corroborates either side and three neither version of events is inherently possible that is the case here mr stevens and his daughter testify to opposing versions of events there was there was no other basis on which the jury could return a verdict other than credibility and when that's the case under nailer that means the evidence was closely balance one that's an instruction that is meant to be use when there is a charge of one date but the evidence at trial shows something different than that so in other words a robbery is alleged  heard on july first the evidence shows that it occurred on june third that is not this case in this case information allege that the charge incident had taken place sometime in november or december to the end of winter according to her statement earlier to the child advocacy center she placed it between thanksgiving and christmas so in other words november and december and even mr stevens testified at trial that  his daughter spent the night with him at his at his mother's home after a few moved there in november twenty fourth so there's not a variance what we have is a charge of november or december twenty fourt and what we have is evidence showing a bender for december twenty fourth team here's why vi three point zero one is problematic it says the information states that the offense charge was committed on or about november twenty fourth team through december twenty fourth if you find the event offense charge was committed the state is not required to prove that it was committed on the particular charge effect of that instruction is to inform the jury you don't have to just consider this time frame you can consider everything outside of that time and that leads to a risk that the jury would improperly convict based on the other crimes evidence that was introduced in this in the realistically counsel  november december once again i i think i would agree but i also think it's close to the most they got into wasn't that on occasion if she and her mother got into it she was upset about something her father would come up stairs the only crimes that that everyone focused on spent they spent the most time on they talked about in great detail with those november december time frame  and so the evidence was by and large general in nature although i would agree or honor that there was some information about the when in the where of the charge incident the party's closing arguments were not so specific they were much more you had some pieces of information about the charge incident and then you had more testimony about the overall course and under those circumstances when the jury's told it doesn't have to was closely balanced as runners are aware or are you in court must evaluate the totality of the evidence required conduct and conduct a qualitative commonsense assessment of it within the context of that case contrary to defendant's assertions case now here the only issue is whether defendant father committed the penetration of the two counts the evidence was the victim's testimony explicitly describing the sexual assault mrs schuler the victim social worker school social worker testified that the victim also told her that her father sexually abused her mary by near the child advocacy centers forensic expert similarly testified that the victim stated defendant molester bents in this case described events in detail how and when they occurred officer johnson also testified about his confrontation with defendant father and about allegations the defendant  this conversation wavered you want i want time said he would never enter the victim's room other times he said he would to her room and there were additional contents and consistencies with his statement according to officer johnson the even slept in the same bedroom as the victim when using a qualitative commonsense analysis of this evidence it clearly shows that it was not closely bounce the victim was consistent incredible with her testimony and her accusations throughout the trial and trial period she was extremely consistent defendants testimony however was less credible there was prior convictions introduced but he was a convicted felon although this was driving on a revoked license  also had a conviction for theft which the state's posits that is somewhat of a dishonest crime the jury could use that as evidence attacking his credibility moreover as i previously stated he contradicted himself several times with his interview with officer johnson as a result although this was a contest of credibility the contest was not a balanced one thus the evidence was not closely balance for sin to the standards of fortunes and sadly most of it pretty closely balance that is just i mean this is pretty much the classic he said she said yes and if you take that further most cases of criminal sexual assault or sexual assault of children do come down to he said she said they saw from the cases i've had that's normally the case and simply if there's one sole error that shouldn't be sufficient to does require versal that's why in this case all this although it is a he said she said there's consists of consistency throughout her statements she did not say one thing and reach our interview and then say something differently had trial although there was a discrepancy with the dates this is the young girl you know she was last at multiple times throughout the span of years so within the context of the whole case she was consistent incredible then the jury was aware of that and for these reasons the state's position is that it was not closely barrenness now defendant also makes arguments under state's position is that neither of these arguments amount to a second prong plan air to subdue the jury instructions as well as the alleged pervasive prosecutorial misconduct the jury instructions this would be  eleven point six six as well as i p i three point zero one both of these instructions when they're not given are given have been deemed to be harmless error and are second district is held at an air that can be deeme arguments state made just a minute ago are all essentially jury are so their arguments that are designed to persuade trier of fact rule but we're called upon to credibility determination it was doing so based on a few different there a few different errors so we have a jury that wasn't properly instructed we have a jury we're not sure that they understood the state urban or  to present evidence and we have a jury who heard improper testimony about mr stevens's inability to explain why his  is just this is not just any credibility contest we have this case this is what you make public your credibility that's what i mean by that is you have one where you can't really look to anything outside seventy obviously there are a lot of cases in this realm that involve that kind of that it's and those cases are going to be closely balanced unless there's some sort of forensic evidence expert testimony or some other kind of objective