the morning your honour's assistant public defender eileen paul on behalf of the defendant i'm very holmes this court should reverse the appellate court and dismiss this appeal because the trial court had no jurisdiction to entertain the state's untimely motion to reconsider the stage here filed a motion in limine a seeking the admission of other crimes evidence the trial court denied that motion after hearing held on june tenth two thousand and four the state's in not moved to reconsider nor file a notice of appeal within thirty days of their ruling instead they waited almost two years intil may thirtieth two thousand and six to file a motion to reconsider that motion to reconsider decided the same facts which have been discussed at the two thousand and four hearing after that motion to reconsider was denied the state filed a notice of appeal and the certificate a substantial impairment under rule six zero four a one inter in the so called taylor rule which does allow the trial court to correct itself in light of new facts however detail a rule restricts that situation to a change in facts which are material to the decision on the original motion and which could not have been presented at an earlier time with the exercise of due diligence detail or rule is related to the dark prince of res judicata collateral stoppel and law of the case but is a separate and discrete doctrine the rationale behind the till rule is to prevent tardiness and promote anality so that the litigants me make reasonable tactical decisions to prepare for trial the tiller rule is designed to be a very limited rule and states that the exception shall not swallowed the rule here in the appellate courts opinion did not properly apply the taylor rule and has allowed that exception to completely so all the rule however this was no change in facts the state's two thousand and six motion to reconsider we cited the same facts which defense counsel had referred to in the hearing in two thousand and four namely that the defense had reason to believe that it would be able to impeach the complaining witness with a prior false allegation of rape against an n f l football player for the cleveland browns and that the allegation occurred in the context of a child support settlement those were the same facts this state recited in two thousand and six and is in this court's previous opinion and williams where the facts were cited in a motion to reconsider with the same as were in the transcript of the hearing on the original motion that did not fall within the taylor rule in addition the state here showed absolutely no diligence in locating that impeachment material the defense representations in two thousand and four identified a cleveland browns n player the defense subsequently filed a motion for discovery which sought civil records related to the child court's settlement and specifically mention coil hold good county cleveland ohio the state was put on notice here and they did nothing more than wait until the defense located the documents that has no diligence whatsoever moreover the impeachment material alleged by the state here to constitute new facts was not material to the trial court to riginal decision on the motion in limine the law has long been well settled that the crew of that other clients are not admissible for the purpose of bolstering the credibility of a prosecution witness yet that is it precisely the purpose for which the state here claims this material was essential and sought to open the other crimes because it didn't simply to here they say did not meet any of the requirements under the taylor role the appellate court spontaneous pointed to the fact in the rocker which the state had not argued and claimed that to be new newly discovered facts the appellate court pointed to the fact that the complaining witness three months after the original motion li in a discovery response attested that she had made no previous allegations of rape this is the same reliance on that here has been waved as a never raised in the trial court  in any event as the dissent in the appellate court pointed out that related to the very same subject matter as had been discussed at the original hearing which was the substance of this prior false allegation of rape moreover there was the taylor rule itself does allow the trial court to correct facts when facts change the real argument here is with the due diligence requirement and we would it would be our position that the seat should be held to the due diligence for acquirement when they want to reopen our ruling for the reasons that the taylor rule to prevent tardiness and to provoke finale also with respect to the state's argument about a people versus marker and bob's timely motions to be consider and that opinion addressed whether once you timely got in the door within thirty days whether you would be allowed to the time told so that the trial but we're talking and untimely motion to reconsider the stay here argues for an absolutely open ended new courbet new showing necessary to bring a motion to reconsider at any time they wi that obviously is serious implications both for defendants who are held in custody such as andre holmes who could not make bail and also it is the truth seeking function of the trial because the delay does williams and since that point there have been very few reported cases applying the taylor rule and even fewer addressing the due diligence the state claims to tailor rules a draconian burden on the prosecutors of this state imperiously if that were true there would be much more reported litigation on this the rule is designed to be a limited exception and it apparently has been working  chose not to appeal it and two years later changed their mind but they could have appealed it back then which obviously added two years to this case and the pretrial delay the other grounds the state has raised for the first time in its brief in this court as a an additional new fact is the defense in this case invoking a consent defense and a formal filing in two thousand and six the state has waived this argument because they have not raised it up until this forum in any event the state cannot show that the defense invoking a consent to facts defense in two thousand and six was a new fact in the state's original motion in limine two thousand and four they stated that a consent defense in the case was all but inevitable and the assistant state's attorney argued before the trial court in two thousand and four that the defendant had no choice but to raise the consent defense in this case given that the parties were acquainted and there was a d n a match when the trial court fully considered a consent defense in the litigation in two thousand and four that simply was not a change in two thousand and six nor would that be a material to the trial court ruling on the motion linda in this case because in this instance the prior offense sought to be admitted the state has not submitted any facts to show that the prior offense involved the consent defense the prayer k indeed the prior case defense counsel stated that andrea holmes guilty after spending twenty days in jail and the complaining witness in that case subsequently withdrew the order of protection married on three homes and had two children with him under the circumstances a quick guilty there's simply no basis to see in the record for the state to assert that there is a similarity between that ninety four case and the implication of a consent defense in this case we would urge this court to strictly apply the taylor rule because it does ensure that cases are brought to trial and it prevents games playing by the state and make sure the state does not abuse its power with respect to the certificate of substantial impairment if the state has a right to appeal in order and to file a certificate of substantial impairment and decides to forego that opportunity the presumption should be that the state was not substantially impaired and it should have to meet the burden of due diligence if it wants to come back in and a burden of showing a change in facts and not simply hindsight or or a different opinion as to the weight court's judgment on any basis that supported in the record so that's the first issue the second issue is the taylor issue the defendant states here today and also in page ten of his reply brief that for the first time the people argue that the taylor rule should apply to this case in the appellate court on february twenty first two thousand and seven defendant filed a motion to dismiss this appeal arguing taylor and williams i responded on to twenty six two thousand and seven i said that the proper governing rule was the one that permits the trial but even so i'm the epically and so i'm certainly not foreclosed from doing that now with regard to jurisdiction there are two components to a six so for an appeal it is true as the defendant states that this court in drum in two thousand said that where the substantive a fact of an order either suppressing evidence or excluding evidence is the same they're both eligible for appeal under six zero four eight but that's only the first component to the appeal the second is it has to have the fact of substantially comparing the prosecution of that case and this court has made distinctions based on the nature of the order and the timing of seeking review in the appellate court between those two fairness issue because of judicial it how many the state can only appeal those types of orders related to the illegal suppression of evidence but not ordinary evidentiary rulings and then the other thing that the state could appeal was whether the court had the power to enter that particular rule as a corollary but the point is this court has made and it's up to this court so for a it is a rule that enables the people to appeal and it's up to this court's construction and this court has always considered fairness to the part people and defendant as well as judicial economy so there's greater flexibility to appeal the trial based on the nature of the order than there it is once trial begins and similarly i argued in the appellate court and i are you here again that this court unlike motions to suppress which are based on the legal nature of the evidence caesar the voluntariness of a confession evidentiary rulings entered in the ordinary course of ongoing discovery in a pretrial context are necessarily subject  discovery his discovery and the defendant filed his answer for the first time this is not a case of dilatory conduct this is not a case that there is some sort of scheme or some time waste by the state the state found its motion to reconsider the same date as the discovery as the answer was final the court heard the case the same day without objection by any of the parties the court reopening considered and the court entered its rolling and may thirtieth two thousand and six and we found the notice of appeal on june second two thousand six with a certificate of substantial impairment so the point is when i back up with regard to tailor the rule and the has been modified by williams and again by heigho over the course of time i'm just calling all the all was developed in the can text of suppression type orders the probity of nature of the evidence is irrelevant to a suppression order and so what i did was adopted the finality of judgement time frame of thirty days and said you have thirty days to appeal but you can also find almost to reconsider within that same thirty day time frame well think about when discovery is ongoing in a pretrial context of a case and an evidence or a ruling has been made prosecutor when it determines that yes in two thousand and four the court removed one arrow from the quiver of the state in terms of what it could prove it still had the responsibility to prove aggravated sexual assault it had physical evidence we had  we had threats we had a victim who has eyewitness testimony that's two thousand and four in two thousand and six when the defendant files his answer and answer of concern to means you explain away the physical evidence of sexual trauma you explain away the physical evidence of d n a you explain away the physical evidence of sexual contact now we have testimony but now the defendant has filed a police report and claims that simply the filing of a police report that she has made a sexual assault in ohio in one thousand nine hundred five means that she's a false alligator well now if you look at the state's case the state is looking at this and says wait a minute this when you file a consent defense it increases the  probability of evidence of the defendant's criminal intent we could imagine in two thousand and four that he might but he also might have filed an alibi a defense he might have filed a reasonable doubt defense he might have filed a number of things he chose to find an answer that said i'm going to lie and consent and by the way i'm going to destroy your victim in the process i'm going to use the purpose of the stand as a shield for myself which is what the two thousand and four would have shown but i'm also going to allow propensity evidence to be used as a sword against this victim i'm going to say she's a false alligator simply on the basis of this report but we are not going to let the step finder know that this is a four time sex offender with three prior convictions one of which we did not offer as other crimes evidence but two of which we did ask for other crimes evidence if we are going to have two components to six l for a then the second component has to be that the prosecutor looks at that corner and says guess what my arrows are gone this is an erroneous ruling the prob nature of the evidence increased it didn't decrease with the filing of two thousand and six when you file your answer of consent it increases if anything it's really doesn't decrease it and so we asked the court at that time to reconsider and the court said you know i have an inhere component that's when the second component of six o four eighty becomes available and that's why this appeal was filed after that time the prosecutor and this court has said several times that not every evidentiary ruling is going to be that goes against the prosecution is or should be appealable it is only in those cases where it substantially impairs the prosecution's or to need to proceed that is what happened in the two thousand and six or the combination and it was that combination of the court song now the appellate court disagreed with the state that the quantum of evidence increased they found the soup sign that the prejudicial risk of the other crimes evidence decreased and and therefore they decided the case is an exception to the taylor rule because they were still looking at this that feeding this case into this due diligence requirement but to do diligence requirement makes no sense whatsoever when you're in i'm going discovery where the whole purpose of  y is to find new facts evaluate them and then final that if you think it benefits your case all that detail or rule thirty days and even with this due diligence exception causes is the person who is the proponent of evidence such as this evidence in the motion lemonade to allow other crimes while trying to tell me end of the pretrial process because they'll be afraid what is new facts come in and they'll claim i didn't engage in due diligence to bring those facts forward to the court but the own end of this evidence in this case the defendant he's going to try to get a ruling as early as possible because then he can say you know you are the thirty day period has passed and we can claim that they should have known that this evidence was out there and because we're the ones that filed it they don't get to ask you to reconsider your ruling even though that willing becomes unjust in the context of the other rooms of the trial court it has to be evidentiary rulings a trial court has the inherent power to reconsider and that's exactly what th was a lot of hyperbole by defense counsel which might be along the building the concept of the end can see but the point is three months after that hearing he found discovery to go fishing to find out whether any reports actually exist and in two thousand and six he said well we believe someone or some allegation existed that's very different from an offer of proof but in any event the point is the the court in two thousand and four made its ruling based on the other crimes obedience that was offered for many different reasons but as a condom of evidence increased that was a matter of the outgoing discovery so due diligence is already to overlay a due diligence requirement of taylor to the going fact the discovery being filed in two thousand and six was the defendant's discovery it wasn't more discovery by the people it was the defendant's answer defendant has never raised these claims it was the dissent who said well i think taylor was and i think there's diligence requirement and you had to squeeze into that due diligence requirement and that's where a defendant his adopted that notion my argument is taylor was designed to deal with the types of warners that were suppression orders and just as this court has extended convictions and in that case the court said we can't see in the record whether there's going to be a key defense or that a consent offense has been raised but if it is because for trial rulings to reconsider about any time the state is entitle to go back and ask the court to reconsider if that defense is raised and that's what we're saying here when that defense came in when this new evidence came in it did change the quantum of the probability of this evidence that directly affected the state's ability to ability to prosecute the case and at that point that's when the prosecutor came to the reviewing court and asked that the order be reviewed and i think that that's exactly the defendant's argument here we take that power away from the prosecutor and simply have the first component of six zero four eight apply if the nature of the order is such that it's either exclusionary or suppression you've got you know right away or you lose your window forever unless you can fit within the taylor limitation but it was never designed for i'm going trial discovery and that's why the people are asking not to abandon the taylor rule entirely but that you adopt a more flexible rule when discovery is pending and the nature of the order is evidentiary in the prosecutor has not certified that there is a substantial impairment because the converse of certification must also be true and that is the not sort of a kitchen means that that second component of six so for a has not kicked in and it's one that second component of six so for a has kicked in that's when the time for appeal begins to run that's when the thirty day period begins to run and in this case we were well within that thirty day period with regard to the merits just very briefly i would say that the appellate court was clearly correct found that regardless whether you excluded the time when you didn't exclude the time for you didn't exclude it was about a nine year period if you did it was a little less than three year period nonetheless proximity was close enough under the  relationship with these women they were both acquaintances we refused he raped he use force to immobilize them both of them were assaulted at knife point or knife threats he brought them to his parents home in one case to his mother and one case to his  and want is proved by other crimes it is the defendant's tendency to act within his character his intent his propensity not whether one can impeach or not impeach a witness in the case so to that extent i think the  as they would if they were in awe probably all the way through these proceedings was respect to the taylor rule the state keeps asking this court to repeal the taylor brawl however the state does not acknowledge that in this matter as it would be deficient under the rules as well the state claims that most insist across are inherently different from evidentiary rulings and thus the taylor rule should be limited only to motions to suppress state claims that an evidentiary ruling the court can choose and we i'm to reserve any evidentiary ruling at any time and that is impossible for the court to balance probative value and prejudice prior to trial this court has recently rejected those contentions in people versus patrick where in fact it ruled the trial court had an obligation to rule when it is able to prior to trial on the admission of other crimes as impeachment under montgomery and indeed patrick stated that in most instances the trial court will be able to balance the prejudice of admitting prior convictions versus the probative value prior to trial so likewise here the trial court can make these evidential rule isn't rulings in fact should be encouraged to make evidentiary rulings in advance a trial and the tail rules emphasis on does ensure that the parties have willing say can rely upon when the trial court is able to make them and that when there are facts that change that they can be accommodated for but it has to be a change in facts indeed the question here  isn't whether the trial court can correct itself with changing facts we concede that the change the world does allow that the question here is whether this is the party seeking to reopen the ruling and that would apply both to the defendant and to the state needs to show due diligence in presenting those new facts the state here claims that it meant that due diligence requirement because the defendant did not produce the documents at an earlier date whoever it is the state's burden here on the party invoking the taylor rule and they are the ones that need to show due diligence the record also shows that shortly after the original motion linae defense counsel filed a discovery motion which did seek information related to civil cases about this child support settlement with the complaining witness that discovery motion was denied were defense counsel was denied discovery the state can hardly blame the defense for not obtaining that  quicker date with respect to the state's database argument they argue that their only obligation is to check the database of name defenders while here defense counsel in two thousand and four said that the offender against him the complaining witness previously filed a complaint was a cleveland browns n f l player that team roster is fairly limited it would be a simple task for the state to run that handful of names three database and see if there had been any rehabilitations involving one of those football players we are not talking a vast universe of people in addition the stake a further information in its own discovery requires shows you where the information was likely to be located indeed the senate public court here accused the state of adopting an ostrich strategy of burying its head in the sand and hoping that the defense would not be able to locate that impeachment material  if the chiller rule is not applied the door is open for parties to see and big each other and to use astrid strategies to not exercise diligence not go out in find things and then turn around later and claim that somehow everything has changed and they are now impaired when they themselves did not facilitate that discovery process the state's argument about the song going to scupper the process acts as if they are not an active participant in it 's passive it just happens it only happens when the state has an obligation to make it happen and the taylor rule ensures that the state further claims here that it is unfair because  propensity is being used as both a shield and a sword here the impeachment of a dense against the complaining witness defense did not seek that for any substantive purpose of showing propensity it was sought to be invented only show motive and bias indeed the trial court in a colloquy stated there were three homes to take the witness stand the state would consider a month that the court would entertain among comrie motion andre holmes testifies he would be in the same position as any of the state's witnesses and might face impeachment there is no shield and sword here that again is a state's attorney said apples and oranges with respect to the consent defense the state here was the one who decided to proceed by means of offer proof in two thousand and four when it presented a motion in limine me to invent other crimes and in its motion it chose to offer a proof that defense would all dispense with file a consent defense the state cannot turn around later and say that when we proceeded by offers of proof that somehow those offers of proof were not tangible enough later on two years down the road when the proofs came to reality the state has not shown any facts in this case which contradicted the offer which were made in two thousand and four indeed everything predicted to happen did in fact happen court here misapplied the balancing tossed the public court stated that the more evidence there was to impeach the complaining witness the less prejudicial it was to andrea holmes that other crimes evidence was admitted it courts time and time again i have stated the opposite it's when the other didn't is close that there is a risk that the erroneous admission of other crimes will result in an unfair trial when the evidence against the defendant is overwhelming admission of other crimes contains less risk of prejudice here if anything that impeachment evidence made this case closer and made the risk of admitting that evidence even more prejudicial a holmes finally the last point the state raised about in applying the proximity factor under the propensity statute in this court in donahoe did not exclude time that offenses presented but not the other there is no explanation of its rationale or why it is only applied it personally but i can only presume the rationale is that sexual assault does not happen in prison and that would be