like to concentrate my appeal in argument on two of the convictions one is were attempted aggravated sexual abuse of a child essentially our position is therefore essential elements of the jury was instructed to follow one element three and four were stipulated by the parties to apply to this case as well as all of the films where mister takes issue with the finding of the jury and believes that no reasonable jury could find beyond reasonable doubt that he met all the essential elements in count two count one to me was the fact that the way the government charges the charged specifically penetration  however slight of the volga v f b by a penis government in his closing argument on page three fourteen essentially indicated this is count one and it says the defendant support their conviction their talking about the attempt right now right well but the problem having with that is i'm not suggesting it's consensual but the best way to obviously but the best way to describe what happened was some sort of mutual fondling that happened during the course of the lead up to that and when you have a situation where you have mutual fondling i mean can't you say that that's a substantial step intercourse am i wrong about answer to complete the sexual act one that's relevant to right so not only do you have sort of the mutual masturbation you're going on but you also have the fact that you had it so you had similar incidents months later that the jury heard where it did end up in intercourse and certainly isn't that relevant again for the jury to infer that the actions that took place on that earlier date were substantial step towards what eventually happened later well i think if you limit you what your view of that statement is i think it's right is trying to save a conviction that there was dark in here and he was trying to save a conviction that they did not present sufficient evidence to establish on the second jury was instructed that there are four particular separate definitions of force one is the use or threat in using a weapon that was not argued by the government that was not presented any there was no testimony presented of any threat and use of a weapon second one is the use of physical force fission to overcome restrain or injure a person and this particular factual situation mr fuller did nothing to prevent her from leaving did nothing to hold it down he had nothing to restrain her and by engaging in the act he simply took her leader on the bad proceeded to engage in a sexual act where not by force but he pulled her correct he had her that was the government's leading statement did he grab you by the shoulders yes and lay them on later on the bed so if the testimony is that he grabbed her can wasn't there also testimony that he had been physically assaulted toward this girl in the past i believe that came out later it was on october of two thousand and fifteen so there was no no evidence of physical physically assault of behavior toward her prior to this particular no no i with from my reading of the of harm sufficient to coerce or compel submission by the victim i submit there was no threat of harm stated by the mr fool bear he did indicate let's keep this between ourselves let's not tell anybody i don't believe that that constitutes a threat of harm you never threatened to harm her if she left stated what had happened forth a definition of force is for sufficient to prevent a victim from escaping there again factually he did not prevented from leaving she left  to her bedroom and that end of the incident so our position is that no reasonable jury could find that would use any forced there was no sufficient evidence beyond a reasonable doubt of any force was used to coors her into the milling where do those four categories come from they're not in the statute anywhere and i'm trying to figure out where they're from and because it seems like these are all sort of extra things that have glossed on maybe in the case law or something that had nothing to do with the statute maybe more so bound by pundits trying to figure out what were all this is from i was one case yes or the government conceded in its or final argument that there's not a lot of force here didn't grab or didn't change or down didn't come for toobin did not use anything other than grabber by the shoulders taken into the bedroom and later on but it's a case where the victim testified that gave forced her to have sexual intercourse without consent and it had very very similar facts and applying those four categories in an opinion by judge loek and we said well that's enough that's that's enough and it's sort of the similar polling that judge kelly referred to earlier and i guess what do we do with that if you're not familiar with the case it's probably unfair to ask you well if they can no resistance there was no resistance on her part it was a factual question but i believe that there was no reasonable jury could find based on conceded the factual elements in this case that it was any force used to compel victim into engaging in sexual acts i don't believe there's any question that he engaged in a sexual act with he did not compel her to engage in that sexual act by by the use of force or threatened use of force in any way  as i did so i gave in my brief because of the similarities to this particular fact pattern and what the jury would have heard throughout this trial and all of its rather wonder can syria either ask for thirteen evidence if it wasn't charge or could have been brought in as penetration appeared there after she testified it happened on a periodic basis once or twice a week or a recap of weeks to the extent that she agreed that ninety six times roughly not time period that she was with this individual she would have been used by force when she was seventeen and that's where kind of comes into a little bit more relevance because we're talking about force here and we talk about the definition of force in particular here we're probably looking at sub two and three of the definition of model instructions which is the use of physical force of creation to overcome a person when you take an individual and you look at that individual that's what the jury would have done they were taking this this girl we are being they were looked at her and it was said well one hundred six times over this period of time she'd been have predated this assault that may have informed the jury about her view of his grabbing her i prefer to think there were some testimony that after her brother committed suicide she was physically assaulted to the point where she for basically a shot where he'd kick her multiple times in a bedroom with with steel toed boots or shoes that he was wearing a time now the jury did not find that particular because you know during that assault she had produced a box cutter things that are not unrelated they're not unrelated but things that are disconnected in time that may have informed her mental state so what's the government's view on how the mental state analysis plays into force use of force your honor you know in cases like this i don't know how a jury could not read into into the assessment i mean you take an individual in from the age of ten to seventeen they've been sexually assaulted physically assaulted they've got to the point when somebody comes by the shoulders the choice is do i get sexually assaulted or do i go ahead and put up a fight physically assaulted and that's actually solve it she ever and the reason i asked to disconnect it by trying time question and she ever had the physical salt's ever happened contemporaneously close to in time any of the sexual assaults and maybe that doesn't make a difference i'm just curious factually whether there was some sort of connection that she would have made immediately between refusing to submit and and undergoing a beating i don't one case right you charge it under a one and then we've got the four glasses on a one you don't charge this under a two did you know you're ok and you agree with me this is a colossal leap i think are cases of placed on the statue those four categories charged under giuliani but whatever stopped him from proceeding further that they the jury could have looked at these ninety six other times that you saw that took place two months later and said you know what we think we believe we have he intended it this was a substantial step miles away better case if these events are these later events that actually occurred before maybe but that doesn't mean this isn't there's a vision inference by itself by saying it's not necessarily bad it's not a particularly strong case in my arm and if it's not would you get a look at the you know the overall circumstance of the case and in a billion the results of the jury's deliberations they took a look at the case they took a look at the instructions we have to assume that the it applied all of the instructions in fact they've found a defendant not guilty of count four which was the aggravated assault so they would have looked at the instructions that outlined in detail to me what a substantial step was and what they needed to find in that particular aspect in findin the state law definitions i you know i don't know i guess the the relevance of that here but i do know the you know the court properly instructed the jury as to the the definitions that were outlined in twenty two forty six were these particular matters i would  any further questions i would ask the court to deliberate and affirm the convictions of this particular matter thank you