bitterly this morning and happy holidays to everyone as far as the ten minutes i'm not going to just simply reread my brief or reciting for ten minutes so thank you and wants to welcome if anyone wants to jump and that i know each of your honors is a judge or or i've tried cases against you and you know a trial is something where we never really know what's going to happen in a trial but a trial is a fundamental right and a fair trial is a fundamental right and in this of the killer case mr dallas selected to go to trial he had a story he wanted to tell he took the stand and he told that story lauren who was done his fiance before this incident happened had her story and she wanted to tell her story and each of the stories had flaws each of the stories admittedly had some problems these two individuals had gone to a pre nuptial dinner for brian's brother's wedding and had according to lorne gotten in this huge knockdown drag out fight according to brian got in a fight a little bit less agree just at what wasn't disputed was that they had had quite a bit to drink that night lauren in fact it had more to drink them brian a few cocktails before they went  few cocktails a dinner and then when they got back to the room they polished off what appears to be by the by the story of a bottle of tequila and and a chunk of a bottle of whiskey and it's some point they got into into a physical altercation during that alter case and by brian's own admission he was putting his his arm around the neck of lauren trying to restrain her as she was trying to go out of the room later at night according to lorne he just strangled her at a different time and then she went to bed next and they both went to sleep she got up in the morning and snuck out interesting lee lauren did not even tell this story to the police when she st met with them she waited days to tell her story in any event so the case goes to trial and at that point there are no i p i instructions for the crime of aggravated domestic battery the court determines that it's going to give a self defense instruction and it also determines at the same time that it is not going to ask the jurors to find that a domestic battery occurred that's where the problem arises here because aggravated domestic battery as one of its elements requires that the jury find that in the course of a domestic battery an aggravating factor occurred the aggravating factor in this case is the which is an enhancement it justifies the tougher sentence a much tougher sentence a takes takes it out of being a misdemeanor from the normal domestic battery situation instead what the court did is omitted from the jury's consideration any requirement that they find that a domestic battery occurred but told the jury at the same time that if you think that brian strangled her which is all the court asks them to find it means you're finding him not guilty of domestic battery so the court instructed the jurors that finding the aggravated offense meant that you were at the same time finding him not guilty of an element of the underlying this is not unfortunately a clean problem this is not a clean jury instruction issue i wish it was this is an issue where you've got a serious problem with the jury instructions where an element is omitted but at the same time the jurors are told that they are acquitting the defendant of the underlying offense so what we're centrally have here and frankly my research showed that you know i raised in the reply brief that it's kind of a rever of the doctrine of implied acquittal because an implied acquittal where an element is missing you can't later find the greater offense if there was a hung jury but they they found in the defendant's behavior one of the elements it's the same thing here they found the jury was told if you find him guilty of this your finding him not guilty of the domestic battery so the jury found him not guilty of the domestic battery that was that was what they did here now i know the state has argued that and i expect they'll continue to argue that this is somehow harmless that you need to look at everything and of course if there's a strangulation that's you know bodily harm and so forth but it's not bodily harm requires a physical injury of some type it requires  actual physical harm that you can see that you can can feel and so forth a scratch or a bruise something of that sort and here we have none of that in fact the jurors were given a definition of strangle and that definition can no way be reconciled with a requirement of bodily harm so in this particular case the only thing this court can do because the jurors acquitted mr dallas of the domestic battery element is enter a finding of not guilty on the aggravated domestic battery based you know ordinarily maybe it could be set back of there was adjourned structure just a jury issue or an element missing but here there's actually an acquittal and so jeopardy would require that he be acquitted of that there was another problem with the these instructions and that's on the unlawful restraint on the unlawful restraint they didn't define what the act was they just said unlawful restraint and as the state has now conceded there's a problem with that so so they agree that there's a problem with the unlawful restraint conviction or what they ask this court to do is to speculate that some of the jurors may be found on lawful restraint  permissible theory and the court can't do that we can't say that well we're going to guess that four of the jurors embrace the the theory that the state concedes was defect of what other jurors probably had the right there ian and you know they probably would have swayed the others so the on lawful restraint conviction also is defective and the last thing and as i said i only a quickly under the unlocker restraint and you also argue one act one crying it would be the exact exact same thing the stake actually concedes at that violates the one act one crime rule but then they argue that that she was somehow unlawfully restrained when he kept her in the room my recollection of the evidence is that the only evidence he kept her in the room was when he grabbed her as according to him she was trying completely naked to leave early in the morning hours and so that would  concede that we put forth a theory that was a defective legal theory well let's just pick a different theory now on appeal getting to that to the probation conditions there are several conditions that are imposed apparently a standard condition and every lake county probation we address these in our brief and again in our reply brief but one of them is you can't use possess be around any product that contains alcohol it's just it's just an impractical condition we have no quarrel with the condition that the court imposed in this case that he not drink alcohol court absolutely was within its rights improper to impose that condition because of the testimony in the evidence that the parties were were heavily intoxicated when the when the incident occurred but you can't say to someone that you can't use every day product you can't say to someone you can't use hand sanitizer because it contains alcohol you can't say to someone that you can't frequent any establishment that primarily serves alcohol because that's that's so vague how is someone supposed to determine that and it was interesting when i was doing my research i've i found out that buffalo wild wings is the largest seller the chain is the largest seller of beer in the country although primarily serves alcohol in their their total alcohol sales are forty one percent of their gross revenue now does that mean  of how you would make that distinction were we also have a quarrel with the condition that anytime someone has a probation for essentially a offense that the probation office then has carte blanche to all of their electronic devices i understand that there's a reduced expectation of privacy that there are legitimate reasons to say that that someone who's on probation may be subject to some searches and so forth but in today's day and age where your phone is accent's essentially an extension of your brain for all practical purposes and extension of your existence to say that the probation office has to be allowed access to your facebook to your text messages to your bank accounts to all of that stuff is again it's improper there may be a case where it's appropriate a child pornography case certainly would be appropriate and i and some other sex offenses perhaps the identity case it may be appropriate but it is not appropriate as a standard condition and in every case questions and the other questions ok thank you so much for your argument  and i'm going to start with you do you have any question mr greenberg yes i do good morning mr greenberg good morning honor just to try and cull out the essence of some of your arguments i think if you are going to trial courts giving criminal for two hundred and sixty one hour five to the jury was an inaccurate statement that caused the jury to return legally inconsistent verdicts that's part of the argument correct yes ok as a corollary of the state fails to prove that  defendant committed the predicate offense which would be domestic battery here than the define it cannot be found guilty will be dependent offense aggravated domestic battery because such verdicts would be legally inconsistent that's part of your position correct yes  think it's in the record we had an informal conference as is common and then when we had the formal conference we extensively objected and explained that it was an inherent element and that it had to be included and then again it at post trial we raised an interesting really the court thought that it wasn't an issue at all because the court i don't know if the  the trial court i think it was the trial court's st jury trial that they had done as a judge i don't know if they had come from more of a civil background but they took the pain in the court to the opinion that by pleading an affirmative defense that we  mid it every everything anyway which isn't accurate in fact even when you have an affirmative defense in a criminal case you still can contest all of the underlying elements except perhaps when you've got insanity but yeah provided some of florida for your position about the inconsistent offenses but i want to ask you though are you aware of the supreme court's decision in people versus jones which was two thousand and three decision it which the supreme court held that defendants in illinois can no longer challenge convictions on the sole basis that they are legally inconsistent with acquittals on other charges are you aware of that case i i am but i think that that case addresses the situation where you've got someone who is convicted of some offenses and acquitted of some of fences and they come and the jury may have compromised or something like that and their verdict and you can't really get into why the jury may have done what they did here we've got a situation where the jury didn't sign a not guilty verdict of the on the domestic battery so if we had a situation i think more akin to jones where the the jury had been given the underlying domestic battery verdict and verdict forms and elements and given the aggravated domestic forms and the verdict forms and a proper instruction with the elements and the jury had said you know we find him guilty of aggravated domestic battery and the elements instruction said you find a domestic battery and you find the aggravating factor  and at the center on the jury had found him not guilty of the underlying domestic battery the misdemeanor it might be more like a joan situation if i if i recall the case correctly but here there was no finding of domestic battery ever so they're not really their traditional legal inconsistent verdicts where the jury has returned to verdict forms that say two different things here the jury never made the decision on the domestic battery but the court instructed them that is a matter of law if they found this they were finding him not guilty on the domestic battery in fact they didn't find that for four so you're saying  essence the jones is distinguishable from this case that yes you're the essence of your position all right i want to ask you just on a couple questions one is i'm a little intrigued by your interpretation that the other person in the aggravated battery statutory you know how how they have it why would they say other person or another person like that wouldn't the other person would that mean someone other than the defendant well the defendant's not going to choke themself and the defense or strangle him self in the defendant isn't going to certainly get charged if he does it to himself so well you're saying it has to be why would we not interpret that as meaning another person would include the victim because of the way that the statute is written it is a as we say it's sort of the just junked of so so if you read the statute it says a person who in committing a domestic battery strangles another individual so it it implies to me that they're talking about a rd person so for instance someone comes and tries to intervene and break up and they and they get attacked that's how i read it because it says in committing the domestic battery it if it was the same victim it would say a person who in committing on a domestic battery strangles the victim strangles you know the individual instead of the word another has been inserted in there and why insert the word another unless you're talking about someone else than the person you're committing to domestic that a right but argument but my final question relates to your argument about the conditions of probation in restricting the defendant from entering certain establishment the th circuit court of appeals took up a similar argument in united states versus douglas are you aware that not by name right there the district court ordered to define did not enter or patronize establishments or intoxicants with a primary item of sale such as bars lounges and nightclubs and in that case the defendant made a similar argument to the one you're making in the douglas court rejected the defendant's argument finding that the prohibition of patronizing establishment for alcohol is the primary item of sale did not extend to restaurants and they upheld that restriction so just one of the call your attention to that i present i will take a look at that we're proceeding i thank you mr greenberg that's all the questions i have at this time thank you thank you good morning mr greenberg may be found not guilty of aggravated battery and not guilty of the message they had every order to built the of aggravated battery or three guilty of domestic battery and it was you that approach the bench and said no judge give this instruction which was the record note no doubt you are familiar with the doctrine of judicial admissions correct and under the doctrine of judicial admissions where a party or the parties lawyer makes an admission in open court that admission cannot be controverted by any argument or evidence correct that is correct and in this case both parties acknowledged the injuries that were inflicted during the alter cation including your client who testified that he struck lauren sometimes in the face in defending himself and he also placed her in a choke hold until she calmed down correct that i'm i'm i don't know that i can answer that is it correct or incorrect because you're talking about testimony that came and i don't see the testimony was that he was acting in either defense or to try and calm her down right but the question is bodily harm and you in your closing argument told the jury that her injuries looked much worse because he was on different forms of medication correct yes so there's no doubt there's no question at all in this record that there was bodily harm inflicted during the correct that is correct but but how and why is but i'm sorry is how and why is the question whether the testimony from both the victim  inflicting the entries on warrants during all three cases including the strangling but he said he was acting in self defense the jury rejected that theory they rejected that he was acting in self defense at the time he strangled her they they never rejected that he was acting in self defense during the rest of the altar cation that's all i have just thinking this could be ok mr greenberg if the if we would accept your argument with respect to the domestic battery and reject it with respect to the result of the aggravated domestic ok thank you the the the you argue about the hand sanitizer we all know that sometimes mouthwash and if the probation department precludes the use of that are they preclude ing to use the bat or perhaps the defendant later coming in as an excuse and saying well i tested positive because i used mouthwash is that an unreasonable request by the probation department if having seen over you know tens of hundreds of years this type of excuse i'm sorry i don't understand the question well you indicate that dampen unreasonable requests for somebody not to use in an item that contains alcohol the basis behind her probation generally is because the  as an excuse if they test positive correct i mean people can from time to time i think you have to have an awful lot of mouth wash you know i've had the old  on heroin they claim they had a hot dog with poppy seed bun but you're not going to prohibit someone from eating hot dogs if you're after drinking awful lot of mouthwash t test positive you know so i just think that it's you can't have a wholesale prohibition on everybody doing it completely i just don't think that  can you can go that far and just say you were just going to say no product without all you know someone comes in and and they have tested positive or probation as an issue or that's done the they'll be a hearing on it and a judge will make a determination and if the person offers the excuse that they were charging mouthwash if the children of mulch washed to be abused alcohol you know there's other ways to phrase it than just a wholesale prohibition ok thank you and the way the probus in on the phone or the the request to look at the phone were was probation not justified in the fact that after th the defendant continued to call the victim was that would there not yet you did not to then you know there was not he the next day after she left there was a series of a lot of text messages where he was pleading for her to come back because it was the day of his brother's wedding and so forth but there was never after he was arrested any contact any allegation in the course of these proceedings that i can recall that he ever tried to contact or intimidate or do anything of any kind whatsoever and again that's a condition where the court can phrase it much differently for instance the court said no contact with her as a condition and they could say we want to see if you're having conduct or she said your reaching out to her but to have a wholesale we get to look at everything you've got  that's just not not proper at all may i add one i'm sorry i don't know if you're done with your questions now go ahead go ahead no i want to circle back to what justice burke said for one moment where you're talking about the jury instructions and invited error i pulled it up on the record you refer to page five hundred and ninety nine dollars that seems to be where the court is talking about the verdict forms and the instruction that was given is exactly the instruction that were complaining about and then we  raised the point on the rug and it was i'm looking at you know i'm reading a wrong raise the point that we think the court has given an erroneous instruction and the court says this is the one i was given and specify that the fenestration the victim caused by lea harm as little body harm or car some type of physical damage like bruising and bruises the victim testified that when bruised it seems as if the structure of these instructions were to indicate that the string ocean in and of itself was the bodily harm and is backed by in this case the testimony of the defendant and the evidence presented to the jury  understand a domestic battery instruction were given to the jury so they did know that bolli harm was a requirement with in domestic battery as relates to i q i twenty six point zero one actually specifies that to destruction that defendants asking for should only ever be given if the lesser offense has a measure of recklessness ases domestic battery has a mens rea of knowing  accurate to look at the instruction as a pre one act one crime merger in which essentially if you're going to be convicted of the greater offense you're not going to be convicted of the lesser offense for the did not want to that type of delineation whatsoever this eleven general a lawful restraint i'm a structure and given and that's what was given to the jury now argue that that was a mistake from each cannot do defendant grabbing her throwing her across the room over table onto the bed and getting on top of her and proceed to conjure repeatedly in bangor head against the headboard he physically prevented her from trying to leave when she was trying to do so and that is  the defendant not allowed to go to any business that primarily divisor income from alcohol it's not a difficult task for defendant to understand that are not allowed to go to arson taverns will be allowed to go to a restaurant as one deals and primarily alcohol with the other as food well it may have alcohol as well but food is the purpose of that business it's the same difference between a grocery store and a liquor store as for the searches for electronic devices the defendant downplays the text messages that the victim received after she was able to finally flee the hotel room with the cops the fact that she ran off trying to talk with him that she too used to fail to steeples in and begging for her to talk to him and to have bursey on the reason that the purpose of this particular is struction to allow searches is to ensure the defendant doesn't find some form a way to can choose to make this type harassing contact with the victim and as the th district indicated any type of a search instruction has he is implied to involve reasonable it's not allowing the pleas to arbitrarily go to defendant to just look at his phone whatever has to be some reason for them to do so as for these reasons that the of a preemptive one act once i merger that's that when you're going to be convicted of a greater offense lesser offense really has no further purpose let me ask you this i believe you started your argument by making the statement you were outlining your overarching point i believe you said that there was even if there was a problem with the instruction any error would be harmless you tell us why any error would be harmless in this case right i believe instructions were given the guilt will still be the times to be found guilty like amy and destruction were still were to specify that the jury has to find proposition that the fed strangulation victim were to cause bodily harm like that was presented to the jury additionally the we look at the entire instructions and the closing arguments to posture argue that's a strong lesson caused harm to the victim and the jury did also receive structures on just to stand a domestic battery so there is period yes i believe that i believe it was for all periods during the during the defense to sway a trial the things that the jury was presented with that argument that it was self defense that he had a little just the cation to cause anybody harm to the victim you but to the jury did not accept that data they did not believe he had any legal justification to cause any harm to the victim they believe the victim's testimony that he attacked her when she refused to have sex with of battery and the dependent offense being aggravated domestic battery how can one be found guilty of aggravated domestic battery without being guilty of batter prove the underlying domestic battery you are correct about that forty instructions in this case as i mentioned previously if the jury were to find that the defendant did commit i mean isn't it clear that the trial court gave the wrong instruction under twenty six dollars are by instead of giving the two thousand six hundred and one are four so basically basically giving the wrong instructions to the jury and i mean you argued court that your but i think that mr greenberg throughout was objecting to that so those instructions how could it be for know yes yes i do thank you justices a couple of things st of all to the to the last point to counsel just made the statement fact argued  and at the close of the evidence that the that the offense could be proven just with strangulation and in fact omitted bodily harm entirely from their argument and we cited in quoted from that in our brief i want to again circle back to justice for katz point about the verdict forms and i now have looked at the record and i have looked at what occurred so we just so firstly objected to the instructions it's in the record it begins around page five hundred and fifty five dollars of the record and it's quite extensive of our objections it goes on and on for many pages of the record and we're telling the court the court is not giving the proper instructions the court ultimately decides against us it decides we're going to give this set of instructions and i have no choice i have to accept that the court then instructs the jury and when the court instructs the jury and this gets to what's on page five hundred and fifty nine and so forth the paragraph there about what ones they were being given what verdict forms that i then point out is incorrect was in fact what the court instructed was what we had been advocating originally what it was not what the verdict forms the court was giving or saying so the jury would have gotten perhaps this instruction but then verdict forms that didn't match up with what they were being told i'm page five hundred and fifty nine dollars and i just pulled the verdict forms so that i could see that so all i did i don't think that i invited ever in that situation what i did was i took the argument that i had lost and i pointed out to the court that you are now giving the wrong instruction predicated upon the ruling that i've lost and you know i suppose i could have tried to re argue the whole point again with the court but all i was doing was pointing out that the court had made a ruling that it was going to give instruction a and then while the jurors are in there it's giving instruction b and then it's going to give jury instructions that are not consistent with instruction b but are part of plans that are consistent with instruction a so i don't think that's invited  that would have just sponsored even even more can confusion and so forth to the unlawful restraint where the state did say and has said that we invited  the the problem is and i agree that we did not ask for a verdict form that said strangulation a verdict form that said holding back or whatever the two ways war that it was charged the problem is that it was argued both ways and the jurors were told that either one could be a finding of guilty and what we draw as an analogy to a murder case where you've got the jury instructed on different theories they don't have to find a specific theory but here the state is conceding that one of their two series that they are you to the jury was not correct it can't stand you can't have a verdict based on that so if you can't have a verdict based upon the theory that the state argued then you can't have a verdict predicated on that you can't say well but we could argue it's something else or we all started something else and maybe maybe they found something else i'm happy to answer any questions if anyone has any questions that this has been any question i have no questions thank you that's the dollars are for it probably evident that the verdict was going to be to same where's the harm with the two different instructions i mean the one instruction they didn't get the opportunity to say is is to basically do away with the trial process completely and say you know this jury why did you go to trial at all it was foolish to go to trial here you had two competing versions of the event and the events happened in pieces and parts and that's important it's not just a single event it's an event they go to sleep they get up there there's more that goes on and that's under both stories so who knows whether the jurors thought that initially lauren was out of line and then later on when she went to leave the room brian went too far when he when he grabbed her around the neck that doesn't mean that they would have found domestic battery that doesn't mean that they would have fallen that particular element it was a very thing he really wanted you know you're relying on the predicate and battery and i don't know how you know it can be that's like saying yeah the person was was shot to death but the and the jury didn't find it that he was shot but geez we all can look and see the guy was shot so the defendant must a done it you just can't you just can't do that in this situation because that's just dispensing with the trial and there's case law that says that that where you've got elements that are omitted but not just omitted but the jurors were told they were specifically told and that's that's what really makes this case agree just they were specifically told that a finding of guilty of one was a finding of not guilty of the other and ends and so we're presuming that matched what you know we're presuming that they would have found an element we're presuming that that that the instructions didn't confuse and we're presuming all sorts of different things and when you pile committing and committing a forcible felony yes so do your theory a person could commit an armed robbery leave the store bribes robs a convenience store robs a store takes the money and then the sides on the come back and kill the witness just in case that not be in the course of committing a forcible felony effective better but i think there'd be a problem with charging felony murder because i would draw an analogy to the situation just some of the cases where someone's you know in a getaway car and something happens and they're leaving the scene of a robbery in some situations that can be felony murder if violence was contemplated in connection with the underlying felony and other situations the case law  it's not felony murder when you're flying from a so i think that that's not not so clear i would i would certainly argue that that's not felony murder that that's just cold blooded murder that they're just killing them because they're a witness i think if they came back ten seconds later it might be different if they came back as we have here hours later you've got the situation it it's different so what you're near who is six foot something and almost a one hundred pounds more than brian and about four or five inches taller thanks thank you very much mr greenberg that's all i have got a sense of thank you anything else from