whenever there is a very slight evidence or in that lesser included offense and here that low standard was meth primarily by our markel a statement to the police which was played it live in front of the jury in that statement he  bit but the out of control he then went out for a cigarette and then by the time he came back he realized something was wrong with this child and then he and his cousin took the child through the to the hospital several occasions actually not just once and he also admitted that he knew that that he was harming this child because some child would become unconscious during this two of the higher elevations when when he showed  manslaughter which is also based on reckless and he was actually found guilty and that involuntary manslaughter on the facts are somewhere in this case and we have a videotape statement that provides that evidence that he just acted recklessly in fact this case reason and if if that instruction was given in court that reckless instruction should also be given in this case concerning the similarity in the back also could be argued that on that the statements unbelievable but on the degree of harm of what happened is it could it doesn't it doesn't have any impact and packed on how the how the actor acted in my feet probative on that point but it's not it's not dispositive because  in murder cases the ultimate harm you can have that but you can still get instruction on in bahrain and so on just she just because we are trying to downplay the injuries here but just because the injury was serious doesn't mean that there this is related and all these issues i think we want to get the point across is that all these issues are related to mental state with his out of the sexual issue at trial and here in issue number two this is pretty much what it does  a guilty verdict on aggravated battery and the best consul was actually denied an opportunity to respond to that because she was specifically told not to argue on what her what her  belief that the market will only know only had two he only had to be conscious of what he was doing not that he had to be aware that his actions were going to lead to great bodily harm so for that reason and that that position is basically the state that the jury to believe in this closing argument that they just had to be satisfied that the defendant knew what he was doing and that he knew he was shaking that child in order for them to find him guilty it could have infected this trial and was prejudicial to tomorrow and just again just to sum up briefly our third issue is the not accidental accidental terms  challenged it from coming coming in to begin with and on our whole position is that the terms not example and accidental have their loaded terms on even though they were me pretty clear by the prosecution that it was basically the difference between the injury being full purses damage on both sides and we knew it was pretty clear that they weren't talking in terms of it was an accident or the person did it on purpose sure yeah that was definitely brought out during trial and that the experts used those terms in that way in some of their testimony but again those terms are you asking the jury to just disregard what they understand those terms to mean and then second of all the experts actually went away from that at certain times during their testimony and on example of that is dr a half of civi you with he testified that based on his review of the was frustrated and his entire statement shows that he knew he was shaken a child he knew the risks of taking the child he knew that the child this tragedy and that he shouldn't be shaken where the just simply nothing here to show that the defendant was merely reckless when he admitted that he would knowingly shook this child and he knew that the child fragile that he knew that there was a risk  that you had to know that the way you're handling was the child was excessive or severe based on the nation the injuries so there's simply  doctor said that there were certain medical conditions that could cause this type of thing the they agreed that this child did not suffer them they  prior statement he believed the jury understood that they that he would they would have to prove the state would have to prove that he anticipated that there would be great bodily harm i think if you read the entire argument from the opening that is not the standard here drew as to whether it is that sen view is not whether it would be helpful or that it would have done no harm to have given it or that it would have it then or better idea better practice to a given that that is not the standard group review here where we have the party saying ok well agree that we will not give any structural annoyingly elicits requested to now say where in the closing argument the prosecution basically misstates the law and i don't recall my reading record whether or not objection was made to this particular when i think the court has made it pretty clear to defense counsel that you better not yeah but i'm referring to the prosecutor's remarks well no i did not call them the when there's an objection to that right now i understand what you're saying but my point is it's just i would just indicated it had been made very clear to defense counsel that you don't go there and so i think it's just a minute thing to say that perhaps defense counsel thought that she would be going ryan with a judge or told her she better do not but if you if you look at what the defendant was allowed to do without any objection she did without using the expressed words that justice struggle suggested she did present that theory that hey the state did not prove that my client knowingly cause great bodily harm to this child the they brought up the theories of  but is it based on down in the context of a certain definition of what knowingly means and the wrong definition and what knowingly means in the context of this case in the law that relates to this case except the wrong definition it was not pres unless you take that one sentence out of context and the law is clear you can't take one sentence out of context and say ok this is wrong you have to take the argument in context of the entire argument video testimony and again he made it that he knew does child was fragile but that doesn't mean that he knew that his actions were going to result in these serious brain injuries so again there's evidence here that supports reckless instruction as for as for the suction knowingly or what happened with those being the jury being instructed on the mental state of knowingly  trunk consul wanted to argue that but if you look at the record what happened was the trial court stated if you argue that you'll feel the weight of the court come down on injection that she didn't agree to that she knew that if she are made that point