will most likely spend the rest of his life in prison after being sentenced to twenty four years by a jury who found him guilty of credit for terminal sexual assault on december sixteenth two thousand and fifteen there was only one witness who claim fred committed this crime the alleged victim h v ten year old age be claimed that while spending the night at the coxes home she was sexually assaulted by fred cox she claimed that she was wearing a nightgown and was awakened in the early fred stop she put her underwear back on and she fell back asleep all this supposedly happened with present wife christie in the next room and fred's daughter g c d wine within a few the in a double pine or h p had a cell phone with her and only lived two blocks away nevertheless she didn't want to go home the next morning instead stayed with the coxes going with them to wal mart and joining them on a family outing with other family to eat chinese food the coxes drove h b home sometime between noon and one pm that next day friends wife christie described h b as the happy bubbly futilely eleven year old girl however when they got to brockton where each of these mother and her mother's boyfriend she got  cheese mom felt something was wrong but h b did not say anything to her until ms richards boyfriend robert burton got home and at that point h p stated that she had been sexually assaulted by mr cox at trial fred testified on his own behalf the nine the allegations of any physical or sexual contact with h p and g fi g c the girl who slept in the living room less than a foot away from h b testifie h b was wearing sleeping pants not a nightgown later after fred was convicted but before this appeal d n a testing revealed that the underwear that each of you was wearing at the coxes home did not have any  believe the expert did identify it as semen but then on cross examination of the state did indicate that it had markers or semen or that they would think it would be semen but if there was a possibility that it could have come from other bodily fluid and was there anything identified in the underpants that i'm where your client could not be excluded may very well argue here that the absence of d n a this is a common argument the absence of d n a it doesn't mean that he didn't commit the crime but the fact is the state's theory in the case was that people down there underpants be penetrated her with his penis and then he stopped at one some point and then she put the other underpants back off so part of the evidence that was collected was the underpants and it was tested to determine whether or not his d n a could be found there that was the reason it was tested we want to hear from the record there is a little bit of a history with respect to i guess you could say chain of  custody with respect to the underwear in terms of it being allegedly put in some other dirty laundry and it was the minors mother who provided the underwear to  and asked the mother for the underwear that she h b would have worn at the time that she returned home or the underwear that she waterboard that night h these mother then went to the longer pile where she believed that that under her underwear was and not that underwear and gave it to detective metcalf who then sent for the testing so that is the the chain of in the motion for a new trial was to put ella richards on the stand and she did testify that she and mr burton after h b had gone to the coxes did have sex she testified that he then wiped off a wife himself off after having sex and that that how it was in the laundry pile and that she didn't know whether or not the the underwear was on top of or below but i believe she did testify that it was near and that was of course the state's argument that it was some sort of transfer of the there are five issues that we have raised in this case and i'd like to address the fourth issue that was raised first if that's ok with the court because quite frankly if this court would rule in our favor on this issue it would be required for our course not only to consider the four factors related played out in people versus johnson but also require maybe a novel argument to the court in the sense that it does depart from previous rulings but i believe in support of this we've asked the court to recognize the fifth district ruling in people versus  w where the court stated that there is no precise test for evaluating trustworthiness or reliability for rather particularized guarantees of trustworthiness must be drawn from the fatality of the circumstances surrounding the victim's state and looking at the totality of the circumstances surrounding the victim's statements we're asking the court to evaluate the interview by considering one the training and experience of the interviewer to the consistent ference to protocols and the structure to ensure complete and accurate accounts of the child experience while minimizing the introduction of specific information or input from the interviewer and three the objectivity conducted by train forensic interviewer as defined by the n c a a the national child advocacy standards in this case sergeant rose who was the interviewer only attended one forty hour course finding words less than one year prior to interviewing h b there was no evidence that the finding words course was the current acceptable method for effectively interviewing children there's no evidence that he had done anything to ensure that he was carrying to any sort of protocols or best practices in fact he appeared unaware of these protocols or best practices and i'm sure as to whether the interview questions that he was asking follow them  conducted six interviews prior to interviewing h v and he had previously been trained on any of utilizing the read method of in it in interviewing and interrogating so he was the interrogator for more than six years he failed to initially set any ground rules or guidelines such as the need to provide honest answers not to guess and that if he was wrong about anything it was ok for h b to correct him it is apparent from viewing the interview that sergeant rose was not using a structured interview or what nationally recognized protocols he was using  on objectivity started rose would have this court believe that after interviewing he moved to an investigative mode therefore he was able to switch on and off whether he was interviewing or interrogating an a child and sort of wrote freely admits that he knew who what and when the alleged incident happened in advance of his interview with h b and this allowed him to focus on the interview when h b mentioned near a park with head of us sergeant rose failed to thoroughly explore the statement a forensic interviewers job is not to assign go or praise a child for making allegations or reinforcer answer which sergeant rhodes does throughout this interview sergeant rhodes told age of the good job after she reported fighting back he told her that she was bright well read and i can tell you read books he was often supportive and his demeanor after the trial court reviewed this entire recording in the one fifteen ten hearing it noted that it had the opportunity to observe deputy rhodes interviewed techniques and did not find it to be leading or course of or suggested after reviewing this video this court should find that no reasonable person should take this view and therefore the court abused its discretion in admitting this raised in the one fifteen ten however it was not raised in the post from motion so in my brief i indicate that i am asking the court to review this on plane air and that and i argue in the brief that this is a closely balanced case there is only one witness just because that was witness testified not only in person but also through her video interview which indicated should not have there's no doubt that would be east testimony was highly spread judicial bt the state's first witness testified that twenty years ago when she was thirteen year old years old her stepfather fred repeatedly sexually assaulted her having intercourse with her until she reported this abuse and she and he was removed from the home fred placed guilty to this offense i ask this court to consider three issues individually and the cumulative impact of all three of these issues in determining whether the trial court erred whether this error was harmless and whether each received a should receive a new trial first the trial court improperly admitted other crime logic in smith and donahoe is that the passage of time comes with the need for greater similarity between the prior and charged conduct with the passage of over twenty years in order to be admissible the other crime evidence would require idiosyncratic and remarkable similarities not just the threshold or general similarities argued by the state the hundred ninety four conviction and the charge defense against h v was remarkably similar over the evidence shows that the similarities are minimal and can be found in most cases of all these types of charges v another present person present or in another room nor is vs testimony about being awakened extraordinarily similar to each of these allegations again such evidence is common in these types of cases and i would state that if a trial court is permitted to call this evidence remarkably similar it is hard to imagine a case that would not satisfy this standard remarkably similar has to be more than just magic words that proud court can use to permit such highly prejudicial evidence in the case before you the other crimes involve the defendant as a stepfather for twenty years ago several an incidents over the course of months and threatening v e if he told anyone the charge conduct involved a single incident with no relationship or ability to threaten h b although neither  pallant or kelly included any discussion of this course january twenty second two thousand one thousand ruling in people versus kelly regarding other crime evidence under one fifteen  ruling i believe has application to this case the state may argue that this ruling applies to fred's case and that factual differences are incidental and meaningless under the unless the identity of the perpetrator is at issue and the state pursues a theory of modus operandi which in that case would require a higher degree of similarity powering calley the other crime evidence involves multiple women aims to be prejudicial to defend your honor you go on to explain the possibility and the opportunity for juries to use it improperly to just deem the defendant bad and therefore punishing the defendant for just being bad that is the case your honor here not only was a jury of i consider friends crimes against the eve but the also the proper and also erred by allowing the jury to see documentary evidence a certified copy of fred cox's prior conviction containing sentencing information beth the punishment for this one thousand nine hundred four crime goes well beyond the intended use  the jury was allowed to consider that fred wasn't bad in ninety nine hundred ninety four and only received jail probation and home confinement and the jury could have concluded that he deserved whatever punishment that could be hea regardless of whether he committed the offense against h b and that this was improper and the court used its discretion allowing the sentencing information for the one nine hundred ninety four crime to go back into the jury room for the jury to review into the certify the of the conviction going to the jury i believe there was an objection before the trial court was breaking and then they came back and then there was no objection and so there there is an issue going to the jury during deliberations omf and due to forfeiture affirmative waiver and the standard of review the senate has a steep uphill climb in convincing this court to accept or even to consider even if this court were to rid you defendants forfeited and affirmatively waive arguments the standard review for all the issues three is abuse of discretion which defendant cannot establish because he cannot show that the trial court's rulings were arbitrary  evidence is closely balanced when the case outcome turns on a contest of credibility and that occurs when both sides presented plausible version of events and there is no extrinsic evidence to corroborate or contradict either version here any one of several circumstances takes this case out of the realm of will sit downs cases eighty consistently and plausibly testified and stated in her c s e interview that she was awakened during the night by defendant who pulled off underwear took his penis out of the hole in his fox your cards and assaulted her she testified and stated in her interview that the contact lasted a few minutes and then and then left the room her testimony in her statements in her c s e interview were consistent with her statements of her mother and the e r doctor her credibility in the reliability of her statements were enhanced by the absence of any motive to lie or axe to grind on her part by the timing of a report to her mother soon after she got home by her mother's warning not to say such things unless they were true after which h p did not change her story and the timing of her other statements the same night in full succession afterward in addition her  some unknown person open the door he was inches away from the person didn't know who was beginning it wasn't his wife and that afterward he did not check on his daughter and he also there were a hundred different among the defense witnesses as to  required the trial court here did not abuse its discretion and finding sufficient similarity here this sport in bend note found strong similarities between the past and charges pence's where the victims of crimes were nine year old boys in both crimes the defendant touched the boy's penis and the defendant was previously convicted of the same crime here the same strong similarities are present h e n d e were the same age and gender dependence of crimes against them involved the same type of sexual contact and defendant previously pleaded guilty to aggravated criminal sexual abuse of the event them under thirteen whereas here he was charged with predatory criminal sexual assault under thirteen so those similarities alone were sufficient to meet the test of general threshold similarity additional similarities increase the probative value of the evidence both cases involve no preliminary or regarding the prosecutor's remarks and closing argument that's the only issue that is not subject to an abuse of discretion standard under this court's decisions there's a conflict among the different districts as to what that standard is but the sport recognizes  he also would have to have had to support his argument with argument citation to authority in the record so as to allow it to adequately evaluate his assertions and to avoid forfeiture of his arguments because he didn't do that if despite defendant's failure to meet those burdens this court were to reach issue three then it would still would have to show that the prosecutor's remarks were improper and that they resulted in substantial prejudice to defendant considering the content and contents language its relationship to the evidence and its effect on that than its right to fair and impartial trial then it cannot make that showing as he makes burns reply brief the air that he asserts is that the prosecutor properly defined propensity for the jury and gave his personal opinion on how the propensity evidence made his testimony more believable prosecutor did not hear in stating that the propensity evidence could be used to judge credibility or in including himself with the jury in stating that the propensity evidence helped him to judge eighty's credibility and that he thought it was going to be helpful to the jury defendant provides no authority argument in support of his c so as to so many of defendants arguments there therefore he did by his failure to provide authority for them that includes the argument  and of course he also has done by not giving this court any direction as to what part of the d v d supposedly violated the standards as to issue five of the amended motion for new trial  despite defendants opposing counsel's repeated assertions to the contrary the expert his own expert was very clear that there were there was not semen found it was only indicated what they found was there was a protein that was present on his underwear that was present in many bodily fluids including scene so the expert could not say and there was a lot of questioning of the expert on this including by the trial court expert could couldn't say that it wasn't that same defendant failed to show that that d n a evidence was even admissible where he failed to show that the underwear tested was the same underwear that well as in brown the state presented a plausible explanation for the presence of britain's d n a on the underwear the defendant did not refute contrary to l there was absolutely no evidence that burton was a cheese assailant the evidence presented showed that he was not the state's evidence showed that h p was awakened and sexually assaulted by defendant while she was on a sleep over with her was her mother that described her as screaming or crying out and then the prosecutor asked her you know if you saying that she actually said that and and i believe the mother said well i just put that together with p was sexually assaulted no their male was in the house h she was clear and certain in her identification of defendant who she knew as her assailant well burton lived with h p and her mother and at around the time of the offense he was not support the theory the burden could have committed the offense it showed he was not and could not have been age his assailant there was no evidence that anyone but defendant committed the offense and the offense was either committed by defendant or not committed at all so defendant failed to meet his burden of showing the new d n a evidence was of such conclusive character that it would probably change the result on the trial or even that it was admissible denial defendants and then an amended motion for a new trial is not an abus know i think we kind of left off on whether or not the issue with regard to the objection or whether it was  case that involved an ineffective assistance of counsel claim that is not the type of claim that is being made here and there was a fairly complicated issue regarding i believe the definition of the actual crime defendant it argued that the trial court and his counsel were wrong for not seen into the future and realizing the eventual case holding that the term individual within the languages of a certain section of the code would be defined to exclude the shooter it would appear that the court's ruling and peel that counsel acquiesced and it was there was there was an acknowledgment that neither the lawyer or the judge are expected or required to be clairvoyant as to where the law is going  where is fred is in fred's case press council and the court were not faced with a complex legal question regarding unsettled case law in fred's case the jury had ask can we have all material evidence available in response the court answered that they may see four documentary pieces of evidence one of which was the certified copy of the conviction  is failure to object counsel failed to jack was based upon the court's prior ruling on the admissibility of the propensity evidence however nobody appeared to recognize the fact that exhibit one contained present one nine hundred ninety four sentenced to jail home confinement and probation and that the punishment for this ninety nine thousand nine hundred ninety four crime goes well beyond only sentenced to jail home confinement probation you know with regards to the remarks a closing argument appellant does argue that the propensity evidence makes a witness more credible and in fact at best propensity evidence says that that fred is more likely to commit th