time for rebuttal and please remember that these microphones are for recording that amplification so keep your voice o aggravated kidnapping under the theory of asportation with intent to secretly confined while committing the offense of criminal sexual assault it's worth noting that mr johnson as a result of this case was deemed a criminal and is now serving a mandatory natural life sentence so the question of whether what occurred here was just criminal sexual assault or whether it really was a sexual assault plus a separate kidnapping in its own right is a question that has tremendous consequences for him well didn't he received two consecutive sentences for life yes so to be taken out both the aggravated criminal sexual assaults one dealing with aggravated being based on kidnapping one dealing with the bodily harm element so this court has observed the an equity that occurs in convicting someone of kidnapping when the asportation or detention of the victim was really just an incidental part of a different offense and one thing that this court has repeatedly stated in the past about the secret confinement so i don't really look at these four factors we have to look at it through that lens for example so when we look at the first factor here the duration or distance of the you know whether the asportation was just one or two feet as j b testified whether it was actually as she indicated on the photographs across the length of a small yard and by the opening of the alley of the rear of by these garages you know the distance isn't the real issue i think and the cases say this you know there's no magic number of distance or duration the real issue i think is w important point here is that passer bys there was still visible to passer bys i think on the sidewalk because there's two points i want to make about the war well you know they they were in front the scratches were in front of an empty lot so if there'd been a structure or something and a lot of you would have been obstructed but that wasn't the case you could see straight through all the way to this opening by the garages and we know that the area by the garage is was well lit too because i think he testified that there was a light shining right above them right next to them so they were they were rather lou made it i think everyone from the sidewalk would have been able to see what was happening you know i'm looking at people's the offense and in one of those photos you can see one of them is kind of zoomed back and i think it's taken from the lot and you can see you still see her blue panties on the ground you know he didn't pick that spider because it was easier to be seen he certainly didn't pick it because it's easier just to be seen but i would submit that he picked it because it was  this is not exhibitionism this is great i understand i understand i i would submit that and the point i'm about to make may be a bit crude so i apologize and i don't want to make anyone accountable but i think there was testimony j b testified that he had her like up against the garage he was leaning on the garage as he was penetrating so to the extent that there was this brief asportation i would submit it would be it was so he had something to lean on in terms of carrying out the physical mechanics of the assaults to facilitate that he may just have been looking for a nearby surface  would thank you i appreciate that so you know if the i think if the intention was to secretly confine her he could have taken five seconds to push her deep down into this gangway or alley but they were right near the by and then chance and moved her to the alley that the jury was justified in finding that the asportation he was intended to secretly confine i i i would lot i mean i would suggest if if this really was about secret confinement they wouldn't have stayed right near the opening right in front of this big light that she said was shining on them he could have taken just an extra couple seconds to push her deep down into the gangway you know and that's something i think that people the lamp she looked at the state there are no i don't quite there noted that so in that case i think the defendant had polls the complainant off the side walk into the building and they remained in the like the fine hallway right by the door where he attempted to sexually assault her and they noted you know he could have pulled her into his apartment he could have pulled her up the stairs but he stayed right there where they were still visible to passers by think the same reasoning can apply here facilitate the assault so in that sense it was it was inherent in the assault with respect to whether the asportation created an independent danger that fourth factor and most cases looking at that factor again focus on whether the secrecy or privacy of the place of confinement creates potential for further danger or criminal activity and to the extent that the state argues that there was an independent danger in the asportation because choked she was being moved this of course ties in with our second issue because there was really no i didn't decide from her testimony that the choking took place and if it did it was certainly no evidence that it was s a type that would cause injury or danger to her if anything it seemed like it was just more in the manner of restraining her that's correct the doctor found what he called her finger marks on her know how how tight it was was it really tight enough to cause her to discomfort or was it just restraining her and clearly that question the answer to the question didn't satisfy the prosecutor because then the prosecutor kind of nudged her further well didn't that cause some trouble breathing at this point she was like ok well yeah a little so but a balance consideration i think of these factors these levy lombardy factors  think tend to weigh in favor of finding that to the extent that there was a brief asportation in this case it was wholly incidental to the criminal sexual assault i would respect to that the choke of the finger marks you know we don't know there was at there was evidence here of an equally plausible and likely alternative explanation for those finger marks on her arms week she had testified that when all the time but here again you know this you can go back and look at the record to see what her exact words were her words were well the question was your boyfriend doesn't talk to you in that manner but your his arms around your neck and choke you there was a question no he doesn't it was he usually tells me to never walk anywhere without looking behind you that's what my baby father does and when i turned around before he grabbed me yeah he does that all the time but he doesn't represent i was around me and stroke me he'll come up to me and he'll put his hands around my we're sure ok so so i think he she did testify that he does this quite often all the time is that and now to the extent that she said that what she testified about where his hands are the fact remains that he does this you know often it are so it was similar enough a manner that she initially thought that it was her boyfriend that was grabbing her and part of the problem is that this the factual point in this record is not really as developed as it as it could have been or should have been a counter wasn't prepared to develop it because he wasn't i notice of the state's theory about the entering to her i'm i mean ideally you'd want to engage an excuse me you want to engage a whole line of questioning about this you know does he does he ever about developing you know arguments about where these marks came sure but you know he the point is he was ambushed by this theory and this ties into our our variance argument that he was misled by the state's theory about the finger marks on the arms that were the defendant's testimony rise heat this could this was an alternative explanation for the finger marks on her there any other questions thank you thank you morning my name is marcy jacobs i represent the people of the state of illinois the amount of the illinois case lost according to finance it is the sporting that defends asportation of j b is not being incidental to his criminal sexual assault of her is simply voluminous especially now where all the evidence must be viewed in the light most favorable to the state and all reasonable inferences made in in favor of the state there is no question and even it the first asportation of just a couple feet from the sidewalk to the lot and then the second longer asportation of across the entire lot over a alley and into the space between two garage is certainly satisfies all four of their the requirements of  confine the victim against her will he would have taken her further into the space between the garage well i think he took her pretty far into the space between the garage is that it's one point i think it was testified where the underwear was found it was seven or eight feet deep into the garage is and i the case then is the case that defendant brought up lampy my recollection of that case is that was during broad daylight and it was by the defendant took the victim into augusta bial literally right off a very busy sidewalk there's no comparison in this case it's two thirty in the morning there's not a million people walking by and it was behind the house it was passing through an alley into the space between two garages it  s pitch black outside even if there was some lighting just because defendant it may have not succeeded and finding the most private place in the world doesn't mean he didn't try and that the asportation wasn't in fact found more private then where he originally attempted to commit his criminal sexual assault on her case brought by courts of how think he's after case after case that asportation of less than one block in just a few minutes certainly secret secret place where more data where there was a risk of more significant danger that's the fourth factor whether the asker ration created a significant danger independent of the criminal sexual assault and that's one aspect of it because it wasn't a more private place and more danger could have been done there but there was another aspect of it that the actual asportation itself where she was wrapped and shoved and dragged and pushed as she was being choked and threatened when he did that and i might the several cases in my in my brief that how might that that's absolutely true but i do want to point one thing out where a defendant talks about being ambushed by this information it's completely misleading where first of all the evidence of the finger marks were duly noted in the medical records and defendant defense counsel himself cross examine the doctor and the nurse stating to the doctor isn't it true you wrote down the cheek had these finger marks on her i'm her arms because his point he was trying to make is that he didn't right down to she had anything around her neck he stated that so there was no ambush there that he knew about  the charging instrument even though it didn't have to write mentioned shoki right and it didn't say anything about the bruises to the arms i mean isn't there an element of surprise there there's absolutely no element of surprise where that that phrase can be proved not just by physical injuries but by came and the evidence on the record and the defendant acknowledges that can be proved by pain she just disagrees that in this case there was evidence of pain on the record but that's a factual issue  and the evidence of pain on the record was replete in light of common experience that this woman who was rash old pushed down showdown a book that fell she dragged across the lap pinned up against a thing violently common experience a common knowledge would lead anybody to an end to an inference that she experienced pain even just from that choking defendant even acknowledges that and in her brief and and where she could have experienced that payin trying to get her in a better position up against the wall again these are just all factual arguments they're just all factual arguments that should she cannot say that cannot be said at this point that  no reasonable trier of fact could have found and made these inferences especially viewed in the light most favorable to the state that the asportation that all four elements of the asportation show is the court that it was not i'm just a couple of brief points you know the state asked this court to infer based on common knowledge that the complainant experienced pain as a result of being choked and there are where she was asked point blank how did it feel when he put his arm around you and her response i would say fell short to something indicating pain i don't you know the case law is not clear it d specify exactly what defines pain but i would argue here the response fell short of what counts as as the physical suffering we commonly think of as as pain and with respect to the finger marks you know i that these are factual issues and this i acknowledge the standard of review here the evidence is to be viewed in the light most favorable to the state and the state is entitle to the reasonable inferences from the evidence but they're not entitled to any and all inferences just the reasonable inferences here i don't know that it's it's a reasonable to infer that with respect to these fingermarks that it that if they were not  apologize i don't recall if that it was that it was his version of this consensual i mean his version is completely different than hers obviously so i you know and i can't recall if adding in fact was his  testimony the state asks this court you know well we could have happened this way the finger marks could if there were rolling around it could have happened to swear that way but this is the big they have a burden they have to prove that in fact it did and well still she she we have testimony that her boyfriend has a regular practice of coming up behind her and grabbing her we don't know maybe he grabs her and then puts his arm around around her w in order your and part of the problem is as the avid and found this point wasn't well developed because because it did take defense counsel by surprise but i think there's enough there where she says that he comes up behind me all the time he has this practice of grabbing me i think that raises a question that didn't that isn't that an equally plausible explanation for where these finger marks came from especially where's there's no testimony i'm sorry  right but i think this court has to decide was that was that a reasonable reasonable inference to make based on based on the evidence now with respect to the state's arguments about the secrecy of the place where this assault was completed ultimately this court will have to look at the photos look at look at the record and you can decide whether whether the place by these garages was more secret or not i would submit where it was visible to passers by it was it was not you know i am concluding i would just add that this court really sank about why we adopted the levy lombardi doctrine in the concerns that the doctrine is meant to address they're not served by a very like technical analysis of what the statutory elements are or at the pool of factors really are about trying to determine what was at the heart of this offense that took place was this really about trying to a sports t