was proper then i don't see how trial counsel could be ineffective for submitting an instruction in an object into the state's instruction however our position is the state isn't correct why not for several reasons first of all up the  crime or other crimes and our position is that when the legislature amended the statute in two thousand and nine they expanded the types of cases the types of charges in which such evidence would be allowed propensity pretty much trumps everything for tensity is the most prejudicial purpose for which evidence can be admitted and that's why under the common no you couldn't put in evidence for a propensity for anything the legislature pas and the legislative history which is not in our response because the state filed a subsequent pleading and i spoke with mr haas about this and i asked a course of commission to reference some brief legislative history to the amendment up even assuming the state's correct i don't think their argument applies in this particular case for two reasons first of all there's no relevancy requirement to one fifteen they're seven point three violence but not murder and in addition to that i think it's important in this particular case no matter how this court decides whether the state's argument is correct or not  was convicted of their assault can be considered on his propensity to commit sexual assault the improper instruction said propensity to commit the crime so put yourself in the place of the jurors one instruction says propensity to commit aggravated criminal sexual assault the other instruction says for his if you commit the crime i think lay people on the jury would interpret them well the crime is the rape murder so this instruction tells us something different and also i think it's important even though the state didn't argue with the jurors were also instructed as all juries are they were told by the trial judge the was obvious sure to apply in this case this stated these instructions so even though  propensity to commit the crime propensity to commit the crime all during the trial have defense counsel's request and were arguing this was an effective defense counsel should not have allowed these jurors to be instructed they could consider propensity to commit  mentioned before most importantly it really would be unfair to say that this was admissible to show mr johnson's propensity to commit murder first degree murder when this thing never passed at trial that he had been for that purpose and the judge  the outcome can't can't be there because that would be entirely unfair to mr johnson after the fact to say what could have been different had we know the state didn't ask for the judge and the law with so  they can come in under the ratio that goes to her prior sexual activity gravitation and the judge agreed and we have no problem with the state's motion or the judge's ruling what we do have a problem with is in rebuttal argument in rebuttal to the consent defense here the prosecutor telling the jurors american sexually inappropriate way around strangers the defense in this case is she consented to have sex with a stranger i think there the evidence doesn't have to equate it just with a stranger but she can't be raped can she a prostitute can be raped sure so even if this woman we're talking sexually inappropriate i central to the i can't answer the question she was found on the porch i mean her psychological profile wasn't part of the evidence in this case i think the specifically argued that bit about her character this very middle aged woman would never have sex with a stranger they put her characters issue one before trial they moved to keep evidence of her in the record behind my briefs and if i can mention it because it's in the record she touched herself inappropriately in front of strangers i mean livid you know the state was very clear pretrial this goes to her sexual activity and reputation and you know closing argument they said look at these photos of the mattress the friend who took her to is this a place where a girl the age of fourteen we're going to have her first sexual experience well the power of hell there was an error because the state had there was go to you know whether this girl marries her first sexual experience in the harris case goes to whether the complainant was a prostitute or not was the staked out an army she wasn't a prostitute but i think there's enough of a wink here  based urkel or was linked or something related to a sexual assault that other crimes evidence of the other other sex crime can con into show propensity probably wasn't and i'm off year although it did can be a compelling argument if you have three of these in the same area you had the person always being a personal several times it was being wanted the least in this forcing down to the  so maybe you're overlooking the link between sex crimes murder involving sins and maybe the state is overlooking the relevancy requirement you know me understand the defense had an uphill task in this case obviously mechanician he was one of us they have to convince the jurors that this ventilation married woman have consensual sex with andrew johnson a total stranger