good morning your honor is in may please the court my name is brandon and and i'm here on behalf of the plaintiff in appellate jane doe the reason we're here today your honors is to ask that this court vacate the verdict below and remain and for a new fair trial there were a number of erroneous of adventure rulings may each one of which is the basis for remain and and which in the cumulative presented to the jury entirely one sided version of the events and also confuse the issue the only true issue in the case which was consent and prevented them from actually evaluating it you raise a number of evidentiary issues i guess what i want i want to inquire put no five witness in this case and that the district court judge apparently from what i can tell and the record i had was going to allow her testimony for a limited purpose and that was to  foundation for the photos that were taken in front of the las vegas sun tell that were ultimately that photo was going to be the basis for a testimony for an expert regarding damages i believe but somehow though at some point that the purpose was it was expanded of her testimony and it wasn't limited to that basis can you give me some additional details as to what happened there yes your honor and that's correct the purpose of her was supposed to be only to lay the foundation for those photographs and all of this bad character evidence first of all we we believe that admitting the photographs at all was erroneous because it was in violation of for twelve but also and there should've been a for twelve motion filed fourteen days prior to trial which was never done and so essentially that evidence was just sprung upon the court all these bad character evidence tell me the timing the timing the evidence came out and there was never an offer of proof as to what was but you were there was it was something that was filed before on the eve of trial her declaration apparently was submitted on that you could so it wasn't i mean you had some notice and then it looks like there was a subject of much discussion i'm just trying to figure out what was the reason for the release from your perspective what were you told terms of how that was late breaking but and also explain why that should have been allowed i mean it was a mission by a party of pointed comment to this to this to this witness with respect to the liability part of this case well the court the district court actually knowledge that it was not for liability was only for damages initially and well but the bad character evidence should have been brought in under four twelve the witness testified as to the plaintiff's staying at hotels paid for by men so she would have mounted to calling her a prostitute but he allowed it to come in based on apparently the briefing he referred to the briefing by the defendants and he said for the reasons set out in that briefing and allow it to come in and so at this point i just want to get your first fact in your views with respect to that  but you know it looks like he did away none of the of the testimony based on her declaration on whether the probative outweighed the prejudicial aspects and made a ruling and let it come in i understand that it's pretty damaging testimony for you and that's why i wanted to ask you about it so what's your what's your best argument as to why it should have been allowed or any explanation regarding that that you think we should know about i don't this report  long twelve you know and it seems to me that you're you're picking on three evidentiary issues in the course of a very lengthy trial and they're peripheral main issue in this case was what happened that night between doe and the three defendants and you did a good job of presenting your case that what happened at that and that evening was was nonconsensual that she was raped the defendants had it seems as i look at the record powerful defenses to that presentation which at the end of the day the coup the jury board and we had a nine day trial this jury was out you know  your evidence concerning the nine question i mean came in and the jury had an opportunity here that they had an opportunity to hear the defense and they just didn't buy your case they stayed out five minutes and you know ruled against you so that they were out for a few hours but beside the point is consent at the apartment and the evidence that came in allowed the jury to evaluate a notion of unlimited or standing continued consent there should not have been any evidence about the beverly hills house incident at all and the fact that we should court initially ruled that it would come out so that the it was highly prejudicial evidence couldn't have come in and the can evaluate the true issue the only issue was consent of the apartment and whether or not it was intoxication or not so i don't believe that's correct to say that they simply bought their version of the case because they didn't hear the full version of the of discretion you know this is is it is your notion that the jury heard too much or not also your honor that there was evidence that was favorable for the plaintiff that was excluded such as the defendant's prior requests for group sex which were denied good morning your honor mark bowden for all three respondents my co counsel mr monaco did not make the trip in two of the responders right now and then don't have dinner here with us today this of attention and a notice of with respect to mr chavez late breaking into that into the case i don't think ms chavez was late she was one of i think out of the fourteen witnesses  and that's what i wanted to find out because i was having trouble getting input in this in context because what i did see is that the judge seemed to initially only allow her testimony for the limited purpose of laying the foundation for the pictures in fact he gave the jury a limiting extract instruction regarding that so there's a little bit of confusion in the record regarding her testimony and then all of a sudden after the admonition she's allowed to testify and the judge doesn't really nice the jury of the admonition from what i can tell or you tell me so you can just fill in some of the blanks here i'd appreciate it just to get a better sense because as you will know pretty damning testimony actually in the country overall optics of the case because she was probably in the last two or three days i would say that based on my observations case was over by then but what we wanted her for in the well in the rule so she's the only person that i thought that you  know the plaintive told her that she was basically lying i don't think you had that testimony from anyone else that's pretty prejudicial i understand it's also probative but so that's i'm just i'm like a lot more information about miss ch she came about what the outcome of this ruling that was only limiting initially happy to do so so when ms chavez testified that the plaintiffs had already been cross examined twice and all three respondents already testified and i believe both toxicologists authority does provide but any of that what we elicited from her and i believe this is considered over a four o three objection in this this isn't even a close call so it's not just that incident zach looks after the uk and that's i just want to put some context go ahead and we elicited from gabriela chavez that during the vegas trip these are two girlfriends talking jane doe told her that she had consensual sex that night with all three minutes she was disappointed that derrick rose wasn't more jealous about the fact that she was free to have sex with the other two men ok now secondarily if you look closely at the transcript what you'll see is that what counsel calls bad character evidence a lot of that came out in a very sloppy cross examination of his where i was not doing anything other than sitting at counsel be able watching with amazement as much worse facts came out that i did 's mouth during questions by appellants counsel to the effect that jane doe was a pathological liar and revisiting this topic in a way where it kept going on and on and on and i've been doing this for a long time that was a witness whe cross examination should have been three minutes at the yeah so but you're still not tell me about the timeline why or why was there all this activity regarding her declaration right before the trial and then the judges and during the trial making inconsistent what seemed to be a little bit slightly inconsistent rulings saying this was only going to be limited for laying the foundation explain that to me sure i don't have any recollection at all of there being anything unusual or belated about this i think the the rule sixteen disclosures as to this witness's testimony were very simple and very straightforward and appellants counsel objected on four three grounds and tried to exclude some of the party admissions and i think my statement to the judge was simple it was if two girlfriends go to las vegas three weeks after an evening of five hours of consensual sex involving four people and the plaintiff says to her girlfriend the fun night the sex was consensual i just wish she was more jealous about it why did the district court give a limited instruction saying it was just going to be used for laying the foundation for the picture i don't remember that at all in fact that's what's in the record that tells the jury the testimony of mr chavez is going to be limited just for the laying of the foundation and then at some point later there's something appears to be some you know discussion and then having to look really closely to see if i know how i'm going to let this in but for just a bit for the reason that you that the defense states in their in their memo that's it that's it but he never really said anything else and so i was trying to figure out what's the backstory here what's the real story here of where is your honor i believe there was as four zero three hearing it may have been a sidebar that was fairly straightforward about the simplest if you shoe of party admissions by jane do on the issue of consent they are highly probative you know not particularly significant in the context of a case where the jury's primary focus is going to be on evaluating the credibility of jane doe and the three respondents but nonetheless when a plaintiff in this sort of a case makes an admission of consent three weeks later to a close girlfriend it obviously comes in i apologize to the court i don't remember the optics of ms chavez being particularly significant and she was not a long witness she was late in the case and i don't believe she was on the stand for more than maybe thirty five minutes total probably about eight minutes from our end looks like the district court had  do make some decisions about what statements were going to come in what statements were not going to come in and that one point he said well anything before this day i'm going to find it can't come in because then she might have had a motive so that's not going to come in because she would have a motive to lie can you tell me why that was appropriate charging tell you why those rulings were one hundred percent correct and i think this is clear from the briefing but you may have just mixed together what what is being referred to as the past refusals which are texts from the may to july time period and then a series of texts in the september time period i'm going to address both  to time the past refusal texts counterintuitive we wanted those texts in and felt they were relevant to showing our consent defense in part because there's a dialogue between respondent rose and jane doe they've had a twenty month consensual relationship that is sexually what twenty somethings call a friends with benefits relationship with some group encounters one in chicago involving another woman and some discussions about group encounters involving additional men the judge decided under four twelve to protect jane doe to exclude all of those allegedly past refusal texts the reason we wanted them in is twofold they contained powerful and admissions by jane doe concerning being upset about what she perceived to be a break up and to some language that very much indicated a potential willingness to very correct ruling because none of those text seventy relevance to consent and none of them contain anything even close to a party admission by any of the three respondents and what the judge realized was  this is a plaintiff who after the follow up day at work remember this is a plaintiff where the undisputed record is both toxicologist said she was sober she opened the front door to the street the apartment door and the bedroom door woke up the next morning smiling acting normal with her roommate her roommate was present during the entire encounter and then went to work put in a full day of work but then talk to a lawyer the judge's view was since this has nothing to do with consent or that evening and some of these e mails look very much like when she's demanding cab fare after the fact she's starting to posture and turn this into an extortion scenario and it has nothing to do with consent i am not going to confuse the jury with evidence that appears to have no probative value at all but is grossly outweighed by the prejudicial impact and the confusion factor this is again a good ruling to protect the plaintive because we were ok with a lot of those techs coming in because she lied repeatedly on the witness stand and in her texts about buying a sex belt which she didn't buy about going to a girls on girls store which didn't exist about accusing her friend groff of asking for ecstasy when grof on the stand admitted i didn't ask for any ecstasy and i don't do ecstasy and then demanding money from mr rose the day after three or four of those texts which were excluded and what the judge did is he said i'm not going to tie up this trial on a bunch of non provocative texts that each side will try to use to their strategic advantage it's an all or nothing scenario because i don't see much probative value here and it's not related to consent on that night it's out for all of you again i want to be clear here the standard of review abuse of discretion governs these are correct evidentiary rulings we are i'm not here defending close calls i'm not here defending one or two small errors i've got a record with a really smart trial judge who got every issue right and that's why this is a meal is obviously frivolous and all of these evidence your arguments are wholly without merit and it's the reason we have asked for five thousand dollars in sanctions against counsel only not  very respectful of jane doe throughout this trial including at closing arguments we even said to the jury during closing we're not here to judge anybody for their sexual practices or their decisions in the bedroom this is a case involving the issue of consent and consent at ten pm at a very early hills house does not mean there was consent at three am that's something the men have to prove to you this appeal of all the appeals you've heard so far today i frivolous ogust ninety five percent of the trial record was omitted by appellants counsel think about that you come to court on a fake appeal and all you do is cherry pick the record and go i'm just going to make my appeal like this any text that was admitted that i don't like i'm just going to say that's an abuse of discretion and any text that was excluded that i think i could have argued in a particular direction that's abuse of discretion that is what a sham this appeal is that's why the emitted ninety five percent of the trial transcript that's why there were seven delays and multiple violations of your rules and certifying the record thank you very much thank you it's on our one seventy six he said is jane doe a pathological liar the witness testified definitely now to start at the beginning it was a rule twenty six violation he joined us in the jury entitle to hear them well clearly that went beyond the scope and in addition the district court excluded text from earlier in time to both mr allen and mr rose so why would this testimony from from this trial that's come in if those text messages not com these rulings that this trial court judge made during the course of a two week trial but we haven't heard a word from you as to why any of them amounted from four to abuse of discretion in other words are just that there were so incorrect why because it is it will taint the jury's mind and when they hear testimony that in fact they cannot think about the actual issue was it what it was that was relevant with respect to some credibility issues that had been raised and then the district court limited the evidence to the to the text not not to pictures or to the actual item itself and and said and i think instructed the jury to say any testimony about the specifics of the sex bell and pictures early said this during on the record to the lawyers any testimony about the specifics of the sex spell any pictures specifics of what activity it is used for etc it is sufficient for the jury to know that it was some sort toy and that's it brought into the house he limited all of that and it appeared that it was relevant to whether or not she was being credible which the defense get to question and when we have an  of consent it was cute wanted and i think they did not need to bring this out for the credibility and you get that then that's an argument that you can make but at this point in this litigation you have to show that that was an abuse of discretion and that's you know somewhat of a high bar at this point and so i'd like to hear your best argument as to why it was an abuse of discretion well it's just not relevant to the issue of consent at all and again it's cumulative in that regard of credibility and on top of that with combined with the images that were barred before twelve the court actually knowledge that the images were bargained for twelve and just didn't perform the analysis excuse me the text messages were bargained for twelve didn't perform the for twelve analysis you know i only have a limited understanding of it as well but you know the real point your honor is that this was a gift given to her and she was bringing it as a gift to mr rose it has nothing to do with the issue of consent the district court even acknowledged she could have brought homemade cookies it has nothing to do and also it's very point to note that none of the defendants even saw it or alleged it was used which is why it's highly prejudicial not one of them side or alleged it was used to the defendant stated that they hadn't even heard about it before during or after the incident and so again in the cumulative because not only should the sex but they've been excluded but the entire beverly hills house incident should have ongoing consent so the relevance of consent  you you disagree and i get that that's that's your job but it's not particularly helpful to us because it doesn't address what we have told you we are concerned about which is your case for abuse of discretion the fact