we must have those facts and those facts much must prove beyond a reasonable doubt the elements of the offense that were involved in any particular word and in this particular case obviously the word i'm talking about is penetration now also and learned in my number of years that when you have a high profile case  and you need some resolution of that case sometimes the police rush to judgment to solve that case and sort of is in the minds of the community as to the perpetrator and in this particular case in the green in madison county it was in high wind case lot of newspapers prosecutors when we look at a particular case and we didn't have any direct evidence the next thing we looked at is do we have a nice circumstantial evidence so that the trial fa suggested to her that oh by the way do you know that you were sexually assaulted suggested to the victim that she had been sexually assaulted it's without question as we stand here today that this girl cannot testify and did not testify in the trial that she knew at that particular time one day whether frank you've ever been sexually so  no direct evidence so with that in mind then the next thing we go through is let's look at the circumstantial evidence of this case from the state's viewpoint to determine whether or not we have enough circumstantial evidence to prove the element of penetration now on page fifteen of the government's speeds brief they talk about what they consider to be enough circumstantial evidence so that it fire and that that camp was a side next to her and on the ground and therefore that would be evidence of a paraphrase it would stretch the imagination to believe that that will the fact that she didn't have the tampon and they had been removed is any indication of penetration or any indication of sexual intercourse none whatsoever and say ok that shows a different kind of strange how but i don't i don't see how it could possibly do you can't again assume those types of come back and say well of course of normal because she was unconscious at that time and therefore why would the test be normal we know that's another assumption that's another maybe possibly could be it gone back to whether or not the police in their eagerness to prosecute this person assumed that she had been it sexually assaulted assuming that the test case you can't make that you can't make that circumstantially wagon train barrels in the wagon train indians fire ok that's definite that's penetration that being stated your honour's let's get to the meat and potatoes of the defendant begins by stating that in his years of practice as a prosecutor you can't assume can i speculate that that's the foundation principle for cases which say as much and facts from people versus hearing you can find this on three twenty four il after three before fifty eight it states a trial fact entitle to draw all reasonable inferences from circumstantial evidence and  including an inference of penetration and quote i point this court again to people versus haring people versus williams in great interest of williams which says again penetration can be shown by circumstantial evidence and that there is yeah it's a pretty unusual case and for that i would also urge this court to publish this opinion because it does explain that well so the rule of law circumstantial evidence in truth or penetration with a novel factual issue but was convicted of aggravated sexual assault the victim woke up she did not recall any event the penetration or sexual assault but she noticed that some for closure unbuttoned and that they were placed on the right and then she found that her pinned on was inserted incorrectly and from this that circumstantial evidence was enough to sustain a conviction i submit to you you're wrong that is state versus act you can find that in my brief to give you a citation here for  said stated because there is no case law that is directly on point we have to use those generalized rules of law pertaining circumstantial evidence and implied into the facts of this case what we have here is overwhelming indications from various multiple prosecution such evidence secures a conviction for aggravated sexual assault in both the anus and the john and beginning with the vagina defendant states that the tampon left outside of the victim would does not indicate anything runners i would i would certainly disagree with that we have to understand the factual context of this case miss harrell was found on may first two thousand and eight completely covered in blood on the grounds keeper of that horrific discovery here in the early morning and i quote he thought she looked like a piece of discarded garbage and you can look specifically on the page fifty two of the record and people's exhibits three and four and actually your honour's i've seen multiple violent cases and this is the most grotesque violent case i've ever seen that did not involve a murder it is tremendous the amount of suffering that she sustained completely unconscious she was fully clothed and her tampon was laying outside of her body several feet away now that in and of itself does create a very strong inference that in fact she wa why in the world would a woman who was fully clothed and beaten savagely put on her clothes take out or come home and then sleep in the middle of the woods it does not add up that you know of itself is already extremely strong circumstantial your experience and in your opinion as a doctor does a normal genital exam that a woman was not or could not have been raped or sexually assaulted does that mean that she could not have been sexually assault her hip there doctors  it doesn't prove either so let's say we take the medical examination out let's say that the defense can use a nearly as much as they can neither one can use i would agree with your arse if we take the medical examination out what we still have i piece forty four forty five thirty four and thirty five of the record she was wearing pants when she was discovered and she was wearing panties when she was discovered again the fact that she has leaves and dirt in her rectum creates an inference that something happened he says and i quote because sperm cells are harder to break open than other bodily fluids we usually are able to separate the d n a that comes from sperm cells from the d n a that come from other  honour's again i would i would go to yet another point of evidence in the record the defendant stated that he knew where her tattoo was located bambi's stated that the i'm sorry the tattoo was not noticeable even t it's not just that that back that he knew tattoo it's not just the fact that there was a tampon lying outside of her body it's not just the fact that there was leaves and dirt in the rectal area there's not just the fact that there was d n a on her pants it's even the defendant's statements which states and i could link all the statements he says i'm going to put a few for you that i think are most rather all right he states on people's exhibit eighteen it's been eighteen minutes and there's a lot i'm trying to remember going through my head going through everything why i did why i did what i did now he says he doesn't remember what happened but then we look further into the interview and he says i'm a loose everything and i won't use the curse words that expletives what i'm a lose everything again you look at what he's saying he says honor if i meant if he was merely attempting to beat her beat her what the record shows does not infer that inference as much as the first the more reasonable inference is that he was trying to a reasonable that's not reasonable we look at b m s testimony as soon as she got down to the parts of the woods where he was going to rape her he put her in a headlock and she became unconscious she suffered the majority of her beating after which she was unconscious why would a person who by the groundskeeper test me said looks like a piece of discarded garbage not a human being garbage why would he beat her so mercilessly when she's unconscious it could be the point your honor that the reason she is like that is because he wanted to create the appearance that she was merely beat and try to cover up his evidence but he forgot about the fact that he let slip some of the statements that he knew of her t his thinking ok when i look at all this evidence can it be shown beyond a reasonable doubt the penetration occurred and common sense and logic dictate that is what occurred the defendant stated he was entirely responsible again his quote i'm totally in a claim he didn't even know by the first interview september ninth it was until the very end that he said i've seen her around she's got a tattoo on her back of that said i definitely demeanor on may first and i definitely serious for sure lake but in the second interview  for his innocence but this concert vision shows in the town the circumstances that in actuality he was guilty he was clearly trying to cover this up he did everything you could any did a very good job of getting to that point where there's at least a question as to whether or not he was proven beyond a reasonable doubt but your honour's i submit to you we have got to use we cannot mechanically apply the law to such an extent that it swallows the entire rationale evidence points to this conclusion this court's job is not to retry that if in this court's job is to look at the evidence and the like rules favorable to the state and come to a conclusion whether that decision was arbitrary unreasonable fanciful so that no meaning the state has the burden beyond a reasonable doubt now the state has argued well it might be it could be it's possible that that could have happened or maybe it we have a jump to conclusions me i believe this case might have been an attempted murder on its own and not add something on the didn't exist but you couldn't prove beyond a reasonable doubt and that's the burden the state