the court counsel thank you for the opportunity to be here today and speak on behalf of my client rusty one mr william one is a thirty six year old father of two he's a brother a son and uncle to lots of nieces and nephews on january sixth of two thousand and seventeen he was sentenced to thirty years in prison the jury found rusty guilty of predatory criminal sexual assault specifically the jury found rusty committed an act of contact however slight between the sex organ of b kale and rusty's hand and for the purpose of sexual gratification or  but be calles testimony at trial was one rusty tried to touch mine who have two he didn't get his hand in her pants and three he didn't touch  yet this jury found he touched her off a jury said that the state met their burden of proof i would like to first addressed this which goes to our claim of insufficient evidence wondering why would you talk about the motion for good to verdict as opposed to just arguing the evidence is fish after reading the state's proof you know i think that is a very good question  i considered it and addressed it in our reply brief i think there is maybe an issue as to the motion for direct event verdict and the evidence the judge had at the time that  counsel raised that motion that motion was obviously raised at the time that the defendant had not put on any evidence including his own testimony so the reason i make that argument is that half the time that that motion was made we would have only had the information that the state provided primarily the testimony from the only witness which would be and i believe that the evidence at that point was insufficient i know the state talks about if the defendant then goes on to introduce evidence somehow that's way either way i think only end up with what the court has already indicated it's the same standard there may be a timing issue and what this court should consider to be the evidence at different points in the truck to get you know reply brief we acknowledge that the rusty was trying to reach under her hands and she said he was looking for a remote control if that is what happened and that's the information we would have pat when the fence counsel raise the motion for directed verdict taking  statements that prove you cannot infer that rusty was trying to arouse or gratify himself be cayle testified that the t v was on the night it happened whether there was a remote to that t v or not surely gratification and arousal cannot be inferred from a person searching a child's bed for an object and coming close but not touching the sex organ surely more evidence is required to convict a man of such a crime that carries a sentence of thirty years in prison the opponent in this case testified and he denied that he touched the cales sex or he testified that he did not engage in any inappropriate activity or conduct or touch  any way he never went to room to turn off the television nor did he spend any time alone with her and addressing the contact element the same testimony shows that the state did not present evidence sufficient to invest of course the state both the trial and now here on appeal points to the c a c interview video in support of the jury's decision this hearsay was admitted we conten error which i will address later if you examine the video closely and we would ask that you do so it shows that be killed did not say that rusty touched her sex organ at the fifteen fifty mark baldwin brooke baldwin who was the cac interviewer broke her own rule and started to lead be k l or the witness in this case specifically baldwin asked do you have a name for the body part that his hand was touching up until that point in the interview hunted for the cale had never claimed that rusty touched her only that he had t touch or but now after that leading that question that assumed touch she stated be cayle stated i call up my monkey from there the leading questions continued was it and this baldwin was it touching the inside or the outside then gives be cayle no option other than to say the outside the state calls this a natural progression of questions the goal in these interviews which are critical in these cases because they are in mid more often than not and the jury gets to see these interviews they go in these interviews is to obtain the truth an adult may be in a position to stop the interviewer and say hey i didn't say that that's it's not an either or question it entices either the outside or the inside but the child is very susceptible young child with the interviewer to agreeing with the interviewer or in this case as discussed in a reply brief pleasing the interviewer there is evidence in that video to indicate that the that big hail very much wanted to please that interviewer because of some commonality they had the same name that was mentioned and they they both have the same first name and also at the end you can see where the the interviewer leaves to meet with people w common in these cases and b k l remains in the room drawing a picture of the interviewer and actually stays late so she can finish the picture for she's being given to the interviewer that shows that there was some sort of bond there and she did want to please the interviewer because the only person who the jury could have considered in making their conviction to her decision to convict the only supreme court smith recognized the testimony of a single with witness is sufficient to convict if positive and credible but where there are serious and consistencies and the repeated improves witness the appellate court can find no reasonable prior fact could have found the testimony credible and here we have internal inconsistency there is no doubt that there is a serious inconsistency between be calles testimony at trial and the video we asked the disk or review this video closely and consider the impact of the interviewer brooke baldwin on the content of this video which the jury saw this court being able to recognize the reliability of this video should disregard it and in doing so or also its credibility of these hearsay statements or the jury's terminations but hasn't ever both those ships long since sailed that these are just matters for in citing this course decision and leora tries to make that point i think that's the point you're your honor is making and i think that case although this core determined that there wasn't an inconsistency and allowed the video to be played to the jury in the court did not reverse the frau course the situation and the verdict in that case i think the court in a lyric illustrates what went wrong in that case so if i might address that issue we're going to in that case there's an example of the trial judge's independent analysis during a trial proceeding after a child has testified and before the video was played the state in his brief argues that the trial judge who was not the same judge who ruled on the admissibility so that may be a unique fact in this case didn't have the responsibility to consider counsel's objection at trial in fact a pelleas brief page twenty one suggests that such an argument in this case the court in the lawyer case the court reviewed the videotape and held that the child's testimony was not so much inconsistent with the videotaped statement but it was less complete than the previous statement which have an opportunity to view so if it's later in time i'm not saying the if the trial court in this situation the the new judge who had not heard anything and it would appear from the record to have not have considered any of that or knew about it just knew that there were pretrial rulings and we're going to and i'll just abide by those rulings that's what the court says on the record that creates the arbitrary nature of the decision the court in layer of clara pointed out in affirming the crowd court's decision that proper course decision actually considered the evidence he actually took arguments and made a decision and made this court determine a reasoned decision that the interview asked an interviewer asked open ended questions so the court actually recognise say i saw the video before they asked opening questions the witness testified during the video in response to those f open questions we don't have that here we have a leading questions that will lead be k l to maker statements and the child described in belair case how the defendant's actions actually fell there were descriptive terms win credibility and reliability for that videotaped testimony that's not the case here that the witness is merely a green surely she could have stated during the interview i respect so this court has ruled a few times  power in this case is arguing that the court's review of the situation should not stop just that the one that came and hearing that the trout court has an obligation if there is new information presented by the witness in this case completely inconsistent statements the that creates inconsistency that additional statement if she had made it if she had told someone else hey you know he didn't touch me and that was presented at the one fifteen ten the court should have considered that then here now we're at the front court and she's telling someone else that in this case the jury bad that it didn't happen and the courts should consider that and look back and say you know wait a minute why didn't she why did she say something different in the interview in the court would review that  video it could have made a determination and should have made a determination that there was inconsistency and i believe my time's up i magine after rebuttal there might be an opportunity to address some of the other issues  the light most favorable to the state so given the similarity of the standard thousands suppress these arguments together now here initially the defendant in his opening brief only challenge is the element of contact however slight  that in the reply brief he challenges the sexual gratification element to that and i would first argue that that challenge is that wave that was not argued in the opening brief and any event on th reaching his hand inside the pants of a nine year old girl now a lot of time has been spent today essentially you know most of the most of the initial argument here has been devoted to the  consistency between the video recorded interview and the later trial testimony and this was i know you're going to spend time talking about that one thing that that we didn't proto behavior or something mysterious that's correct roger first of all the state's initial position would be that the curative instruction here to disregard that standing alone should have been sufficient to cure  procedure what about well to that in your honor i mean i would know that this seems to be a very unexpected response to a very standard question as i don't believe that anything in the testimony suggests that this was in any way probation is the norm most people go to prison if it's a serious crime of violence or a repeat offense so what's he doing in prison just one more project to show they are putting the jury is whole  how can that possibly be admissible why isn't it just so prejudicial leaving aside the baby and prison is this my drug my very welcome back with that's why he was in prison 're only dealing with the a single statement you and it's used for the very limited purpose of explaining why the mother initiate a conversation about this particular end of a hard thing right there what was the need for the brother to explain why she a an act of vengeance there was a retaliatory motive and and and suggesting you know and bringing these allegations out and the this explanation seemed like it was pertinent to explain that you know there was good faith in bringing the allegations and most importantly again rebutting the really the central theory of the defense here that this was a that this was a mr williams it was literally twenty years ago this court  years ago this court said you know here's the thing if you're going to try to use this piece of information to the jury about the subject there should be a determination by the trial court as to both the need and the extent of this information to explain to the jury why the police did what they did so if assuming and i'm i'm hopeful that before i die having been involved the camera that there might be a prosecutor somewhere who will be aware of this so you know judge we're going to offer the sentence in the fourth district has said if a dozen cases maybe evidence here is our position what you should do present this case maybe the judge said ok stephanie needs to explain why she talked to her daughter you know about this and i'm going to permit her to say i had a that the prosecutor has some obligation here and i realize that the first statement which is we started dating after we got out of prison was extremely prejudicial and of i would agree with that your honor but i would also add to it that given the history of this defendant first give me this witness in this case and again we have this break between the judge you heard and defense counsel in argument on the mistrial warmed the court and tried to explain to the court defense counsel stated that this witness will take every opportunity she can to get every bit of the testimony she can get in regard to ninety four which the juvenile matter the she was referring to that allegedly her father mentioned to her and every chance that she can get into the two thousand and nine matter now the court did hear and i think the state argues in hearing he may have maybe in our fully recognized the concerns about this with this and told everyone to be careful of the political way of putting your hand or at him but he did not confine this and say ok as the court indicated she can say admonished the witness in some sort of way but that's not what the court did in this case the coroner says really nothing and when defense counsel brings up the fact that hey i've got concerns about this witness moving forward the court says well that's irrelevant at this point in time i'm not going to bar her from testifying or anything and so what happens next is not only the pete people versus boeing situation i would i would argue that it's worse than ball i mean there wasn't a subtle or merely serialized it is suggestive situation in that case and i believe the state also tries to differentiate that there's only one witness testifying where's the bowling case there may have been there were two witnesses but if the core looks at the video that was played that the jury also be kale talks about her mom having a conversation  with her about then she believed me once she found out something that rusty had done or she she knew so there is even that additional witness in that case your hon although the court in this case did offer a limited instruction it's not enough once those words were said coupled with the he had been to prison the jury can disregard both those and mixing those together and say he molested a little girl and he went prison that combined they create such a prejudice whole situation that they cannot recover from and that's why this is not harmless your