are several issues before the court i would like to address the second and third issues in my brief but of course will answer any questions you have to mary's or three minutes for rebuttal yes as to the second issue dealing with unanimous jury verdict the constitution requires that yours be unanimous in convicting defendants on specific illegal conduct here the state charge mr costin with three counts of violating an order protection first driving by pamela office on a full nineteen second driving by pamela's residence on april thirteenth and third following pamela and attempting to enter her condo building on the process however the jury was not given any dates in the jury instructions and they were invited to pick from any of the three propositions first driving to pamela's office second driving by him his residence or third following him similarly the state charge mr cross to with aggravated stalking for following him alone or placing her under surveillance on feb twentieth by following her into the elevator of her condo building on feb twenty second i parking his car outside the building and following her and based on the aggravating factor of if that was clear that they had all twelve unanimously picked all three then i wouldn't have a problem i wouldn't be raising this because then there would be a unanimous jury verdict on specific conduct but here we don't know if two of them decided on the first proposition following her on a certain date or maybe six of them decided a different one and then they're not unanimous they're not all in agreement which the constitution requires them to be on something specific a certain kind of additionally the jury instructions the method of the offense or various periods but like two of these three days he impermissibly followed her on what he had but at the end of the day isn't the requirement that the jury find that the aggravated stalking was proven guilty beyond reach doubt at the individual theories under which the defense could be committed when you're speaking of theories  methods you're correct i agree with you as to present all of them in israel with first degree murder or maybe with aggravated criminal sexual assault that was committed with a weapon as long as the evidence showed that it was committed with a weapon the jury doesn't need i believe your honor that it comes down to if all of these acts can form a complete multiple complete offenses like i'm for example in the grand case there was just simple stalking and there was three x three dates involved it couldn't because stocking requires that you x they could pick maybe from any one of those three and the court didn't find a problem with it but there was nothing else that could happen in that situation because there wasn't any other charges pending against him where he could be convicted of were three separate instances of stocking charged and they're headed there had to be two in order to get a conviction and that the way the jury is instructed the jury didn't have to tell the court which two they that to i guess answer original question that it was decided before people holmes the illinois supreme court decision and and that regard i don't think that it is correctly  the one quote about holmes that's really kind of a different case the supreme court determined that that both offenses have not been proven beyond a reasonable doubt there's no question that that case was well i think it's really different if you recall that involved a gentleman from indiana who was a resident of indiana who had a permit for a gun who was in illinois i mother's day had been at his mother and it's in the back up there was a back up case in there between the two seats and in that case which was i think referred to as maybe locked it was definitely contained and  that the police officer that stopped him said he stopped him right think improper lane uses i think but long the short of it was that that gentleman when he got out of the current some point to the officers there was a gun in the car and it was him so in that case he gets arrested and he's charged with u w on two different theories one that he doesn't have a proper f o id card and the other that it wasn't in caister clothes or what so in that case the supreme court first determined that there was not proof beyond reasonable doubt that he had gone without hearing an foia i d card because of the exception the statute that allows people who are from other states to come through all right if they if they are permitted to have the gun in their state you know then coming through illinois doesn't mean that they're going to be guilty of a u w for not having a way in the supreme court and included that on the other section of the misdemeanor they concluded that that would not stand i don't really see the case similar to the at all your honor it's similar when in the last part where you're discussing the supreme court rejected the state's request to find a lesser included mr minor offense because the two subsections of that sachi that would provide exceptions implicated the two aggravated factors they just found there was a proof beyond a reasonable doubt they said well we can't assume that the jury entered the original conviction unanimously on this one aggravating factor on case immediately accessible or on the other factor to have a four card because you can't tell if they were unanimous on one or the other find the the the lesser misdemeanor offense and all they were saying there is we can't say for sure which of the lesser misdemeanor offense was found guilty beyond reasonable doubt so i'm to say they're really in hell just the situation we have is is just throwing out a conviction and trying to find a lesser included offense is that a somewhat more unique situation the reason that they couldn't enter the lesser included offense as requested it is because the jury verdict was to but we don't know that they all agreed on one they could have some of them said this this happened i'm not sure that this happened i didn't believe the testimony from one of her bodyguards maybe this one happened and maybe six other ones found that the body which they ate they used had the state use more specific instructions and we could tell ok you know in the aggravated stalking instruction they set on the state or by this behavior he by leaving or protection then two convictions could stand three charges there was driving past pamela's office on april nineteenth driving past her residence on april thirteenth and following in attempting to enter her condo building on the seventeenth so there was evidence on each one of those with your argument is that under the one  argument time based on the illinois supreme court's decision last thursday people the lawyers we have changed our quest for relief and are arguing that mr costas those two convictions should be reversed outright with the two convictions they reversed seven convictions of aggravated criminal sexual assault outright they acknowledge that under the the state never never established that the defendant knew that p b was unable to understand the nature of the act yes they similar to this case where there is some felonious conduct that is proven it wasn't the court said it wasn't what was charged under the statute at december two thousand and six they were inundated with this so many dates and so many acts they could have picked any we don't know what they picked because of the jury instructions because they weren't told specifically what they need to decide on they were told to two separate offenses and they were incidents so many different occasions presented to them that's what and makes the issue here the problem here because they need to all agree that least one of those happened to fulfill the violation of an opi and then you know more for two more for the a conviction and even the jury instructions were confusing me they said placed under surveillance can be any of the above it can be driving by home driving by the office or go outside any place where cam occupied it so in that regard  dead it passed to be there my client has a right to know that he's convicted on specific illegal conduct of course this is what his other concerns besides the generes jury verdict if you were ever charged again in this case he couldn't really raise a double jeopardy here because he doesn't know exactly specifically what he was convicted in this case so in that regard we're asking that the convictions be what prospect that the guest was will talk about this now what about the fact that wrong how does this make it clear and obvious here that so infected the jury trial proceedings that your client was denied a peer trial the burden of persuasion rests with you but there's other authority certainly brand and even this revels case that you just what you're arguing is not a clear and obvious here because you need unanimity is not required under theories or methods or deeds it's required for the elements of the offense  the jury has to conclude he committed the offense beyond a reasonable doubt not that the days on which the state is suggesting violated i would respectfully disagree or honor the law is as to methods which is discussed dates provided to the jury and they had concluded that on at least two of those states he committed he stopped or he told her so i don't know i mean it seemed to me that they specifically addressed what you're suggesting wasn't a risk in that case of multiple convictions because you would need more x to even satisfy stalking which was an aggravated charge so in that regard in that regard it's different in this case and i also think that the homes in the scott's decisions are are more point especially scott and even the diaz court which ran relied upon pointed out that crimes such as aggravated battery it speaks to what you're talking about it's not a separate transaction but they specifically point to the scott case and they said that involves three different transactions so that is an issue there with the you know mystery verdict whereas with aggravated battery it's kind of like aggravated criminal sexual assault and i think i think we understand your argument what about th honor i submit that some maybe some other crimes evidence should have been admitted but it went way too far here it was excessively about what he was hypothesizing koster was allegedly thinking when he allegedly made these phone calls it was way too much it was inflammatory and it was prejudicial in the cases look at the volume the amount of detail that is presented how it's presented the manner is demonstrative evidence used here thirty eight trial witnesses testified about other crimes habits two of the three trial exhibits were other crimes evidence and they were both the  completely excessive the limiting instruction was given for the first witness was called it wasn't given right before the other crimes evidence was presented and just in light of the the evidence in this case in general the february to december of two thousand and six it was overwhelming simply too much it was confusing and if it was prejudicial the my client could have been convicted based on them just being overwhelmed by this evidence on thinking he was generally a bad guy and we want to do something here as exactly what the law requires a trial morning honors may please the court my name is carol gaines and i represent people of the state of illinois with respect to that unanimity requirement as your honor pointed out this issue was forfeit it was not objected to it was not included in a  motion for new trial and as a result of that the defendant tend not show plainer in this case there is nothing wrong with the general verdict form as it was instructed and in fact the use of the general verdict form was beneficial to the him guilty of each and every one of those violations he would have been subject to consecutive sentencing on each and every one of those violations of an order of protection there's no question that the evidence was overwhelming with respect to every one of those game break the law but that might have legislated it might have been a focus of what the trial that his trial attorney who is a seasoned experience criminal defense attorney may have had a reason for not offering an alternative or makes for not offering alternative british forms and for not objecting to the way in which the jury was instructed this is me and three consecutive who are violations of the order checks are you saying that based on the court's imposing consecutive under be right it's not mandatory but this trial judge  everyone he came in contact with with respect to these charges and these cases he was subject consecutive sentencing and his received consecutive sentences and it's very possible so not mandatory but it's possible and likely that had he been convicted on three separate in murder where we have you know either going to or during the course of another felony and then like the aggravated battery case where one was based on injury and one was based i think using a weapon one of these cases how do you distinguish or say that those are exactly the same as this case when you're dealing with acts that occurred on separate occasions there is somewhat of a difference isn't there  and there are there's just palmer's pointed out there are really two different lines of cases that talk about whether or not whether or not factually the issues that you have been considering the conduct that occurred whether or not that's perfectly and the rand case does as well that in fact you can have multiple ways multiple means in which an offense is committed and the jury does not have to be unanimous with respect to those multiple ne as part of a similar course of contacts and that was even over a longer period of time than alleged in this case isn't the standard though that we're looking at a little different in that it's really at the end of the day  that a jury can return a single general verdict based on instructions providing alternative methods of committing a single crime as long as the alternatives are not so divergent that they are fact separate fences you argue that brief these aren't so that birds are not diversion and the diverted the the divergence language comes from shad curses united states and chattering they were talking about divergence the divergent see it in what they were for into their cover the entire gamut it went from we're charged you with a crime and from that can we discern if you committed stocking tax evasion jaywalking totally different things in this case you don't have that this defendant is charged with committing a violation of an order of protection in three different ways he knows those three different ways he knows those three different dates on which he was alleged to have done him he knows the conduct that was involved in it he's aware and on notice that you're talking about you analyze under the abstract elements approach the abstract elements approach does not take into account the charging interim in the facts of the case or the evidence of the simple if it was the simply looks that impossible impossible looking at the statutes to not commit the greater without also committing the last well in this case didn't you have to establish a violation of an order protection in order to ha stalking conviction that would be under the charging instrument approach but not on this is a general principle yes correct the aggravated stalking of count or conviction was premised on violating an order of protection however when you analyze for purposes of the abstract elements approach under king to determine whether or not you have a lesser included offense you don't look at the facts of the case you don't look at what's charge and the miller is that the court decides that the charging instrument approach which is proper to use and when you're determining whether a lesser included offense should be given or whether lesser included jury instructions should be given or whether the defendant can be convicted of a lesser included  if you look at the charging instrument approach but it makes no sense to look at the charging instrument approach when you're determining whether multiple offenses can stand where one might be a lesser included you look at the abstract elements under there they said that there's not a lesser included offense of a further rate because looking at the statute you can commit a burglary commit that without also committing a burglary under the statutes here without any reference to the evidence in t about the the other crimes of the other crimes evidence with respect to the act the trial judge first of all the trial judge considered what was being presented the state found most unlimited with respect to what they wanted to present prove that the defendant had the intent to commit the charge different since he doesn't have an innocent frame of mind he doesn't have an innocence and sense of what he's doing his theory of defense was like this was all one big misunderstanding i know i he had the intent i mean his this i'm sorry his theory of defense with respect to officer to death she was that he didn't always police officer it was completely exaggerated it was overblown and it didn't occur based on that and based on the fact the same disapprove this they were allowed to play some of those clips for the jury they were also allowed to introduce that during a tight period from i believe november november to december the defendant i think from a phone that they believe was used by defendant was what was used to make you know fifteen hundred  yes it can be or it can be and in fact during his rebuttal during his rebuttal the prosecutor made it very clear how they were to consider this evidence not as evidence of his guilt the charge defenses but relative to his intent and motive and the the facts of the additional other crimes evidence went to establish the defendant's attorney and his motive in committing the charges and since if you find that it was again as justice macwrite has pointed out it is subject to harmless error analysis and we would we would ask you to find out if you find it was improper that it was time we don't believe it was there was some necessary detail that had to be had to be included were one was actually not viable and the other one the trial george judge didn't allow the the defendant the opportunity to present any evidence would sort of allowed it to have been viable so both accounts were factually were actually an adequate it's all she's also putting in with respect to the holmes decision she is tying into unanimity argument for purposes of rather not a lesser included offense could have been and charged can now be supported and sustained by what the jury's verdict was the court said we won't we can't impose a conviction on a lesser included offense when you can't tell from the verdict which count the defendant was convicted  in terms of determining whether someone charged conduct which wasn't an element of the offense or not considered by the jury in terminating this defendant's guilt whether whether that affects  so you're saying that we need to disregard just which in order to decide if it's plain air can we go to are we supposed to go further and look at the conflicts in which that happen how much did it did it affect the fairness of the proceeding or is it just a perceived deal yes it is  and i'm arguing that it requires reversal under the second in the homes case i might have misstated this before but the jury wasn't allowed to hear any evidence about the forty cards so in rejecting the state request to enter u w on the missing or on the court said because the jury returned a general verdict we cannot say the jury unanimously concluded as alleging count one that the gun was loaded and it was immediately accessible which would be a one of the exceptions to the u here and the d a s case i am actually arguing that it supports my position when they address the scott case there they they say scott is dissing issue all the conduct giving rise to the aggravated battery issue at issue and diaz arose from one transaction or series of connected acts where as a scot the defendant's crimes are predicated on three different sales or transactions the state can see there is difference between mental state cases methods that we discussed and cases like scott that deal with separate transactions of conduct there's simply no difference here between three acts of selling drugs to undercover cops and three acts of violating or protection or both it's completely on point three separate transactions three separate objects and in that regard i believe that the problem with unanimous jury verdict is at issue here as to the one act one crime issue the the abstract element test you must look at the the charge differences what he was charged with here is assumed the violation of an order of protection is subsumed in the aggregate start you don't need to get into the specific facts there are charges you used to under the charging instrument test but you do have to look at the actual elements or church and lastly just as to the other crime evidence arguments some evidence may have been under the balancing test but this was just too much the state went too  far the and the did the this or close to didn't testify so it's kind of disingenuous to say that he was claiming anything and to choose the defense attorney's attempt to minimize the damage from all of this other crimes evidence in his