take as well there's no dispute here that mr for bell is kerry was improperly instructed when they were never told either orally or in writing that if any one of the elements of the offense is not proven beyond a reasonable doubt they this evidence was close to balance because it came down through a credible credibility determination over the mens rea of intense in that first elements of these three elements as they all it's an aggravated battery and  wins when undercover police officer two police officers testified that this defendant was the one who are sold to her when the heroin was introduced to trial and after the supreme court find a trial found a trial error that went right to the credibility of an error that implicated the credibility of the witnesses they found a case to be close to balance and i think this case is analogous here because the air in this case is that those concluding paragraphs instructed the write that's correct and i think the crucial distinction there is that either like you had to go to three steps first the burden that the state is going to have to meet to bring back a guilty verdict that congress principle is equally important to mr pradelle or any criminal defendant but those concluding paragraphs set forth well what do i need to do if i have doubt on one of these elements and i think as attorneys that might be an instinct proposition for us but i think the only pattern instruction committee realize that it's made up instinctual for a lay jury member that if the burden of proof is beyond a reasonable doubt that means that if any one of these elements is not proven they sister she was pretty well he wasn't there was certainly a computer over which which officers were in play here which officers were in the apartment but i think over the the crucial credibility contest was keady it really came down to were those injuries intentionally caused by mr from vela and in another point even officer keep his testimony at one point he says i injured my elbow on my knee when i finding in terms of the injuries to officer kid so i think this case is closely balanced much like the nailer case where this air in fact is a square with the evidence and that this there was critical because the jury could have confusion over one of these three elements the defense case in essence conceded two of these three elements that this was a police officer he was in his the standard of review is the novo this court doesn't have to give any deference to the fact that the jury instructions were incomplete here and in terms of my discussion of the evidence i'm certainly not challenging the state by officer missoula in that sense this was a close the valves case the fact that the jury opted to believe the testimony of the police officers doesn't have any bearing on the on the plane air doctrine of course every and i think our oyster creek court's decision in green is this speaks to that way when it said that's not what those illinois pattern instructions do have those concluding paragraphs that decision should not be construed as any sort of license to dispense with those two reasonable doubt paragraphs found at the end of i p i eleven point one si improperly instructed received these jury instructions for that i would refer this court to people versus open zola which was discussed in both the appellant's and state briefs and in terms of this case being closely balanced i would ask this court to look to people versus nailer which tell me yes but the facts in this case come down to the mens rea of intent and there's absolutely competing testimony and rather for valid cause of injuries because the defen the case here was that this was a melee there was a pile up with these officers the testimony is undisputed that ms rouer punched avella in the face the testimony is disputed as to how those injuries occurred and i think that it's not an unreasonable inference that if these juries these jury members went back to deliberate and they thought i don't have any doubt that these were police officers and i don't have any doubt that these officers were performing their official functions but maybe i have doubts as to whether for vela intentionally caused these injuries and there at that moment it was critical that the jury be instructed that simply because two or three of these elements but that's not beyond reasonable doubt is not sixty seven percent of these elements are met therefore i will find mr felt guilty it's at that moment that the jury needs to be instructed that if any one of these elements is not proven beyond a reasonable doubt they need to bring back  injuries and in that sense i think we're certainly dependent on officer kid is testimony here and again i have the burden of persuasion under the plain air doctrine but i'm certainly not confessing that there's sufficient evidence to sustain a guilty verdict and here my bitterness it to show that this evidence was at least close the valance and i think officer kiddies testimony when i one point he says i couldn't even tell you for sure whether was the kicker the fall when he fell to the ground i think right there the occurrence so the people maintain that the evidence was not at all closely balanced that the evidence overwhelmingly proved that the guilt of the fund it on and clearly  people had the proof the people in their closing argument acknowledged their responsibility for proving those three elements of the offense and they repaid the battery and i argued that  but because given the evidence and the arguments of counsel and the fact that the instructions as a whole apprised the jury of all of the elements of proof as well as the the standard or review of the novel but that clearly acknowledge that the issue was not preserved therefore the standard review is just plain error as i've shown it was not the evidence was not closely fact that the jury was instructed of brigadier instructed on on and told the people's burden of proof and that the people acknowledged with their burden of proof was not i'd say could take a position that's going to give them another chance could be at that in that case in that case since the from the neck we asked in the instructions sure it would be unfair to me when i was being facetious i understand but  mission of the final two paragraphs somehow could lead the jury to believe that they could convict if they found only two of the three i believe his figure was sixty seven percent which would be two of the three propositions proven it the jury i think would read as they are instructed to do read the instructions in context of each other as a whole and would not judges on the jury how would they know that the two paragraphs are missing but assuming somebody said well wait a minute maybe something's missing from these issues instruction how would that say to a jury well then the judge's instruction about the burden of proof and the presumption  structures still stand trial attorney on either side in this case i can assure you i would have looked at that and said to the judge well the judge or couple missing paragraphs here and we wouldn't be talking about this but i wasn't a trial attorney and apparently got by the trial  trial that he should get a new trial based on their absence so i say no because the instructions read in context of each other clearly are present jury in the burden of proof it doesn't say the burden of proof globally it says in this case the state has the twelve jury members were never asked whether they understood and accepted that mr feller didn't have to put on evidence there's no guarantee that they accepted that when they heard mr fidelis evidence they had to they wouldn't allege that he had no obligation to present it and i also an issue regarding the pluralization of the word conviction and i've got three point one three and i'm certainly not asserting that that's the trial layer of the century but it's also non controversial proposition that's the risk of prejudice to a criminal