it please the court counsel my name is christopher mccoy from the office of the state of public defender and i represent mr mark again your honor is today we're not arguing that mr gains made a smart decision in this case we're not arguing that his actions were wise or prudence instead what we're arguing is that while he did make a series of dumb mistakes this was not a criminal action and certainly not one that amounted to the class x felony aggravated kidnapping and what's missing here in terms of aggravated kidnapping is the element of confinement the illinois supreme court has defined confinement as quote the act of imprisoning or restraining someone and quote quite simply in this case mr gain did not imprison j s he did not her if normal a person or to hear the facts of this case that's not how they would describe it they would not describe it as being imprisoned or restrained because these words imply that there is some action used to overcome the resistance it implies that there is an opposing force that the defendant is moving again here or the trial evidence simply didn't suggest any sets of coercive force there was no evidence of an expressed or implied threat mr gaines didn't display a weapon he didn't use physical restraints in fact there's no evidence that he even touched j f k at all during that day now telling y j f never testified that she didn't feel free to leave at any point during that day and this is bolstered by the surveillance video from the gas station which was introduced at trial  that video there's no signs of force if you watch it it just looks like two people going about their normal day and this was someone that j f was familiar with it wasn't a stranger in fact she referred to mr gaines as uncle mark so again this is just a family friend who made a bad reaction to j f missing her bus that morning hypothetically if all of the facts in this case were the same except that the defendant here was j f k s quote unquote aunt and not her uncle so in other words if the defendant was melissa gaines and not mark gaines this case would feel a lot different and when we have a male defendant and especially with a young female this is just the kind of general feeling of uneasiness a little cringeworthy if you will but this feeling of uneasiness doesn't substitute for proof of  confinement it doesn't relieve the state of their burden of proof and it doesn't mean that this is a class x felony the state on the other hand argues that confinement occurred when j f was taken to an apartment and didn't know how to get home and we were not disputing these facts but they were still not evidence of confinement and they are certainly not proof beyond a reasonable doubt because mr gaines never told j s that she couldn't leave the apartment or otherwise indicated that she wasn't free to go home and for her part j f never indicated that she wanted to leave or expressed any reluctance at being there the apartment door was not locked  mr mr again didn't take j s to a place where she was completely alone either he took her to this apartment where there were two other people two adult women in fact and mr gaines never said anything to the  of that j f couldn't talk to these women and once they actually did get into the apartment mr again didn't really interact with j f at all he was taking a nap and she was watching cartoons on the couch and so for these reasons this again simply did not imprison or restrain j f k in this case my last point is that this conclusion that that there was no confinement is all the more apparent when examine some of the less serious detention related offenses that are in section ten of the criminal code and today there's three in particular i'd like to highlight those being unlawful restraint luring a minor and finally harboring a runaway and my point with these other offenses is that they're closer to the defendant's conduct in this case to what actually happened but telling the defendant didn't even do enough to qualify for these less serious offenses which bolsters our position that he also didn't do enough to commit the more serious the class sex offense of aggravated kidnapping just briefly looking at these offenses one at a time st with unlawful restraint at the class four felony and the legislature with that offense prohibited unlawful detaining another and it's telling that they use the word detention instead of confinement when describing this less serious offense so that supports the idea that detention is less serious than confinement but even here it doesn't seem that the defendant detained j f and so naturally he didn't confine her either  second with luring a minor and i also a class four felony it contains of a laundry list of elements but relevant here that offense prohibits contacting a minor with the offense with the intent to lure that minor away from their home or another location owned by the parents or an unlawful purpose and the defendant must be a stranger to the victim's parents now that's closer to the situation we have here but still the legislature to commit to put to commit this class four felony that there has to be an unlawful purpose and there has to be a stranger which again doesn't really fit the situation and then the final offense is harboring a runaway which we mentioned in our opening brief it's a class a misdemeanor it prohibits someone from without the parent's consent knowingly giving shelter to a minor for more than forty eight hours again closer to what happened here but this case the entire case really only last about six hours and so it's far from the forty eight hours there and so again just to sum up my point with these other offenses they seem to be much closer to the to the defendant's actions in this case then aggravated kidnapping but the facts here still don't do enough to qualify the defendant to have committed a class four felony or even  class a misdemeanor so the fact that the defendant needed to do more to get the lesser offenses against the ports are positioned that he also didn't do enough to commit the class acts felony of aggravated kidnapping so in conclusion to go back to what i said at the beginning what we're left with is just a series of dumb mistakes not a criminal action and certainly not a class act felony for these reasons mr gaines respectfully asked this court to reverse his conviction for aggravated kidnapping and at this time i'd be happy to take any questions thank you justice frazier's you have many questions yes i do but my question is when the father called the defendant in this case and then asked him if he had seen j s in other words if he knew where she was and he responded no doesn't that satisfy the secret confined as provided in people no it doesn't your honor and i believe the important thing to remember is that it's talking about going volleys the question there was whether or not the confinement was secret there wasn't really an issue of whether there was confinement in the st place so what we are arguing here is the opposite we're arguing that there was no confinement not that if there was a confinement that it wasn't secret so whether you don't you don't agree that the defendants kind i solicited j s from meaningful contact with her father that definition goes to whether or not i confinement would be secret and didn't fall as the court separately defined confinement secret provided separate definitions for each word and again confinement was defined as to imprison or restrain someone and that that wasn't done in this case in terms of defendant talking to j f father that didn't confine her j f didn't even hear that conversation so if it obviously he lied again another mistake by the defendant but that lying to the father was not  proof of the act of confinement gest testified that while she was in the apartment she didn't know where she was correct that's correct so wasn't she in a position so she wasn't in a position to leave the apartment and because she didn't know what she was in doesn't that amount to confinement well no because there's just no evidence that had she asked to go home that the defendant or one of the other people in the partner would not of picking her own and i mean it is telling that as soon as mr gainst talked to j f father he immediately took her back home so there's just not enough that to say that being in the apartment imprisoned or restrained her even though she didn't know where she was and the man ask you this you agreed that j f well in the sentence girlfriend's apartment that she was no longer in the public view is that correct yes that's great  commits the offense of kidnapping when they secretly can find another against their will and if that person is under the age of thirteen that confinement is with if they are confined it i s without the consent of their parents how do we get around that and except you well i think it's important to look at what the actual language discussing subsection b and what that says is that the confinement of a child under thirteen years is against the child's will if that confinement is without the consent of the child's parent or  guardian so that is discussing the against the will element not the confinement element in fact it's kind of that definition is assuming that a confinement took place if that confinement is without the consent of the child's parent so those are two separate elements that the state has has to prove well respectfully if i am in a place against my will aren't i can fin again that the it i mean i think it's we have to distinguish when we do have it's using a child victim versus an adult victim when we have a child victim the against the will element as you stated really isn't up to their will but you still have to prove the confinement element and that confinement element does kind of overlap with the against the will in that it has to be some type of imprisonment or restraint so you do look at kind of what you know what the defendant did and and  let me back up i guess i would the confinement would be the defendant's actions and the against the will would be the victim's reaction and so you would have the defendant would have to affirmatively do something to imprison or restrain whether or not be against the will element to have been satisfied and your position again his bringing her to an apartment where she's out of the public view and doesn't know where she is is not confinement it's not confinement again that would some of those things would go to whether or not i can find more secrets but how the supreme court has explicitly defined this is in prison or restraining and again just being inside an apartment doesn't mean that you are necessarily imprisoned or restrained in determining confinement well obviously there is a knowing element to aggravated kidnapping but our argument is more about i guess that active ray is practiced rate than the men's right so it's what act did the defendant do as opposed to we're not really arguing intent in this case well we're where i'm going or at least what i'm attempting to address is act that if the defendant told the father with that st phone call he had the child and left it at that without an explanation at that time would that have indicated that this wasn't a confinement because he didn't intended to be one because he did he was candid and he was not the seed vault and i believe yours can determine that deceit is evidence of girl i would argue that it does not because st of all what he does immediately after speaking to alex is take piaf home and maybe we by all accounts think leave the apartment right after that so if he really did intend to confine her that kind of cuts against him taking her home cuts against that mens rea element and again i i think it more goes back to you know yes he did lie i mean he can't get around that he lies to the father he lies to the police and you know the state at trial argues that consciousness of guilt but i mean that that kind of begs the question consciousness of what i mean once you know once the defendant talks to the father he sort of realizes that he messed up that he he did something wrong so he knows that he made a mistake but does that mean he's conscious of trying to confine j f k and again we argue that it's not because there's just no element of imprisoning or restraining and how or whom is to make this determination is it a standard based upon what a reasonable person would perceive or is it based upon something other than what a reasonable person would  or in this case is it based upon what a reasonable child would believe well the the case law doesn't really answer that question and in this case i don't believe that the court needs to address that because under either standard objective or subjective i mean there is no indication to j f that she can't believe that she that she has to go with the defendant and so objective way there's nothing and then subjective testify that she didn't feel free to leave that day or that you know she was being held against her will if you were defendant took an eleven year old girl from her school bus stop without her father's knowledge and captor in his girlfriend's apartment with no way to leave for over five hours only the defendant knew of her whereabouts and as has been discussed he lied to her father he lied to the police and he lied to other people about who she was and where she was he isolated or restricted her movements and therefore he can find her and he's guilty of aggravated kidnapping in the court conviction now a defendant is not challenging the credibility of the witnesses and he does not contest that the victim's whereabouts were secret from her father and the defendant admits lying to her father about where the victim wants in councils conceding that the element of secrecy was satisfied and so this efficiency of the evidence claim is purely based on whether the legal definition of confinement has been satisfy them as  mentioning confinement is defined as the act of imprisoning or restraint in gonzalez the court importantly noted that whether someone is confined depends on the facts and circumstances of the case and so in this case the facts argues that she wasn't imprisoned or restraint and he's reading in an additional argument that the defendant never touched or physically restrained out of the victim in any way he didn't threaten her and ultimately in his reply states that the defendant did nothing to limit determination of whether to defend and limited or restricted this victim's movement was an issue of fact that the jury one hundred sols in his argument that the defendant didn't restrain her movement is completely contradicted by the facts again the defense to lead the victim to a completely foreign location his girlfriend's apartment and she was there for three for at least three hours in a total away from her father five hours with no way to leave he told a maintenance worker at his girlfriend's apartment that she was the victim was his god daughter which illustrates his attempt to insulate himself from suspicion of being with a young girl in the morning of a school day and then you went to sleep shortly after they arrived at the art the victim testified she had no cell phone she didn't know where she was she was with people she did not know defined her movement was restricted and she was confined the circumstances are particularly bizarre given the close relationship between the victim and the fact is if this if you wanted to spend a day with her easily could have asked her friends of his friend perth for permission and then as you honor find out the multiple lies that the defendant told throughout the day or indicative of and a guilty conscience i his lies are over and over again he lied to the victim about her school bus being late in order to take her to the park that morning he lied to the maintenance worker about who she was he lied to his good friend the victim's father in law where it's daughter was even while his father the father was frantically searching for he lied to the officer saying that he had just found the victim and was bring your own while the officer saw him walking back with the victim he lied about where he took the victim that day to the officers he said he took her to the to his house i turned out he took her so that is girlfriend's part and finally if i'm being returned home the victim was crying the shuttle messy red faced the jury hear him although he did find it argues there is no credibility issue if the jury has the opportunity to observe the victim testified and certainly can it has an opportunity to see her intellectual ability her to meet her testimony establish that the victim had a form of autism which something presumably this close family friend like the defendant would know and so the number of lies and the condition of the victim by this defendant show that he was in control of the victim's movement whereabouts that day in fact she wasn't able to go he had to bring her home because she was in no position to leave or get back to her own apartment   self so in this case the jury properly found that the defendant limited or restricted the victim's movement and therefore the element of confinement was satisfied and additionally the defendant's argument is legally incorrect argues that he never did anything anything physical to restrain the victim such as touch or physically carry her but there is no requirement in the definition of confine an individual moving to be restrained without the physical act of touching or restraining  one b confinement is against that child's well within the meaning of this section of that confinement is without the consent of that child's parent or legal guardian so even if she was three or four said hey can you take me home that the statements and that ability does not overcome the presumption that she was there against her will and that her movement was restricted under this theory that if a child was taken to disneyland and having a good time it says a lot i want to go on or i don't want to go there could be no kidnapping because she's not she's not confined because she wants to be there and that's just simply not in the last so in conclusion the facts and circumstances of this case demonstrate that the defendant took an eleven year old girls months miller place without her father's which only he knew where she was only he could get her back to her father sells her movement was limited her interaction with the public was limited he lied about her whereabouts to multiple people that when she finally was returned she was shopping crying this is not an error in judgment this is not a you have any questions i do thank you come dusk confinement required the victim's movement be restrained or restricted in any manner t her freedom of movement and ability to to go anywhere is restricted so one to specially once she's in an apartment without a cell phone unable to contact her father talk to anybody in the public other than these two people that she doesn't know or movement is absolutely restricted for ability to get homes restricted restraints i mean she's in that apartment and she can't get out  town so mr mccloy told us that the bus had left and the defendant i decided to take her to his girlfriend's house my reading of the record suggests  that he took j f before the bus arrive does that support your understanding of the evidence in this case it does it appears that because the bus waited seven minutes in the bus driver testified that the bus arrived on time waited till i believe it was six hundred and seventeen dollars in that the victim was never there see the defendant follows the victim essentially out of her own house think on the bus at either not calm or wasn't coming whatever he said but it appears that you lied to the victim about the time in order to get her away from the bus so i think that certainly i'm sorry thank you justice dorgan send you have any questions you you equate restraint with imprisonment and i don't that just the term confinement is broader than defendant claims and encompasses the act of imprisoning or restraining an individual so well i mean i would argue both are satisfied here that she's i if she doesn't know that she's restrained if she can't get home whether or not heard knowledge or what how mature this eleven year old is or how she can get home or not get home when she actually realizes that i don't think is is important is what's important is whether or not she actually is is is her freedom of movement restricted and it is and so whether or not she knows that or nat she and your honor pointed out had the statute presumes that she's there against her will with this older d person whether she thinks she can get out a way from him or she thinks she can just walk home whenever she wants is really irrelevant because she can't if she's taken all the way across home despite if she thinks i can just get home i'll just i'll just walk home she could have the intellectual ability of a three year old or a four year old or something and not know she's that to me does not is not germane to whether or not she's are street her thoughts or her ability that's why the why what i meant was even when you look at the spectrum of criminal acts that somehow inhibit the movement of another you know that it does seem to be  graduated scale and confinement or imprisonment seems as mr mccoy argued sarraf feel from the conduct that was actually committed here well i would begin by arguing sure she's guilty she the kind up in this case absolutely fits the statute if you look at it taking a thirteen year old away from her father where he has no idea i absolutely support an aggravated kidnapping charge and that's what the the jury found that's what that didn't support and they were the in the position if you the victim's credibility and  and the defendant's credibility you took this girl from her father merely because there's other lesser included offenses or lesser offenses harboring a runaways that defen when he yes when he calls alex back after i believe it's his girlfriend says alex it's called he's frantic etc the defendant calls him back and says you know no idea where he is i believe the kidnapping was completed when her she left the bus stop and she was unable to go back if she was if he if he she is with him as soon as you leave the bus stop with the defendant it's a secret from her father and now the only issue is at what point i she can find out what point is your movement restricted you could snake the argument that perhaps at the park her movement isn't restrained because she could still walk home or something to that effect or a maybe at the gas station but this is where the jury had the opportunity the individual the defendant knows this is the preying on her he lured her away from the bus stop has she been confined because her movements restricted or imprisoned is this person or this child able to mentally or have the mental abilities to walk back from the park or to a gas station or know how to leave this defendant's presence bill you know what i want to go home all that was before the jury and this person once she her movement was restrained i've heard  the kidnapping was complete i don't believe the lie is the the actual completion of the crime it's when her movement was restricted and that's i believe again an issue of fact for the jury ok thank you  ss mclaren i have no other questions thank you if the defendant during the trial seek any lesser included instructions no i  would it be fair to say that in interpreting the aggravated kidnapping statute that the perspective  is directed at the level of competence sophistication ambulatory abilities of the victim where i'm going with that question is the situation where the woman feigned their pregnancy and walked off with the baby and in that situation the baby's ability to walk away was severely limited by the fact that it had learned to walk yet and so and so far as that case was concerned the facts relating to that kidnapping related to  the nature and the level of confinement for a child who cannot speak who cannot communicate and cannot walk who basically can only cry and breeze and  just exist as opposed to this individual and possibly a more sophisticated individual a fifteen year old that's not autistic so is the aggravated kidnapping statute based upon the totality of the circumstances or is it based upon some as i think it was aquinas said a perfect model of  a victim well the statute as a whole idea i mean when you break it down into all of the elements whether something is secret is the simply able to stand up and go they would have a much stronger argument if the kid had a cell phone or would just get a result and they would have died stronger argument that there wasn't confined certainly there is the condition of the victim thank you thank you mr president that you just mr mccloy you may proceed your honour's the state mentioned multiple times in its argument f diagnosis with autism that really doesn't become a factor in this case because there's simply no evidence that that diagnosis women did her movement in any way  there's really no evidence how that diagnosis affected her what we do know is she was in th grade her father said she did chores at home the dishes the trash you got ready for school and the officer that interviewed gaffe that she was quote very high functioning and that comports with the need her trial testimony reading or trial testimony she gives appropriate answers she seems totally understanding of what she is where she is and what she's describing to the court so we're not saying that autism could never be a factor on whether or not a victim is confined but in this particular case the state simply presented no evidence that that her diagnosis in any way contributed to her confinement another red herring thrown out by the state is j f the parents when she arrived back  home she had just been on a long walk on a warm day kids clothes don't stay perfectly pressed you know and the best of circumstances let alone when they're walking across town for an extended period of time their hair doesn't  perfectly in place and saw the right of the scene where there's multiple police officers present her father is upset the normal reaction of a child is going to be to be upset in that situation and when she talks to the police officers she doesn't blame mr gains in fact her st reaction is to defend him she says uncle mark wouldn't hurt me so like the autism her appearance when she arrives at the scene really says nothing about whether she was imprisoned or restrained and on that point we are not arguing that this has to be a physical restraint i mean there are countless examples that you could think of where someone was imprisoned without physically being restrained that's not where or what we're arguing we're arguing physical or otherwise there's simply no evidence that j f k was confined and again how the supreme court has defined confinement is to be imprisoned or restrained and how was that how was she imprisoned when she was at the park how was she imprisoned when she's at the gas station then when she gets the apartment there is just simply no evidence that she couldn't leave the apartment and yes she didn't know where she was but again there is no evidence that if she said i wanted to go home that the defendant would not have immediately taken her home especially when he does do that right and meet me after he talks to her father so this is not confinement this is not being in prison and not being restrained and the final point i will make is this i do not believe that the evidence from the trial record that you can say that the bus arrived after the defendant left the bus stop j f and her father say that she left for the bus station at six o five k m s father to the defendant left five minutes later which would be six hundred and ten dollars and then j f testified that they waited at the bus stop at one point she says for a little bit later she says for a very long time and the bus driver says that they were there she was at the stop from six hundred and ten to six hundred and seventeen so someone is mistaken about these  times and i don't think from the record we can imply any criminal intent from the defendant saying that her bus was either late or it already gone because either she was late or  the bus was late but saying that the defendant lied about the time is simply not supported by the record and so with that we again ask this court to reverse mr again his conviction and i welcome any more questions thank you justice bridges if you have any questions i have no further questions thank you thank you justice dorgan some of you have any questions i do not think you appeal ok are there any other questions based upon my question