the lack of criminal history was important for the jury to hear in that was relevant and case law holds that it's admissible it's relevant to show a lack of predisposition  this is one court noted it is highly improbable that a person with no criminal record would voluntarily engage in criminal conduct unless and do at the time of the alleged offense was twenty three years old she had no either or juvenile or adult criminal record whatsoever yet the trial counsel did not put this into evidence and story about how gabriel was inducement inside and her to commit and by my count either seven or eight times she was discussing trying to discuss what gabriel said to her that would induce or what did what did he say that got her to go along with this point and each time the state objected on hearsay grounds and the hearer theory objections were sustain what an informant does to a defendant to induce her to commit the crime of taishan a murder is not hearsay because it's offered to admission affect the council would go by good to quick and argued that they were admissible as going to her state of mind but instead defense counsel on the argued that they were admissible for impeachment purposes and that was that argument was rejected deuced the court refused to give the definition defense counsel did not ask for those definitions to be submitted to the jury and agreed with the court  and if you look at the cape the people versus land where it's virtually identical to the case except for the issue there was originated which used to be in the entrapment instruction and here the question answered regarding the question the law and that's true even if they were properly instructed in the st place and like to hear that it was not properly preserved and this court found prejudiced them land  where do do one the importance of the defense and sure confusion and we have the same two issues here the importance of the defense was her soul but then and her confusion was expressed by the mere fact that they were conduct and these are very broad definitions which would have made it easier to convince the jury that marcel it was due east by gabriel fact that we we have to show that the case is closely balanced and a rational jury could have found that marital was a trap she had especially if they were properly given nd recording mysteriously one what are your jury could find was either destroyed or intentionally not recorded at any rate it was by the state's own  she told gabriel that she didn't have money and didn't want to get a loan to someone who was all gone hold so to speak on killing someone would be so as attendant not enthusiastic about raising the money when she showed up to meet the undercover police officer she didn't have the cocaine that she was supposed to get for a partial payment she also marcel offered cuts by the gabriel gave her a five hundred dollars ring for payment she didn't give that the undercover op is there and obviously although in order to even raise the defense of entrapment just admit the offense and she did commit the offense all this shows that her reluctance and has a turn and irrational jury could have found that that she did not have the natural instinct to do this without being in i mean that's exactly this you want land where land where the argument was originated was commonly understood in this court rejected that argument in the century help regardless of whether you or i might be familiar with the term the jury wasn't in the land where and wasn't in this case and they need help and when they express confusion at the court's job when they expressed some confusion about a question of law and when you argue in your brief that the trial court the trial counsel's argument that the conversation between gabriel and the defendant in this case was hearsay under the state of mind exception to it your position that the mere fact that he called did hearsay as opposed to no playing there not as plain or certainly if your honor think that objecting in general is good enough to preserve the issue i have no qualms with that but my thought was that when because of that dismuke in fact came well after this case even though it's the same trial court the trial court had been before this case had an opinion from our relies on people versus evan how do you distinguish that case when they basically say because of age it's really you know the lack of writers is not remarkable i don't have that case from me but my adjudications or no adult criminal convictions and this is true despite the fact that seemingly her former boyfriend the informant  pretty much all the people in her life as far as the friends and boyfriend least according the trial they all criminal record she managed not to have any criminal record up until the age of twenty three despite having those influences around here and i think that's pertinent for a jury to hear that she's not the person that would normally go along with with respect to the hearsay objection i mean counsel was trying with with the court and he was unsuccessful when he would you know he did a sidebar try to get those statements in how was that ineffective i mean whether they came in for whatever purpose the judge wasn't letting that statement in so how was he in effect did he not give it a good old college try the well and the judge that set him down  for admitting such a crucial web and giving given the evidence to the heart of the defendant's case yes that's great and we shall be happy that defense attorneys are fighting for their clients but and what we're looking at is that the jury is going to the trouble of asking the court for the definitions of these terms that they're confused about what they mean and and i would also point out that even though we could so we know what inside were off the top my head would have all those thoughts or ideas as far as what insight and have they been given that definition they could have clung on to any one of those terms to find that she was incited or she was gave that to or with that did that ever come out or was that just i think my recollection was he denied giving a tour but it's that was her testimony the jury could of the jury believe or they believed her  analysis it's a defendant burden and this case the evidence was not closely balance this case really centered on the credibility of two witnesses the defense and gabriel which the who the stakes were st with alex not gabriel and there was a no credibility contest because the defense testimony was not plausible and it sure ain't credibility now in order to rely on the defense of entrapment a defendant must admit to committing all the elements of the charged offense th her final meeting with detective gomez she said that i didn't give him a ring which allegedly alex i had given or had and also didn't give payment or any thrums or or nothing because she believed  she would if she withheld that that nothing would have happened to him immediately after exiting that vehicle she was arrested thus she testified that she never had an intent to kill one garcia therefore the an  t defense was not available to her but respective of her statements her actions contradicted her own statements as well when she testified that on september nd when she met alex that alex forced her into doing this plan i would like to point out that before meeting with alex on september nd she went to the library went on one social networking site printed a photograph of one and his girlfriend and brought it with her to that meeting that establishing that she was predisposed and was not induced by the statements allegedly made by alex at that meeting and although she did testify that she had sexual intercourse with alex during her st week during the st week of october and october th her testimony was not believable because she was arrested on october th thus she cannot have had sexual relations with after she had printed the photographs and one after she had read in relevant information on hunger c a including his address the car he drove the interstate he drove on and his upcoming court date now her testimony included other exaggerations wrist prove that she was testifying with the south irving agenda in regards to certain questions for example defendant testified that on september nd she received approximately fifty phone calls from alex but after being confronted with her phone records that wasn't entirely accurate she she acknowledged that alex had actually called her seven times her testimony included other exaggeration including that alex had her mind body and soul which was not believable because she had known alex for less than a month quite frankly i don't know how you can pat somebody can have your mind body and soul if you haven't even known them for a period of thirty days but the statements that contradicted defendant the most came from her felt after she was arrested she provided a statement to the police and she unequivocally stated alex had nothing to do with this thus contradicting any possible statements that defended trying to introduce introduce and when you look at the whole case the statements made to officers the statements  provided at at trial there's no consistency within her testimony and there's no consistency with her conduct because she's providing self serving testimony but moreover the state introduced other crimes evidence for the purpose of establishing intent and state of mind and here michael weiss testified that in may two thousand and nine he encountered defendant at a parking lot in the park mit and defended asked michael if he knew anyone who can quote buck one up she also said that she wanted defendant shot she would pay money and indicated that she had two thousand five hundred dollars that prior incidents for clearly proved her intent and state of mind and that she was not proposition that in that case a nineteen year old the trial the pollock or how that being one thousand years old is not remarkable and not to have a criminal history here defendant was twenty three years of age it's not remarkable she doesn't have a criminal history she's very young but any positive imprint that could have resulted from introducing this this lack of criminal convictions on the record was completely undermined by the other kinds of evidence and re any positive inference relating to her character reputation predisposition and credibility because of the other crimes evidence in the form of prior bad acts showed that she had previously tried to solicit any person to murder one garcia defendant cannot establish the stricklin prejudice prong moreover the st prong is not satisfied here counsel provided above standard representation he try to exclude the other crimes evidence and emotion and when he when that was denied at trial he tried to impeach michael weiss with prior convictions and also he raised the issue in a post from motion thus another prong defendant cannot satisfy that in regards hearsay statements but nonetheless proceed to analyze his claims under the state of mind exception to the hearsay rule and another that exception the defendant must be under the the declarant must be unavailable to testify and here alex the declarant did testify on behalf of the defense and also the exception goes to the declarant state of mind not to other people including defendant thus it would not have applied occurred one a few statements occurred between september th and th those statements those alleged statements were made before alex became an agent on september nd since alex was not an agent at that point those statements would not have helped turn track defense we don't know the full extent of those statements and so it's pure pure speculation but yes i just want to clarify that alex he contacted the police on more and therefore the strickland proc the strict the stricken prejudice is not met because that testimony the alleged testimony and dictated that alex pushed her into committing this offense but remember she provided a post arrest statement saying that alex had nothing to do with it so these alleged non hearsay statements would have contradicted her and would have undermined credibility moreover her conduct that none hearsay statement would have been in  contrast with the conduct but because before those statements were made she went to a library and printed a photograph of one with the intention of giving it to alex and therefore neither neither are met and just a commenter on the st prong defendant is entitled to reasonable representation not perfect representation he tried to get these to statements and the fact that he didn't kitchen sink with every possible exception a rgument does not make them deficient moving on to the last may i finish with two sentences my last point briefly will wrap it up yes the jury instructions there's a case entrapment was not available to the defendant in this case because she never deny her because she denied ever having the intent to kill juan garcia now you and you paint sixteen in your brief you mention the defendant admitted she committed the crime then that's not what i heard on the witness stand and she quoted i never intended for one person to die so i believe that this was that this was preserved because because the state's attorney did argue entrapment so i do believe that faith objected and said that no there was no evidence presented to shift the burden of wine he asked her what's in it for him tell me why and there's a number of other things i won't go into cause you're familiar with the record but tell me why this wouldn't be considered ind call her a number of times and so i wonder if this is the struggle the jury had with whether or not this would be inducement so my question is to you is tell me why this couldn't be considered induce well sure well i'd like to point out that merely presenting an opportunity that's not inducements milly providing an opportunity for the defendant to take that's that is not inducement however in these statements  as as the evidence unfolded and that's why the timeline is very important and determining if there isn't just man and if she was predisposed the time that you need to look at the timeline when gomez was asking those questions that with september th i'd like to point out that she had formulated that plan and therefore was not induced before september th there was testimony from alex that he had heard rumors within the workplace that she wanted one social social networking site printed the photograph wrote down every information about him therefore because of the timeline i don't believe the questions posed by gomez induced her because she had already formed her actions showed that she had already informed the intent to go through with the plan days prior do you agree that if the jury had heard that it was gabriel's idea to kill juan and that once juan was out of the picture they could both be in the defendant could get back together that there would be a reasonable probability that the outcome could have been different in this case i'm sorry can you repeat refreeze or question  in other words if the jury had heard the statements that were excluded by six the question and answer regarding gabriel's idea to kill wants could credibility of what she's saying because because it was worded it would have been stark contrast with her with her post arrest statement which she said alex didn't have anything to do with it it would have been another example of her providing conflicting testimony and also alex alex alex allegedly said those statements after the defendant had already gone to a public library to print a photograph of one so like i said timing is very important on when she decides if she was induced and or not because she had already had formed the intent to have been taken out and she had already taken steps before the statements  made to fulfill the plan and that included by not just court date defendant testified i wasn't really in contact with him i didn't ask about the drugs but she knew information about the defendant that undermine her credibility she knew when he had a court date she knew that the date that he had to be killed because he had an upcoming court date was probably good he sentenced to jail but in short she took actions before the statements already happened which show that she wasn't induced loved him so much that when they asked her she said alex had nothing to do with the she was protecting him for x and again that's assuming it's super liberal leave her her testimony but everything about her testimony was not reliable not believable and their specific instances where their lives and then the number one included as she said that she slept with them on october th and as i mentioned she was arrested on the top of th right now you talk about this michael fellow she denied ever talking to him or even knowing him and as a matter of fact he did lie every been living at that address correct this is true and he said she had three kids and he credibility just while she was convicted so i mean we kind of know where which witnesses they believe but alleges that it's not that it's not that crazy because this happened in two thousand nine the fact that he didn't know the specific ages of children multiple children are seen in apartment complex's the important thing is that he remembers a specific interaction not necessarily her specific financial family dynamic committed error in excluding statements is hearsay it did not reverse on the grounds of strickland it did a different it did a different and i don't live in a different way it looked at the  sufficiency of counsel that did simple not raise that post as a trial error as well as ineffective assistance or am i in my thinking the jury got the eyeball or you need a you need to pass both prongs and that's how i would distinguish it then else is the standard is much higher here and then with respect in effect than plain  anything further to dress right because there is case law that when you when you provide additional definitions you there's risk that you open up to more countries and to the jury and i like to point out that defendant in this brief provide multiple definitions for these terms then called a bet that would have most certainly confuse the jury yes your honor regarding with state's point that somehow the defense of entrapment was improperly allowed to be raised i'd like to point out that the attorney for the defense on multiple occasions both i believe in opening and closing statements conceded the defendant's guilt and the whole trial the entire trial before the jury and e three or four questions to the court they were taking their job seriously they asked what is the definition of an agent or a public official can we have an audio recording of the final meeting with merrill cell and especially gomez can we have a legal definition of uncited induced can we but provide the text messages between gabriel gamesmanship and pretend like they didn't know what the argument was about even though the case cited was the one that we're relying on today and it's clear that although technically it's not the state of mind exception to hearsay rule nine here on the argument was clear in the br before to the court with their ever an objection made by the state that the entrapment was not bailable for this defendant not not recollect your honor and i appeal so it's your position that the entrapment argument that it wasn't available to her is only being raised now on appeal i believe so your honor i don't have the i have no further questions thank you where is it your position that has a trial court in this case have had they given the jury the definition of the two turn or the terms  necessarily establishing a closely balanced case but here we also have a closely balanced case i have no further questions at this time thank you very much for your arguments here today we really appreciate  your time your intelligent argument coming on this ride with us with the new the new world and you both did a great job and we thank you very much we will allow