turns on the credibility of the bed and the cues are errors particularly likely to be prejudicial this is a close case that was not disputed that prosecutor stated during closing argument that the case turned testified about one occasion where he told her or tried to get her to put her mouth on his penis and she evaded doing out by just sort of touching it with her tongue which is count for after she sort of when she was in she lost her own bedroom and there was a shuffling of where of sleeping arrangements and she was no longer sleeping in a room by herself from around the ages of nine eleven she said th christine said not i don't ever remember my mom getting it but even given the fact that robert may have from time to time occasionally put her back to bed the child's testimony was not that mom would put me to bad and sometimes he'd sneak it later it was his job was to put it about every night christine and robert both said that they slept in an adjacent bedroom at that time and during this period when she's about forty she says it's across the house sexual abuse i don't want more single last appeal i'm saying actually you know what i don't get a ton of cases most of my cases are are drug cases but to be honest lack of cooperation is lack of corroboration i'm talking about the closeness of the case right but i'm talking about the nature of the case when you say that something happens every night every night in a room with an open door across the bathroom and again this is not just putting his fingers on her vagina this is that he's putting his mouth on her china or that he's putting his penis is very penis on her joints either way whether he's under the covers on top of her there is this large or at least four grown man on top of a four year old and if anybody's walking said to trial was completely inconsistent with what she told detectives huxstep after she'd already essentially complained about robert jones in that she said he wouldn't have me give him oral sex at all and he did it to time and i jumped back in the bed and she said when i think of oral sex i'm thinking about putting my clips of my mouth entirely around his penis and that never happened yes clinician is not responsive to the consistency she did say in her first run through she said she wanted me he said it would be a good idea for him for me to put my mouth on his penis that which he was confronted with or inconsistent statement or trying to come up with an explanation for it after she initially denied taking that statement all to detect hu testimony was her first run through was in fact he said i should put my mouth on this penis that's different ok i argue with you she's saying she didn't do it she didn't perform oral sex on him he didn't have to do it is different the thing he asked my point is her explanation for the confusion of oral sex doesn't explain the inconsistency all right well at any rate it seems that it's not just you did in this case that the case was closely balance and that you know i think that it's important because there were two problems with this case at trial where the state effectively had two the three factors listed in the statute seven point three four when propensity evidence is to be admitted i should back up the statute lists three and our supreme court donahoe has also said that you still have to do a probity versus prejudice a roughly one to two year period in arizona i suppose given that there's an eight year stand of offenses it's arguably arguably proximate but there is no evidence between the time of the last incident no annoyed and when we moved to arizona also you know and i'll get to this point it's after the facts of course the events in illinois with whether they happen or not are already done the second prong is similarity here there is no there there's there's a there's no similarity in the vault eventually putting his hand under her bra the third factor is all the relevant circumstances and i would say the arizona evidence just basically more allegations from the same person whose credibility is the entire issue in this case and there's no corroboration to add anything to that and when you get to the probity versus pretty prejudice analysis and of course that's like saying so basically her delayed reporting somehow makes him have a greater propensity to sexualise assault children it doesn't really flow it's also not true in that it's contrary to what she said about how she reported when she was asked at trial what led to her decision to come for finally say something or at some point to a mother she said i pieced it together over time i realized i got older and i realized that what it happening was wrong she didn't pinpoint it to a specific event in fact there's no timetable at all or whenever the last alleged incident occurred in arizona was and the time she breaks down described her friend and her mother gets out gets out of her that she's uncomfortable with robert but according to christine she won't say what it is and on the other hand says that she told her mom about the abuse at any rate the family moved to florida so there is no probity it doesn't prove anything it doesn't help  you know it's just not probative evidence that he's a bad person it doesn't add anything and again all we're told is this is a delay reporting explanation which i don't know how i retroactive propensity the second thumb on the scale as i think the prosecutors comments in opening and closing know basically positive positively building up and his credibility and image at robert's expense i think it's inflammatory to say that he still we're going to since i don't think that's a fact in evidence i don't think it has anything to do with the case saying that she's bright funny smart outgoing also has nothing to do with the case injecting that she's been hospitalized three times for cutting herself when you didn't have any evidence to connect that to the case method the jury heard even though that evidence was not brought in and then four times during closing argument the prosecutor said basically the head on has to be telling the truth or should be believed because she's only seventeen and she's talking about sexual sexual matters in front of strangers and that she went through cross examination i think that hannah's likable qualities are just an attempt to gain sympathy they have nothing to do with the case hospital that that is correct and this court addressed that in the people versus bunny which recognized that the instructions do not always cure the problem you know and in here the instructions probably would say disregard something you're the lawyer says that you can't disregard something the lawyer says that's not the evidence the instructions don't tell the jury that being seventeen and seek to cross examination is is a reason for is not a reason for for but either way there was no objection at trial so it's not there's no argument that it would not be for and again so we have basically a concerted effort to use anything that that that hannah is funny and smart and that she suffered things and that robert is an innocent stealer and that she seventeen and went through cross examination so we have to consider credible to make up for the back if there was nothing else to corroborate their testimony and i think between that and the improper other crimes are sick propensity evidence there wasn't a fair trial in this case i would say the best the state had no with the closeness of this case the state had no of the fact that it's the same victim does not mean it gets excluded does not have to be other victims before other crimes evidence to come in the case was clear that the and the fact that he continued sexual abuse in arizona so what difference would only go to the weight of the evidence to be given to the jury n the as she gets older know what's happening in arizona that this isn't right that there's something wrong here and then she finally starts to tell people about it and i think that even long you know on that and as far as this is white noted this the jury was instructed to disregarding statements that was not based on the evidence the case law is that the jury is presumed to have sure any error in the reference to cutting in the opening statement with regards to closing arguments it is proper to comment on the victim or the witnesses demeanor i have found thank you some of the things that i want in the brief about his testimony live under act but you're talking about oral sex quote once he pulled me more on top of him and he told me it would be a good idea if i put said in my brief and i said why i realize that there's a lot of deference to a jury's verdict but our supreme court has made it clear that it's not absolute for example in the smith case where the evidence is so unreasonable improbable or in satisfactory as it justify reasonable doubt defense but i quote a conviction has to be reversed in wheeler or illinois which is i started cite from a standard review our supreme court again talked about that occurring nightly in her bedroom because he was the one putting her to bad and her mom was far away when her mom says no i was the one putting her to bad and i wasn't far away i don't think that's a minor inconsistency when it goes to the entire basis for the conduct implied that the prosecution had coached i simply am asking this court to look at the inconsistency as they go to the basis for committing the offense to consider them in the close of the case and in the talks about this would have been admissible to show intent design my reply brief explains that of course it would not could never been admissible show intent because robert never put intented issue as the only case points out where it's not an issue it doesn't come in robert and say i touched her but a specific aspect of the case and the state would have to actually go through and prove what aspect of the case the arizona conduct was relevant to the state doesn't respond to that and in any rate have this gone if this goes back for a new trial in the state wants to pursue a different theory than the family could get a living instruction if they can if they can actually meet the test it's not enough just to say is is is relevant and then list the bunch of different ways without actually explaining how it fits those test brief i specifically conceded that the fact that the alleged abuse in arizona happened after the charges were completed is not in itself fatal again i the state i don't see how in the state is not explaining how it's proto retroactive sexual propensity when the only reason the state says that they need it is because it explains a delay in reporting which the victim explained otherwise  also the case cited by the state failure also dealt with prior sexual abuse and again i would also be of the state that it's not failed to the evidence in and of itself that it's the same victim i think evidence after the fact with the same victim might have some credit if value if there was a better piece of evidence in arizona and it was the same kind of thing he was doing to her in illinois such that the arizona evidence got made a lot more probable and therefore did tend independently corroborate the illinois actions but here it's the same person accusing the defendant and again with nothing else to postering as for closing arguments i don't agree with the state that the subjective legal knowledge of the prosecutor determines what the process what the prosecutor is allowed to say in opening or closing or whether it's proper i don't think prosecutors are you know allowed to think about thank you are allowed essentially not pay attention to rules of evidence and say things and if it offended objects don't put him in i think it's a stain i don't think i don't think it should be a trial strategy to put you at least experience or lower experienced prosecutor on something because they can say things that are not intentional and therefore to stick because they don't know