i hear people versus young court counsel again as i mentioned my name is nicholas curran and i represent the defendant appellant stephen young now i have raised five issues in our brief all of which i submit require some form of relief from israel to have a more than happy to discuss any of those or answer any questions the court may have probably won't be able to get to all of them today but again if if there's anything specific the court would like to address and more than happy to discuss any of those issues but the first issue i would like to address is the sufficien evidence against the defendant as to the alleged victim whose initials are being paid of course we all know that due process requires the state to prove a defendant's guilt beyond a reasonable doubt and in addressing a challenge to the sufficiency of the evidence on appeal this court asks whether the trial evidence viewed in a white most favorable to the state supports a finding of guilt beyond a reasonable doubt now to provide a little context for this issue the evidence at trial was that the defendant lived on a two floor apartment on the first floor was a telephone room with a television a computer room or an office area and then a kitchen and then on the second floor was the defendant's bedroom a guest bedroom and a bath the evidence a trial was also that he that b a and her family lived in the unit below the defendant and the defendant was their landlord so be it testified at trial that she went up to the defendant's apartment and that she was in the computer room when the defendant came into the room and essentially funneled her with his hand on top of it underneath her clothing she testified that there was no one else in the apartment at the time that this took place  testified that on one occasion something different happened where the defendant took her up to his bedroom on the second floor and committed what i would characterize as more extreme forms of sexual abuse including is that in almost every material respect it conflicts with statements she made before trial in particular during her videotaped forensic interview which was conducted shortly after her initial outcry right that is correct your honor however that is the only point of similarity i submit between the two statements for example during the forensic interview v a said that she went up to defend the defendant's apartment with three other children one of whom was her older sister right off the bat that's different from what she testified to at trial which is that the abuse took place while no one else was in the apartment how old was she when she was you know she was seven then told the forensic interviewer that she was in the front room watching television when the defendant came in and fondled her while the three other children were in the adjacent room with the computer at the time place again that is completely different from what she testified to a trial the forensic interview carried on for an extended period of time during which she denied that any other conduct or contact occurred and then after what i would s that i understand your honor i think the question though is whether or not all these discrepancies and all these conflicts between what she testified to at trial and what she said before trial render her testimony about the charge conduct and what mommy i don't know she just said well that's that's according to what the mom testified now she never testified at trial that any of this abuse took place anywhere else in the apartment peripheral issues may or may not have been exactly is stated in the forensic interview why did why should that be used to totally reverse the decision your honor is touching on what is the key i think question editors a problem that is present in almost all of these kinds of cases there is no question in my mind and i submit that if b a were an adult testified as she did this court would have serious pause about the validity of the conviction and part of the basis for that contention is for example the cow one case that we cite in our brief now that is a case doubt so my question then is the only way you get around this problem is to assume that a child is unlikely to fabricate or unreliably report allegations of abuse and there is certainly nothing in this there's no evidence in this record that would support that assumption and i have yet to hear court cogently explain why we disregard inconsistency and deficiencies quite frankly in a witness's testimony simply because there are minor that we would pay very close attention to if the witness were an adult again i understand why a child might be more prone to the foibles of memory but they have may have a more difficult time consistently explaining what has happened to them but if anything that process was violated where the trial court misapprehended the evidence in rendering judgment as to the charge offenses involving p a now the specific statement or the issue that we have here is that that is simply it's simply untrue it's not it's not true it's not accurate at all in almost every material respect there were things that she said in that forensic interview that can do with her trial testimony now if the tr said you know i acknowledge that there were discrepancies between the video and what she testified to a trial but nevertheless i saw her testify i view her being credible i you know can reconcile those discrepancies then we would not have an issue but the problem here is that the the defense was based entirely on the fact that you have no physical evidence you have no third party witnesses to the alleged abuse and then of course that the alleged victim statements are completely contrary unless you're assuming the allegations to be true and then you're viewing the video through that prism and then only then can you reconcile these discrepancies and set them to the side and say that one necessarily supports the other it's just simply not true i next issue i would like to briefly touch upon is the first issue in the brief and that relates to the trial court's abuse of discretion in admitting b s forensic interview pursuant to section one fifteen dash ten of the code of criminal procedure thing that's an important course of the interview i mean to me when he looked at the interview the beginning was different is it when they seem to be some change in  a question your honor i would agree with that i think it went from i'm just going to ask you and ask open ended questions and see your response to one now i've heard that other things happened to you so why don't you tell me about that she said she said that repeatedly and repeatedly da said i don't know which are you're talking about can you can you tell me what these other people have said and she said well no i can't do that but if you don't tell me the truth then the people i work with and work for will not be able to that this touching occurred in the front room with the television while she was watching television while there were three other children in the apartment in the next room in the office which is completely different from what she testified to at trial which is she went up to the apartment on video in making that in drawing that it was first it was the second half but i think again your honor it's only human nature that if you have allegations of incredibly serious abuse spending over many occasions it's going to affect the way you look at the defendant with regard to each specific it's not as though the judge or any trier of fact could reasonably separate out all of these things and consider them in isolation certainly the testimony and the interview in the statements have be a recovery of the other of us played into her assessment of why i'm sure this guy must have done something so i'm going to convict him which is really the sense you get if when you read the it was expressed remorse i disagree i disagree the exact statement that the courts said was mr young you're going to have to own what you did one day but it wasn't today unfortunately had you stood there and own did your sense would have been somewhat less owned it in the sense of i'm sorry ok defendant say that all the time in elocution i'm sorry you don't have to admit the entire judicial system is corrupt and everybody's lying so your honor none of it is my my problem your honor if if in fact he's innocent and i don't think that this court can attribute in system so let's assume for a moment that he is innocent and he's been wrongfully convicted of having committed these fences i think it's entirely understandable for especially a lay person to say i don't understand why i've been convicted there's no physical evidence nobody else is corroborated these allegations and what the witnesses are what the alleged victims are saying is completely consistent i think it's completely reasonable for him to have reacted the way th did in terms of him not expressing remorse i don't understand the concept of expressing remorse for something that you didn't do i suppose he could have said you know i'm very sorry that the victims he tells the suffered any emotional injuries from what from from his perspective you know it's a little outrageous from his perspective he's he's standing by his proclamation of innocence and we have cases that  that stands for the proposition that you can not automatically impose a more harsh sentence simply because the defendant refused to admit guilt which is what the trial court wanted him to do and what's especially problematic  for criminal defendants is you're in a catch twenty two because there's case law that says that well if the defendant chooses to not say anything that can be held against them as indicative of a lack of remorse can actually it's it's the opposite if you if you don't if you choose not to speak everybody there's no evidence against me then the court can take that into account that's appropriate your honor again i disagree with that assessment of what precedent stands for and in fact there are there have been cases that say that where  hear that lack of remorse can be taken into account right but that's what the case was so you're asking us to reverse all that case law no so the worst case which i believe is the the main case to t track that's the only supreme court case that i feel like it's most pertinent that case holds that a defendant's continued protestations of innocence and lack of remorse must not automatically be applied as aggravating factors in the court says that you know lack of remorse is connected to rehabilitation so the problem here is that the court even after the defendant allocute it said the potential for rehabilitation is great and that is supported completely by the record here we have a defendant who is gainfully employed have no criminal record whatsoever no history of any substance abuse or alcohol or alcohol abuse had a loving supportive family has a mom who's up and what was the range of sentence the range of sentence was for a class one felony fo to fifteen years he was sentenced to two five year consecutive terms so again though you have to look at what the judge said and she explicitly say it stated if you had owned  she did but at some point there is a it's not as though the trial judge's finding of credibility is amusing from appellate review if the the facts on the record do not support a finding of credibility and still adjudicated him guilty then i wouldn't have as i wouldn't have a basis to argue that there was a flaw in the mechanism of the defendant's trial that resulted in his convictions but that the issue he burden to prove the defendant guilty beyond a reasonable doubt i don't necessarily know why they would fabricate fabricate the allegations why would anybody do that but but people do it happens and in this situation you have a child who w no evidence of any kind of injury right there was always a shower and there may not have been you know but that again you're seeing that that this whole thing is because of the lateness and right i mean that's a pretty far fetched story t right and so what we've done here in the appeal is we've appointed her if we've pointed out all the ways in which deejay's testimony is just fatally unrealistic to be on the phone with someone during the course of an anal rape and not say anything then you don't contact the witness investigate the person he was on the phone with call them to corroborate yeah i was on the phone with them when the defendant came in and i overheard something happening i mean he ought he also indicated that the defendant took photographs of them with him so again that and i understand i understand where the court is coming from and my position is that based on the unique facts of this case there are just too many problems to sustain the defendant their role and that's because the time contents and circumstances of the statements provided sufficient safeguards for their reliability before be even was brought to the center she had already made two outcries she had made an outcry to her older sister in november and she had made an outcry to her mother in january in both of those instances during the interview itself she described how the landlord inserted his finger into down her pants above the outside the line inside the line outside the hole inside the hole and she said it happened lots of times we have a situation where defendant was a trusted landlord of the family he invited the a and these other kids to go into his up stairs apartment he provided a friendly environment where they could use his computer they could watch history t v essentially he was grooming her very expensive christmas gift one year and the other kids at something not nearly as expensive that's absolutely correct your honor and we can easily infer that he was attempting to buy her silence he had instructed her don't tell anyone this is our secret wendy a made the out cry to her older sister her sister specifically instructed b the next room and so this is inconsistent with the notion that she was up there by herself well the defense is trying to bring out these inconsistency to suggest that somehow she is testimonies and credible but what we do know is that she testified during a forensic interview that this it happened lots of times she testified during the trial that it happened on a number of occasions she and we know that this was defendant's apartment he was in control he could decide what room this occurred in he could decide when it occurred sometimes it occurred on the first level of his family had a gun so be it was scared to say anything i don't think she even knew what was going on because of her young age of seven and defended being thirty one but being was reluctant to tell anyone about this  when she did make an outcry terror sister she made an unusual statement but she was only seven saying she liked the fun and she said steve likes me this is like yes and she's like steve and  sister being older was shocked what do you mean this is a grown man why would you say something like that and then only at that point did he explain what was going out but even her older sister was afraid to tell the parents but when this court does assess the sufficiency of the evidence and the statements made at the friends again or view it's important to consider that as was already previous he found it was found guilty but even if this court does consider it it was proper learned that glazer was a trained professional who was following the protocols she never put words in the  at one point yes she does say the people i work with are here to protect you but you have to tell the truth but it's important to consider that she made she told that statement to be a after told lazar that she was afraid of the phone so we have a seven year old child being interviewed telling the forensic interviewer that she's afraid of offending so naturally the interviewer was simply trying to reassure be a make her feel comfortable make or feel like she was in a safe environment where she could tell the truth about what was going on and there's nothing wrong with telling a young child to tell the truth that's the whole purpose of the interview to find out what the truth was and so you have to look at all the circumstances of this interview the circumstances that led be eight to the child  and i would also point out that the terminology that be used during the interview was consistent with what you would expect from a seven year old she used terms like front private parts she described defendant genesis thing old and learning plays are never put words in b a's mouth she went out of her way to make sure that this was conducted in a professional manner that was consistent with the child advocacy center act the protocol was that this is what this was a trained professional and the trial judge viewed the forensic interview viewed the video young elocution apart from our church first of all this was this issue is also forfeited the defendant never raised an objection and he can't satisfy to play harrell first of all i'd like to just briefly point out that as to be predatory criminal sexual assault charge defendant received a minimum term he received a six year sent to the two criminals i asked to be yes that's correct as to d j there were two criminal sexual assault counts each count had a minimum of four years he received a five year sentence on both of those counts and it's notable that the judge originally had sentenced defendant to ten years on those counts but actually dropped him down to five years after realizing that those two counts had to run consecutively so when you look at the total of these three counts the family was facing a minimum of fourteen hears he actually was sentenced to sixteen years now defendant complaints about two sentences at trial court made during the hearing on the motion to reconsider sentence and that's when the trial court it stated that  you had you owned it your sentence would have been somewhat less had you told the family those mothers that you were sorry that would have been showing remorse well this court can't view those sentences in isolation we have to look at everything that occurred during the seventeen hearing and during the hearing on a motion to reconsider  talk about that the victim's testimony was a product of coercion that the criminal justice system had failed him he starts making some incoherent statement about not understanding the political corruption that may be involved in this case and these are all things that the trial court could consider and that's well is it right that the trial court to to consider his belief about how the system is don't do it or could say somebody else did it so if your choice is to say i didn't do it and this whole system is rigged against me why would the judge have to take into account his feelings is being truthful as factors bearing on his character and his potential for rehabilitation as this court knows the sentencing court can consider all types of factors defendant's ages credibility is demeanor is character even his failure to show a penitent spirit i would submit that applies here but what's significant here is that we don't have a situation where the trial court said well you maintain your innocence so i'm adding on a certain number of years that's what happened in the speed case that defendant cites that was it that that would have been improper that t situation here we had a trial court that properly exercised its discretion considered defendant's failure to show the morse the fact that he never showed any desire to be rehabilitated never showed any empathy for the harm that he caused the victims that he caused the family the trust that he preached to not only the victims but to the mothers who trust their kids to let them go into his apartment ok and we can certainly all be sorry about what happened to these children but he's saying he didn't do it he's so what would he be sorry for what would you be apologizing for a piece of his basic submit that the judge did not hold it against him the judge formulated you stood here and under your sentence would have been somewhat less that's not holding it against him that's saying that great but when you read her comments in totality it was clearly contingent on him taking the first step of acknowledging that what he did was wrong and she said that many times you have to own  going to have to own what you did one day what if he didn't do it what a piss has believed this that he didn't do it why would why would he say i did it and i'm sorry i did it if people leaves he didn't do it and th can't go together this is a trial court who presided over two trials where she found him guilty but that doesn't mean that he has to say i did it he can still say i didn't do it that's absolutely correct your honor and i again the trial court can consider everything in sentencing it can consider not only the defendant's character and potential rehabilitation but they can consider the truthfulness of his statements even in elocution and we know this from the illinois supreme court the case in ward and that case provides guidance for this court in reviewing this claim and i submit that this court should follow the guidance that the illinois supreme court has already set forth in war and she did cut a sentence and i'm the motion to reconsider that's absolutely correct your honor so define actually benefited from the motion to reconsider and when you look at the serious nature of these charges involving a seven year old girl who was sexually assaulted multiple times and a thirteen year old boy who was sexually assaulted defendant actually was given quite lenient sentence of only a total of fourteen years that's just two years over  that he was on the phone i did when young came into the bath yes young started taking pictures of him own phone and he did not he ended the call because he didn't want the person on the other hand she hear what was happening yes that is correct your honor however d j never specifically stated when he ended the call he never he never stated that i waited for the entire sexual assault and then ended the call what he did state was and this was not flushed out by the park either party and the order in which the questions were asked at trial were not necessarily consistent with the chronological order of events there were only a couple questions asked about the cell phone but what we do know is that we have a thirteen year old boy who's visiting defendants apartment so it's not unusual for people to bring their cell phone wherever they go especially a teenager and here he's taking a shower so he has the phone in the bathroom we don't know who initiated the call but he testifies honestly that yes at the beginning i was talking on the cell phone and he's talking to a girl we don't know who this girl is but but what we do know is he specifically said i hung up because i didn't want the girl to know what was going on line to know to hear what was going on it's reasonable that he would have ended the call sooner rather than later if he didn't want that person to know what was going on so this is really a red herring he signed to distract from what was it's all speculation we don't even know if there were photos or if you find it deleted him he wasn't arrested for three days later so that's all speculation i he talks about well where's the evidence of sexual assault when the doctors haven't the doctor did up external this ability and the doctor explained first of all it could be consistent with what t j said the doctor explained two reasons one not all sexual assault all trauma visible evidence of trauma and two there could have been internal trauma internal damage that was not observed during the visible exam what we do know is d j was loopy he was in pain his mother noticed he was there and he explained why he explained when he made the outcry because his landlord someone he trusted thank your honor just very briefly a couple of quick points a d j to testify at x one fifteen in the record that it was after the defendant stuck his penis inside of him that he hung up the phone so that was his testimony on the record as far as the forensic interview we're not putting any words  any other thing that steve used to do something to your private part so to me that's pretty much directly lead her into making that additional accusation in terms of the court sensing issue just very briefly the only reason the court sons and half was because her original intent had been to sentence him to ten years for the conduct related to d j and it was only after defense counsel counsel pointed out to her you know because she said her originally it was her incompatible with what she said during her interview and she specifically stated in her interview that she was not abused and in any location within the apartment other than in that from television room which conflicts with what she testified to a trial both cannot be