criminal sexual assault that is that he engaged oral sex aunts with under age complainant and factor that distinguishes between the creator of the lesser offense is process violation comes in it's the cases talk about how it's tantamount to a directed verdict in course you can't in our under our system there can be no directed verdict in favor of the state as a the alleged to proffer comments and through the prosecution during closing let's assume they were improper but our doesn't also have to be shown that they were so prejudicial that without them the have an absolute right to demand a trial it doesn't matter how overwhelming the evidence is it doesn't matter front of your guilt you can force this nineteen year old boy into court to test that's what it's now that is  primarily address the first argument and so i hope to respond to some of his points the main dispute on appeal is whether in fact there was a jury question i think that everyone agrees that lesser included offense instructions are covered by the charging instrument approach i think under its report president this is the only thing that is still covered by the charging interim an approach however defined section twelve dish twelve is a definitional provision it doesn't define a position of trust so here's the position of trust is based on the long term relationship between the defendant and the victim in this family and there simply is nothing presented by the students things evidence because you can't demand that the defendant present something but nothing in the evidence presented under mine's a position of trust in the build up and if you don't trust it doesn't only lead to a betrayal but it also provides the opportunity for defense to occur there's no real estate possibility  and the position of trust thirteen and fourteen and fifteen year old boy would have been spending the night with an underage gentleman the only reason that the defendant had access to this victim is because  presented there would undermine that we recognize that this court community was looking for some kind of way to define and consider the meaning of i think it was supervision provision and it looks to the code of corrections and it also because code of corrections just positive it also looks at the dictionary definitions and i think you're feeling two different dictionary definition of trust you're going to look at things that dead give me some idea of how you would go about establishing that element to that because it's an element i will say and step away from i don't know i believe it would be objective and on this record you would look at objective occurrences some of the objective occurrences that would demonstrate the trust would be the fact that when the victim stayed with the defendant the defendant was given the sewer to make sure he took his epilepsy medications they had food apparently also eating at a certain time and also included making sure that he g do would object if would show the position of trust similarly the defendants again the witnesses testimony including the victims dictionary definition objectively and an expectation of care and protection so to the extent and again it's only a soft affirmative something like trust would be objective but because it's an only offense i think probably would i think this record would check to be demonstrated such that he was not entitled to the lesson instruction despite the fact that everybody agreed he had never met a scout leader everybody agreed that his babysitting didn't have  passed and then everybody agreed he was not a teacher the fact remains that even looking at the object of sleep there was a relationship here that was betrayed and relationship that opened the door to the o the testimony she did in her never have the opportunity to consider the lesser included instruction in the opportunity to determine whether the state proved the element of  and then live or die by what the jury decided if he's not given the opportunity then there's something wrong with the system there's only he's only entitle to it when there is evidence in support of it there isn't anything offense that he believed supported his theory of the case i think an analysis of the record would indicate that there was no evidence to support his theory of the case because this theory of the case was that he did not hold a position of trust over the victim i'm trying to think what if they should respond to what about the  feel you're welcome but i think that the point was taken earlier about the standard is important the standard that we expressed in our brief comes from the court's decision in the britain we preach an intern we like the supreme court's decision in millions clearly the standard is appropriate he does have to show in fact that his right to a fair obviously the thrust to trial was on trust and there were brief discussions and belief in the in the state attorney's closing argument that several of the actions were discussed in testimony for instance the supervision on the medications and supervision of the jury of her homework and that type of thing also getting within it however i think that realistically