serious they have been does the same series the facts one of them is essentially a precursor to the other and why they don't have to say oh this is this thing from like what happened prior where the acts have to say this they don't have that to stem from independent hacks casting different offenses even if those multiple offenses are right from a series of related i would agree that if they are different acts yes convuls separate truck that's kind of what but in the case cited by the state is that was one of the primary reasoning behind that i think you can i thought that you could have multiple fences arising from a series of really that that in and of itself does not the attorney general at the time of the new indictment the separately they know that there was nothing new there was no nothing new was learned in the course of this there's no new information nothing to change so from the perspective the prosecution all the facts were known at the time the fact that the original information contained allegations that yes shows that the prosecution had knowledge of the charges that eventually appear in the two thousand  where some discretion was hot as to whether or not some of the dates could be up by the defendant even what compulsory jury we don't have any of those issues in this case it's clear that after the seven hundred plus days if compulsory g and you could even say they're just a dog but because they share this common factual basis the court this court in that case found the desk compulsory drug or applied because they were the same act for the purposes of the procedure i do have to emphasize again that when we think about x we tend to want to think about what happened crime where we're thinking about why do these share similar elements are they you know are they distinct enough that they would have to emerge that is not what's going on this is a very different kind of analysis of this is looking at facts this is looking at circumstances and this is kind of more specific of an analysis it's not based on the off so if we find that these hacks are a distinct but related to find that yes there is no relation between those sub actions or some of the acts and that therefore are that they don't share some kind of common basis or you know they would have to be tried at the same trial issue was it so clear i mean the fact is it just continued because there were questions who what the state might do or might not do that it wasn't so clear and i think nothing happened during that nine month period until there was some briefing and during that period and see what the state was going to do it was there waiting to see what was going to happen what if i can respectfully disagree on two points about the first is that whether or not  there was always some risk that this would become an issue at the trial but little know that we you know that that's speculation in your part but we don't need to speculate because we know what happened and this is a him the judge said you know you're gone well let me take a step could assume or presume anything about his weight but in the court never accepted the word rocks so we don't have to worry about that nothing happened during that period of time he was there we're going to find out what the state was going to do well i mean i can't he was never that modest about what the consequences that are so he has absolutely no idea what that means or what the impact of that is on his rights during that time that attorney is negotiating with the state has to reach some kind of set up this sta on the basis of that negotiation says we're not going to do other kinds of events and then when the negotiation doesn't go their way they threaten to introduce other concepts which is extremely problematic from the sense of  i've been told about this and i want him to stay yes so have the court on what you say it should have done immediately we'd be here on six of my mcclain deprive me of my choice of  something could be done they could have appointed public recounts or they could have told the parties do not do anything on this case until this gets resolved the only thing we are doing in this case is resolving this issue and until then do not do it and what did they eight and two and he ended up getting two consecutive tenure counts so there there is a significant difference between what was offered and what else we got it it's something you know but at that time he was represented by counsel that was at least a potentially reasonable offer and then at the time he was deciding whether or not to accept a conflict account under the law he don't have to actually show that that house so didn't perform in all sorts of different ways to try if if i guess the way i see the record the conflict came up i the state and the parties wanted to explore whether this other crime was going to be used and the current price during that period mr gonzales said i want my lawyer to continue to if you want to waive this conflict here's what i have to tell you before i can accept this waiver never got i agree about but the issue is that the court allowed him despite a competent to continue to represent him for nine months that's the fundamental issue that there was a problem there was a purse a conflict there the court allowed him to continue to represent him for nine months without even doing the basic thing of just telling him what is that risk and what does it say so the minute there's a conflict that's apparent the court has to say if a presumption is that whatever is not valid the fact that he just said i want to keep it and we do not know the circumstances of how that came about and part of it is because our system relies on the court which is neutral to tell the defendant what's going on instead of relying on don't i also don't think that there was has recently about this this right i believe there's talk that he stuck his head under the underwear and did the touching that's half worse now because that would be the amount of force necessary to do the x which is they have no choice but to sit so with respect to whether or not there was sufficient force but in this case those are not likely to try the  physical law compelling to cause a sexual touching it only came after when he tried to block  because he put his hands under the shorts i think given the specific testimony that came out that would not be compatible  colloquial use of the word vagina and that is to say meeting the entire female sex or however whites what was done by the state was to try to clarify that testimony entirely on the ball if the top of the female sex or a b the contact occurs again on the ball by touching the lady on the right side of the female sex  objection after trial by yes that is the case however i think in the circumstances where the state jumps over with new for reasons then the court sighs i don't think you meant the first stage and i'm going to listen to their gender neutral reasons in making that these are these are obviously pretextual because look at all the other things they've done so what you're saying is it wasn't the last part of that so i don't up the end if they get muddled up we don't have a complete record so for instance in this case we cannot have a complete record of what the judge of what the potential jurors were like we don't have any information about different people's composers o the court making those kind of fighting prevents us from having to do the kind of speculation i'm having to right now we don't know what we don't know what that what the witnesses were like we don't know how the prosecutors the meter wise we don't get it doesn't really matter as to those t it's problematic and i think that's a matter of two of them are ok and the third one is a problem the second thing i would say is that in this case the even if it would have been the case that those findings are relevant they were still says the court has to make us find it so that when we're talking about this on appeal we're not going into the realm of speculating about what this person was like what that person was like yeah maybe it wouldn't have mattered by courts have to make findings that sometimes don't matter and  it please the court counsel i'm hoping to limit myself to just a few responses to some of those arguments i'll start where counsel left off which is the best and issue i would emphasize here that we do not have a muddled record what we have is to clear findings by the trial judge that his claim failed so that the first stage and at the third stage of the bateson procedure the defendant focuses on his inability at this second and third stages to give a response to the neutral rationale but he didn't get he wouldn't have that opportunity unless he first satisfied the first stage prima facia showing this isn't whether there was a crime a facial showing mood once the course move beyond that in a way it is in that the court can go on this court and review can affirm alternatively the third stage findings but he's asking at this point for this court to remain for him to get a new print three strikes against female jurors and had at that point at the time that hampton was struck actually had left at least three male potential jurors on the panel one of those was seated on the jury i believe and two were alternate i wanted to quickly address the issue of the conflict of interest just to emphasize that there are important there are two important rights that are at stake where a defendant has potentially conflicted counsel be referred to by the council right but we don't know for sure one way or the other that's what we would want and that's true and certainly if the court had accepted the waiver i think the admonishments would be more of an issue at that point to see whether those were adequate to support the waiver agree that the plea negotiations were ongoing the rest of the case kind of to come to a stop while they litigated the issue of counsel conflict so they didn't go sheesh and that's true correct and i guess i have two responses want  emphasize that the nature of the conflict here is not something that would have arisen at the negotiations it was something that would have affected the ability of counsel to respond to certain trial evidence but the other issue that was at stake here is that the state was deciding whether it was going to introduce this other crimes evidence so the parties went back and forth as to whether it was going to write going into an actual conflict in this case is here mostly i'm almost entirely on procedural issues that's we have to decide whether or not the trial was done correctly that's our job and you have an attorney that has a clear conflict of interest almost right from the beginning they know that the court never says to the they actually made a record before trial that there had been ongoing negotiations and they just fell apart i believe defendant has admitted here that he was given a ten year offer that he rejected and so the reason that those fell apart was not until it became clear that the evidence was going to be introduced i'm not sure the court knew that there was a conflict the court saw that there was a conflict it knew it and if we took the position that courts don't have to administer people until they're certain that a is going to happen instead of us going to happen then there's i don't even know how courts would decide because you can't predict the future and no court can predict the future so necessary because of a conflict wouldn't it be better to just spell out ok do it right at the beginning let the defendant know right from the start what's at stake here instead of building around waiting relying on somebody relying on somebody and then finding out oh my gosh there was a conflict here and i may not have understood what they want for sure and certainly there's a distinction to be made i think between what would be the best practice here and whether what court did in this case was an abuse of discretion so i do want to just emphasize that there was a lot of uncertainty amongst all parties involved as to when this would become an actual conflict so most of the delay at the hearing is learning whether this is going to come to fruition and the minute that it became clear that it was the person i'm not going to accept or waiver certainly if the court at that point had gone on to accept the waiver the court would have the obligation to very clearly spell out the court should have made this punishment at the beginning instead of waiting until halfway through the negotiations and you're saying we can all agree and i don't know if we can all agree on that well we agree that the court shouldn't have accepted the waiver has alternately the court didn't accept the waiver and that's not being challenged now i do think that there is room for debate as to whether the court could have given him clear admonishments at various stages but what the court did and the delay was that the court was making sure that it fully understood what the conflict was going to be and the parties all came to an agreement actually at the end counsel himself said well i'm conflicted well but that requires the court to have a crystal ball and they don't so right at the beginning you know there's a conflict and i'm saying take the crystal ball out of it what happens if you say you know we don't worry about what might happen what could happen what should happen what we think won't happen deal with the conflict maybe that's right way to do it i don't think that the court agreed at the outset that it was a conflict what the parties seem to be addressing was that it would become a conflict if this was going to be evidence at trial there was a greater dispute certainly if the evidence had not been introduced defendant is now saying well my counsel still would have been conflicted because he had been in an adversarial role to me that argument might have come off but it wasn't a disqualifying conflict until it was clear that this evidence was actually can be presented by the state and at that point everyone agreed and the court itself i think and at the end reached the right  result in agreeing not to allow the defendant to waive and i would say at that point that management's to that point would need to be clarified before any sort of a waiver was accepted but because that wasn't what we're really debating is whether the court erred in its the lay and the two points i would just make and i may have already made them but one of them is that the plea negotiations were the only thing ongoing and those continued with new coun and the court actually postponed any further substantive matters so for example the next issue in line was this motion to admit other kinds of evidence the court said you're conflicted and i'm not even comfortable having you argue with me about merits of that motion we're going to get a new council in counsel's going to argue that motion for the defendant at this point did it become clear that this was it this often conflict and the court actually recognized that it did disqualify counsel at that time and the port itself i should also note did express quite a bit of frustration i think with the party that this was taking so it does seem like nine months was an awfully long time to come to this but the parties between them went back and forth a little bit on whether this evidence was going to be introduced or not and then finally once everyone was on the same page and that motion had actually been on file and everyone agreed that it was a conflict in the case and was able to proceed expeditiously but the court definitely didn't like the fact that this was in limbo for so long it sounds to me that the defendant is taking the position that the court ones sho much when it came down to are you really going to waive the conflict or not right and that might be a best practice that the point is just that there's no law no case so at this point saying if that's the only option that the court had so the court was operating in this murky pretrial proceeding where it was unclear if there was a conflict or not whether he wanted to waive that conflict or not and at the end of the day i think the court reached the right decision on that and i think defendant would agree if the court had allowed him to waive the conflict certainly it would have needed to provide better admonishment but it hit at the time and twenty thirteen when this came up in december how if put up to an alternative passably a private one appointed at no cost that he's not being charged by grace for any service is this a conflict was realized and that he immediately informed me of the conflict he understood the perils of the continued so that would tend to lessen the need for the court to also provide him with the detail that management about the conflict that was at issue what about half of the movie we should look at this i would disagree with that because the course not reviewing the propriety of the court's legal determination they couldn't wave the conflict the issue is did the court error in taking the nine months or however long it was is any sort of legal determination actually under challenge to the point was that the court had yet to make that legal determination so that would be good this is really kind of standard of review idea yes and then i was instructed on that the theory was that the use of force was that he overcame the victim base of superior strength superior size or physical confinement what defendant gets wrong is in saying that the only evidence of that confinement happened after the actual assault to take in place the confinement began the minute that defendant got both of the victims into his car into a place where they were away from view where they were in had a limited room just underscores that this confinement was how he was effecting the assault of the victims and this was clearly deliberate on his part not just respect to them but he had a pattern of this conduct actually the other crimes evidence that finally came in that he had taken a girl in a parking lot pretended that he was a security guard got her into his the and then when she was there he sexually molested her so he certainly knew that this wa accomplish assaults sort of i guess you'd say trusting young women who got into his car under false pretenses and then i don't i don't want to belabor the second sufficiency issue on the penetration other than just to know that the it's an intrusion however slight and the court should of course focus on the words that were actually used by the victims here in terms of pushing the n pressing down pushing inside these are quotes from the victim's reflecting that there was an actual intrusion and i don't think at this point we're even disputing that it was an intrusion into what's properly considered the sex organ for purposes of the statue and the less the court has further questions we would actually want to interest compulsory  yes so i think that the issue that is being presented here is whether the removal of the clothing is properly considered the same act as the actual sexual assault that felt that they were plainly to access far as the defendant was concerned even even assuming that they were in are belated the law is clear that they have to be the exact same act for the composite rejoinder to apply and if they're not it is just a precursor it's just part of the same transaction that doesn't preclude the state from bringing the additional charges down the line and that is what took place here at that state added the additional charges of the anything he hasn't he hasn't done anything yet so these provisional might go this is the thing is that i think what the court is this not take any action and allows mr basically to represent for nine months the course not making explicit i think that the dividing line we're seeing is what's the state going to use it in this prosecution or were they not and if they weren't that's a way for conflict but i don't think that the fact that he may have not been a witness i don't think that without being told by a judge that he was being told by his training because we don't know what his attorney was telling him we don't know any of the details we have no idea ye and it would be a bad idea to rely entirely on the defense attorney who may have some other things going on including a monetary interest talking exclusive his two to his defendant about what his