being unable to receive a fair trial and second whether the state presented expert testimony sufficient to establish the needed elements for a declaration of david sanger's as a sexually vi overriding concern for this court must be better decision is based on application of science to the facts so that we avoid a person in a civil commitment pointed out that never should civil commitment proceedings be used to further punish someone for their past crimes your honour's the state in any ca a sexually violent person under the statute you must present evidence to show that this person had convictions of sexually violent offenses that want to he will engage in future acts of sexual violence now the responder does not dispute that he has two convictions both the circuit court of the group and found that cause him to have proper convictions  matter was my son so while i don't want to hide anything from the court by the case law cited by the state say look he didn't have jack so yes way was a medical in a medical malpractise we're in action here it's it's really a wholly different ash it's a civil commitment proceeding although it seems to be in the nature of a criminal act related to if it's a criminal case it's still for for th not the state per the state has to show certain things and particularly when it gets into proving that he has the mental disorder assignments applied to facts we want mitt the  argument can remain that that improper conduct in parker comment was not in itself sufficient but wait and let's combine it with what is the argument on the state expert  the state that was required to show that the respondent had a mental this was the state presented to expert witnesses who both gave the opinion that the defendant me the perspiring did suffer from head or feeling this water and as a result of that he met all the  standards of having a disorder and a substantial probability commitment but that's the question we have before the court when you take the undisputed facts and apply scientific criteria as to what better feel criteria from the d s four which was in effect this was case was in the hiatus between the d s four starting in the vs five came into effect but both of them have the same criteria for better feel they require evidence out at least a six month period of reoccurring intense sexual fantasies sexual urges are behavior of activities towards a  third it's generally thirteen years or younger secondarily that the individual acted on these urges and third that the individual with at least sixteen years  the respondent is at least sixteen years of a that would be our argument because otherwise you are taking a situation where x where someone but in this case or not let's look at the true conviction because with keeping these criteria in mind the two thousand and four conviction yes the response was sixteen years of age probation office sexual disorder class and there himself it mended that when he was fourteen he had had a sexual relationship with the eleven year old seeing if he is properly classified so he wasn't sixteen he was only fourteen when he was having this relation and then at the time when he was sixteen he had relations with a student i'm sorry he also had a relationship with a trial that he was babysitting a young child but he was only fifteen now so the state witnesses want to go back and say well suppose you have six months on this two thousand and four conviction to be the basis for the disorder and the evidence is you only had a week or maybe years much of the month when six months let's go grab he's not the type of person that we're going to classify categorize as a sexy prime person he's rather when he was a minor he was under sixteen years of age they can't give you the six month two thousand and four immigration doesn't meet that criteria but then consider the two thousand and ten conviction at that time he was sixteen in fact he was twenty three jury not to show you the extent of how this really effects his consider the cross examination of dr edward smith he admitted the two thousand and ten under cross examination two thousand bands is it sufficient because the child that was the victim was sixteen years of age he also agreed that the sexually reported facts technically didn't true by because the criteria required the defendant to be less the the victim to be less  they respond to the more the sixteen and he was now he wouldn't give up on the opinion but he gave up on the facts that need to be the basis of the opinion this court is not going to need that we are better psychologist psychiatrist then the witnesses but the when this is confirmed to the court this is the criteria that must be made and these are the facts of this case and when you combine doc's family and performed oral sex on a girl who was seven years old the time he was sixteen he should get some kind of ward know he was convicted that offense he served his time for that conviction but the criteria that these experts are supposed to base their opinion on says you have to show six months it's not in the record their opinions are against the manifest way to the evidence their opinions he argued to the jury in its closing argument that they haven't seen my making to your honor well wait a minute you say that they're admissible special type of friends proceed as i explained to your honor's in my opinion over right cloud that must that this court's view of this case is acts that he did other times where he clearly did sexual acts of a deviant con that's not what we're talking about we're talking about simple commitment that requires the be looked at and the best be applied to the experts had all the proper foundational education and background to give opinions they gave those opinions but they're your honor's permission i'd like to begin with the manifest weight argument which is the heart of this and sort of lost in the fray in the opening argument and i want your honour's to keep in mind is what the actual standard is for a man and what manifest weight of the evidence challenge which  as this court noted in the herb case applies with equal force this actually violent person's proceedings he has the burden of persuading this court that even viewing the evidence in the light most favorable to the state any reasonable jury would have reached the opposite conclusion of what this jury reached and as this court explained in the herb case that doesn't permit him to relive again the issues that were presented before the fact finder in the circuit court doesn't permit him to ask this court to really weigh the evidence or re evaluate the credibility determinations the only question is this is in broad strokes whether there was any basis using the evidence in the light most favorable to the state for this jury verdict and the other thing to keep in mind is as respondent noted of the three elements he's only concluded viewing the evidence in the light most favorable to the state that he has a qualifying mental disorder and we think there's ample evidence in the record to do so out so two experts doctors value smith and dr smith independently concluded that he was twenty one and a two thousand offense when he was fifteen years and eight months old at the trial court and on appeal he argued you're not allowed to count by two thousand fans because i wasn't yet sixteen years old you can consider that in the duration of my  interests and the circuit court rejected that argument made a credibility determination and our state supreme court said actually what he's asking to do despite his private stations to the contrary is really weigh the evidence and challenge their diagnostic in the first place a tro or motion to strike you your honor i'm not certain i believe that's the case but so that's the top level response is how this court is supposed to review that sort of argument under a manifest weight of the evidence challenge the second response to that is that the expert witnesses explain why it's appropriate to consider his fourteen and fifteen year old offenses dr smith said it ages one zero four and one zero five of the third volume of the record he said what we're really looking for is a pattern of behavior over a course of time and that was clearly present here at ages fourteen fifteen he had not only the offenses that was fun to discuss an offense against his eleven year old cousin an offense against a sixteen year old army a six year old girl who sister was babysitting he also had offenses against an eight year old in another undisclosed but under eleven years old child so he had a series of offenses when he's fourteen and fifteen years old and that continues past the diagnostically significant age of sixteen that is into adulthood when he's seven seventeen years old he performs another offense he performs oral sex on the seven year old girl so they the experts explains that the diagnostic criteria in the d s m five are there to capture broader ideas make sure that it's not transients and they found that here it wasn't trans yet it continued started an early age and continued into adult so and we can see why this survives the manifest weight of the evidence challenge by comparison cases from sister districts and from our supreme court we've cited for instance the welsh case i give the second district in our brief the welsh case also was a claim of pedophile it disorder in that case as an adult the respondent had  committed a sexually motivated murder of a toddler there was disagreement among the experts as to whether he qualified for pedophile it disorder there was also disagreement among the experts as to whether to count previous offenses he had committed against family members when he was under the diagnostically significant age and ultimately the circuit court found that even though only two of the four experts who testified diagnosed him with that a feeling disorder circuit court found he had pedophile disorder and the appellate court said that we're not going to disturb that finding on appeal the circuit court made that was a bench trial the circuit court made credibility determinations weighed the evidence it made its conclusions and we don't litigate that i'm a sufficiency of the evidence challenge we think that this is a significantly stronger case than the welsh case we had two experts say that he has had a philip disorder even the defense expert gave a rule of diagnosis of pedophile disorder and i want to clarify something from the apple wants argument that a rule o disorder is sort of the opposite of what you think as a lay person it's not i have ruled out that he has pedophile it disorder it's that i can't rule out that he has a pedophile a disorder i want future health care providers to be on alert for so a this on the record rule out says it might be there i'm not certain i'm not right to diagnose so there's this is ample evidence in the record to overcome the sufficiency of the evidence challenge his argument about the six months as the experts explain whether he has a persistent sexual interest in creepy besson minors but also from the way the experts described it dr dr smith said they're looking for patterns of behavior and it does not have to start at the age of sixteen i dr bell smith said she actually characterized it as early onset pedophile it disorder which is to say that they are allowed to consider petty pedophilia the nature of offenses that are committed before he turns sixteen really really ultimately what they're looking for is to make sure that it's not just transients it's not related to a one off life event it's not exploratory it's that he has persistent sexual interest in creepy besant minors dr billy smith said that page fifty seven he's attracted to young children and he continues to be attracted to young children and he obviously act so they leave you count offenses to prove his six month persistent interest starting points turning briefly back to the first arguments if your honour's are willing we were willing to stand on the brief as to why it's not clean air we think that it's adequately out outlined there that in context it was erroneous but i do want to touch on  forfeiture issue which i think there's a brief mention so there's no dispute there was no contemporaneous objection no dispute there was an imposed trial motion and no dispute that this court held in level that you need a contemporaneous objection to opening statements to preserve  appeal he doesn't claim pretty plain error in the briefs or in oral argument argues for some sort of different standard however if you look at the gap in case that he's out of the first district that he cites in support of that you haven't actually found a an appropriate case to strictly enforce that forfeiture because he hasn't created a record for clean air review and he hasn't requested clean air so we've we've asked that your honour's find this argument forth and if your honour's if there are no fancies acting and they didn't present any testimony to show that the six months prior to when he became sixteen he was following they rely on self reported issue said that well she agrees it's not uncommon for a twenty three year old male to be attracted to a sixteen year old female it is we're talking about their ability applying these facts to meet this trial period they gave the opinion they had to back one qualification to give opinions but when you apply that this against memphis will be evidence because they're