three of the superseding indictment if the court recalls the two counts involving that were count two attempted sexual abuse of a minor and count three attempted sexual abuse the issue that the district court faced was whether or not there was enough evidence to allow that to go to the jury after a lengthy discussion it decided to do so it would be sydney's position that that evidence was insufficient because there was no indication of his intent to reach any sort of skin to skin contact no intent is almost in every case and inference defendants don't testify and say this is what i meant to do and nor circumstantial evidence nope no question of can your honor and i also agree that the defendants don't get up there and testify as to what they were going to do but it seems to me to allow that inference there needs to be an additional bit of information for the jury to get there otherwise it's just pure speculation for instance her testimony was that it was just a momentary touch we don't have it doesn't have to be along for it to be a violation clearly not  does not so what relevance does that well because what i was getting to is it seems to require some sort of additional information for the jury to make that jump in other words was there an attempt to move the blanket that she had over her know well let's let's you know he reached under the blanket and under her sure it's correct and with or without any knowledge that she might be wearing yet another layer of clothing so why a can i reasonable jury infer that he thought that would get him where he wanted to go to her skin well because there isn't any indication beyond that i mean congress slices and dices the statute in under the particular one if you touch over the clothing you've committed  in every circumstance then we faced that and i don't know if this analogy does the court any go to maybe it doesn't stop me if that's the case your honor is that if we were at a picnic situation  that's we don't because when people are wearing dresses they normally wear underwear this is a very strange conversation to have in public but you know very few go commando but when someone's asleep at night it's way more common not to be wearing underwear so i think the jury's common experience could be most sure but not necessarily expecting anything that's were i'm sorry you're ok that that's where i thought the line had to be drawn here the district court was concerned that this was a to extremely close situation and it seems to me when you have a burden of proof beyond a reasonable doubt that these facts don't allow the jury to get there because there wasn't anything more than the momentary touch over the clothing here and what if the momentary to me is not useful and this is why we don't know how momentary it was because she woke up she was sleeping so we don't really know how momentary it was well we have her testimony calling it that you know with momentary from her perception because she was sleeping and then she woke up and right after she woke up she told to get us intended skin to skin contact even if he didn't make it that far i would say no your honor i mean gosh it's an attempt kids know why isn't that a substantial step well that's a difficult question and i have difficulty answering that your honor but if that's the case then there is no wind between it and is that really been your argument that it isn't sufficient substantial step i thought your argument was just that the inference of intent was to well i would take both of those positions your honor but i would say the inference of intent is plainly too weak because there isn't any thing else going there here's what would be my  that had there been some other activity by mr crane movement of the blanket movement of the panties movement or the shorts in some way maybe up to the breast area that we wouldn't be having this argument that this court would conclude that there was sufficient information that for the jury to conclude rationally beyond a reasonable doubt that a sexual act was intended is it clear that he reached under the broad blanket and did not pull the blanket back yes your honor that seems to be clear from the testimony at the trial and also had his hand under her gym shorts bit over her panties and that seemed to be seemed to me that makes the inference of intent even stronger because he moved the then i could see what he was doing he would have known that there were two layers of clothes but he didn't know that i couldn't know that no that's true your honor but that's part of the speculation isn't it and then the speed with which he left the room after being stopped with her i think when some indication that he was there for a short period of time and for a short period of gratification if that's a fair assessment of the thing it just seems to me without any more than that that the inference is at best fifty fifty and under a preponderance of the evidence standard or rule of lenity of some sort that the divine defendant ought to be entitled to some sort of  please the court thomas godfrey with the district of montana for the united states issue before the court today is whether or not any rational jury could have convicted the defendant of the three counts after hearing the evidence that was presented at trial in this case the evidence show that the victim in this case was fifteen years old and related to the defendant through her stepfather she had gone to her grandmother's house her stepfather's mother for a graduation celebration and she know all that  plans the point of this your honor is when looking at the evidence in the case it's clear that the defendant intended sexual abuse in this case because in this circumstance all of the individuals in the house were asleep when the defendant came upon the victim who's sleeping on the couch she was wearing a tank top a sports bra shorts underwear and was covered with a blanket the victim was asleep the defendant sat down at her feet which we know because that's where he was when the victim woke up after the defendant touched her counsel where where's the line in this case between a reasonable inference in mere speculation and your honor i think that looking at this case the  trial and the defendant in this goes both to his intent to engage in a sexual act as well as his intent that the victim was sleeping in the case because the victim did not wake up when you first sat down it was once she felt his hand going up her inner thigh that she woke up and then she felt him touch her over her underwear under her shorts over her vagina and in this case if the defendant was simply intending to such a victim over the clothing he had opportunities to do that with over the blanket or over her shorts but continued to go further and was only stopped when the victim woke up when she felt him touching her inner thigh and kicked him and tried to get him off of the couch  he was also extremely intoxicated he was your owner and the jury was instructed on voluntary intoxication and how that effects intent in this case but he was not so intoxicated that he was not it doesn't that  the very specific ordinary intent and in this instance said he really knew what he was going to do next and i think intoxication certainly is part of the intent but i would point out in this case that the defendant was sober enough to sit down in a way that did not wake up the victim to get under the blanket and on her inner thigh where she was awoken it so if he was so intoxicated as his story was the second story he told and worse his straw everybody gone counted how much you can condone he was very intoxicated he was certainly intoxicated you're out of the life point is he wasn't so intoxicated that he was falling down drunk in fact looking at his actions actions were very specifically calculated in a way to not wake the victim up because she only woke up when his already on her inner thigh and then he was touching her over her vagina he was so intoxicated that he didn't know what he's doing in this century falling down drunk which was the story that the jury heard and rejected it's not it doesn't fit the fa described them and then further showing how how he was not so intoxicated his actions afterword an attempt to deflect what he was doing when the victim asked what are you doing he said nothing  picked up the phone and fiddled with it essentially acting like nothing was going on and then he left the house he didn't stay in the house he left the house immediately after this and then the victim got up and checked to see if anyone else was awake and no one else was awake so looking at everything the defendant did it's clear he knew what he was doing because all of his actions showed he wasn't so intoxicated that he wasn't capable of one behaving lightly enough that the victim when wake up until his hand was already under her shorts and two to behave in a way afterward and why when this is sort of reprice of judge times very different way what's left of this ever be a separate crime in your honor in grooming cases in cases where there are certainly cases where individuals are grooming victims and touching them over their clothing without going further and in that specific only in this case if he had been doing this through the blanket on all the minors there is to me it wouldn't have even been charged as correct your honor certainly not as as the attempt i think in this case the strong inference comes from the fact that you continue to go under the layers of clothing that the victim was wearing was she was asleep and to you know to answer the question about there certainly instances where children are abused it just over the clothing in this case this was a crime of opportunity because this was the victim visiting her grandmother's house and that was the relation to the defendant's side of the family and then everyone being in the house being a sleep there was no indication that this was any kind of a grooming case this was his opportunity to engage in this act so and the victim was clear about what had happened both on direct and redirect examination that she was touch her on her privates and then was asked is that where peter where you've been she stated where ip and then when she was interviewed by law enforcement at the outset of the case she circled on the diagram her  vaginal area when asked what down there was were it which is where she indicated she had been touched so the victim was clear as to where she was touched on her body and again i think looking at this case with the standard of review that the court has whether any rational jerk a conviction of the circumstances i think even if the court found that there could be a reasonable inference or that reasonable people could disagree even though in this case i think the government has shown that there is no other reasonable inference one of thirty nine year old man comes upon a sleeping fifteen year old relative such i mean you know if one knows what these people know makes gives them a satisfaction are gives them gratification you're making assumptions and again your honor i'd also point out that the defendant didn't know what the victim was wearing under her shorts and i think the jury could absolutely find it a reasonable inference that if you had come upon someone who sleeping w he under them and maybe thought she was wearing underpants but she was but he wouldn't he would have to pull them or yank them or do something to them he could simply touch her at that point because i assume appreciate the help for arguments of both counsel