to address the claims regarding insufficiency of the evidence and in particular the two claims upon which the district court granted the writ on those were two counts of sexual abuse under jackson the question is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt and the state gets to define those elements so the question becomes how did kentucky define forcible compulsion kentucky defined forcible compulsion as physical force which overcomes arness resistance or a threat of physical force which creates fear of death or injury which overcomes or has resistance and that threat of physical force can also be an implicit threat doesn't have to be a stated threat in addition in fact is i going to the district court's judgment that that left two counts by the suppose it depends on on how the federal court wants to handle the sentencing but the state's position would be and i believe we we brief the habeas remedy for the court the state's position would be that that subtracting those two counts of sexual abuse would not change the number of years of the sentence that's absolutely correct that's correct so the precedent it's the it's the testing of why this wasn't viewed as sufficiently compiled compelled it is your honor  i mean it would go back to the state trial judge would make a decision whether he wants to change the sentence or she wants to write well if that if the heaviest has been granted is that what you mean just on the two just on the two i think that the the federal court would order the state court to expunge those two counts is what would happen and then yes the state court could decide and you give us the kentucky cases that deal with surprise is in ill constituting force i didn't see any kentucky cases that specifically dealt with this situation coun for price cited a washington case that had to do was surprise but the facts were a little bit different there in that case the fellow grabbed a counselor's breast and she didn't do anything he took his hand away of his own volition and in that case the washington courts found that honest resistance was not overcome but in this case that's not what we had in this case the victim did jerk away from him and the argument of course under jackson the jury can  timing of these two offenses in other words can you say would they be further after other offenses these were the very first two offenses so we can't even say that he knew that she was going to resist and therefore he got the first well she was a fourteen year old child he was a grown married man twice her age at the time she grew up  sheltered religious environment and so i think it would have been reasonable for him to assume that she wouldn't have been excited about that in fact she testified at some point during her testimony that she didn't even know what the objective was of certain sexual contact and all of you know i looked at the statute and it seems to me there were any number of alternative ways to prove first degree sexual conduct in that well that's exactly right and i don't know why the prosecutor chose to instruct the jury as the jury was instructed i can't answer that but yes there were other ways that the jury could have been instructed ok and then when so you're telling me there really isn't any cases that deal that have language that could be applied to this i don't think there's a specific case that i've seen that deals with a surprise attack but i don't think we need that based upon how the statutes written and how kentucky define forcible compulsion at the time for instance it's taken from the subjective viewpoint of the victim the defendant doesn't have to be able to make good on the threats  doesn't have to struggle if struggle would be dangerous or futile and in this situation she didn't have time to struggle because he grabbed her and so i think there are a couple of arguments that can support the conviction on that one as he preempted her earnest resistance and price conceded on page twenty six of the second brief that are his resistance can be preempted and another way to support the evidence is he grabbed her breasts and she jerked away from him but there is a moment when he's hanging on to her breast and she's pulling away that that he is overcoming her earnest resistance there is a moment where he's still got her and she's jerking away there's no time limit on how long the sexual contact has to last and in addition another way forcible compulsion can be proven is if a threat of force overcomes well creates fear which then overcomes her earnest resistance and the victim testified she was on the stand for eight or nine hours and she was very detailed about her fear of the defendant and she feared him both physically as a person he had a very explosive temper he cracked or windshield before he hunched a hole in the wall she was aware that he had choked a fellow in the church members of the congregation had to pull him off of the church he spoke on the pulpit about his anger and about his temper and his inability to control it so she was afraid of him from that standpoint but she was also afraid of him because they were taught that he was anointed he was the chosen one he was the man of god and that people that rebelled against the church would die or not live very long or something tragic would happen to them and she had parents that tragic things had happened to her mother was a double amputee your father was a paraplegic so she believed that something could happen so she feared him both physically and spiritually and she testified that she absolutely felt like if she resisted this is on page fifteen thirty five her testimony if she resisted she felt it would result in death or injury or disease so that's one way to prove forcible compulsion without worrying about whether the grab and the resistance were simultaneous or not we definitely had forcible compulsion if you look at her fear and that was pervasive really on every single count in this case the only thing that that made these two a little bit different from the other counts was the fact that there was that simultaneous grabbing and and pulling away is that answer your question  right it's a places thank you counsel i just have one question would it be possible for me to reserve the remainder of my time for rebuttal you may thank you very much morning your honour's may it please the court i would like to reserve five minutes of rebuttal time to me thank you very much forcible rape and other forcible sexual offenses are crimes of violence they're not crimes of psychological manipulation and kentucky law reflects this the definition of forcible compulsion requires force that overcomes earnest resistance that is a fight in which the defendant  it requires a threat that overcomes earnest resistance by placing a person in fear of immediate death or physical injury to himself or another person or in fear that he or another person will be immediately kidnapped and i'm reading this the statutory language because i think misled and perhaps inadvertently misread it because she did not include the immediately part of that the kentucky supreme court affirmed the conviction over a sufficiency challenge fears that she or members of her family might suffer some sort of extra worldly supernatural consequences down the road is constitutionally sufficient to establish forcible compulsion under kentucky's own statute to put it in terms of the d p a the question is whether the state courts conclusion that the evidence was sufficient constitutes an unreasonable application of jackson versus virginia and judge cook you wrote in part versus rannoch of at the standard stringent but it's not insurmountable and jackson version is virginia is a case where the supreme court itself said some evidence is not enough it has to be evidence sufficient to prove beyond a reasonable doubt the elements of the statute and yes kentucky gets to define what the elements of the statute are element a b and c but once it does so the click gets to decide what what evidence is sufficient to prove that element of the crime i'm not going to defend all the prices conduct that was inappropriate on a number of levels but engaging in bed havior or taking advantage of an imbalance in age or experience doesn't amount to sex crimes by forcible compulsion sex crimes by forcible compulsion forcible rape is a very serious crime not only because it's a violation of the woman but because of the violence or the threat of violence that accompanies it so we can apply what john price did but he's sixty nine year sentence cannot stand jackson versus virginia said it too that constitutional right is not confined to those who are morally blameless touching incidents which which is my mistress spoke about the state has taken the position at various times that you don't get a free grab and if this and this is forcible compulsion because otherwise everybody gets a free grab but that's just not true under kentucky law i'm consented to contact with a with a person is a crime under kentucky lot was then it is now a fourteen year old can't consent so if you touch the breast of a fourteen year old you have committed a misdemeanor this is a relation ship that lasted over many years john was john price was convicted of two rape counts that that counts for forty years of his sentence and i would like to address those now because they are so significant t p and price started having sexual intercourse when she was eighteen almost nineteen she had completed community college she was going to us i which i think is university of southern indiana or southern illinois i'm not sure which  the first time is described in her testimony she is working with him she is almost she is almost nineteen years old she goes into his office she knows it's for a sexual purpose by then they have developed some kind of a code she testifies that she is lying on the floor on a red shag rug she doesn't testify about how she got there she doesn't testify he pushed her down or tripped or anything apparently she she laid down and then she describes it as a quick and hurried sex act one that doesn't she doesn't seem to have been a very eager participant in it a very enthusiastic participant in it but there was not evidence of that she struggled against him and lost that struggle for that she was placed in fear by his threats now yes fear can be subjective it's the victim is the complainants fear which matters but the fear that that she entertains has to be caused by the defense threats and the twits have to be of a particular nature they have to be threats of immediate physical harm immediate death or immediate kidnapping now she had lots of fears but they didn't rise from his threats they arose from her her worldview she rose afraid of humiliation and yet there was testimony that that price had anger but when she talked about his anger she said well when he got angry angry at people he humiliated them humiliation is not is not death physical injury or kidnapping she was afraid the earth might open up she was afraid that she could get cancer she was afraid someone would be in an automobile accident she had a bunch of fears but they were not fears that arose from threats of violence that he made against her and that's what the statute requires the second great count involved an incident what happened when she was twenty two years old she is still working for him now remember they started having a sexual intercourse kind of relationship when she's eighteen it go the last  recount is when she's twenty two she continues to have sex with him they travel they take a trip to i think it's london amsterdam and africa and the last time they have sex is in africa they come back she continues to work for him for some years people ask her you know they notice that there's a relationship going on they ask her about and she denies that anything is going on i'm john price's wife asked her about it she denies that there's anything inappropriate going on kentucky supreme court affirmed this conviction not because if ound evidence of thirst that overcame her or her resistance that he won this physical struggle not because she had fears that arose from his threats but because of cop because of this religious indoctrination because she because john price took advantage of her niagara ten that's not the crime of forcible rape i'm sorry but something must have distinguished these two occasions from all the six they were having while they were traveling you know well first of all they should could be charged with sex that occurred outside of those one crimes but but this indictment did list i believe originally nine counts of forcible rape because she said they had sex a lot i think it was i don't exactly remember how many times but i think there were nineteen rape  all of them all of the except of these two they were thrown out before the case went to the jury either before a trial or because there was not sufficient evidence to establish to establish the crime the trial judge did to find that these two rapes were distinguishable for some reason but frankly i think that the same as the others that was not evidence sufficient to establish forcible compulsion under kentucky's very specific statute  let me ask you this and i'm counsel were originally in the in the end with that would that have constituted what you're referring to is sexual intercourse and does it represent their entire history of sexual relations no i don't ever other than out of kentucky no no because f p testified that that there were many many many occasions on which they had sex i'm not sure she said many many many but she couldn't pin down when away or so so if so she so they did not become the subject of a rape charge and presumably those were some kind of consensual contact position was that it was consensual contact but even if she was not even if she did not really in her heart of hearts consent she went along with it for i don't know some reason that we don't know and judge daughtry to answer your question about whether any of the counts were consensual and he of the rapes were consensual the answers absolutely not no i wasn't talking about i know you know the statement was they had all wrong sexual relationship i'm trying to figure out if if the nine counts in the in the indictment represents all the sex they had in the state of kentucky or whether in addition to these what the state says are forcible acts there were other acts that weren't forcible that aren't in contained in the indictment i saw your case just context i might write it she testified as as ms uyghur stated she was correct that they they had sex a number of times man y times i don't know how many times but none of them were consensual ok so your position is the sex they had was absolutely she was afraid of him the entire time she used words like terrified petrified paralyzed she didn't think that she could basically get it get out from under him physically anybody ask her why she didn't just walk off yet she was asked that at trial and she said that she testified that she was brought up in this church she didn't want to hurt the man of god she was taught by price that they had to serve him and she considered that part of her suffering and in addition price had told her that he had he had talked to god about it and he had received grace from god for having sex with her so but counsels overarching point is that this does not match the kentucky law that it's the psychological manipulation doesn't work it needs to be physical force and threat of physical harm i say well we did have more than just psychological manipulation we did have force and we did have t physical harm she as i explained earlier in my opening argument she was absolutely terrified to have him because of his explosive temper because of what she had seen him do and so on and so forth so she was i mean she having your brief but  doesn't sound to this usually if you focus your argument focuses on the psychological view that the world was going to come to a screeching halt if she didn't follow her religious view that this to do the bidding of this pastor yes ma'am that was part of it but you don't seem to jibe with the physical force requirement of kentucky law well on many of the counts there were there was physical force  for instance i think it was or some i remember her reading right like he would grab her by the arm and in fact she testified that he must always had a hold of her arm when when he was molesting her but he would grab her i think on count three grabbed her by the arm with one hand pushed her down her shoulder on the other hand and then touched her vagina and she said that he did wasn't able to grab her as hard that time because she was so resistant and pulling back from her and the district court found that even though she was resistant she was unsuccessful because he was able to touch her vagina specifically and that's one example specifically ms uyghur said she wanted to address the last two counts of rape because that was comprised the biggest chunk of his  delete the words about the resistance so his resistance no longer had to be overcome on that last count you still needed forcible conciliated forcible compulsion and in that case he was holding a pair of scissors to a cross he's what he was holding a crotch she moved her legs open cut her pantyhose and when she instinctively went to close her legs he said be careful you might get cut and she testified she was afraid and she thought that was a real possibility since he had he had scissors at her crotch and what about the taking her clothes off the district court found and she also testified that while he had his hand on her shoulder and was directing her to lie back he she was crying struggling to set out she wanted to asthma distress she was struggling to breathe and he went on with the rape so there was forcible compulsion in that case  sure what it is what it you go ahead and will allow her to address that because she has a cross ok thank you your honor just briefly the thrust of prices claims on ineffective assistance of counsel was that his trial counsel failed to ask for more lenient sentence but in the penalty phase and at the sentencing hearing there was a collateral attack killing what evidence was taken were trying to cancel was allowed to explain his trial strategy during the penalty phase he he testified that he chose not to put mitigating evidence in because he was aware of the fact that the commonwealth had witnesses ready to testify to some bad character evidence we're going john price that he had had sex with two other married women in the child in the church and another underage girl in the church so that's why he didn't put mitigation evidence on in the penalty phase he did however before the sentencing hearing send a number of letters to the judge talking about the good works the price it done and he conceded at the eleven forty two hearing that he chose not to send those letters to the prosecutor because he didn't want the prosecutor to have a chance to rebut those letters he also during this is all in your brief yes it's counsel so for that reason i'm going to ask you and your argument here thank you your honor thank you on the cross appeal on which i understood that i had reserved for a minute obviously comply with whatever you want i obviously did not pay attention that so you take your four minutes pranking your honor and i will try to i want to talk misled has brought up the god issue again and i and i want to suggest that this case cannot be understood without the religious beliefs religious indoctrination man of god prophet of god evidence on which the state continues to rely and i had asked that i think that this case can be decided on the sufficiency grounds i have waived but i i have asked this panel to consider expanding the certificate of appeal ability to convey to include issues which we raised which specifically raise first amendment due process fair warning claims which i do not believe were procedurally defaulted but i don't believe you have to do that as this efficiency case this case is the rare one in terms of the censors i want to point out that  this was a case where she's twenty two they go into his office he she leans against his desk he cuts her pantyhose with scissors she testified that they had sex that way many times against the de i'm sorry i misspoke fourteen forty one and fourteen forty four and i would i would request that you look at that the sentencing claim if i may speak to it briefly there are two sentencing claims at the penalty phase the defense counsel made all he did was make an argument to the jury and it sounded like a prosecutor's argument think about how serious the crimes are think about the time he'll be he'll be out of prison the jury came back very quickly with a sixty nine assistance claim because in kentucky the jury gets to recommend a sentence but the judge gets to impose it and the judge has the power not to impose the recommended sentence if he believes it is unduly harsh defendant's counsel did not a not ask the judge to reduce it did not suggest that it was unduly harsh did not suggest that there was anything wrong with imposing at that time a sixty nine year sentence on this man that is way out of whack in kentucky and elsewhere even for crimes of forcible rape even against young people and this was not that ordinary case you know first of all compulsion is really important in the case because there is no men's way a requirement in the statute the mens r established by the force or the threat and and so this case was was different this case was a relationship that occurred over many many years time and improper relationship but not a case of first of all rape and not one that merits aced a sentence of forty forty nine years and that sentence would not have been imposed i believe there's a reason because of ability it would not have been imposed if done john price's counsel had acted as counsel when a time came for the penalty phase in the sentencing the fact that he was extremely discouraged because the jury had convicted doesn't give a lawyer the right to just give up on a client that's strickland and that's the law and i know like claim there's a stringent requirement but it's not insurmountable and thank you very much i hope i have convinced you that this is the rare case thank you islams done a very good job thank you both