don't know.

How good are they?

If this is being done in different places and that justice lamberts point, there is a good question.

I know you defend across the commonwealth.

Is the statute being used this play for what we think of as experience judiciary, a step on local taken.

>> Well, the stakes cases from all 120 counties.

Well, this case came across my shot from there.

So this is not a commonality even on this book is or the statue has been on the book for Netbooks for a number of years.

Know there's one case came about a deal.

Does someone stealing someone's credit card?

Use an ATM.

And even that, you know, get to work for the people.

So who knows?

I got curious what this case working condition.

And she said that she'd seen the statute used for a lot of gas stations were gas station employees with access lot of machine.

You know what your little use the machine to get taken tickets.

I need to some other special for yourself or whatever.

Well.

No, I have not seen the statue led to this special event depending on what the decision of this court is.

It.

>> It could open the door and become quite.

A bit more calm.

Yeah, I mean, I.

>> I want to hear it all.

The policy goes over the head.

I think the court has picked up on it.

You know, the vibe that's hoping to pick up on that.

Yeah.

I mean.

Don't underestimate.

My agency when when cases we share, right, it's it's something to celebrate.

And we kind of share the way we've got it.

This court says.

It's okay to charge heavy that the statute this is going straight across this conference.

And yes, you are just as you can see it with more.

Creativity than even what we >> The statue was originally and I-84.

That sounds right.

>> There's a project to the statue on the Custer Shelby.

That was.

It has reversed.

So get ready in 2002, I don't know.

Particulars of that.

I sense.

I do with that in mind in 1984, level to which all the time and part of the hour.

Yeah.

I mean, the they say is just coming the Internet.

I trust the statute was written for.

Very sophisticated high level.

Kind of breaking into the computer break into.

Data.

Banks was so secure.

One of the for council certainly.

>> Written you scan the process took really came into full operation, I guess, since the pandemic.

Retail establishments for to encounter between a check create iPhone staple.

Other things, you know, grocery stores have been scanning for some period.

>> Well, step of it.

There's a theme of discussion.

This case.

I just say any time of the past year.

Anyone the 5 names, Cosby's consent.

We don't need to do this.

This is what we want to be.

It's because it is going to be right.

I just ask this court to get a chance to surely people to come all these facts on the government's this question.

Our goal is to discern the intent of the legislature where we think a statue may be at if this statue was originally written.

84, albeit perhaps amended and 2 are about.

What's the intent?

What's the legislature truly trying to get it?

Because I don't, you know, a little bit older than you think as we all are.

We don't recall commonly barcode scanning in.

Retail establishments.

You know, maybe even before 20%.

Okay.

So was the legislature getting at?

>> This court has been very clear that the intent of the Legislature's to be found in the plain meaning of the statute revenue can that person goes?

Probably the clearest states that we know what if we decide that we think this is either.

And thank us for that.

That has written this reaching an absurd result, which we can do under come like step.

It ends up construction.

So.

Help me out here.

Yes, there's a lot to respond to their.

>> I think it's certainty is waived again because it was never raised by the other side.

And this isn't what's absurd.

This court has recently dealt with, for instance, a workers compensation statute in which the court decided 6, one opinions that somebody who stopped working okay.

So.

>> So the certainty is isn't at play here.

It's not just something that the court has a policy disagreement.

Well, this is a very obvious there.

They're saying you mean we can recognize a This is an absurd.

It certainly is the sort of thing like the statute that was at issue in the federal system recognized it was a a few statute that said you must file your feel no less than 7 days.

That meant they couldn't file it for the first 7 days but thereafter could file a notice of appeal.

10 years, 20 years, 50 years into the future.

That's the sort of thing that, sir, this is clear that it's the computer usage that the General Assembly found.

The problem.

So I I think this court would have to cut through a lot of its statements about the clear text of statutes in order to what about all the statutory cases we've written.

>> Justice Keller wrote about it.

Ross Tina wrote about it 10 years ago in Shawnee Telecom.

You look at the statue, but you look at the statute in the context of the chapter in the broader, it seems to me revenue Cabinet.

Yeah.

The the issue of the deductibility or sales tax issues.

One thing we're talking about, the penal code.

When you look at the statute around the one under which this woman was prosecuted, you find a second 3rd and fourth-degree version.

Now you argue Walker during you argue that she why did but upsurge of the is a concern and palpable air is also a concern.

>> And the question becomes when these other alternatives are here and that you have to go over $300 to even get to on lawful access to in the second degree.

Why doesn't discerning legislative intent place this statute in where it belongs, which read it without my glasses here.

>> It's 4.34 for 85 and it's followed by 4.34.

A 54 34.

8 51 4 34 8.53.

And if we look at their run, the statues which were required to do, we look at the statute, but we can look beyond it in the same round of statutes.

How do we arrived at the conclusion that this was the one and only option for the prosecutor?

>> Well, Justice Hughes, this brings me to one of the points that I was intending on getting in rebuttal, which is that my friend on the other side admits that he waved to this argument.

He kept waving it today, saying that it wasn't right for his chest.

A T-shirt.

So I don't think that's even an option for this court to decide something that wasn't briefed below.

That was waived in the Court of Appeals and then again waived today.

It was a conscious, strategic choice.

I also think that this is the first I've heard of any a factual concerns here.

And I want to remind the court that the venom standards still apply.

Visit with this court would have to find that the jury verdict was, quote, completely unreasonable.

Let me just ask you a factual that in response to Justice Lambert's questions, there's no video.

>> It was the loss prevention person.

How many items were wrong through the computer?

What 2 items it was a and it helps cover.

And I'll give you the time stamps were surely so the risk they would show to our items.

But there was no are safe.

Introduced.

But the receipt that showed 2 items and she used the same bar code for both.

Is that what you're saying?

They're see was not introduced.

You are correct.

And I think the jury could make a rational inference that yes, the receipt would show 2 items.

This surely admitted on 10.

21 2019.

>> The time Stamp 14, 48.

33, she said, quote, I switch the bar codes on the merchandise, end quote.

She admitted to stand in the wrong bar code again at 14.

51.

54.

And then at 15, 0, 9.28, she said that she did not deny that she committed this fact and Judge Venters discussed this extensively with defense counsel and the assistant Commonwealth's attorney on February 7th 2020 at 12, 16, 12.

All of this is in the record is so clear that she switched these bar codes.

She used these items with these improper bar codes to access the self-checkout register, which is a computer.

And even during the emotional day in the discussion, just as soon as you're maybe I have that role.

The case was tried by judge top just finish, came in and took over.

>> Post Thursday, is that right?

So what is what you're referring to discussion within a motion hearing on a J in over the years.

It actually testimony that wind to the jury testimony to be subject to the scrutiny for the directive or standard?

I'm a little confused here.

Yes, it was a clear warning for the for what testimony was introduced at trial.

So it was all about the trial testimony in the rational inference is, but the jury could make.