evidence that a punch was even thrown it comes from miss connors out of court statement quote my boyfriend punched me in the cheek area mr robinson is my boyfriend my boyfriend flipped out these seventeen words purportedly stated by the alleged victim concert the sole evidence that robson so much as touched connor let alone batter further counter statements that robinson punch from the cheek does not come from her trial testimony that she did not testify at trial instead the sole evidence comes from the testimony of former police officer lyle nettles he was allowed to testify regarding conner's purported out of court statement after the court ruled that it fell within the excited utterance exception of the hearsay rule therefore the only evidence robinson even touched connor comes from uncorroborated alleged here's the statement the defense maintains that mr robinson was not proven guilty for two reasons first here's a statement the excited utterance was improperly admitted and without that there is no evidence the punch was even thrown second even if that hearsay statements were properly admitted the state still failed to prove the case beyond reasonable doubt is that statement and the other evidence does not establish that a punch was intentionally  the statement must relate to the occurrence regarding the first factor the sufficiency of the startling occurrence in your honour's it's our position that a punch that does not even leave a mark the incident as a whole that there was blood spatter throughout the apartment that there was a hole punched in the interior wall there was broken glass on a door near robinson was bleeding heavily from his right hand robinson was yelling and acting irrationally nettles right they claimed that is a whole is adequate to produces spontaneous reaction but even if that is the case and if you're going to accept that that is enough then the state fails in that it didn't meet its burden under the second and third requirements of proving his opponent that there was an absence of time to fabricate and that the statement was related to the occurrence the state is a proponent of the boy the burden of establishing that connor had no time to fabricate and the statement that the defendant hit her was related to the occurrence of his outburst here the state did not lay an adequate and i did cite in my brief case that i feel is on point it's called j s and in that case the court basically held that a robbery statement that quote girl i've been robbed was not admissible as an excited utterance despite the fact that ledge victim had bruises on arms because there is no independent evidence that the robbery occurred and i submit he was still acting irrationally i think it's we were not disputing that he was angry and was punching a wall or that that was even near enough in time twenty officer came out i think the problem is that there's no evidence that what she stated that he hit well that it really could be related to well your honor i think that the state you know the pope proponent i feel that they have the burden to establish the time of the battery and this is their nine usual case because in most of these excited utterance cases what the exciting event is usually what they're uttering like if someone sees someone get shot at oh i just saw him get shot in this case you know for some reason the you know if if his if his outburst and punching a wall is exciting event will she believe is even mentioned that in her statement and i find that a little unusual and i think that should also bear on whether it's here very upset correct and then yes in all that evidence i believe your honor is consistent with the fact which we're not disputing that mr robinson was angry and was punched in the walk and that would be a domestic disturbance of someone's at home punching holes in the walls bloody in their hand breaking windows that i think actually that point favors us the call was not related to a domestic battery it was a domestic disturbance but it wasn't her response that you received did in response to the officers question about what happened well i think a spontaneous utterances supposed to be just that supposed to be spontaneous it's not i met with the cases of hel that you know simple questions like what happened don't necessarily destroy spontaneity but i don't think that you can take from her statement that that she had been hit in and further from that that it all occurred as part of the same incident you know i think that raises some inference that she would be talking about me two days ago and he says what happened well i don't that may be true and it may not be true i just don't think that the evidence is there where the other as to why she said what she did perhaps she said that it was reflecting statement perhaps she said that he hit her in order to get him out of the apartment because she didn't want him destroying her apartment and the public didn't belong to her presumably if she's running it and so i assume that she didn't have the ability to press charges on it isn't the only issue we have is whether the state close enough to the to the batteries well yeah and i think that goes hand in hand with whether it's related to the circumstances from the evidence in this case you don't know when the battery correct correct there's no evidence as to when the or even that the battery in fact occurred there's no evidence apart from her defendant whether the defendant intentionally contacted make physical contact with mr connor and i think under whether batteries in general or specific intent crime and i believe the state agrees that they still have to prove under either definition in a minimum that the defendant intentionally made contact with her so for this particular case i don't think that it matters whether it's batteries a specific or general intent crime all over although the courts do seem to yes saying that second that part of it isn't necessary well i think that it's necessary that's my position but for this case it's not our contention if you're going to find that there is sufficient evidence to be punched or i'm not going to stand before you say well yeah he and the time when the statement was made as to whether it's excited and excited utterance and we take into consideration what appears to be the facts that from the time currently th call was made least to a police officer there the boyfriend was still looking out he was still out of control i think as you said does that make a difference with regard to the ability of the  problem well i mean certainly i mean the more distant the excited occurrence is the better i guess for the defense but i don't think that that necessarily destroys we take that into consideration i think that's  it's the whole totality of the circumstances that makes the other a still excited right but the again i feel that there is no evidence the battery was connected to the excit state and i think that's that's one sense not just only a time issue it yeah it's part of time issue i mean say they've been arguing all day maybe hit or earlier in the morning and then then later on the day there is another they get another argument  you know had had they had had there been some independent evidence that this happened you know i have the police arrived and she had a bruise on her face i wouldn't be standing here making that argument that is now where the totalit something to consider but that still doesn't establish that the battery was connected with this outburst in fact i think the evidence tends to disprove that because someone is punching holes in walls shattering windows you know punching through mirrors if he were to punch or during this you know rage i believe it's more likely than not that he would have left a mark on her so i think you know as far as future cases you know yeah if you're talking about a case where there's no corroborating evidence as to when the the punch occurred then i would agree but most cases the police will come and some will be blood be some type of evidence or witness or something independent of the statement cell that occurred but even if that the statement is admitted and the court does consider it the fact remains that the state still did not prove its case beyond reasonable doubt the battery statute reads that a person commits domestic battery if he intentionally or knowingly without legal justification by any means makes physical contact of an insulting provoking nature and  state proved that the punch that he intended intended to punch can or knowingly punched or the facts in this particular case is that the defendant was in a rage out of control even by the officer's testimony  punching holes in the wall and and it's just as likely perhaps more likely that the defendant if you did it or if it was actually connected to the circumstances of the occurrence that happened accidentally maybe perhaps even when he or maybe you know he grazed who was punching at the wall and again the evidence is that he was in such a state of rage that he was punching so hard that he's punching holes in the wall had he intentionally punched her i think it's more likely than that that that there would be a mark on her it's pure speculation as to whether this was an intentional punch or no one punch when there is no evidence or no witnesses in fact the state had witnesses to call the other people at the scene they didn't call mom and in fact they only issued a notice to appear to conner and didn't even subpoena her to the second trial so we don't know why that happened but in conclusion your honour's i've asked you were burst the defendant's conviction for lack of proof beyond reasonable doubt thank you secondly whether defendant was proven guilty beyond a reasonable doubt the appellate court found both that the statement was admissible and that the evidence was sufficient and this court should affirm officer nettles responding to the scene of the domestic disturbance and the victim said to him quote my boyfriend punched me in the cheek area mr robinson is my boyfriend my boyfriend flipped out and reviewing the trial court's finding that this was admissible this court as a review in court applies the deferential abuse of discretion standard of review and uses the totality of the circumstances test which does focus as defendant noted on three factors first whether the startling occurrence was sufficiently startling second whether there was an absence of opportunity to fabricate the statement and finally whether the statement was adequately related to the startling occurrence you know that the people's position is that the startling occurrence here was defendant's ongoing outburst rather than the single punch standing alone and indeed this is what the appellate court held was a sufficiently startling event and this outgoing this i'm going outburst included not only that defendant punched conner but also that he punched a hole in the wall and that he broke both the sliding glass door and  mirror with his fist leading to some two broken glass and blood being splattered throughout the apartment no indeed this was sufficiently startling this court can look to other precedent that also recognize sufficiently startling events for example such as finding that an accidental injury is sufficient or even observation of a crime where no injury results has been found to be sufficiently startling for example in the case of septa that is a case where a car was pulled over during a traffic stop and the police officer approached the car and demanded money from the occupants this was found to be sufficiently startling and certainly that experience would be startling but it did not involve any property damage or injury like we had in this case secondly there was no opportunity for to fabricate under the circumstances and there are several circumstance for such a conclusion first of all the incident occurred at one thirty am and the police were dispatched at two zero two am so this was a very short period of time and indeed at the time that metals arrived he noted that defendants hand was still bleeding heavily which supports the inference that his violent actions had only very recently ended and indeed conner herself still appeared very upset and was crying showing she was still under the stress of what she was witnessing and experiencing also she made her statement in response to a single short general question from officer nettles he asked her what happened and defendant concedes that that type of general question does not destroy spontaneity w are the best evidence of knowing and again knowledge under illinois law is defined where people were a person is consciously aware that actions resulted or is where that acts are certain to cause a result so under that standard this punch was knowing because of the phrase that connor used she used the phrase my boyfriend punched me and common sense understanding of this term is that a punch is a deliberate action perhaps an defend evidence in the light most favorable to the prosecution under the circumstances here defendant was using his fist as a weapon in multiple occasions he was punching holes in the wall he was he was breaking mirrors and it's certainly the fact that she said well there are cases under illinois law where hearsay statement in and of itself has been found to be sufficient so that would also be a situation where there is no cross examination in the case of people versus meredith although defendant discusses the potential other evidence that was involved here or involved in that case the appellate court said there and statements a penny in the park fell within the spontaneous declaration exception to the hearsay rule and thus was admissible and sufficient to sustain defendant's conviction so here's an example of another case where hearsay statement alone was identified by court as being sufficient to convict and there are several other citations the people made at pages thirty seven thirty eight of the brief certainly recognize your concern justice thomas but because of the circumstances of the case defendant was agitated and the the fact that conner was observed to be very upset to be crying the appellate court here made a reasonable supportable inference that if she were asked having just witnessed all of this property of its destruction for example that in the first question i was asked her why she was still visibly upset that when she was asked what happened that she would identify the punch as being her first spontaneous response is actually quite powerful and that is because assuming under defendant's hypothetical that perhaps the punch occurred days before or hours before if she was still upset after a viewing this very disturbing scene of her boyfriend destroying their own apartment injuring himself that her first time taney his reaction to this statement was to be that he punched me that is actually quite powerful and i don't  conviction based on the state if it statement were not admitted we can see it that the connection cannot stand but the statement alone was not the only evidence here that i would continue to emphasize that the circumstances both of defendant continuingly to have to appear and raged the fact that conner was still upset and again the reason why excited utterances are allowed to be admitted is because they are deemed reliable that the circumstances reflect an absence of opportunity fabricating here not only is it admissible but it certainly reflects how strong and reliable it was because only a matter of minutes had passed and indeed as justice burke observed because he was still enraged at the time that the police officer arrive that it's just as likely that it was an accident is yes intentional would we be bound under versal on the basis that no reasonable jury could ever find somebody guilty beyond on an issue that could have been one way or the other fifty perhaps but i would preface that response by saying again because we're on appellate review here that evidence has to be viewed in the light most situation in that manner is an objective evaluation rather than looking at what reasonable inferences can be made in light of the standard of review so so that is the key here because of this deferential standard of review it really isn't a fifty fifty situation both the trial court and the appellate court looked at this evidence and found it to be sufficient in here because the evidence must be viewed in the light most favorable to the prosecution then certainly because of the the reliability of the excited utterance here it was compelling evidence of guilt she used the term punch and perhaps yes it was not subject to cross examination but if someone flails behind and somehow accidentally grazes someone in the cheek in an ordinary sense no one would say that person punched me maybe they would say in the choice of words here is very notable they use the word punch in our common sense understanding reflects a deliberate action and so not only that but the fact that he used his fists to destroy other things in the apartment and because conner went appearing so upset when asked the general question of what happened her first response was to know that he punched her and looking at it from her perspective if she witnessed this so it's hard to say sure i guess i have to say that's possible but again because she was asked what happened this was her and this will spontaneously response which given the short period of time given she was still upset given defendant was still enraged  statement you have a bird show of that there was no opportunity to well it's more of that it's one factor to consider in the totality of circumstances so even if that factor isn't shown that does not automatically mean a statement is  ible it is instead one of the main factors looked at in the totality so certainly where there is less time it's a stronger case for admissibility and if it's longer than it's a weaker case as to that one factor but is just simply one factor to be considered cheek she says he had me on the cheek here or mr robinson my boyfriend and we look at the shooters that sound like a normal response to what happened well certainly it is placed in quot report but this court should remember it is a bystanders report so it's it's actually not one hundred percent certain that the words she specifically it's what we have in this court allows for bystanders reports in lieu of transcripts and so it's certainly possible while we were in expect that someone would call their boyfriend mr robinson for example but that was just the way the attorney who drafted this phrase that because that's the way the attorney was thinking that person so that is the record as we have it  sufficient we're not talking about intent here we're talking about knowledge so directing a fist in the vicinity of someone's head is a knowing punch under illinois law because we will necessarily have to be in the vicinity or if somebody can move somebody from between over i mean there's all kinds of things that nearby any direct a close fist in that vicinity that would satisfy knowledge as it is defined in the illinois law so even the defendant uses the word intent and perhaps the general sense what he was charged with here was knowing rather than intentional  so then turning to these to the sufficiency beyond a reasonable doubt i'd like to just very briefly note that there is this issue raised by the appellate court of whether battery is a specific or general intent crime i would simply note that this is only an apparent split rather than a substantive split of the appellate court instead the appellate court uses two different definitions for the term specific intent and certainly as a general matter because this court is the highest court of the state there would be good use for this court to clarify how this term should be used to resolve and create uniformity in this area but the people do agree with defendant that in a sense it doesn't affect specifically this case defendant tries to claim that the element under this defense under this offense of making contact of  of an insulting or provoking nature requires a mental state to attach both to the action of contact as well as to the consequences of insult or provoking but that is simply not supported under the case law he does concede under the facts here that a punch certainly under the facts in this case is deemed insulting or provoking before the more general point that is not the way offenses that have both an action that is limited by a consequence are viewed after all it is a general principle under illinois law that person is held to contemplate and be responsible for the natural consequences of his or her actions so so long as the contact is intentional those if there are natural consequences that already is is held to be sufficient and a good example is the case and enrage will al where juvenile was it to take a delinquent for battery for causing bodily harm there he testified that yes he kicked the table intentionally a police officer sitting nearby injured his arm when it got trapped between that table and a nearby table and the juvenile testified well i didn't mean to hurt him but nonetheless that conviction was upheld because yes he intended the action and the consequence was a natural result so that is the way that this element should be regarded so then because pitts defendant only contests the intentional or knowing and also that the punch occurred this court may not be concerned with the family or household member element for example but the most powerful evidence here that the punch occurred indeed was the statement of connor and the circumstances here reflect not only that it was inadmissible excited utterance but also that it was a particularly reliable and compelling one because of the very short period of time that elapsed here that she was still statement and indeed the fact that she did not sign a criminal complaint and she did not testify at trial shows she did not have some kind of creative you know planned motive to try to get her boyfriend into trouble no just as a spontaneous response to a single question she made the statement while still under the stress of that situation and that is why it is reliable and compelling evidence that the punch occurred and again as has already explored so long as this this this was directed in the vicinity of connors head this is a knowing punch as it is defined under illinois law and so again in the viewing the evidence and in the light most favorable to the prosecution should be viewed as adequate sufficient evidence to convi just another reason why the evidence is insufficient here in the states here conceding that we don't even know now they're consumed we don't even know what she even said you have someone stating something which sounds like cap talk to be you know use of street term i guess you know home my boyfriend hit me my boyfriend is not charles robinson however it was phrase it it just doesn't sound like how people speak  doesn't show up to court none of the other witnesses there are other witnesses here to they don't show up to court and now we're not even one hundred percent sure what was said because it's a did no have no idea what he what he knew when he was on his range where she was on whether he nor she was there's just no evidence it's the state's burden your honor and you know knowingly intentionally whatever they just seriously drop the ball as far as proving enough facts to prove this case beyond a reasonable doubt what the case did cite some cases i think meredith which it claims stands for the proposition that an uncorroborated spontaneous utterance is good enough to sustain a conviction then it cited at least three out of state cases williams versus state commonwealth versus mike and people versus anthony but if your honour's get a chance and you're working on this case if you were to poll those cases each one of those cases has some crockery evidence that whatever the crime was at issue occurred there in merit if there there was a babysitter with the child and the defense was accused of improperly touching her and the babysitter saw the child step away and say no well if the state presented evidence here where one of these other people didn't actually see the battery but were able to come testify you know what i didn't see the battery but i heard miss conner say i'll hold or i will that would be corroborating evidence and that's what you had merit for williams versus state there was physical evidence  there was a lump on her forehead from marquette there was a cut on the hand when the child claimed he was hit on the belt hit by a belt on his hand and preach one of these cases there was crowd evidence and i am not claiming i know every single case ever it's ever come down but to my knowledge this this case is the first published case which is truly held that an excited corroborating evidence and is just as times when out no ability to cross examine the accuser is deemed sufficient to sustain a conviction and certainly in this case i don't feel that it is if there are no other questions thank you thank you six or seven eight taken under advice