most favorable to the prosecution argument is that no rational trial or fact could have found it mr shannon chesser guilty beyond a reasonable doubt of the crime of the town criminal sexual abuse perhaps the most compelling reason that a tribe or a fact could not have reached such a conclusion is because attempts to be a specific intent crime were choir's the state to prove that mr chester had a subjective belief that on the night in question individual be before he or she is not a vote to give consent that's a very difficult question to answer because it really does change on a case by case basis certain individuals could consume alcohol and have the capacity to consent while other individuals i believe could consume the same amount of alcohol and not have the capacity to consent i think what's important in evaluating whether or not it's been proven that individual lack capacity to consent is what we know about that individual's novel of intoxication in other words are there third party witnesses who could attest that miscarriage you know couldn't walk that she needed to be carried that she was hobbling or what in fact walking under her own two feet in a normal under strict fashion we don't know because the state presented no evidence as to that even if  car and we know that she doesn't remember what happened we know that alone is in atlanta i guess you could call that a blackout yes ok however i would argue that if lack of memory work tantamount to lack of capacity to consent then any individual weaving up in bed with a partner after a while the night that they couldn't remember could later on claim to be a victim of sexual abuse  as i said from a third party testing to screams level of intoxication she could have been speeding in coherent sentences she could have been talking intelligently she could have been walking on her own two feet she could have appeared completely lucid that evening and as you know it was her to prove that she was intoxicated to a level that she was unable to consent and there is nothing in the record as to miss gardenias level of intoxication as she herself testified that she was very drunk and that she was in is that crap that is correct however very drunk does not necessarily equate to lack of ability to consent i think many individuals consent to sexual encounters when they are in fact i think that they could be viewed as circumstantial evidence that he found her attractive but i don't believe that they could be viewed as circumstantial evidence of a plan to get her drawing to agree that she was unable to consent to take advantage of her sexually i think that's  and i could be wrong i believe it was approximately a month earlier i would have to double check the record it was interesting this particular case is that the state presented no physical evidence supporting the proposition discarding was unable to consent the state relied on testimonial evidence from just describing the twenty eight year old complaining witness that she accompany mr cheshire to a bar and it became intoxicated and no memory of the remainder of the evening but the state  in the absence of a third party witness well if there was no third party with us and reporting victim was didn't remember i guess you would have to turn to the perpetrator and look at his in the case and i think it's important to know that good mystery also has an intoxicated individual does not constitute a crime unless the individual this too intoxicated to consent none of the state's witnesses in this case none of the state's witnesses even chester he had the same breath and you had a fear that his marriage may be over i think that we could certainly mean those you know references but it's important also to note the trial court's acknowledgment there's a consistent verdict here as i argued in my brief the trial part of knowledge of the state field to prove the conduct alleged in the battery charge beyond a reasonable doubt now the only conduct alleged in the battery charge against mr chester was that he placed his mouth  in fact your client could have been charged with a much higher class that's he could have but i also believe that steve is required to prove the factual assertions in the complaint beyond a reasonable doubt if they choose a special assertions to be in this case they chose that the battery charge was actually easier charge to prove because the battery charge only required the state to prove conda and not mr chester state of mind the time of criminal sexual abuse charge choir's the state approved the conduct alleging the complaint and because it's an attempt charge of this there was also a hard to prove subjective criminal intent on the part of mr chester so if the state failed to prove the conduct in the battery charge it would actually be district is found in the past of logical inconsistency is a factor which contributes to the existence of reasonable doubt and should be taken into consideration by reviewing court in evaluating the defense contention that he was not guilty beyond a reasonable doubt in summ we're sexual encounters occurring an individual has a responsibility to to make a reasonable judgment as to whether or not the individual his engagement with his is capable of consenting if someone is intoxication can make a reason to judgment sometimes they can't they can't i think and if we're going to find someone guilty beyond a reasonable doubt i think they're used to be proof that under the circumstances below the prosecution was to such a degree and the people in this kitty's charged the defendant with attempted criminal sexual abuse which means when i ask you to speak up we have a microphone here it's a big large room we have a lot of people in th there trying to hear you as well i assume we here in front so please speak loudly ok the people in this case charged the defendant with attempt a criminal sexual abuse which means that in order to prove that ch the people have to show that the defendant took a substantial staff to commit an act of sexual conduct with the victim during a time when she was either unable to understand the nature of the a will to give proper consent and when the issue is whether somebody was in a proper position to give consent because she was too fisher was an easy situation wasn't it she was unconscious so that that's not the situation we have here so where do we draw the line i don't think it's a clear line to be drawn but in this case she testified that after she felt pretty drunk after her first few drinks the first time around and then she testified that she blacked out at some point after they had returned to the t time so we know she was syntax ok didn't she didn't remember how does that equate to under the able to give knowing consent will that question i think it's not where she necessarily purported to give consent but whether his belief in whether she consented whether or not she consented was reasonable and in this case it could not have been reasonable why not what evidence was there that the state put on that it could have been a reasonable observation or conclusion while he was with her according to her testimony he accompanied her to the teaser for example he was with her during both her to his house so he should have been able to observe her demeanor and somebody as she testified she blacked out he should be able to know that she was not in a position to give proper consent bed with a different and i think from the fact that she doesn't remember what happened from the time she left the bar at which point she testified that at that point she had been blacked out in pretty pretty drunk and intoxicated and from now when she couldn't remember what happened until the next morning when she woke up and found the defendant in her bed i think it's pretty clear should've been pretty clear to the defendant that she could not give consent because we know we don't have the situation where she did consent but regretted it later this counsel argued might be the case for this these facts were consistent with their conclusion but i think the issue here is that the defendant could not have formed a reasonable belief that she had consented and in fisher it says that when a defendant cannot form a reasonable belief that the person consented he must refrain from taking advantage of the individual and i don't see how or when a defendant is present when somebody black's hour when the defendant presumably accompanies that victim home and sees that she does not know how to get home and doesn't know where she's going and doesn't recall the particular friends of the night and how that defendant could form a reasonable belief that she's in a position to consent and anybody asked her what she meant by black now you know anyone saying is it's you can't remember her verses she said she after she left out she could not remember what happened afterwards and that the next thing she remembers  waking up the next morning and seeing the defendant in her bed but she said that after she blacked out she could not recall all the events of that night when all of the things that happened subsequently except for the recollection that she had that the defendant did perform oral sex on her that evening as the defendant her suitor that was not in the record so your point basically boils down to whether the morning with the defendant so i think no rational trier of fact could have inferred that it was the defendant will accompany her home and if you did accompany your home he should have been able to observe her demeanor and notice that she was not in a proper position or in a position to give proper consent so she didn't testify about what her mental state was when the sexual activity was going on no she doesn't remember the specifics except for the fact that she does recall that the defendant performed oral sex on she felt pretty drunk at least early on i believe that if she's normally a light drinker a slight impairment may have caused her to see that she's pretty drunk but the fact is she still impaired and is not in a position to give proper consent so how do you know that she was capable of making the recent judgment that evening i think somebody was not capable of pinpointing exactly what is happening and giving an exact timeline is not in a position to reasonably i am not sure that x that an expert witness would have been necessary to comment you're saying a lay person could make those conclusions i think so and i think in the people's opinion i think that only person should be able to see by observing somebody's demeanor whether or not that person is in a position to give reasonable consent without having an expert testify as to her cognitive abilities when she blacked out i think if she had lowered in conditions it may have appeared it's possible that it may have appeared that she was actually giving consent if her inhibitions were lowered but i don't think that that is a reasonable thing for an individual to believe when he has been able to observe her conduct throughout the entire evening before she left for the ts or for example before she had actually had any drinks belief and consent could have been formed is a blackout the same thing as amnesia blackout means this isn't the point what she meant when she used the word i did and the people would argue that yes it's the point it's what it's what she meant and what she meant was i don't remember the specific events of that evening because i was intoxicated to the point where i blacked out because of her statement that she blacked out following some statements which included i am i was pretty drunk i was intoxicated and then i blacked out so i did i think it's a reasonable inference to make that or try to fact i've made the reasonable inference that by black now she meant she was not in a position to understand the nature of the acts that were happening throughout the course evening what's the difference between a lack of memory and blacking out i think i would suggest that somebody who blacks out all still experiences a lack of after a blackout and has a moment of panic or regret why necessarily the victim of sexual abuse however i think that's where the defendant's belief and her ability to consent comes then  that the given the relationship that the defendant and the victim had which was i mean she lived with her aunt and her uncle i don't think i think that it himself suggests that in some way necessarily just because yes she was her uncle by marriage there was a relationship of trust and yes she testified that she had felt uncomfortable with comments that were made before but i think this is a situation where it's not just a matter of somebody waiting out the next morning and panicking it's a situation where consent could not have reasonably been perceived in our drawing years trying to distinguish had she met some guy and the taste of all and wound up with a stranger you're saying the apps are different the presence of this ongoing relationship that she knows that he's married to her aunt right right ok janet makes on afterwards the next day i think her conduct afterwards if i think it indicates that she was not a consenting participant even has she been in a position where she could have bought her proper consent i think her kind of afterwards would provide some doubt regarding that i mean she told her boyfriend immediately she washed the sheets she washed her clothes she testified numerous times to being discussed and she was frantic why is it not as consistent with someone who gave consent but who have regrets later and realized all these other factors we've been talking about that did with might have been inappropriate i think it could be consistent with somebody who had regrets later but i think if we look at the things here from the time they get attended the taste of ribs out to the time where she will look up the next morning i think we've seen all of that and couple that with her behavior after he left her saying stuff she had no memory of being physically restrained and she had no memory of saying no yes she remembered it happening so there was a real life in her memory and that really of light did not include anything that would lead us to believe that times and i think this is extremely extremely important that mr chester was observing biscardi misdemeanor throughout the evening the state said several times that mr chester had the opportunity to perceive miscarry this demeanor throughout the evening the problem is we don't know what mr tresor was seeing or what he was perceiving there was no evidence in the record that in this garden you know for all we know mr chester was perceiving a good coherent individual who's able to walk and speak as news it is anybody else and i don't think it's fair to blame mr ches