ten some other way for example the assertion of authority over an individual the world in it does it doesn't have to be physical force i agree with you that the a solution of basically arguing what the defense brought out in the testimony of this picasso when he testified that he was trained on dealing with mentally handicapped people that is trained so is it how is it not relevant to the the facts and circumstances of each should tell her when the defendant of self testifies that he was trained on how to deal with people in those settings in terms of the argument the state made in terms of not because there is no testimony in terms of how her condition prevented her from either resisting the acts that occurred or in terms of understanding the acts that occurred never was violent towards her the whatever her fear was it certainly didn't come from anything from the defendant and there is this force object well in the  he was married this is far different from the circumstance where the victim is living in a facility for people who suffer from mental retardation order to get them to a point where they can be independent and she just  trying to compensate for the weaknesses in the case by making the case about sympathy for the victim by making the case about inability to consent which was never charge and by making this an emotional appeal to the jury very that the sexual misconduct with a person with a disability kind of fills in some of that great area but it really is just i mean the any fault here it seems to be with the state for charging the wrong theory of the definition of forced defense counsel should have requested this instruction defining force and normally the decision what jury instructions to offer is a matter of trial strategy but we have a somewhat unique case here jury instruction says and what it the statutory definition of force says is bad force can occur when the accused overcomes the victim by use of physical confinement so this incident in the bathroom there was just yes they were in the bathroom together the door was shut but there is not evidence that mr picasso huge physical confinement to overcome the victim's there's no evidence he was blocking the door that he was preventing her from leaving and be thinking bomb under those circumstances would you agree and not in this case there is no going to confine not understanding the ability to flee or get out now because there's no evidence that this is the state adult male who's been corrupted and how to get it and only counters with mentally retarded adults that you should know better than to lock the door behind you when you're alone with a person suffering from down syndrome you seem as if there is no documentation or no testimony from the victim however it is not the case in each incident she's described that there is in the first one that he grabbed her hand he forced or he forced me to touch him he  so how is forces not inherent in the act itself is it no your honor and people are now trying to make that assertion however again because of this woman's down syndrome she's stated multiple times throughout this record that she was in fear there was forced to her now with regards to the second incident the same thing happened he fooled he pulled down her pants he forced down our he no she she didn't i don't believe the record shows that she testified that he yes there is this case that you cannot it has to be more than just that after sexual encounter but we are taking consideration for mental illness the fact that she may not understand things as zero one evidence counsel was there in the rough heard of that place for what people with disabilities to learn how to become independent she's been waiting to be here for twenty years who's thirty seven years old it isn't much of an inference that when this happened to her it was it could be considered of course for her now a constant cruel sexual assault story do you have to support that statement pulling a review of confinement however she did contradict dead on cross examination because she said there was no force there was no threat and that is the confusing part here because on direction very much testified to incidences of force and even embarr expressed how fearful she was of this defendant fearful of leaving and every incident even described how she didn't feel that she could run away because she was fearful of him but she did run away she did on several occasions to cheat and she left his presence on the first incident she did one way or the other for the four incidences where these six charges are from no there were no other incidents where she walked away there are two other incidences where she didn't run away or separate to what is being charged here on ars is it would be  even though the victim stated that there was no threat there was no forced she did describe her fear of this she did describe how these things happen to her so much of that fear again this enough force isn't demi that's not my thing the definition trouble understanding the questions no trouble whatsoever commands right correct i mean it was not the prosecution's argument at all in this case that she was confusing misunderstanding or didn't do anything in their closing argument as was but what was as different and and things that are on the record to try to explain to this jury that yes you heard this contradicting testimony but the one thing that you didn't hear throughout was that she was scared that this happening to her and every instinct she felt that she couldn't run away or she couldn't see anything prosecutor of one of the elements of your case is poor so that you would have a definition of course read in an idea when it came time for the that the jury instructions that it happens to the state give of the simple act or acts that are inherent in committing the offense isn't that misleading to the jury and then wouldn't have to take the need in that balance because there was descriptions of force so it is the people's position that even though if this court does find that those comments were error they did not substantially prejudice this case because there was substantial evidence to prove that there was force here now  of the jury instructions that it is not required it is up to the defense or the prosecution to include it now the defense did not include it and trial and in hindsight yes that maybe i should have done this maybe it was a mistake but again his entire theory was i didn't do that the defendant did not participate in this the defendant had nothing to do with this so he was relying on the jury with their common sense to understand what force is how should force be applied there was no need for a jury instruction because hopefully does not provide any on fear or sort of power over that if the victim just because he's a small stature or small size your honor that we have no idea how much how strong is what he can do what he can do here no deal what the not allowed to come into that room and he did come into that room so he didn't honor her wishes is that correct correct your honor but and the jury had the opportunity to observe him and his size and observe her and her s i was presented in front of the jury they heard her contradictory testimony and they heard the defense theory and they made a decision that yes the defendant was guilty of criminal sexual assault and criminal sexual abuse now i know that  question about the jury asked me if they were but when they need to question a reasonable doubt the best state that this was a close the balance tests are closely balanced with regards to force however they asked for reasonable doubt they could have easily as for the future for good i see that my time is  n i see if i may finish my answer question army statement they could have easily asked for a definition force and they did not do so so it is why it is the people's position at the common sense of what force is that is why the definition did and focus on the victims mental illness however that is not the element that was charged here and we don't know exactly how low as days down syndrome affected her in this case down syndrome could be mil problematic because it is situated that the prosecutor knew something about hosty and about her condition that the jury didn't know and they so instead of actually presenting evidence on it the sieges makes this argument without an evidentiary foundation comments seem to limited that instruction to cases where the jury asks for it there's nothing there requires a jury to ask for this struction and define force before it is actually given unless there are any further