may please the court i'd like to address the first two issues that we raise in our brief this morning turning to the first one one of the issues the trial court had decided was whether christopher harding knew at the time he fired the shot th the undercover car was occupied by police officers looking at the trial court's own words the court reached its answer to that question before pardon even testified because the court prejudge harden's guilt on this one element of the offense or that was denied due process and the right to a fair trial and he should receive a new trial on the charge of aggravated discharge of a firearm i think the best place to begin is to look at what the court actually said during  findings of fact and conclusions of law the court made two statements regarding prejudgment first was what else did he do what else tells me before he even testified he that he knew it was a police car a few lines later the court then said that's and before he even testified that's why i believe the state had proven alternately taking that into consideration i can understand why the state was able to prove that he knew it was the police if if we look at these statements the court is saying he made up his mind as to whether or not harding knew the car was occupied by police which was a key element of the aggravated to sharjah offense the course taking us back in time to what was happening during the trial so the fact that his comments come after the close of evidence is not really as important as the state would like this court to believe the goods and the statement also cool calm after the conclusion of all the testimony after all the evidence is there  in the defendant's credibility he says i don't find mr hard to be a credible witness at all and that's fine the judge is certainly allowed and in fact supposed to make credibility determinations but this isn't simply a credibility determination here we have the judge saying i've made up my yes i think you're taking the things well there's two things the judge had to decide the first is wasn't he in the shot fired toward the vehicle mr harding knowledge on the scene that he fired toward the other victim i'm mr sharp that's clear that's not an e found it to be incredible he didn't choose to believe that's fine the second issue though and that's where that the judge statements here come into play is ok assuming he shot at the vehicle did he know at the time he fired the shot that it was occupied by police officers that's the key and that's what subsection a four of the aggravated this charge statute requires knowledge at the time shot is fired that the a car is occupied by police officers and he rolled off before we that had nothing to do with whether the state case is sufficient to prove defendant guilty or not if you accept that but i think the key justice along is that this statement in the states by the judge came after the close of all the evidence right we're not talking about the motion for directed finding that came up after the state's case and the judge found that the state  of aggravated to charge so this is coming in the context of the judge having heard the defendant's testimony but the question before this court is did the court listen to what the defendant had to say did he have an open mind during the why i don't believe we're taking out of context because i think we i be explain that we're looking at everything the judge says here he's making his credibility determinations he's making certain findings of fact and then at in the in the midst of all this he says this is where i am before the defendant even testified i make a long line on this one issue before the defendant even testified i've already decided before the state after the state's case that i'm not going to listen to what the defendant says about what he knew who he was in the i'm going to listen everything mature assessment she comes up with my mind on this case is already made up so i don't think the fact that the judge will listen it is necessarily probative of the question did he have an open mind while he was listening and i think when when the judge says i mean i made up my mind on this issue before he even testified i think we have to take the judge at his word we're listening we're not going to make up our minds until she does that i appreciate that your hon e says that the court paid attention and is already explained paying attention and listening isn't necessarily the same thing as having an open mind which is what the court is required to do the next thing that the state says well he was simply referring to the motion for defining again says the judge was simply making a credibility determination which is under the case law certainly the judge was allowed to do and again the judge only made a credibility determination apart from the statements the judge already found mr harding to not be a credible witness and we should really take no exception to that whatsoever that's within the judge's prerogative but this isn't simply making credibility determination a guilty verdict would suggest that the defendant or the judge didn't find a different credible that's it forced from the verdict that he was not a credible witness what doesn't flow from the verdict is prejudgment a judge is not supposed to create judge a defendant's guilt on an issue or an element so the two are not the credibility determinations as a separate matter from this so i don't think that explains what the court said here to stay also says that this came again of trial and as i've explained what the judge said here is giving us a clear insight into what he was thinking at the time at the close of the state case and finally just to stay says well the judge was otherwise extremely fair he quoted him of the temp first degree murder charges so that we would say we're not attacking the judge's overall bias this has nothing to do with whether the judge was anti defendant or anything this is simply a matter of the judge made up his mind on this one single element and the fact that the state didn't put forth a prime facie case of intent to kill it doesn't have any bearing on this matter so again if we look at everything in the context i think the judge's own words are the best evidence we have here of the fact that he prejudge mr harkins guilt on this one element and that is enough under the case law to suggest that he deserves a new trial one before a fair and impartial judge who will listen to everything and wait to make up his mind and so after all the evidence is concluded if there are easy questions on that i'd like to shift gears and address the one on one crime aspect of the case w not here mr harding was found guilty of two counts of aggravated discharge of a firearm one for each of the other two officers that were in the car at the time it for if we look at it at this court's decision a brave boy the home invasion case we refer to there were three people in the house at the time it was invaded this court found one count of home invasion to be proper because the key and the grabbing of that section of that statute is the entry into the house it doesn't matter that there were three victims of the word victim is not necessarily synonymous with the unit of prosecution so if we to this case one shot at one vehicle is one physical act and enough for one conviction in the state relies on several cases that simply are too factually just distinct from from the situation if we look at second victim and you have two physical acts again there's no one act one comparable but here where you have one shot toward one one vehicle we have one physical act and that's that's enough how would you distinguish people who are says lynch are you familiar with the i am here leech is again one of the situations where you have multiple shots toward multiple victims i believe it was a second degree murder conviction and an aggravated discharge so there didn't the state could apportion the first shot for example toward the victim that died and make that a murder charge and then make the next shot toward the other victim which again is charged under subsection eighty two i believe which is this charge toward a person suneet you have three crimes committed against separate victims constitutes a criminal act yes and that's why i think we need to be careful how we define victim we're not necessarily looking at the black's law dictionary version of someone who is harmed by a crime who itself is the victim i think that would be sort of foolish way to interpret the statute but i am suggesting is that's the unit of prosecution that's to grab a man of the stature to shooting toward an occupied vehicle and when it's done one time we only have enough for one single conviction so person i think come with ok but again i think that's what home invasion makes of an appropriate analogy it's sort of a property crime it's sort of a crime against people and that's why we look at the unit of prosecution or the grabbing men of the statute and here again it's not just about how many victims there are it's how many acts towards those victims and how is how is the statute defined that's why this is sort of an actual crime issue in sort of a statutory construction is a little bit of both we have to look at how it's described how many acts do we have we have one physical act of shooting one one but how many or how is that as the a prosecution described it's described as an occupied vehicle so where we have one it one vehicle conducted an eminently fair trial nearly a perfect one where the charge actually equated to finding of the three most serious charges against him he attempted murder charges in part because he believed defendant when he said when you told child did not know what it was doing however the court is cloaked with the presumption of in the and the record does not support defendant's claim that the trial court creates his guilt prior to his testimony rather defendant presents an unreasonable interpretation of the child court's ruling when he said quote that's where i am before i even testified unquote in context revealing the child quit summation of the n tire evidence here it's clear that the child quote began with defendant's case and his own testimony in particular initially the court noted that during defendant's testimony he himself admitting that he that is the credible testimony of the officer that defendant ray on from the car approached him despite the fact that he had a loaded gun and that he did stink on despite the fact that he couldn't use it for self defen defend that he would be and he did stick gun during his own testimony as a trial fact the court properly drew the reasonable inference as to ride defendant did these two any santa review his speculation is in his misinterpretation of this remark is certainly not enough to meet his burden and overcome the parish the presumption of impartiality cooking with child court with respect to claims that subsection a four also rises only one conviction for the discharge of fire in the direction of an occupied police vehicle i'm like the home invasion statute that defendant uses to cook as comparison state the state can charge it under any and it is sexual in fact if you look in a to do with reference to man police person now their combined fear cold or in the direction of a person so the state is  to protect each and every potential victim in the car is the only way to give effect to rise a set of intent to protect police officers from people who shoot at them eight in fact combines both police in a vehicle as well it's a discharge offense it's complete upon the discharge of that one pilot either officer was a potential victim of potential shots were fired however if if so let's say he makes the same claim with respect to the i am wrapping authority if my husband and i are watching our champion show died on the it's it's the fans pull it place each officer in equal danger and they were each two people both of them are the people that the legislature intended to protect many charges here so it's absolutely appropriate for there to be two aggravated discharge or if i am confections in this case we would ask this quick to affirm defendant's convictions for the afternoon it became clear to him that the police officers were involved ok the key is when did that come up he says he didn't know at the time he said you didn't see the employee on the front of the car again this is a great unmarked crown vic could have been police car could have been a taxi cab could have been a civilian car it was speeding toward him about twenty five or thirty miles an hour across this field when you give him much time to look at the license plate say oh yeah that's police car the second issue and say just about the for question was in that is a fact question yes and again that's just something that we suggest the trial court should have waited to hear everything before he made up his mind on this one factual aspect again the state mentions forfeiture and irreplacable so regardless of the for which i think we have satisfied at least the second prong of plain error the state doesn't challenge that in their brief they don't challenge it this morning before you so i think we're we have we've made our burden on on that aspect the other thing i would say is simply that the state has discretion on how to charge offenses we're not challenging that we have no problem with that they have to live with the consequences of those decisions and how the church seems to charge these offens