point the trial court's denial of mr hall's proposed jury instruction was clearly erroneous and where the evidence was closely balanced this error alone tipped the scales against mr hall at trial the appropriate standard twenty jury instruction is to be given is when there is any evidence court explained that the purpose of an instruction quote the purpose of an instruction on a lesser offense is to provide an impertinent porton rd option to the jury which believing that the defendant is guilty of something but uncertain whether the charge offense has been proved might otherwise convict rather than the fended of the greater offense similarly in people versus novak the supreme court held that the trial court's denial of a jury instruction on a lesser included offense kept the jury from reaching the proper conclusion applying the standard it becomes clear that the trial court should have been should have given mr hollis request an instruction the stay concedes that possession is a lesser included offense of dissemination there was evidence put forward that mr hall was guilty of possession as he is mid as much on the stand during his direct examination therefore where there was not just slight but conclusive evidence of mr hall's guilt of possession the trial court heard and not giving the instruction the question then becomes whether the evidence was closely balanced as noted mr hall's reply brief the bill of indictment and the amended bill of indictment charge mr hall with knowledge of the contents of the video in question quote and with the intent to disseminate the state moved even amend the bill of indictment in a pretrial conference but instead of eliminating intent from the charge it left intent and as an element the only state sought to prove disseminates offers to disseminate exhibits or possesses with the intent to disseminate the alleged child pornography all of these approaches require some form of intent on the part of the defendant the jury had evidence that mr hall had no intent to disseminate the video in question mr hall testify that he took steps to make sure the files he downloaded would not be shared with anyone including using a program called c cleaner to clean the erase files from his computer and deleting the videos of mealie after he viewed them the jury had a legitimate question of fact as with whether mr hall intended to disseminate the video in question without the lesser included instruction that mr hall was entitled to the jury was put in the appropriate inappropriate position of knowing mr hall was guilty of at least some crime in either one convicting them of the greater offense or acquitting him despite his admitted guilt of the lesser included offense of possession because the jury had a legitimate question in fact before it on the potential charges mr hall could be convicted of they could have decided that mr holt does the video without any intention of disseminat summary of the appropriate standard of trial that required the trial court to give the instruction on the lesser included offense making the error a clear and obvious the evidence was closely balance because intent is a necessary component of dissemination and mr hall presented evidence that far from intending to disseminate the video he took steps to make sure that no one would ever get it from his computer this plane air alone tipped the scales against mr hall because without the instruction on the lesser included offense mr hall was convicted of the greater offense therefore the de that none of the evidence contested in this appeal prove any of the elements of dissemination realistically the most the state can argue about this evidence is that it did not serve to appeal to the jury's emotional responses a supreme court has held that quote prosecutorial misconduct undermines very foundation of our criminal justice system and that multiple instances of this conduct in the course of criminal trial threaten the trustworthiness and reputation of the judicial process the reason the state brought the evidence questions not because they sought to prove out the elements of dissemination or possession but to keep the jury's attention squarely focused on the admittedly graphic nature of the charge legally possessed ten time is not true of any element of the charge but they did serve to appeal to the jury's contempt and discuss for those who sought out those types of images the video question clearly constitutes child pornography as a stay concludes concedes in its response brief and the only reason to play it in full is to force d the jury to sit there twenty one minutes of child pornography not to prove any element of dissemination line of questioning asking mr hall to admit that the video met the elements of child pornography even though he had done so only minutes prior during his direct examination was at best humility of his testimony the only reason i asked those questions and make mr hall admits the elements again is to remind the jury of th specific elements of the twenty one minute video they were forced that finally the use of the word repulsive twelve times by the state throughout cross examination closing arguments is facially prejudicial regardless of the context in which mr hall st used the word the state went on to argue that the only reason mr hall exercised his constitutional right to testify on his behalf was so the jury would not consider him repulsive the state may use the defendant's statements against him but they may not insinuate that he was lying without some sort of proof the states are painted views that this word was meant to implicitly instruct the jury that a conviction based on a moral repulsion was not only allowed but the correct course of action no part of the contested evidence in this case is probative of the issue of dissemination even when there are some argument as to the evidence as prototype nature it is far outweighed by its incredibly prejudicial nature the state did not have to bring any of the evidence in order to convict mr hall but it did have to bring this evidence if it wanted to appeal directly to the jury's as my final point defense counsel is ineffective for failing to attempt to limit this evidence in any way in arguing against this point the state largely relies on trial strategy and an entirely speculative contention that mr hall's defense attorney would have lost any challenge this evidence the speculation argument can be dismissed outright as a contested evidence is obviously prejudicial on its face and will never be able to know how any challenge would have been decided because none was made after the trial strategy argument any attorney worth their salt would have been moved to their feet at several points throughout the trial it should have become clear to defense counsel the state was relying almost exclusively on an emotional appeal in this case and no point to defense counsel do anything to limit or prohibit the evidence that did nothing to prove dissemination and only serve to appeal the jury's emotional instance because defense counsel failed to object the state was allowed to constantly bludgeon the jury with prejudicial engine images arguments and questions that serve only to insinuate that the jury should convict mr hall because the community doesn't take kindly to those who view child pornography this failure fell below an ejector vly reasonable standard and mr hall was convicted because the state was allowed to bring in this obviously prejudicial evidence  cordingley mr hall especially requested this court vacate his conviction and his cause for a new trial with effective counsel you conclusion mr hall suffered an unfair trial based on the trial court's failure to provide the required jury instruction the state use of obviously an unduly prejudicial evidence the defense counsel failure to do anything to limit the impact of that evidence the trial court's error represents plain error because the evidence was closely balanced and that error alone threatened the tip the scales against mr hall the trial the state's evidence or violations in defense counsel's failure to do anything to limit their prejudicial impact constitute plane air because they threaten the integrity of the judicial system in states on a conviction based almost entirely on an emotional appeal and defense counsel did not zealous was not requiring intent your honor a review of the statute as well as the words used in that statute any realistic interpretation of that statute would require intent however even if it not a necessary element the important issue here is that the jury was not given the appropriate structure on the lesser included offense and they could have still found that he did not disseminate the video even though he admitted that he did please us the child pornography or the standard the lesser included offense jury instruction and also discussed the dissemination issue i'd like to stand on the arguments in my brief as to the other issues unless the court has specific questions about that lesser included jury instruction the trial court did not abuse its just pression in refusing the defendant's jury instruction on the possession of child pornography the state agrees with the defense that the evidence needed to support a lesser included offense instruction is just some evidence very slight however that's not the end of the inquiry the evidence should also be sets that the jury could only find the defendant disseminated the child pornography video in this case and that is undisputed the defendant downloaded the talker not graffiti video from a file sharing network he agreed to the terms of that file sharing  is sharing files the video was on the defendant's computer available for distribution or download and the definitive admitted he knew the files downloaded to his computer were available for download by other people anyone who discovered them detective wallace's computer did in fact download that video from the defendant's computer and only the defendant's computer so the video therefore was disseminated these fact undisputed the definitive stuff admits the video that detective wallace obtained from his computer was the video the defendant downloaded from the file sharing network so the defendant himself admits the dissemination occurred there is no evidence that the video was only possessed and not disseminated that would need to be present in order for the defendant to get the lesser included jury instruction and that did not established case law that there is no right to a lesser included offense instruction and the court also considered the testimony of detective wallace and the defendant that the video was disseminated in denying the defendants lesser included instruction the court did not abuse its discretion in making that decision next i would like to discuss the dissemination and address justice bond's concern that the intense and moved from the charge it was removed from the charge at the jury instruction conference the state moved to strike with the intent to disseminate phrase and the court permitted that over the defendant's objection the defendant acknowledged this in his opening brief on page six but he now asserts that the state did not do that but that isn't accurate there is no requirement in the jury instructions for the state to prevent tent because the state proceeded on actual dissemination and not possession with intent to disseminate and additionally the court need look no further than the child pornography statute for a definition of dissemination it is not necessary to resort to black's law dictionary to get that the child pornography statute in subsection f's one double level i defines dissemination in the jury was so instructed that dissemination means this for purposes of the offense of child pornography the word disseminate means to make a depiction by computer available for distribution or downloading through facilities of any telecommunications network or through any other means of transferring computer programs or da computer there is no mental state provided in those jury instructions and also not provided in the definition of dissemination so therefore intent is not an element in these jury instructions stated or implied knowledge is actually the mental state here in the defendant emitted he knew any video he downloaded from the file sharing network was available and could be all the state had to prove to me the elements of this charge or that the defendant had knowledge of the contents of the video he did he admitted he did in his interview with the place and also in his testimony at trial he also admitted that he just emanated it which is an element that the state has to prove and he did that he made it available for distribution or download he knew that by downloading it he was making it available and it was actually disseminated to detect wallace the defendant testified he knew anything he downloaded to his computer was available for distribution or download me to other people who have used the same file sharing network he admitted that the file downloaded by detect wallace was in fact the file that he had downloaded to disk computer from the file sharing network so the state has met its proof of dissemination based on the definition given in the statute itself we also had to prove that he either knew are reasonably should have known the child in the video was under the age of thirteen they didn't defend it admits that he prefers children ten to twelve years of age preteens was a search term he used in looking for such videos the hentai depicted toddler aged children certainly younger than the age of thirteen it depicted young females with pigtails no  body hair no muscular or breast of element so certainly that hint tie was similar to the defendant downloading the child pornography the victims in that  case were younger than the age of thirteen and the hentai which the defendant complained was relevant to show that the defendant made no mistake and downloading this video  younger children under the age of thirteen and the definitive mits in his reply brief on page fourteen that the child in the video was indeed under the age of thirteen there is one other issue that i'd like to address the defendant indicates that evidence that this video was disseminated to law enforcement should not count in this case he argues for the  time that because detective wallace is the won who downloaded that video and he's the only one that that shouldn't count as proof of dissemination that's merely a can conclusion there's no argument presented to support that type of material to just anyone law enforcement if they if that is not proof of dissemination they would have to rely on persons who were downloading this child pornography themselves to report the defendant for doing so i think that's a pretty absurd expectation is not going to happen and it would you know erode the child pornography statute if in this case regarding the the hentai and the other downloads that's address in our our brief we think that that was not evidence that should have been excluded for the reasons that we state there are exceptions in the state of illinois for that type of evidence to be presented in cases of child pornography and other sex acts so we think that that was proper we would ask that the court consider all the evidence at trial the evidence in the state's answer very and the arguments presented here today we would ask that the test that the evidence was closely balanced and rd stage discussion of non contested elements of the offense dovetails with mr hollis process to our own misconduct claim as the st point the state keeps consistently arguing that that if that a defendant is choir to prove that the jury could not have possibly found him guilty of the greater offense in order to receive an instruction on a lesser included offense again that is not the standard the standard is whenever there is some evidence even slight evidence demonstrate is guilty of a lesser included offense that instruction should be given as supreme court stated in both hamilton and novak the reason is that if the jury believes that a defendant is guilty and in this case mr hall admitted to possessing child pornography a lesser included offense then they will necessarily want to convict him of something knowing that he is guilty rather than acquit him and so in this case by not giving a lesser included offense the jury was forced to quit on the greater charge and that the ultimate decision is up to them where they were not given the chance to consider the lesser included offense they were forcing the victim on the only charge given when they knew he was guilty of some crime as the nd point the state does not contested a at the evidence was closely balanced and that's an important point that the only issue the only evidence as to dissemination was detected wallace's testimony and mr hall testified that he took steps to make sure that none of the files that he downloaded were ever disseminated or ever got out to other people and that was a question of fact for the jury to decide it was up to them to decide whether he was guilty of the lesser included offense instruction that he should have been given the jury should have been given at garches case or the greater offensive dissemination finally as to the rd point the state discussion of non contested elements of the offense dovetails with mr hollis arguments about prosecutorial misconduct the state wants to this court as well as the jury of the trial court level to be so focused on the admittedly brutal nature of the charge that they instead do not focus on whether that state followed the rules of evidence whether counsel was effective in zealously representing his client or whether the baseline standard for lesser included instruction should be given the state argues that the hentai images were  useful for propensity or that they demonstrate mr hall's preference of child age but he admitted to those things on the stand and there was incredibly less prejudicial information and evidence that could have been brought forward to prove out those points the state wanted the jury to see cartoon images of children being sexually abused because they wanted to conflate that with mr hasse possession of child pornography they wanted him the jury to think of him as a bad person who should be convicted because he was