and david russo shared with townhouse one evening that month mr russo wanted to get together with nicky storekeeper a young woman he had begun dating so trevor and david drove to  trevor and him and sat on the floor and they all watch television after a while trevor and then and started making out so those eek he didn't pull the blanket over the two of them and they proceeded to have consensual sexual relations at the end of the evening trevor and david drove the two girls home and the defendant testified that russo and starkey went downstairs but that he and the complain made up stairs they listen to music they watch television they talked but nothing happened he denied any sexual contact between the two of them he also testified that he believed that she was at least seventeen years old at the conclusion of the bench trial the judge found the defendant guilty of both counts because he stated he filed the complainant to be more credible than the defendant look the post trials fish defense counsel filed a motion asking with joy to allow the opening of the proofs or in the alternative a new trial based on the other david of david russo and the defense represented in that motion and also the hearing on the motion that at some point after august of two thousand and nine there had been a falling out between mr russo in this freezer russo moved out of the townhouse and in fact left town altogether didn't leave into the basement but that the defendant and the complainant remained of spears he further indicated in his affidavit that he had separate conversations with the defendant and the complainant in the days following this evening and first the judge stated that he believed the defense corps to have obtained mr russo and hold him as a witness at trial but simply made a strategic reason not to do so and clearly under illinois law whenever a showing here recently recent moved out of town they lost touch he had no way to find him of the state did not argue that it knew where he was or that it had tracked him down but had decided not to call them  military i don't know i mean there was no specific showing me that you could have found him and brought him back in the defense and that's that finding is simply  conversations with the defendant and the complainant in the days following the incident they both told him that nothing happened in addition he revealed that and then told him that she would like trouble who she would like to have a family which was very consistent that the sexual relations occurred in the basement in the presence of rousseau and storm and this would be a very different case if she  to say that bruce's testimony would not have made any difference to him as the trier of fact of the bench trial because he simply did not believe the defendant's testimony the clearly when the defendant chooses to testify that's important important evidence it's important consideration for the trier of fact but of course the burden is always on the prosecution of trial and so the defendant would submit the more important issue was the credibility all agree that in any case where there are eyewitnesses were various witnesses who truth is probably more likely to come out if we have all the witnesses together a trial and in  in a perfect world in any criminal case we would have all the eyewitnesses all the occurrence witnesses present the trial well certainly illinois as it is a trial supposed to be about a search for the truth in this case unfortunately a of course he must show that it is material that it is not humility and i think he's i think he's shown that now that he's does not have to show that it unequivocally would result in a not guilty verdict it would only on but i think the case law basically says he has to show it is so important that each trier of fact should be allowed to consider the new evidence in conjunction with the evidence presented at trial none of us came but again it's not the defendant's burden to establish that it would have been enough guilty verdict or even that he was not proved guilty beyond a reasonable doubt most headcase which was also a case involving a post from motion and new occurrence involved with some some underage girls and so they started talking to some of these girls odd and usually when they approached the complainant she said nothing happened in the processor and and then she said something did it would appear that some of the girls they talked to said nothing happened and others indicated that perhaps something did and that's all i can tell you rogers from what i know from reading the record but if you did make a whether she would have been forthcoming again there's been a falling out between the two young men and so maybe he didn't really want to be contacted by mr zerkin we don't know we don't know that from the record he left town they couldn't find him in there was no show and other no specific simply the representation we lost touch with them didn't leave a phone number or address we didn't know where it was we couldn't we could bring them in and that was not specifically contradict michael please mark oh lord michael on behalf of the people the trial judge did not have uses discretion in denying motion for a new trial in this case first of all the trial judge can assess the credibility of the witness in determining whether defend  defendant has the burden of proving no lack of diligence in not discovering the evidence really or the burden isn't on the people to prove they could convict him and the burden is on the defendant to prove that he exercised due diligence in order to attempt to obtain evidence and despite the exercise of due diligence with unable to do so and in this case there's there's simply no evidence as to any attempts made in order to try to contact  of the marines he should have been able to look at them but that defendant simply didn't state any a single stuff that he took in order to try to contact him there's no evidence of that whatsoever the only evidence you seem to be relying on is that russo testified that he left the state without telling anyone where he was going he didn't leave the address but a mailing address isn't the only way to contact a person and you continue to date nick you first seven months after after leaving the state the second prong of the newly discovered evidence standards but they're still you still have to meet the standard that evidence must be of such conclusive character that it would likely change the result or a trial and that can't be done here because of the credibility be given the opportunity for a new trial or trials of the trier of fact has the ability to assess the credibility of mr russo in addition to these other two witnesses in determining what really did or didn't take place if you look at a recent it's got nothing really to gain or lose here yes he was at one time a friend of the defendants they shared talma house but at this point do you know he's on the marine the marines he's he's living out of town his aunt who is his next life whatever i mean he's got nothing particular to gain here but according to the post probably shouldn't he came back to town to visit on july fourth ran into the defendant's father the father told them what happened to troy the response was that's not right because i know nothing happened you know as a strike which is the type of person who's you know like a witness what is the deal with one side or the other or has some particular self interest not really shown to have typical result interest here so your news well the testimony is not new because the defense knew about russo but of course the important thing is not who about of but that now they can bring him in now he's testimony is a much the better so much the book but at least get three of the eye witnesses in here and love the trier of fact listen to all these witnesses and make a determination as to what really happened here you know as a