was present at the time the only issue for the jury was whether or not mr daniels how did the words and the home and the jury clearly understood this and this is demonstrated by the note that the jury sent out during deliberations had no response by affirmatively stating that she had no objection didn't she acquiesced in the court's response and in essence wasn't that invited clinton urged on that definition there is really no reason why she could not have asked the circuit court for five or ten minutes to run to her office or to call someone a quick lexis search would have found that  we do maintain that it's plain error but i've your point is of course well taken yes but if if he doesn't get a trial on the grounds of clean air on this issue certainly a rock solid basis for ineffective assistance of counsel who there is really no reason she should not have found brandt's that she should not have raised this as a defense throughout the case that someone other than  white could give him authority to enter the home and her dolls testimony he's the only testimony that describes an offense which mr daniels is charged he certainly was i think did that by allowing given permission either exploit that or implicit is one very but she won't why is not have reasonable theory why wasn't the theory she used reasonable that is the nature and context of their relationship it was an essence on again off again raise the one without raising the other bat is grounded in this court's case law i mean clearly the jury believed or at least suspected that her dog could have given authority to enter the home that's why they sent that no  out during deliberations so that the effective piece was to not raise the brand defense in addition to the defense that was raised and you think that fell below the reasonable standard repertoire i certainly do i think when you have to valid defenses particularly one that is grounded in controlling authority from this drinking coffee and talking i think that to not raise that as a defense certainly precluded a more potentially more reasonable and more beneficial outcome for mr daniels well is that the standard of reasonable i mean what about the issue of prejudice well prejudiced how was the defendant actually prejudiced but now insoles well let's say failure to either use that defense or give a different answer to the jerry than the court gave to request that the court give a different answer that would have talked about the authority or who had the authority to allow entry into the home while he was prejudiced because she did not advance a defense that could have resulted in his acquittal and i think the jury's know tells us it may very well have resulted in a in and  twice in the course of the two hours that they spent talking and drinking coffee on the porch so to advance to not advance a defense that's available that's grounded in the facts and  law certainly deprived mr daniels of a reasonable chance of a better and i think that's particularly so when you combine this with the failure to admit defense exhibit five point five for impeachment purposes only and that was a series of text messages between mr daniels and ms by which included one sent on august th in which i'm paraphrasing she said to the a fact you know we're dying don't come over here i'll call the police defense counsel stated an argument on the post judgment motion that she intended to and that for impeachment only and that she intended to request the appropriate jury instruction but the fact is that she did did that dropping the ball they're combining with not raising the brand to thousands and then finally you know the way that the found out west scribed by the state's attorney during quotes as fixated obsessed jilted knowledge spurned angry upset that's him you know all of that had nothing to do with the offense for which he was charged and i think feeling to object to that not it's unreasonable because again this all fence is not a crime of the tent it is complete upon entry this is also discussed and people versus branch it is complete upon entry into the residence the reason for the entry does not matter and so it is a it's a given wide latitude to make reasonable inferences and their arguments were very damp and it yes of course they are but i think that latitude does have some boundaries and the one of those boundaries of course is the offense for which mr daniels was charged and given that it's not an offense of intent the reason why he was that is a reasonable reading of the text messages but that is not the law the law set out in people versus bria it is that authority is not limited to the owner authority goes to anyone with a quote ownership think i think the saucer then ties into the fact that all those text messages were intended to be admitted for impeachment only and she did not request that request the appropriate instruction and so then they were considered substance  that there was no response from white to these text messages would that have been sufficient did she have to actually introduced all of these text messages especially the five point  that certainly could have made all the difference in the world but i don't think that they were absolutely massive and explain the impeachment then please when you say it could have been introduced for impeach  purposes what is your argument with respect but defense counsel at the argument of the post judgment motion stated that he intended to put that exhibit in to impeach ms white it's credibility to kind of you know miss white had testified under wraps that you know she's done with this guy and she never wants to see him again and i believe strategy that defense counsel was looking at was to say look at all these tax messes they're on again they're off again they're talking she says she doesn't want to talk to them and then she talks all the time that kind of think think that's what she was getting out was to impeachment white's credibility i don't think that that was necessary personally i don't know that i would have advanced that but nevertheless she did state in the post judgment argument that she intended them to be admitted only for this impeachment purpose and that she had intended to request jury instruction telling the jury that this was impeachment evidence only she did not do that so of course the whole thing that goes in and redacted as substantive evidence and is argued by the state attorney you know in closing and relied upon by the judge objected to this he would ask us why isn't white's testimony regarding your interaction with the defendant during and after their trip to wisconsin details providing context to d a white text messages d that the defendant was no longer welcome on august th right well a couple reasons st of all the wisconsin dells trip to place on august th of twenty rd i'm sorry you you're breaking up and we're go finish it sure the whole day chasing him and then she finds him hitchhiking on the highway trying to get back to illinois i think the whole thing together constitutes bad acts evidence that should not have come in well  no i don't think it is again coming back to people versus brilliant criminal trespass to a residence is not a crime of intent it's complete upon entry into the home and the nd district said specifically  it doesn't matter my view you did if you did it without authority another person was there it's done referring to justice you know it's a comment earlier about weaver i think i'd like to just jump into issue one on focus on that in the state's brief we had quoted people  you know here you have a defense counsel being given an opportunity to draft a response to address the question that you know that the court offered a wouldn't we had argued in our brief that should this court find that waiver the waiver rules don't apply that they're in we look at this for the merits there was no error in in the instruction in this case because what you find is it's not a it's not a legal question it's actually this is actually a factual question about who has authority the  and is it the prejudice here clear that the jury may have the senators did the law believe homeowner could grant someone permission entered the home well in this case there was no evidence presented that when her gave defendant permission to enter in fact the defendant waited to sneak into the house he never saw earl's permission and he had fact shown up and given a pretextual response to him about why he was there i thought with some in the house he talked about he wanted to be nice you know and polite so there was never any i mean can porch when he approached initially they sat outside and after about a half hour earlier went inside to grab a cup of coffee and he didn't hear the front door open so the front door is right next to the kitchen and heard all was home alone he said it was quiet in the house and did not hear the front door open he also testified that he didn't give him permission to enter the house he didn't give authority upstairs and asks to use earl's phone this is a nineteen year old it was uncomfortable he said he wanted to go up stairs and leave him on the front porch so he would take the hint and the defendant didn't take the hint he went into the home and he asked to use the kid's phone the kid was uncomfortable the defendant had actually stated that if his if jennifer white the owner of the residence was seeing her ex boyfriend he'd have to kicker in the face so you have a guy that's making intimidating comments the kid is uncomfortable he's not willing to be assertive this is our safety that way should restating advantage be and if the jury found that there was implicit permission by airtel but yet what was instructed that the only one who could give permission to enter the home was the h whether whether or not you argue that ertel has that authority opens the door for the state to show that the defendant is taking advantage of this and there's plenty of argument to be made that he was intimidating the kid and dr that was the last meeting also withheld the fact that jennifer said don't come here i'll call the cops he told her if she had she had told him if you come to the residence i will call the police and she had a superior interest in the might get steered in the wrong direction and by not answering that question the court was focusing the jury on the evidence that was present the relationship with the homeowner with jennifer white and her brand of authority to i was following up on what you were talking about just as prejudiced that is the text message that was argued as the single most significant piece of evidence of defendants lack of authority isn't an objectively reasonable defense counsel have filled this important gap in the state's evidence by introducing this text message well st of all the defendant wasn't really filling a gap because the testimony had already been illicit it from the victim she had already testified to the texts independent of the text coming in she did not testify to this person she was questioned and these my reading of  is that she did not testify to this particular portion in exhibit five point that she was questioned about a lot of different parts of the text but not specifically asked about that one i mean she she testified generally that she had not given him consent after she broke it off for the before the corn festival when she went up to the corn fest so that property correct not it not into the home and he always respected the threshold while they were together he had never he always waited in the driveway while they were dating he never came to the residence uninvited and he never crossed the threshold without her express permission and so good to just reason might there have been for defense counsel not to to exhibit five point five going back to the jury when they went to because she had broken up with him before on august rd this is after the bells there was an incident bell's we had argued earlier and after they got home from the dells the defendant was upset because he couldn't stay over at her home that night he was  upset he threw a phone and broke it in the streets because she would allow him to come inside and she's that it's over we're not we're never going to see each other again you go your way and go my way and then there was an attempt to try it again you know just to see cho other and test the waters per se and then so the defense was putting on this you know on again off again theory so if if jennifer white had broken it off that definitively before then they got back together well here by bringing the text message in five point five defendant couldn't have no you know from from that period the case that he wasn't welcome there now the state's response to that is well he didn't show up unannounced he didn't cross the threshold without being there and he certainly never lied  know to a guest to gain entry the way he did specifically during this circumstance but if he was unsure of whether he had permission after the dells and up and up to craig correct and that's what the state is arguing here is that he should have known because this this relationship was what on a downward spiral through the whole month of august there were two break ups they never really had a full reconciliation and you know certainly this last text and his behavior following that text demonstrates you know that he actions show that she was in effect and by by not objecting to this going back if she was our doing the continuing course of conduct on and off again but that this text message sealed the deal at five o three on august th why would she want the jury to see that that wasn't the that wasn't defense counsel's theory of the case vents counsel was stating that this is happened before she's broken up with him before so here we go again she says you're not welcome in my life i was useful so no she was she she meant what she said essentially  now the state obviously is going to be arguing that no you do know from this text it is definitive and we know it's definitive because he's texting or two hundred and fifty dollars times after that it's i mean  he's is texts are spiking he's lying to the ghastly showing up unannounced his behavior is completely out of bounds different than it was prior to he's behaving like somebody that has no control over their ability to you know process this breakup sorry i'm so sorry i'll be very very fast with respect to counsel's description of mr hall and stealing awkward or uncomfortable in the defendant's presence you know the jury heard all's testimony and yet they still sent out the note asking essentially could mr ball have given the defendant permission to enter the premises the answer to that question is yes and the feel you are to secure a correct answer was ineffective assistance of counsel along with all of the other items that we've been talking about today with respect to the text message it's a bit and whatnot if you have further questions for me i welcome