joy in david and rob that is fine and it was an approximation and i think the record at one point said ten to twelve but there's a fairly were three people who use that number don't three people said that they ree hour period where she's in the bathroom yes i did contact with anyone she was her friends were outside she was visibly upset according to the just so when so that this was the one hour don't the testimony well yes from her friends and herself that she was intoxicated that's the point i'm getting to she gets a call from respondent her son all around eleven o'clock she does not remember how he has a number this is really a question of statutory interpretation yes the way that she a valid way to judge her be of the way the what she said rewrote the statute do you think you prevail under a manifest weight or do you believe which i think we almost have to tease out of this judge's remarks rather than see that they're flat out there has that she believed the trial judge that in fact the cation couldn't  sufficient couldn't be a defense that there could be consent even though there was intoxication yes because otherwise why would you require affirmative testimony that she was too drunk to consent at the time of the othe fairly judge didn't control the testimony of course not but when the judge is faulting the stree proof you do not even get to the intoxication issue unless you believe there was sacked first by legally incapable of some of the testimony is right yes but and i'm just pointing out some things as i see it she made it she didn't lose that she said you probably consented more whether th wrestling when i remember her saying precisely and so when the question becomes right was the evidence supporting the circuit court judges conclusion that more likely than not  and the answer to that is zero well because the respondent didn't testify there was no cross examination i wonder she consented or not and so you are left with a never asked reback and so now you come down to whether the ultimate question for her this is the trials of her this is how she framed the issue comes down to whether there was consensual sex or not ok yes and that's been anything to do right  that moment as to whether or not she was too intoxicated so that the consent issue wouldn't even be an issue ok right we're guessing if she was too intoxicated she probably consent that's correct but i don't think that's the kirby saw the evidence she saw the evidence of a lot of drinking but the question became for her was she so intoxicated as to make the issue of consent evidence that it was consensual well and then she proceeds on for the next four or five paragraphs to delineate those discrepancies in the petitioner's testimony ok yes she admits to drinking thirteen beers she admits that she left with the respondents even even though her two friends were waiting for she finds that somewhat difficult comprehend for she admits she does not remember falling in the street on two occasions on the way to the law school she admits that there are some periods of time when she does not remember anything she admits that someone vents were told to she admits that she could not remember the location of where she was after first leaving her apartment on the sixteenth and that that location was subsequently told to her by her attorneys this goes on for another page and a half but the critical part of the judge's conclusion it seems to me is contains that it is in your brief yes it is a ten page thirty for the record she was impeached with her deposition testimony when she answered that she stayed in the apartment the impeachment is because the judge has a theory very difficult time with the credibility of witnesses because she says thing she said i don't know if you have an accurate independent recollection of  your memories too shaky unreliable i have concerns about the credibility of your testimony this case is so hard for me i have thought about it every way you ask the ball i know you didn't want this to happen i don't know if you are recreating events after have is an abuse of discretion because the that the manifest way to the evidence clearly makes her a credible witness i think you can argue that or more likely more likely she misinterpreted what was required under the law case as well yes of course takes your position as well really very forcefully but what concerns me is that as forceful and as eloquent as your briefing is is this case the of course but here's the problem you don't even get there this will end at three or four in the morning where someone says hey no i don't want to do this and where is the basis to reject that testimony you know just calling her as false and are false and all it could have done it did not do so it's sad she was not a liar it had the option of saying these are material factual inconsistency s and the latin phrase once to make that positive law the statute i just don't believe that this case this case is simply not the proper vehicle for why well there are there are factual vacuums there's clearly a peach myth there is uncorroborated inconsistent want any sexual contact with the other the response i think she said i don't want to do this what is there i think what the court was looking for 's a fact because they respond to testified we have to take what the petition it's says at solon true true value unfortunately the court didn't agree with that the court looked at the at the behavior and the the fact the factual behavior after the alleged incident the entire next day for us also was also inconsistent with the with the allegations that that she made regarding the incident yet it wasn't so inconsistent because she was struck remember where she seemed to remember other things justice and i think that one of the things that you're for example when she was in the library sure remember very pretty particularly her conversation with her mother when she on the phone when she said that she was fine that she was with  conversation with respond that she doesn't recall anything about me disappears and who struck remember some things in that other thing is that when drunk well that very well could be a runner but i think that the facts here show that she remembered certain things conveniently and she was playing who's ball with her and with the entire group as they walked with her to the pub she doesn't recall respondent walking with that back for friends indicate that not only was she it was the respondent walking with them as a group together four am the alleged incident and six am but the reason i do that is that there is testimony from ben berry that he received text messages from her sometime between three am and six am if she was at some other place some strange place hours i didn't see that i don't disagree i sat back and i saw that i did it she consumed about twelve beers i think that the amount of consumption your honor i think it's easy i think it is hazy i think it's based on conjecture based on the rules of the game they they laid out the petitioner and the other end of the friends the pitcher laid out the rules of the game at the pub when they get to the pub it's clear that julia who was supposed to be keeping track of the competition was not even paying attention that was his testimony  if he had testified david testified earlier julie was unable to type if you had more than two beers but he was here he had no problem to free with a cell phone in order to to order coffee or food or whatever it was that he was ordering at the at the library what's interesting is that the court made note of the fact that the testimony was from favorite and julia that she was going in and out of two bathrooms not one but she went up the stairs and downstairs went in the back in the bathroom and they were just basically testified that he left the note there she never saw him leave the note there that he was even farai these are these are significant differences to drop in this type of situation especially given the fact that at trial thought long and hard about this phrase allocation this year and i think reviewing what allocation of the risk of error no matter how we slice it is the issue with respect to the weighing of the there are mean that it would it's if you overwhelming evidence was in favor of finding for the petition the that the judge alex to the risk of harry potter the britons are clear if the petitioner fails to meet the burden a fifty fifty split goes against the petitioner not in favor of the petition  the witness making that statement is credible it's a whole different that interest in this situation the court clearly did not find the witness credible i think it does hinge on credibility and the court itself i testified this its credibility the issue is do it is the court oblige the trial court applies to take the testimony of a bit of a witness it finds either in discredited or unreliable for whatever reason and and and make and render one yeah i think what i mean it was interesting if you hit her test was interesting because she i didn't she identified the fact that she has her medical records but she's testified that she did not look at her medical records that she never looked at  way she didn't outweigh anything i sent she did not win anything has actual penetration has you see any conflict at all in the philosophical approach that you have to take into this case where you argue with one point the unrebutted testimony of this witness and at the other time that they know the standard that would apply in the case a person who is one who is incapacitated by alcohol no not at all what we're saying is that we can you be incapacitated by alcohol for one purpose that is not being able to give consent and make and taking and set off the table and at the same time be capable of credible testimony that doesn't take into consideration your incapacitation i don't see any conflict at all in those two legal theories you know there are facts of this record was which one was she testified that what she remembers saying no she also testif of the when we're done here but they don't suggest i mean they're really arguing in the alternative it seems to me but i'm not at all sure that it's really helpful to argue those two issues in the altar and first of all you have two different standards of proof did not have the option it seems to us of simply sang i do understand what i'm driving force of course you're asking about whether or not there's an internal inconsistency between legal position actual position role the standards of review that would apply each when they work great people who are not gone terribly for the next four weeks get a child he treatments that are not read all of that conduct is consistent with bonds consensual sexual penetration and so when you say well the court filing and it will be considered in part of the record as we consider right deliberations in this case we're going to think five minute chunks rece