please the court miss lemons claim that mr cates violently choked her but the jury found her incredible on that point rejected that testimony and found him not guilty of causing any bodily injury bodily injury as the fine very broadly includes any pain whatsoever or even a cut a bruise burn abrasion yet despite her claim that he had so forcefully choked her that her pain was a ten on a scale of ten the jury rejected that finding the question here is whether the rejection of the of the claim of bodily injury also meant the jury rejected the government's claim that mr cates used force under the full record circumstances here it does when we apply mr chase has already ruled run the gauntlet once on this issue he can't be made to run it again by facing trial again on the issue of force the government's argument here is that well maybe they rejected this claim that there was any any injury or any pain whatsoever but maybe they found that he touched your neck so lightly that it wasn't bodily injury but yeah there was force st of all that wasn't the theory presented  trial or the testimony of miss lemons but beyond that such a light touchings or grabbing would not constitute force under the definition used in the circuit in both between the lines their village victim in the jail cell was trying to get up and use shoes prevented from doing that here all of this lemons testimony is that she went along with this and gauge and sexual activity out of fear i was bent over over the sink he was holding my head down towards the sink is gripping story sixty two correct she says st of all that that she engaged in the sex because she was scared no because he touched her there's sex by its very nature is a physical activity you're still going to be contact there's going to be touching there's going to potentially be maneuvering moving of moving of bodies there's nothing in this record that shows that that that touching of the knack wasn't incidental to the sex she doesn't say that at any point that that that's what happened at the page sixty three that you feel you could fight it's no i was scared it's not know he was holding me down or anything else she repeated she's clear that she offered no resistance either verbal e or physically so the mere fact that you engage in some touching or contact is part of the sexual episode doesn't make it the use of force there's nothing that overcomes her will to resist because no no effort to resist is made on the  pain that would have that would have made out of that would have made out the force but you take that away and look at what this case is without that because the jury has rejected that and all we have is that she says i agreed to the i agreed to the oral sex and they moved on to the to the sink where he leans over the over the sink and gauges and intercourse the fact that he touched her to logistically accomplish that isn't the overpowering avenue of any will to resist or any physical any physical power there that's not what she describes when you get away from the pain similarly i would i would say that the the claim that th pulled her he had her hair in his hands to put his penis further in the mouth that also is in incidental to the sex is incidental to the sex a defense here to the use of force i  when it's when it's part of the sex as opposed to used to cause the person to engage or the use of physical power to continue to endure if there was is that a viable theory yes i mean it because there's no overcoming of any will to resist there i mean that's something that could happen and in everything that's the scribed it happened entirely consensual sexual activity there's there's nothing there's nothing about this that causes it to go to physical force or is overcoming her will to resist not a green not necessarily in question because of the way the jury was instructed we've got a bit of a mess on our hands but  rejecting that claim that there's that that kind of force that would have caused pain so we're left with we're left with a touching of the next that's not even substantial enough to cause pain and when we look at it that way and we look at that this is consistent with maneuvering and that she never says i engaged in the intercourse because he was touching my neck or i was going i was trying to resist but he was grabbing my neck we don't have that i mean force changes this from to a crime with life and part of life in prison as being the maximum punishment it's it's aggravated because as to be aggravated caught conduct and so we can't have it fall on that on a mere touching that's not even enough to call cause pain that's not used to overcome or will to resist it has to be something more substantial than that and that's just not shown here and the jury is rejection of her claim to have been injured in the way she was says that have rejected the claim that he used force  frankly i think the stronger argument from our position is that there wasn't proof that he knowingly caused knowingly put her in that alley the fear if she had it might be i guess my i thought your position was that that's not sufficient because otherwise any sexual unwelcome sexual conduct from a police officer would amount to aggravated sexual assault in my question is whether that's a double jeopardy question within the scope of this appeal  is that it that it is because it went to produce as a matter of law when produced that it doesn't support the the fear that she claims to have had but in particular it doesn't support the knowing because he went through it know what's going on in her head she never the prosecutors prepare or at length and either she or she doesn't explain that that she ever said this to mr cates mr cates never threatened her she didn't engage in conduct that you know what grabbing the say it would have been irrational for the jury in the st trial to acquit without fighting in the defendant's favor and in fact essential to a conviction in the nd and that burden is on the defendant's this standard which the supreme court has said is that demanding one is not made in this case for two reasons st on retrial the government can argue that mr cates committed aggravated sexual abuse by force when he turned ms lemons around by the ne the stake and held her there while he raped her from behind the government has never argued that this was a mere a light touch that is the defendant's words certainly someone may grab someone's neck and hold them down by the neck without causing physical pain it may cause discomfort for sure but that's not part of the definition of bodily injury it does not however have to cause physical pain for someone to hold someone down by the neck do you think you can  we can we can not argue that she suffered bodily injury it is not certain whether we can argue that it can wear that if certain if she were to bring that out by herself i think probably a jury instruction that the jury has to disregard the evidence of pain would be appropriate because that is the only issue here the existence of bodily issue an issue of pain that is foreclosed do you think that you can pursue a series the aggravating combined with the uniform and badge plus everything that kate did here demanded oral sex demanded it again when she did not immediately comply turned her around a bit toward toward the seat and then demanded badge and all six of those things combined would go to the totality of the so i'm worried i don't know if we have the issues properly before us and i would be interested in your thoughts about that but i'm worried that if you pursue that theory on a retrial uniform or even a guy would rise to the level of aggravated sexual abuse under a fear theory what we would do is to tell the jury that they have to take those circumstances in combination with everything that mr cates did your fear theory based on the fact that he's a police officer seems to reach awfully broadly your honor our fear theory would not be based simply because he was a police officer the fear the reason that force force would be relevant to fear as well because those would be some of the circumstances that would lead miss lemons to fear for her life for instance so all of those things combined it's certainly true your honor that just simply the fact that he is a police officer with a uniform badge and gun would not be sufficient to create the fear it is that combined with his actions and the fact that he is alone we are presuming there is a violation of her civil rights right the jury was nonconsensual and was accompanied by coercion harassment intimidation or fear it now sounds like you are retreating to the very position that we and forty two claim factors are different from the aggravating factors here and yellow which is officially this court for closed arena and for procedural purposes from being a double jeopardy argument essentially this court only has jurisdiction of this if it is a double jeopardy argument that is the only definition of force requires two is equal power that could have been proved by bodily injury it wasn't and it might be proven by overcoming resistance and that's what is missing from this case when a person goes along with it as miss lemons repeatedly said she did just let him do what he was going to do then the touching doesn't overcome any will to resist the gun as the government has it they would have forced me and you don't want to touching it has to be more than that bodily injury might be one way to do it another would be overcoming resistance but where there's no resistance and it's a touching that doesn't cause pain that's not that's not enough thank you very much the case is taken under advisement and the court will be