but i certainly can't wait to get back to you in person or argument if you appreciate the opportunity and i do appreciate this court's demonstrate commitments human strength that it can continue to administer justice throughout that situations are facing twenty twentieth's i do want to say thank you for that turning to the merits of this particular case the for the court here asking that the trial court's finding of guilty even reverse spacehab the state's failure to prove all the elements of the crime of home invasion yet reasonable doubt alternatively we are asking this court find that the transcripts decision to impose the full ten year sentence that was requested by the state that was in error and that reducing this is actually more appropriate given the facts presented to reasonable doubt argument we believe that the state failed to prove beyond a reasonable doubt that mr gonzales actually entered the dwelling place of another and further failed to prove beyond a reasonable doubt that he either caused injury or threatened imminent harm with dwelling place and i believe that the record is really instructive as to its written state's officials these were they come from three primary areas the st is the inconsistent testimony that was offered from the state's chief witness mrs l words and as we set forth in our brief there are a lot of internal consistency within that testimony for example she told the nine hundred and eleven operator that mr gonzalez came to their house not inside their house or keeping him to him to the house and then she also claims that he punched her husband and that he had a bat at the door but then i'm her during her direct testimony she kind of change that story and said that she saw mr hit her husband in the bat but then also said that when she st came into the room her husband was already lying on the ground and was bleeding she had no there was no mention of any back to the police and as we've demonstrated throughout our  would have been able to be in that room wielding a bat over his head as ms edwards claimed additionally the physical evidence that demonstrates reasonable doubt is found in the very very minor injuries sustained by roger edwards he sustained a very small cut or scrape near his eye and a very small groups and that type of injury is just not consistent with the type of attack described by the state's witness lydia mr edwards stumbled having been drinking all day and fell down with part of his face hitting his door additionally the last part of his lab and so it indicates reasonable doubt is that there was actually no d n a found in the back from so i believe mrs edwards testified though that as she walked into the kitchen she could see the mud room and he was on the floor in the mud room and mr gonzales was above him  it was there but standing up in the mud room isn't that what she testified to that was that was part of her testimony us but in that same types of money she did sort of change her story  to whether or not chesley witnessed a bat strike or not her testimony was that when she came into the room she saw her husband lying on the ground bleeding and that mr gonzales was standing there and so he was held but not necessarily where mr gonzales's at the time she arrived in met kitchen and i would not agree with that your honor i believe that the inconsistency is also in that whether or not he actually crossed the and if you look at the pictures that were admitted into evidence you can kind of see that there is like a fine tree machine and coat racks and lots of other cabinets and things such think that in the modern itself such that it wasn't very  large space at all so i don't think the record is very clear on that are the trial court heard that her heard mrs edwards testimony about the nine hundred and eleven call and said that she was upset he is the arbiter here since this is a bench trial i believe of the facts and the trial for error that there is reasonable back to be found here especially for the crime of home invasion which is very specific as to its purpose and to the way that should be a quiet and specifically require entering into th court to have looked at this inconsistent evidence i'm sorry inconsistent testimony that mrs edwards gave the nine hundred and eleven testimony that you say as well as her testimony at the trial and are you saying that the trial court was unreasonable in finding her credible because of those into insistenc honor simply because like i said all the other physical evidence the fact that you know this interesting by roger in this instance are just simply inconsistent i'm really inconsistent with  happened the changing of the story between punched her husband and then using a bat and how many blows were were witnessed or things like that again when you look at the photograph of the actual injury it's just much more consistent with mr  with regard to your sentencing argument and provocation that is somewhat tenuous that is because is that not the evidence shows the record shows in this case that the reports that one of mr edwards employees came to the defendant's place of business was made after the report of the edwards as to the and your other point with regard to sentencing was that the trial court took into account a factor that should not have been taken into account  thought that will bring a baseball bat against another person thirdly could have threatened serious harm but the record doesn't indicate exactly  the trial did it not that it wasn't seeking any enhancement as far as the sentencing went but the state really mentioned that specifically isn't it correct ellie that practice and then the trial court was specific in indicating that the court knew that it could take into account the manner in which the crime was committed nature and circumstances of the offen in fact i think the the party mentioned south of our principles and cells of our so the court certainly was aware of the fact that it would have been improper to america all right i don't have any other questions thank you  defense counsel i have several questions the lady on cross examination about the bad being over dips and said but lydia never testified that she swung that bad above her head is case are inconsistent with one with what one would expect having been hit with a bat but the statute in this case as pointed out by just as doesn't require any major serious injuries in to the defendant for putting in the landlord in a bad position because he moved out establishes this strong provocation i'm not i'm not making that connection and the dad to be considered a mitigating factor ok i think you count so i have no further questions just to to do you have any other questions no i don't think you just present do you have any other questions at this time mr barrett you may begin your argument i'm sorry are you able to hear me now hello yari can you hear me now yes a skype ok i think my mute button was stuck i hit it and i started talking and then it was still muted i'm sorry about that and just being flexible with hovind and you know under these circumstances we all really appreciate for toughness you that so i'd like to just kind of jump right into the st issue it looks like the the focus here is on the entrance whether or not there was crossing over the threshold by the fence and i think really what this boils down to in your honour's we're already addressing it is the credibility of the  exhibit she says and he came in so yeah i mean he came to the house she said he came to the house but then a few sentences later she says and he came in and said he's going to kill my family so we're only getting a part of that story we're not getting the full the full story from defense counsel nine hundred and eleven call i think her story was consistent in all respects of someone that is under extreme stress and trauma and you know whether or not she's that punched whether or not she's they kicked you know your as are fired off your your i mean can you imagine you know walking in and seeing your loved one on the floor guys hitting i mean your choice of words could be anything at that point i mean i think if she's tripped e that's something you would expect so i don't think that's inconsistent testimony i don't think that strips her credibility i really don't see any problem at all th t we also have injuries not only on roger consistent with what you reported to nine hundred and eleven operator when he spoke with her but we also have bruising on so it's not the just we don't just have a guy that maybe he fell down there's some conjecture about how did those injuries occur we have two people that are injured it wasn't just it wasn't just roger falling down you know we have we have lydia with bruising across her you know a lot of this stuff comes together just by by virtue of them being there looking at it in seeing it you know and also she showed up there was a show up later on at the defendant's business where the bat was discovered so he she shows up she points the defendant out and then they recover the bat there from his vehicle so i mean they they understand there's a bat involved here you know  and that was also reported the one on one so the police officer will wear the bat there's no question they're aware so there was an entrance that that there was plenty of evidence you know at this this talk of the mud room was the dimensions of the mud room would have prevented the defendant from coming in i mean it's nine feet by nine seats you know he had the defendant had plenty of room to enter  and strike roger with the bat knock him down as testify to there would have been no there would be nothing examining looking at the pictures that would have prevented him from doing  and then also with the no d n a on the bat again rather the defendant is handling the back you know there's brief contact made there there's a there's a couple of quick you know hits or strikes with the bat and then maybe the defendant even tries to wipe the bat off use with the bad d n a could have easily been degraded over time the reason defendant in these on the bad is because he's the one who the with that st issue though those are the things the state would like to bring to the court's attention turning now to issue two you know i was looking at the  was looking at these factors in aggravation and if you look at the aggravating factors that are it says the defendant committed the offense against a person sixty years of age or older now whether or not they're there was harm considered you know you know harm is involved in the offense and then considered again that that would actually be ok even if that would ordinarily be erroneous in this case roger seventy two dollars so factor eight the he committed the offense regardless the is the offense could include part it would not be a double an answer where the person is sixty years of age or older and  here he's seventy two years old he's also a cancer patient in a terminal cancer at the time so i think the finagle rule would come into play here on that you take the plane up as you find it you know he is he's an older sentencing with with the sentencing issue was brought forward in defendant's brief i don't think the provocation really is a concern because we have a defendant who was credible you know the dismissed the court talked about that the court did not believe that calling a non emergency number after you've been in supposedly attacked with a knife that's just not a credible scenario so  know i don't think provocation was a mitigating factor at all but this time i'd like to just turn you know the rest of my time over to the court if you have any questions i'd be happy t mean that the defendant didn't come in you know i i really don't think so because you know there's a sequence of events that have to occur for someone to come in sight of your house you invite someone to your house they have to come to your house house or come to our house like it probably came and that is she calls that an inconsistency and so what i was asking you is how is that an inconsistency no i mean i just think that the did not strike him with the bat but mr give mr edwards saw the bat and we've already heard mr gonzales is a pretty big guy because the defense is saying would have been hard for him to swing of that nature and then he left and supposedly we find out he did call nine hundred and eleven after leaving the residence well on that nine hundred and eleven call he didn't even say anything about roger fall so even there he's aware of it and just there is no says call nine hundred and eleven so at that point he has it we don't know if he's fallen but it doesn't sound like he's you know he's struggling to say call nine hundred and eleven it sounds like he's startled and maybe feels threatened could that be him inferred from that that sequence of events yeah yeah i mean and also you're dealing with you know a sequence of events that is we're in a matter of seconds here so you know this sequence you're trying to parse out well this is inconsistent with maybe you know i don't think these are the kind of consistencies lead in lydia's testimony or roger and what what he you know they're both frantic they're balls you know under extreme stress so i feel like you know you know the fact that he said nine on one while he was standing around while he was on the floor you know  circumstance or factor does the existence of mitigating factors obligate a trial court to impose a lesser sentence no it doesn't and you know the trial court here was aware you know in considering all of these factors that there was a history here of violence you know this defendant was also guilty of a felony violent offense a prior you know the people are not saying that that's true in this case at all but where a factor in improper factor had been considered one of the things the court would look at is whether the sentence received was stanch really less than the improper factor standard but had had there been an improper factor considered here you have a sense it's close to the bare minimum so you know it still wouldn't be cause necessarily that right ok i don't have any other questions thank you thank you just you know i have a couple of questions and it's paired as you know the state can argue a single requires then defendant to have caused any harm undercount to well under count two which is what he was sentenced under if you look at the language in the statu it says used force so the use of force does not require harm any use of force whatsoever so the fact that harm was threatened or in this case actually cause you know this home invasion statute doesn't require that under subsection a one which he really was sentenced under used force use of course is all the wire so enters correct one thing and i don't believe that i misstated the record what i said was that the written statement to police from differs from the testimony which she offered which differed from the nine on one card with respect to whether or not she mentioned th got i don't think it's a major issue but she was not consistent in that she described it as a different color and being made of wood as opposed to being in a limb on the fact that there is no d n a on the bat i do believe d this compelling and there's actually no evidence in the record that  is that by the time this matter went to trial he had died of cancer and there is certainly no evidence that mr gonzalez knew that he was that he had cancer i don't know when he had it but that's also an improper argument that's just not  the record and i don't think it's appropriate for the issues before this court again i just reiterate back the purpose of the home invasion statutes to protect people within their home but we have here the facts and evidence are demonstrating day two roger edwards was standing inside his mike brown and we're not sure exactly where where exactly he fell or how he fell because this has money simply inconsistent and i think that the strike mr at the words and st causing him to fall down if mr edwards hers mrs dogs barking he goes to the door and he opens the door to a large person with a bat in his hand if this mr edwards then backs up and falls and hits his head is mr gonzales still responsible use of force or and threat of danger so no i think that that would be inconsistent with the statute and i think it would be concerning if if that sort of situation presented itself trip that this is hypothetical there is a trip and fall down but mr edwards and that's when mrs edwards walks into the kitchen and sees the mud room and sees mr gonzales with the bat and says she he hit also think it would depend on the manner in which the bat was being wheeled it because again it has to be this this is an imminent danger and i don't i guess would depend on the specific positioning of the individuals what the testimony was what the expressions if what statements from me i'm not trying to not answer question here and i'm just trying to i think there's a lot of nuances that that go into this type of analysis and i think those nuances are important because i think they can speak to the nature of the the use of the injury issue both in the trial for a finding of guilty and then possibly in the sentence it is quite clear that there is a provision in sentencing an aggravating provision in sentencing concerning the a judge and door disability of the victim isn't that correct yes that's correct and so the issue that we would be concerned was is what if any impact was even mentioning the fact that there was an injury that we heard about in trial now what impact did that have on this sentencing if in fact there was a fact that she was lying and therefore the trial court shouldn't have found her credible not necessarily she was lying your honor but i do believe that it does speak to her credibility absolutely i think that it well  tends to show that her memory of your events and or her testimony was not out sufficiently credible and that either she was misstating or mis remembering certain facts or certain key factors which as i mentioned earlier that there will be help in some of those nuances are really really critically important to determine whether or not something like battery or aggravated battery suddenly becomes a home invasion and because the nuances are so critical credibility of that witness isn't it common to expect that there might be some inconsistency is as you are referring to the heat of the moment the trauma of what occurred might not make everything completely consistent isn't that correct i would absolutely agree with that your honor but i would think and but but my point is if it were the opposite and everything missed in that kind of situation that would really deter from someone's credibility would it not if there weren't any and consistencies at all it would indicate that perhaps  someone might be making up a story or changing the details to suit their own motive i don't i don't think so in this case just because i think the way the manner in which that story progressed