technical difficulties and some arguments that lasted a little longer than we expected so i appreciate your patience with us are you all ready to proceed yes your honor been go right ahead  thank you good morning me please the court and council in this case the jury trial boiled down to a determination of the credibility of the only two witnesses to the incident are w n my client david widner there is no physical evidence or other witnesses to register but the state was permitted without objection to elicit damning evidence of wagers drug use and prison sentence from its own witnesses and during cross that he was in prison when r w me the allegation and that after his release he stayed in a halfway house the prosecutor was also permitted to ask whitner if he was just sitting around the house using meth and cannabis and if he used in front state now contends that evidence of wage earners drug use was admissible for any other relevant fact other than propensity the state's claim amounts to a new theory raise for the st time on appeal and this court should reject basis of a trial and it's actually not supported by chief white or just a gray or even way dinner as chief white testified he offered up the drug use but didn't actually denying the allegations and so really when you look at the sites i think the state cited ph one hundred and twenty of the transcript the reason he gave as as a reason for committing the offense was the abuse by his father when he was a child the state also cites north already for the proposition that is drug use was somehow inextricably intertwined with this statement and therefore admissible the police never viewed it as an intricate part of the allegation as it was never included in his written statement nor is the fact of his prison sentence necessary to establish a timeline identity was not an issue in this case and the police were not prevented from interviewing regular imprest although the trial court was never asked to make a ruling on the admissability a waiver struck us our prison sentence for another x purpose because no motion in limine was ever made to the extent it did make any ruling on the drug evidence it was to reject the state's proposed jury instruction that witness drug use was relevant to his motive and design in so ruling the court basically indicated that such evidence was only relevant to show that it might be more likely that he committed the offense in other words for propensity which is not a proper basis for the admission of the evidence in the final analysis the jury was permitted to consider extensive evidence of wage earners drug as believability or any other purpose the only limiting instruction the jury was given was how to consider the evidence of witness prior conviction for the police of ability of his testimony but the evidence of his drug that there was so much of it that it it was a denial of due process of his right to a fair trial which i think it's really a standalone claim but yes i argued clean air under both problems and really you know clean air and closely balanced isn't a sufficiency issue it's really if it boils down to two witnesses and they offer plausible version of events does the air in emitting the habitants tipped the scales against the defendant and i think you know i think volume in this case you know this the amount of drugs that he used to clog you know the different types of drugs the stuff about is kids it really wasn't  and here you are permitted to use all of this evidence for really for any purpose but the only thing that would really make sense is believe ability because they were only given the instruction on how to use a prior conviction and then of course  ineffective assistance of counsel i mean i can't see a strategic purpose for allowing your client to testify you know a long prosecutor without objection to ask your client about his daily drug use habits and whether that was using in front of more muted on the screen but we're not hearing you yeah here on behalf of the people the state of illinois i do want to start with one thing that counsel mentioned earlier any argument that the status argument new theory on appeal i have two kind of responses to that number one  are allowed to draw upon anything in the record which is you know in support of the judgment below so i don't think that the state is here as the employee is bound by their particular rule which  case so i think that you can from that gleamed that there was a statement by the state low that it was going to introduce evidence that there was going to be introduced as part of its sort of proof of the case and what trial you can probably break this case down into two parts the drug usage and the incarceration evidence it's our position obviously well let's let me start here assistance of counsel which sort of has to be the argument because part of which that defendant is challenging was introduced by different as attorney as part of defense counsel's you know examination of the defendant as far wanted to quote get out of the room to we have the testimony of the victim in this case who provided clear and consistent testimony that was in factual accord with the statement that the defendant gave to the  perhaps the ineffective assistance of counsel clan but let's start with that and let's go with the defendant's examination defense counsel's examination in this case the defendant is challenging as not  effective assistance of counsel is to consider whether in difference to trial counsel strategic purposes or whether there is a strategic value to this defendant says that there is not however in this case where it's alleged defendant committed these pattern of sexual abuse against the victim the fact that the victim continued to have contact with the defendant while in prison can be employed effectively if perhaps not successfully to establish that the victim's credibility was simply not not if you know you're not there why would a victim who had made these claims of a serious acts of sexual abuse continue after the fair to maintain contact with the defendant from that we can move to the victim's testimony and the victim to provide testimony which indicated that the defendant had gone to prison bear in mind now that if we find out the defendant's testimony was properly introduced that really minimizes the prejudicial impact of this particular type of testimony from the victim because the jury's going to hear this anyway right but what we have here is the victim was asked you know how long when did the no judge i mean our position again is that this was the motion being made the stakes not going to make a motion to to prevent it obviously defense counsel didn't have to us to introduce that obviously it was bait is part of either a strategic decision or it  very well be the case that defendant himself wanted to testify to that all right i mean we don't have to speculate necessarily because we can't describe to that a particular strategic value and i think that if that's true  get to the point of the question regarding the victim's testimony again we start with the promise that is this evidence being introduced to establish you know some sort of criminal complaints that we can say number one to that know so that we move to the question of whether or not that evidence so unduly prejudicial that outweighs its progress value probative value here is this that we have a period of time which is sexual abuse begins it hands it stops when they want to pursue the strategic strategy excuse the redundancy there you know employ a strategic decision to kind of establish the length of the continuance of this communication so what we have here is we've got a victim who testified from said is being abused to fifty eight great and now after all that time period a victim continues to have communication with the defendant even after he's in prison i think when you look at that the the decision to convict this defendant were otherwise that would not have been the case had that evidence not been introduced this was the type of evidence one viewed in its totality particularly given the defendant's testimony that the jury was not likely going to be over over duly sway and by hearing that you know really kind of brief reference to jail from the victim in this case now one thing i will at least allow your honor it's can continue in that vein as i do th anything to do with the fact that r w continued to communicate with him while he was in prison if you look at this the trial transcripts and the keys it was the mother that i think initially need the call to the two deputies and then i that it was the deputy said call the illinois sexual assault cult hotline and what he argued in closing argument was number one that there was some some inconsistency as with our w s description of the alleged assault and number two or that the mother had somehow some sort of motive to end things with way ignoring wanted to do so in a dramatic fashion the implication being that she was encouraging r w to me make up the allegations so you know to the extent that the state is arguing at the prison some top somehow helped her skates i don't think that that warrant out by what defense counsel use just for and certainly you know that stuff about him being in a halfway house naturally had nothing to do with that had nothing to do with her talking to him i mean and also i  you know the juries can infer that they can use all the information about his quantity of methamphetamine usage and duration and frequency and all of the stuff about where he had been living for the past