fisher with your politics funders office representing the defendant in this case robert rogers robber was convicted a new jury trial of three counts of criminal sexual assault three counts of aggravated criminal sexual abuse one count of promoting juvenile prostitution specifically the jury found that between october st two thousand and seventeen and mid may of two thousand and eighteen robert engaged in various forms of sexual conduct with a minor or h h further the jury found that robert stood in a position of trust supervision or authority as to age age and that on one occasion he offered to pay her if she would have sex with the rd person now although the defendant was convicted here of southern separate offenses the judge properly found that the offenses of aggravated criminal sexual abuse were lesser included offenses of and therefore merged into the more serious offenses of criminal sexual assault the judge therefore imposed four consecutive sentences in this case three for criminal sexual assault one for promoting juvenile prostitution for a total of twenty eight years imprisonment before issues are raised on appeal in the st issue robert meaning tains he was not proved guilty beyond a reasonable doubt of criminal sexual assault because the state failed to establish that he stood in a position of trust forty as to the minor he therefore asked the scored in issue one to reverse the convictions of criminal sexual assault to reinstate the convictions of the lesser included offen of aggravated criminal sexual abuse and in the event your owners do not reverse in remaining for additional proceedings as requested in issues three dollars and four dollars robert wood also asked this court reverse that conviction out right alternatively the jury was not properly instructed as to the elements of promoting juvenile prostitution and therefore in issue three he would alternatively ask your hono and one argument today i'd like to focus on issue one involving the offense of criminal sexual assault of course of your honor's of questions about other issues i'd be happy to address those as well though the same elements are contained in the charges of aggravated criminal sexual abuse and criminal sexual assault has charged in this case namely that robert an adult had sex with  h h a minor but an additional element elevated the offense of aggravated criminal sexual abuse to the more serious offense of criminal sexual assault and that was the element that robert stood in a position of trust supervision or forty as to the minor the legislature as made this offense based on this element more serious because where this type of relationship exists the minor is more vulnerable or more susceptible to the defendant's sexual advances and therefore the legislature is decided to afford additional protection to a minor is sexually abused by an individual with whom she has this relationship however based on the evidence presented in this trial roberts admits the state failed to prove that element beyon reasonable doubt the evidence presented at trial showed the prior to october two thousand and seventeen h h and her mother donna ferguson were homeless and they were living out or sleeping donna's car at some point donna apparently had a romantic relationship with john mcmullin an adult who shared robert rogers's residence based on that relationship robert offered to h h and her mother donna to move into his residence the residence they had he shared with john mcmullin and that took place in october of two thousand and seventeen and they remained there until mid may of two thousand and eighty the evidence also show that donna was employed she worked outside the house during the day robert was also employed but he worked at night so primarily he was at home during the day with john and with the minor h h at most what the evidence shows here is a landlord tenant relationship if you will between the defendant in the minor but no other relationship beyond the alleged sexual relationship now when h h lived at robert's house she was sixteen years old she therefore did not need and he want to care for her during during the day to oversee her activities to guide authority over her and did not have the right to tell her what to do one of the state's arguments on appeal is of this court shouldn't be concerned with  subjective thoughts or beliefs about her relationship with rob are rather this court should just objectively look at the evidence presented at trial well st looking at that evidence objectively that was presented at trial there was no evidence that robert stood in the position of trust supervision or authority as to the minor and so given the evidence in this case  h would not have been any more vulnerable or susceptible to his sexual advances then she would have been to sexual advances made by any adult to her well  would be residing in that residence right usually but i don't know that's their overarching circumstance argument isn't it that's correct that's correct as i said most of the landlord tenant relationship probably more the limit or time and relationship between the defendant and her mother who is the other adult involved here but the landlord hunt relationship she's living there well obviously at sixteen year old girls going to be president other others or so correct correct this certainly because robert invited them to live at the residen mission so for criminal sexual assault the head of the state had to prove that the defendant had sex with h h and the defendant is authority not the case law interpreted in the statute in particular this element of criminal sexual assault focuses basically on the plain language of these words trust supervision and authority as as are explained in the brief case law has interpreted authority to mean the power to command in force laws exact obedience determine or judge under the circumstances of this case defendant argues robert did not have any of that type of room around the house she testified she did that but there was no indication that she was required to do them she specifically testified that he could not have ordered her to do those things again  the type of relationship that would make her more vulnerable more susceptible to a sexual advance from him as opposed to a sexual advance from any other adult i would su there's there's it's and there's no showing that she had to stay there i think if you're talking about the worse of the better of of two evils the better it is to take off or to complain to her mother and her mother the burden you know look if you if you continue to make this demand i'm going to report you to the police and hey we're we're going to be gone anyway so i don't think it's a nice showing she would have had to stay in that circumstance there's also testimony that there were a criminal sexual assault convictions finding this element was proved and i would submit your honner that those cases were different in one case the defendant was the track coach and the minor complainant school another case the defendant was the babysitter and the complainant testified she thought of him like family and then the rd case the complainant was at the beach wanted to go for a swim knew how to swim was physically able to but was blind so needed assistance from someone to his sister in the water so she could return safely to shore the defendant offered his assistant she placed her trust in this and i would submit to this court that those cases are different in people versus secord this court said the purpose of this element of criminal sexual assault is to prevent sex offenses but those in whom a child would tend to obey guidance in rob or would not have time to to obey him and so for these reasons robbers respectfully asking their owners in issue one to reverse the convictions of criminal sexual assault but then to reinstate those charges of the lesser included offenses of aggravated criminal sexual abuse and if your honour's do not reverse and remand for additional proceedings as requested in issues three and four robert also has an issue on matter the state summits that the evidence presented against the defendant did prove him guilty of criminal sexual assault and more specifically is it proved beyond a reasonable doubt that the defendant was an assertion of trust posted and mr fisher rattled off that authority means the power to command and force laws exact obedience determine or judge the state summits that the defendants relationship t to h h basically satisfies every one of those sub definitions of authority as the landlord to the tenant a change in his or her mother i don't think there's really any debate here as justice holdridge pointed out during mr fisher's argument that the defendant had the ability to evict h h and her mother whenever he wanted this was not a typical landlord perception of what the relationship was really matters at all according to the statute in this case i think that the plain fact is that the defendant was his landlord and he had the ability to kick her out whenever he want kind of authority that this statue contemplates she's talking about things like you know the fine you can't target bad or study for this or do this you know whatever the kind of things that the kind of authority that a mother or father has in that respect that that's the way the state would interpret it as testimony and again it doesn't matter what her her perception of the relationship was the only all that matters is the actual relationship that existed between these two people and several instances where she felt she had to comply with those advances and what relationships are or wouldn't he stand in that relationship to her at all  can parse out every little interaction between the fan and may change and going at times where they didn't have sex even or maybe even you know solicit her to do that or sent her a facebook message to do that i don't think you can look at every one of those individual circumstances as coining the fact that he didn't parse out every little independent instance between defendant may change for example as you mentioned just instances where he didn't have sex even though the offended wanted to and may have sent a message indicating that he wanted to i don't think i think it's just as holdridge pointed out during mr fisher's argument what we need to focus on is the overriding the overarching theme of the overarching relationship between the defendant are threats to do so is evidence that that he didn't that he didn't have the authority over and that she didn't trust and but certainly posit that that would be evidence that he didn't she didn't trust what he said because he really didn't follow through on it before but again i think focusing on the overarching factors at play here the fact is the fan it could have kicked them out any question so at any point he could have followed through on those many threats that covered it well ok i have a question if you had a situation where say for example she had a dog and he threatened that he was going to do something to the case like where she just why hypothetical if you had some kind of situation where there was the capability of exerting direct or force how would you charge that or i guess i would think that would be under authority as well i would charge at the same as is was charged in this case i mean if the defendant and it's interesting i guess if the defendant was the landlord in your hypothetical and there was a dog which there was a dog in this case of course and the defendant threatened to let the dog loose but i would think that would be under the definitions of authority that the power to command to enforce laws i mean if the defendant decided that i was going to release this dog because i don't want it living in my house you're living in my house i would think that would be exerting thore over the individual as well yes and any time you had a sexual offense that involved a landlord and you would think that it would be appropriately charged under this i don't know but every time i'm sure there could be some fact patterns where it would be maybe a tad different but in this case  but i think there's even evidence that the defendant was in a position of supervision over a change as mr fisher alluded to his mother work during the day the family was home during the day defendant was basically the primary adult home with h h and while h h testified again that that defendant didn't have the ability to tell him what to do if she didn't obey him i think the fact remains that he was in a position of supervisory authority over an addition to having vats the overarching authority that he had in this case especially with the mother not home so you're saying that any time there is a minor  that argument here anyway the fact that the minor was home all day wasn't school that there was a no and again the defendant had asked her to do certain things and so there was your chores you talking about the i and all these other things so there was there was some type of our relationship there where it's not like the child you know ran the house i am obviously the defendant on the house right now so i think there's a nurse evidence here that supports other questions i'll be happy to answer them but those are those could my comments on this topic and the other question is no thank you thank you mr fisher any weeble your mike a question about the classification of the felonies here criminal sexual assault a class one provided criminal sexual abuse class two i believe the so called regular or normal decision of this court one of the cases just discussed in the breeze that's the case where the defendant was the individual who was the primary babysitter for the child in the trial testified that she thought of him like family and this court considered that testimony very strongly in finding in that case that the defendant was in a position to trust supervision or authority so i would argue to the court that he changes subjective belie f was very important very relevant both to the jury's determination and ultimately to the court's decision on appeal counsel or not nicholas he correctly so the because there are in the same house during the day that the defendant has access to the complainant of course in any case where this type of or any sexual charge is alleged the situation or is it doesn't differentiate any situation in which any adult has with a minor because that's that's included with an aggravated criminal sexual abuse there has to be something more and apparently the legislature has determined that in this case the something more is the particular relationship that makes the minor more vulnerable i would also mention that age has testimony and of course your honour's have the record and can go through or testimony my take on it is she testified that when robert made advances towards her that if she felt uncomfortable and didn't know what to do but not because she was a landlord or had any supervision or trust authority over her or because she placed her confidence in him or would obey him but simply because he was an adult and again that that fits aggravated criminal sexual abuse it does not elevate the offense to criminal sexual assault there was simply no relationship between the true that would fit the charge of aggravated criminal sexual assault mr nicholas a whole target of leo argues that at the very least robert supervise the minor because they were together in the house during the day again she was sixteen years old now she was a younger child well i might agree with mr nicolo sees argument but she's sixteen years old there is no evidence that he needed to prepare meals for her to drive her anyplace to oversee her activities that she was in need of his assistance or guidance during the day and you wouldn't expect that given given given her age of sixteen yes she's a minor for purposes of the statute but the because of that his mere presence in the house during the day yes it allows the offense to take place but it does not make her more vulnerable in the us does not place him in a position of trust supervision or authority and so unless your on herself additional questions robert would again simply reiterate his request that your honors reverse the class one this morning will take the matter under advisement and will issue a decision as quickly as possible the court will stand in recess until may thank you