next case on are called the docket today is agenda number three case number one zero nine six or nine people versus james all more originally convicted of first degree murder for the beating death of two year old ethan hamilton at the motion for a new trial he asked the court to consider involuntary manslaughter in the court was persuaded by defense argument defendant then stood silently by as he was sense to enhance sentence of twelve years for the involuntary manslaughter of a family or household member on appeal he challenge the trial court's finding that he and ethan were household members family or household include persons who share formerly share a common dwelling only reasonable inference flowing from this evidence is that the defendant and ethan shared a common dwelling defendant was involved in an ongoing  relationship with ethan and his mother which spanned over a period of twenty one months although neither hampton nor defendant had their own household they stayed together with ethan both at the hampton family household and at the different even cousins residence on prior occasions defendant shared a common dwelling with the two year old victim for five continuous days and nights immediately prior to ethan stack the three were staying at defendant's cousin's house and there was no indication that they were leaving or that they would have left had ethan not been killed in fact hampton got up got ready for work left her baby sleeping and was to return after work hampton kept clothes food toys diapers and ethan's medicine contained in the defendant's cousin's house she had her own personal items such as her clothes including her work clothes contained at the house hampton inn ethan slept there not only sharing a room with the defendant but sharing a bad the evidence stablish that hampton ethan independent were going about their daily lives at the fence cousin's house caring for ethan getting  absolutely the important factors to look at whether they were sharing a common dwelling were the sharing that well it there's no requirement that it be their only dwelling there's no requirement that it be the legal residence and very often there can be more than one growing into mastic situations the evidence here when considered in a light most favorable to the prosecution easily supports an inference that the defendant and ethan shared no it's clear sharing comment welling means sharing a dwelling the dictionary definition there is to partake of use enjoy with others were there partaking using enjoying this drawing with others absolutely there is no question about it would have is the young wrongly decided is young is young wrongly decided as far as the two homeless people sharing the drawling the transitory accepting your definition the t young is incorrect the placing the time constraints around how long people share drawing the extended indefinite a regular basis is incorrect although in this case even if you find the testing young to be correct this was an extended stay there was no definite time that they were leaving and there is evidence of regular stays going on here this is essentially an ongoing stay cut short by the manslaughter of well i think the statute is clear that we're talking about domestic relationships and in fact that definition although contained in the criminal code section one twelve is entitled domestic violence order of protections we are talking about domestic relations and we are talking about protecting victims of domestic violence the appellate court based its decision on the second district's decision in young young is vastly different from the present case in that case you had a situation where defendant was charged with domestic violence after fight broke out in front of a homeless shelter the victim testified they had a social relationship and they had stayed one night at a homeless shelter together and the court found that sharing the homeless shelter for one night did not make them family or household members and the court explicitly said that the domestic violence provisions are to provide protections for abuse in intimate relationships and that sharing mass accommodations like only shelter is not the mark of an intimate relationship that is not what we have here this is not a mass accommodation this is a family residence this is not a social relationship this is an ongoing domestic relationship this is also not one night in a homeless shelter this is five continuous days and nights  there's evidence that they stayed at the hampton family home and defendant slept there with hampton and ethan on prior occasions they stayed at the defendant's house on prior occasions this is completely different than you regularly there are facts that the three stayed together as a unit there they stayed together the three of them at hampton family home said that the defendant slept over there with her and ethan and we know that she brought ethan to the defendant's cousin's house on other occasions as well as the fact that they were there for these five continuous days and nights immediately prior to this time we're going to hear this from mr johnson s members and that is the focus here that is the help what has to be that is what has to be proven absolutely although it's important to remember ethan is only two years old so he goes where his mother goes her household is his household  so the young court in this case it's vastly different than young because of the nature of the regular stays the extended stay combined with the fact that the personal belongings are in the home and they're living out their daily lives there unlike young when this evidence is viewed in the light most favorable to the prosecution it does support a finding of extended indefinite and regular stays the first district decisions  age are also instructive and gladden or the court found that seven to ten days when the petitioner slept at the respondents residence and contributed to household chores including buying food was sufficient or so that they shared a common dwelling and didn't enter a h there's no real determination of how long the children were actually in the home with the perpetrator the children were educated wards of the court because they were sexually abused while in the home of their mothers friend  the family was transients they stayed in the family van and occasionally stayed with family friends during one of the family friends stays the children were sexually abused by a perpetrator who lived in the basement the court found that  the perpetrator who resided in the bound home while the children were there and lived in the basement was a family or household member in the present place like glen or in re the evidence was sufficient to find defendant eat shared common dwelling the pope courts determination that a more permanent state is required conflicts with the plain meaning of the statute which contains no such requirements there is no time limits contained in the statute there is no this interpretation excludes victims it provides a loophole for offenders who share a dwelling but don't have their own dwelling but share drawing with their peril more and his or her children act differently it also excludes child victims of domestic violence who have stayed with an offender for only a short period of time therefore this court should reverse the poker its determination and affirm defendant's conviction and sentence you've made an alternate argument i think ethan being only two years old is completely defenseless he is in sole care and custody of his mother she is unquestionably in a dating relationship with the defendant they are family or household members you cannot exclude a minor child from the family or household of the mother or father in which she lives the child goes with the parent goes if she is in a household with the defendant may please the court else will good morning my name is doug johnson i represent the apple e james l more i want to point out that this is an involuntary manslaughter case not first degree murder counsel strugar statements with for the beating death of this baby the judge at the bench trial found there was no malice found this was reckless behavior and i said miss you james elmore has always been claimed as innocence but he is being punished for his reckless behavior right now what the state is doing is seeking to enhance the penalty and this is their job they're seeking to enhance it because as can be shown by the brief even more so than the comments today they believe james samarth guilty of first degree murder this is involuntary manslaughter and yes the judge found involuntary manslaughter a household member appellate court reduced that conviction back to involuntary manslaughter this court today if in accepting the state's argument is going it would be dangerous and we don't intended results i believe we are going to determine that sharing a common welling could possibly mean the relationship between ethan and the defendant in this case they are in any case  then when involuntary manslaughter happens in a dwelling it's going to be explored this relationship and i think if you accept this argument an overnight guest almost is going to be someone who could  be a victim that wouldn't answer the penalty to involuntary manslaughter household member it's important to note that this is a post trial theory you look through the the record you'll see that none of this is really explored because they weren't thinking about a household member they the prosecutors were going for first degree murder the defense was going for not guilty of anything but of guilty of anything involuntary manslaughter what is require is well reasoned there's a timeline extended in how do we define extended an indefinite or regular stay i think if we are defining in that statute spouses children people related by blood it would not make sense to after those words say and people who shared a common dwelling for a short time what it seems now that wasn't this this child was related by blood to miss hampton not to mr aylmore certainly if this child was related by blood to mr hampton we would not be here but to take that wording and then try to say for five days and i'll get to the five days shortly and say that a short time would do it would not make sense in the context of the statute that statute is describing close relationships  i believe part of it is describing a liberation relationship i think it is anticipating people that live together like we all think of people who have chosen to live together without getting married and that would include some sort of indefinite  permanent or at least extended period of time at the trial i think the prosecutor statements are not evidence i understand that but they show an absence of evidence of this household member issue prosecutor at five seventeen said quote they don't live together it for ninety nine of our closing argument the prosecutor said this was a sometimes boyfriend the dating relationship in the briefing today was not as strong as it has been painted by the state and i want to get to but first the state is asking they set forth the definition of to dwell from i believe webster's on line dictionary to dwell means to stay for a time and then i would note if you look at that source after i got the reply brief i looked on line and saw that the next definition is to live as a resident so yes the first one believe i understand the young said this list is not inclusive i believe the list as written is it says includes so i would have to admit that there possibly could be some other type of relationship that fit the spirit of the statute but we have nothing like that here if they had wanted to first of all include this type of relationship they easily could have but the only thing the state is arguing is to share a common dwelling and they're saying that because ethan and the defendant used and enjoyed this dwelling for a time they shared a common dwelling and that does not throw it off fact take into consideration the fact that ethan slept with the defendant th that the defendant didn't sleep with the baby the air mattress was in it wasn't a makeshift bedroom it was an air mattress in the living room and the defendant slept on the floor i think human nature is that was not going to be any type of permanent relationship so this if that was an issue they weren't sleeping together on the air mattress there wasn't enough room the defendant was on the floor and as far as james elmore babysitting for this baby he didn't babysit that's in the record side escapes me now he did not babysit there is a portion in the in the record where the prosecutor states the only reason that i believe first of all that young glade are a clatter and enraged can all be harmonised but to answer your question i don't believe it has to be a permanent relationship i think young said some degree of permanency and i do believe it has to be that perhaps it could have lasted something more than a few days together there is nothing in this record that suggests these people really had ever done had done this on any  strong basis of the state's argument is they were there for five days and i said i do admit there is some evidence that they were there for five days but it's not as strong as the state points out  for instance the only way the only evidence is on page one ninety of the record and that is where the detective was speaking to james elmore about talking to him after the incident i think the baby has been taken away and the detective sandoval says yes i asked him if the baby in the mother had lived there and he informed me that no they had not lived there but they were visiting since friday that's that's where they get the five days m hampton doesn't say five days it's all what the defendant says and in the very same sentence one sentence that they are basing a lot of their argument on james elmore said they do not live here they have been visiting if they're sort of intimate relationship that went beyond mere courting but it has to be yes a more serious relationship as far as the dating us now the state argues they kept things that went on and  kept things at this apartment belongings toys things like that that also is not what the record says there was one question it was posed to miss hampton on page sixty one of her testimony you had when you were staying there you had did you have any belongings or clothes or toys for the baby or anything like that that were there with you yes first of all it's or it's not and secondly we can't tell that's the beginning and end of it we can't tell what if we're talking about of one toy for the baby or anything like that so there were not these things kept over there they weren't ironing clothes they're going about that the idea of iron hung up somewhere or in a closet because this was some sort of common welding machine or rather if you look at page sixty eight of the record it shows that ethan and miss hampton had overnight bags  so missing things identifying pictures and she says that's my bag that's ethan's bag it's very clear just the appellate court found any items were that were there were there because they brought them so there may be a case where guess in my experience that it wasn't talked about defend it was found guilty of first degree murder came back after the judge took a long time to consider it said no it's involuntary manslaughter went right into sentencing and then we have involuntary manslaughter household the other another point of how this could not be the sharing of a common dwelling is that miss hampton admitted i couldn't go there anytime i wanted too what do you need to share a common dwelling i submit to you you have to have the permission to go there when you want to at some point i if i'm going to share a dwelling i share it with someone else and we both have the right to be there at the same time miss hampton said it in forty eight her i'm sorry in ninety five ninety six of the transcript of her testimony she couldn't they asked you could you go there whenever you wanted and she said no now whenever i want  that's not heard welling it's probably not his he stayed there on occasion on his air mattress but that can't be the sharing a common goal thing is fires back to glitter and age i believe i know the young court cited later as if there was unsupported reasoning for the opinion but i think in glade or what they had was two people that lived together for three months the respondent and the petitioner live together for three months they we don't have that here and i think they lived together in eighty nine the incident was ninety the petitioner spent ninety he said i spent ninety percent of my time there he contributed to the household expenses and he kept a whole a full complement of clothes there if we have nothing like that here so i think later doesn't have to be overruled to say that those two people in later shared a common dwelling but not here and as far as  if you go through that opinion five to ten times you still can't find how long shorty was the name there's a perpetrator named shorty and then two victims of sexual abuse and the issue not exactly the same the case was  juvenile court act but if you look at that case you can't tell how long shorty and those two victims lived together so the katyn state in their brief says will this along with later support the notion or the set the precedent that a short term temporary stay is sufficient to justify the sharing of a comment while an enraged does not say that surety and that this could have lived there for quite some time to the two children it is true the family the household lived a nomadic existence but there is nothing in that case that tells you how much time and it doesn't stand for the proposition that these that a short term temporary stay i the evidence shows here this was a five day visit that we don't know anything about ethan we don't necessarily know if that ethan was there every day or what was done or if they went home for one day or if they started their visit on friday and then came back it's a place you can dwell where you want at least at some point he began to share common brawling how about a place that in one time in your life you have called home or referred to as i lived there because miss hampton said i didn't live there a place where you've contributed to household expenses your name's on a lease you own it i'm not saying this is the only test but it would be one consideration a place where you keep your clothing a place where you keep food you like in a place you've been perhaps more than once or twice and certainly one could infer from this record that she was there more than once or twice but there's also evidence that she was there only once or twice it is certainly not a frequent situation of frequent visitation was an ongoing link the relationship hampton council stated that hampton did not have her own household she did have a household she had many family members and she stated where she lived and she gave the address of where she lived she had a household and it was elsewhere and we also in a perfect world i suppose ethan goes where mom but unfortunately that isn't the way life works and we don't know i'm not casting aspersions on miss hampton that we don't know that she always had this baby with her wherever she went and so we don't know that she you know unfortunately a two year old can be defendant attempts to construe all the evidence in the light most favorable to the defense however the evidence must be construed in the light most favorable to the state and all reasonable inferences must be made in favor of the state defendant own admission was they had been there for five continuous days and nights and that is what he told the detective five continuous days and nights there is evidence in the record coming from miss hampton that the defendant sl her family's residence and that she had stayed at his residence on other occasions so even if it's not his residence it's his cousin's resident they're staying together as a unit and the baby is with them and the bat is what makes this case so different than young this is a domestic situation this is an ongoing stay this is an extended stay we don't know how long they would have stayed there there was no indication that they were going to leave they did have clothes there they did have food there and they did iron their clothes there and they were sharing a common drawling there's no requirement that it be their only residence their only dwelling their legal residence there is no requirement in the statute and the language of the statute says share or formerly share indicating the broad reach of the statue it doesn't matter if you shared a common dwelling fifty years ago you are a family or household member so it would make no sense to exclude victims in recent relationships or sharing a dwelling for a short time when those are the victims who need the protection far greater than people who live together fifty years ago age the defendant claims that these are these don't provide guidance because they dealt with different issues however the important thing about  is they analyze whether the offender in the victim share or formerly shared comment wehling under the domestic violence act the definition contained in the domestic france act is the same as the definition contained in the criminal code share or formally share a comm or although there was testimony that the from the petitioner that they had lived together for three months there was testimony from the respondent that it was seven to ten days and the court says that's a conflict in the testimony but anyway we find that seven to ten days when you are contributing to household expenses including buying food is sufficient to show people share or form a share a common one it's also important to note that at trial the defendant did everything he quoted to align himself with this victim and in fact when sentenced to the enhanced sentence you doesn't say ethan's not my family or household member o that child that stayed over that social acquaintance that stayed over around the time of the incident now he says this child i have cried he told the court how he cried over the loss of this child that he treated as his  own he thought he was a family or household member and now wants to say this case is exactly like young a social acquaintance who brought his bag that is not what happened here this is an ongoing lengthy until thursday morning january thirteenth two thousand and eleven nine a