argument and proceed from there you may proceed with us live better please the court i believe six issues in this case and i'd be happy to take questions on any of them but i intend to argue issues one in two issue one being that the state did not prove that he quote the selectee of predatory criminal sexual assault because the only evidence  penetration came from jason whereas extrajudicial pretrial statement and issue to being that the court erred enter nine a lesser included offense instruction on aggravated criminal sexual abuse obligation with the corpus to walk to issue and victor who we called j o gave three out of court statements the first one was actually to her mother's boyfriend a man named john could a zero and that was some time and the morning what happened was they had picked  her up from her stepfather's house and with the purpose of questioning her about whether she had been sexually abused and took great it had a boyfriend took her into another room and asked her if she had been actually touched by her stepfather and she said no that it was the defendant who had done it and then after that exchange she did not she just said that he touched her you know touched her vagina she didn't beat was any more specific than that then she spoke with her mother immediately after that augustine a pagan and said pretty much on that exact same thing didn't say anything about any type of insertion into saying just that where attached her vagina and then her mother called the did definitely didn't say anything about penetration said that he touched her vagina and that was that's pretty much the extent of it is she is different either her private parts touched her private part then later in the day she speaks with the forensic interview or kato at the child advocacy center john she tells kato specifically that layer of touch the outside of her vagina i'm both occasions there are there too touching instances that happened a couple days apart in january or february i believe it's two thousand  yeah a professional for children yes exactly i have professional forensic interviewer and it doesn't say how the information how the information exactly was i was a listed it whether the interviewer asked jr was it inside and outside or whether jail volunteer here is that there is literally no evidence whatsoever that corroborates the act of penetration and in fact it is actually contradicted by the state's other evidence jr makes three out of court statements and she also testifies in court at no point did she say that you know that there was any type of insertion of the finger or that even that down might have been or did she's not sure because she wasn't awake she doesn't say anything to that effect and she specifically says and one of her out of court statements that it was outside her vagina and i would also mention that the state of course because she testified did have an opportunity to ask her if there was any penetration and you know forfeited that opportunity for whatever reason is and said there is no evidence and i think that you know exactly right that sergeant stands for the proposition sergeant really makes clear that it is a very kind and not a crime as was said and salinas and that's really the central issue of this case does the state's evidence have to prove a crime that can be corroborated by the defendant's confession to prove the rest of the offense or does the state actually have to put it corroborate every element of the offense that they're trying to prove in this case their evidence certainly would corroborate the lesser included offense of aggravated criminal sexual abuse but there's no corroboration of penetration and hence no proof beyond a reasonable doubt of predatory criminal sexual conviction pursuant to supreme court rule six fifteen b three that says basically because the state did not meet its burden with respect to the greater offense but there is evidence they did meet their burden of proof with respect to a lesser offense it should be reduced and that's what that they happened a cup few days apart three days apart i believe in january or february and then day with discussions with that jail has with jonker darrow with augustina pagan and with the forensic interviewer all happened on february eighteenth so it's not entirely clear how much time  remember the exact number of hours that the defendant was and custody of but i believe someone in the order of about twelve hours that might not have been completely clear from the evidence either but one thirty five was saying yeah exactly he signed it in the evening and he had been in custody for some number of hours  he testified that when he was in his jail cell prior to the interrogation where he can fast but he believes that he had a seizure and he has a severe apple at the lab tech that's all of record and he said that he believed he had a seizure in his jail cell and there was also an expert who testified that in the aftermath of the seizure you would have a period of confusion in this expert also testified that jason blair what did have a severe grandma after let's say and that he had a low seizure threshold at the time of his arrest because of basically corroborated the possibility what blair had said was that he did not touch layo jail but he did make statements to the effect that he did to police for some reason because he was saying that he was psychological volunteered that i think one of my major points here is actually a bit on the court the selective rule itself the rationale for the corpus the lack the rule is very consistent with the circumstances of this case because that rule is designed to say to prevent this confessions in a psychologically course seven environment for example in defense and later was particularly vulnerable to this type of psychological coercion for reasons of record he was nineteen he i was on employed and lived at home with his mother he was a severe after what he had attention deficit disorder and i think it's very plausible to imagine the police saying to him in an interrogation and jason when you did you maybe put your finger in there just a little bit you know not very much right but just up to the fingernail and there's no we don't we don't know what happens in the privacy of an interrogation that's one of the main points in the rand that police use these tactics they posit guilt as a fact and hope to confirm certain details such as for example a penetration and it's very possible but later i confess to a padded tray shen that didn't occur when in fact something else had occurred but he was coddled into that last step in a psychologically course of interrogation of the option of believing part of this trial statement but not all of that in this case obviously you know it's an issue it is an issue of law at this point as to who is interpretation of the corpus to lack the rule is correct either the call to select cannot prove an offense with a non corroborated extrajudicial confession the seizure yes well the seizure is not really whether or not you believe he had a seizure is alternately not not relevant to the corpus selectee question of whether or not the state prove beyond a reasonable doubt that he committed predatory criminal sexual assault and say they didn't prove that offense and it is the if as they didn't prove the offense of predatory criminal sexual assault beyond a reasonable school and he was attending though he had to drop out of college because he couldn't concentrate he said and although you know he may have graduated high school i don't i don't think that that makes them involved noble to the psychologically course of environment police interrogation tickler early if he had just had a seizure and was confused it's the idea that what he's presenting as why he gave a false confession it is possible it makes sense it's not as though it's use the word where the truth is your honor we don't know when can never know who first used the word cuticle it does say jason states but it's not as though jason hand wrote the statement from scratch this was it could have been in fact what he was interrogated you know several times and the police could have put this story together and i'm not that i one of the points here is that just because they can fashion is deemed a voluntary and admissible that does not make it one hundred percent true and correct that is the nature of the quote the still active role we take for granted all the time that extra judicial can confessions or statements of defendants are not completely correct sometimes the state's case relies on that fact that this interpretation essentially the grow it is not corroborated in that very material detail and it is a fact contradicted in the material fact that he penetrated her with his finger she did not say that and there's no reason to think that sufficient proof on its own aggravated criminal sexual abuse i don't believe it has any tendency whatsoever to corroborate vs fence i've got to try criminal sexual assault because that offense has an element penetration that must be proven beyond a reasonable doubt what's the difference between predatory criminal sexual assault and aggravated criminal sexual abuse maybe you can tell us that we're clear penetration and i try should manage ation heels news just involves a touch hear touching of the external genitalia of the child would be an aggravated criminal sexual abuse which again were conceding has been proven beyond a reasonable doubt with j o's in court an out of court statements and you know i scribe aided by i believe that it is that it does not tends to prove predatory criminal sexual assault because it does not tend to prove penetration if the opposite because penetration is required yes in order to establish that offense exactly so if your honour's have no other questions about the corpus selectee issue i would move on to the instruction issue thank you this is important that whether the quote i agree is with our interpretation of the quote the selectee rule are not the weakness of the evidence as to the element of penetration really underscores the necessity of a lesser included offense instruction on aggravated criminal sexual abuse which is again is offense that do does not require the element of penetration if there was just an external touching of jasmine's vagina vagina that would be aggravated criminal sexual abuse and into naing the defense requests for this instruction the court really rob to the jury of an important third option as fact finder the state's argument on this issue on appeal is is premised on the notion that no rational jury could possibly have found literally guilty of predatory criminal sexual assault i'm sorry not guilty of predatory criminal sexual assault but guilty of aggravated criminal sexual abuse that's obviously not the case however because  basically gave this statement and a post changer state where he answered a litany of yes or no questions and signed the statement without really being able to understand it he also said that he didn't touch jr at all but the jury as fact finder is free to reject that part of pretrial statement and accept the part about except the part of his trial testimony where he suggests that this was a cold worst can fashion so and that's actually the central issue because it is so easy to imagine a jury that mistrusts pretrial confession believes j o in court testimony and out of court statements if they believe j o but distrust that can fashion then they're going to convict him of aggravated criminal sexual abuse and this issue is really that simple the court just even even though the defense asked for this instruction thereby essential in making it part of the defense theory of the case the court refract flat out refuse and he also said that the reason that he said he did something was because that he answered this litany of yes or no questions and then signed this statement that wasn't really in its material parts so i think there's a there's a two part theory there but another really important point is that it doesn't matter whether the defendant gives a theory of the case or when bad it is comes from that supports the lesser included offense instruction because the law on this area is actually very clear that where there is some added ends however slight that supports a lesser included offense instruction the defendant must receive it upon request that the state posits in its brain that the it it shouldn't be allowed if it's inconsistent with the defense theory of the case they cite a case called monroe for that proposition when roe basically proves the opposite because in morocco the defendant did not testify and other witnesses testified to differ things it was a burglary case some said that they had entered the building with the intent to steal and one said that they had entered the building with the intent to mess around and the court found that just because that one witness said that they had the intent to mess around that that was sufficient evidence to entitle the defendant to a lesser included offense instruction in this case you actually have the evidence for a lesser included offense instruction coming from two sources one source obviously is the state's case three out of court statements from j o support a lesser included offense and structuring the in court testimony of jail supports a lesser included offense instruction and layers testimony that he did not give it a true confession because he was in a psychologically course of environment and confessed to doing things that he didn't do also it also is consistent with a lesser included offense instruction so there's ample evidence to support sense struction it's a really a very clear violation of the law that the court was and i think to me that argument really borders on silly the idea that it could be harmless to strip the jury of this and as you can see she's here so we are going to give you as much thank you first of all i'd like to just point out that the defense argument actually combines the first two issues that like to separate them and talk first about to like that and to clarify that the state is not asking for a new interpretation of the rule we're asking for this court to apply the rule as it exists today with that in mind council told us with facts corroborate his part of the something arguing that you don't have to corroborate penetration absolutely that's that you're correct as justice quinn actually authored in the salinas opinion that if the independent evidence is directly related to the charge defense then the independent evidence only needs to establish that a crime occurred not the specific crime for which the defendant was convicted so who would crime occurred here predatory criminal sexual assault without an attorney because you don't have any know what that was proven the victim's testimony is that she was sexually assaulted and two instances her testimony alone establishes aggravated criminal sexual abuse and that added innocent you can see that she says she's willing to admit it you prove aggravated criminal sexual abuse yes ok that testimony and that crime is directly related to the charges of predatory criminal sexual assault that he committed on those two instances so the independent  defendant's statement that's what the quickest elect a rule requires what steps done to gather the independent evidence together with the defendant's confession together proves the corpus to lack that you don't need to look at not in the majority is holding i believe however what that case holds is not that every element that needs to be proven what's sergeant says is when a defendant confesses to multiple offenses there must be independent evidence of each count not and it says the independent evidence tending to show that the that the defendant committed each of the offenses for which he was convicted if they wanted to they could have said that that independent evidence must establish the crimes that he was charged with but to be clear the independent evidence does not have to establish penetration there is no case out there such and doesn't say it no case says that every element needs to be proven and to do that would require the state to prove its case beyond a reasonable doubt without considering the defendant's statement just to prove the corpus select i and to demonstrate that i'd like to take an example of a digital penetration case with a female child where the digital penetration is to the child sex organ  even the inside of the les be a majority and there will not be physical evidence to corroborate that type of abuse or that type of penetration so taking the defendant's argument to its logical conclusion which no cases held yet what every element including penetration would have to be corroborated would require putting a child victim on the stand to testify to exactly and precisely where on her genitalia she was touched when she doesn't understand that she has a lady  reasonable doubt or case not to prove corpus to let die let's not combine the two first quote the select i then we can show that it was proven beyond a reasonable  no i will not concede that because the victim it's this is not a case where the victim's testimony is at odds with the defendant statement i absolutely disagree with the defense counsel's interpretation that the victim's testimony is inconsistent with this is not a case for the victim's testimony excludes the possibility that she was penetrated it is not at odds with the defendant's statement it is absolutely consistent with the child's right description of what happened to her counsel you are suggesting that search and says that dalton says that there isn't a case that doesn't say that the independent evidence must tend to establish that a crime occurred and if that crime is directly related to the crime with which he was charged then to we can get to that but i think that's a very distinct separate issue because first of all once we prove the corpus to like that which we have this corroborated the defendant's statements corroborate it then that defendant statement is in our body of evidence and it's part and parcel of our proof that we can use to establish beyond a reasonable doubt penetration and that's what happened here just to clarify this is not a case where the defendant's confession is talking about a crime that's not corroborated by any independent evidence he's not talking about an armed robbery or a drug transaction and there's a difference between a case where the independent evidence  that eight crime occurred and a case where the independent evidence does not establish that a crime occurred we don't have that here either and our case is totally different from a case where the independent i'm sorry the victim said it didn't happen or the victim's testimony excludes the possibility that multiple offenses happened this is factually distinguishable from richmond and sergeant here the victim's testimony does not exclude the possibility that he penetrated her his testimony is not it odds with the defendant's statement it's consistent with it if this is a child's right understanding of what happened to her in the corpus to elect a rule requires no more in this case our independent evidence establishes that two crimes occurred by the victim's testimony alone and that independent case therefore it would be sufficient the defendant's confession is sufficiently corroborated to be able to be part of the corpus to elect i a predatory criminal sexual assault and that's our position that's what we've proven here if there aren't any questions and edition of questions on corpus elect i can discuss the instruction with the red guard class of whether the instruction should have been given this issue must be subjected to a harmless error analysis and in this case seventeen commits an act of sexual penetration against a victim who is under thirteen and the evidence here clearly in convincingly showed the defendant was nineteen the victim was eight he had made it to sexually penetrating her twice and the defendant's statement is corroborated by the victim in court compelling testimony that he did assault her on those two instances the evidence here is nothing short of overwhelming and to prove that point the defendant does not even raise a reasonable doubt argument in history instead what he does as i much as she does as i mentioned before is combine the corpus dellec to issue with this jury instruction issue to prevent what he believes is a stronger argument but they have to be separated first once the defendant's statements were operated it's in our evidence and we get to use it to prove our case beyond a reasonable doubt and using that statement in their skates there's no doubt the evidence is overwhelming and the defendant knows that so he tries to present two arguments are weak ones that his statement was unreliable and shouldn't be considered first he said it shouldn't be reliable because he disavowed it at trial but that doesn't matter the jury makes credibility determinations it didn't have to believe and obviously didn't believe the defendants in court testimony if they had we wouldn't be standing here and the defendant also like is that a statement on reliable because it was given after a seizure but the trial court here already determined that that statement was admissible and the defendant doesn't contest that decision on appeal either and the defendant still presented his arguments and his evidence to the jury that he was in this post seizure state the jury didn't buy it they didn't have to they didn't believe his in court testimony and that's because there's not a shred of credible evidence that the defendant suffered a seizure or was confused at the time to give a statement the statement he provided it was very detailed it was very specific there was no chance a jury could have found that statement unreliable especially when it was corroborated by the victim's testimony given these facts the jury could not have found him guilty of anything less than predatory criminal sexual assault in essence the defendant wants you to stand in place of the trier of fact which we know is not proper the evidence here overwhelmingly proves the defendant guilty beyond a reasonable doubt each and every element of predatory criminal sexual sout criminal sexual assault was proven by clear and convincing evidence again the results of this trial would not have been different even if that instruct unfortunately i think what happens is when you're talking about the china to go back to its many structures it's not clear it's not well understood even in the professional field but penetration means why did the the the interviewer the forensic and interviewer i don't know if she did or did not ask specifically about penetration but even if she did that the victim's understanding of what that might mean may not be consistent with the legal an an but i still think it's important to understand that when you're talking about corpus to let die alone it is not a burden it's not the route for us to prove penetration it is our burden to show that his confessed to touching the kid's penis yes there was no evidence that the display was they did they reversed the sit on that with respect to the count right ok what's the diff very clearly sergeant said that when you have multiple offens them need to be corroborated we have that here we have two counts of predatory criminal sexual assault the victim testified that he touched on those two instances there is independent evidence that does tend to corroborate and tend to establish both of those offens they're very different in that regard and again section even says the independent evidence tending to show not show not establish the crime the whole purpose of the corpus like their will is to inspire belief in the defendant statement and that's done here to require anything more really good meeting with absurd results having a child victim testify to things that she doesn't really understand yet and it would absolutely be counterproductive to the rods attempt to protect child victims from sexual not you would hope in any type of assault that this child is not being forced to look at what the defendant is doing to her and you're hoping that this child is not even thinking about what he's doing to her trying to remove herself from the situation just so she can physically and emotionally survive the attack that's the reality of it and in this case we even have more because she was asleep or she had just woken up and was quiet and she's not going to fully understand what the defendant did to her especially since it was only a slight intrusion into her for china we do have that evidence that independent evidence tending to establish that a crime occurred directly related to the charged offense in inspiring the belief in the defendant's statement the people submit the cases require no more to prove their crime they had they have to prove a crime and because they proved a crime and just somewhere confessed to another crime they prove the corpus directly beyond a reasonable doubt here's the problem silliness first of all is distinguishable ok in that case the state put on evidence of a mode of independent additives of a strong motive that the victim in that case had been taking photos of dilapidated buildings and reporting the defendant for violations he had been fined he had been  imprisoned and that motive was corroborated with independent evidence so that mode of was actually a corroboration on the element of her killing these individuals to kill the victim  specifically takes issue with that line and says actually it's not a crime it is that crime and because sergeant is the most recent pronouncement on this issue if you wouldn't mind i would like to because the state has paraphrased what sergeant says if i could i would like to actually read to you what sergeant actually says and please keep in mind that sergeant was decided after this a crime a crime to come not to me became an issue a crime decline became an issue after richmond and salinas basically disagreed about it and the second district and sarge and here's what the supreme court had to say just at the end of last year with those yes yes the citation that i quotation is although the corroboration requirement demands that there be some advents independent of the confession tending to show that crime did occur that evidence need not by itself prove the existence of the crime beyond a reasonable doubt if the defendant's confession is corroborated the corroborating evidence may be considered together with the confession to determine whether the crime and the fact the defendant committed it had been proven beyond a reasonable doubt and sergeant is deliberate and using this the crime language and truly there is no authority prior to silliness for this for a crime the crime silliness cites to other cases but with all due respect it is literally taken out that other cases are not literally saying a crime and there are now a c s i totally consistent with that this state is arguing that they don't have to corroborate every essential elements there are cases there are supreme court cases that literally say that they do i would draw your honor's attention to sargent and dalton they court talks about how it must corroborate every essential element of the offense it talks about how technically age is an element of the offense of indecent liberties with a child and then creates a specific and exception saying well age doesn't have to be corroborated because it's such a reliable sort of confession on on like peculiar perceptions or recollections of the defendant who was under the psychological pressures of an arrest or indictment about what he said or did was exactly what we have in this case i mean these cases are directly on point and furby of the court said that the prosecution must present evidence outside of the fence confession that tends to show commission of the offense and this corroborative of the circumstances related in the statement so the state's her argument is that it doesn't have to prove the offense and in fact it does and if your hon  the other point i wanted to make is that the idea that jasmine's statement about touching the outside of her vagina is not consistent about is not inconsistent with lire statement about penetrating her is not realistic i mean as justice in the bill pointed out penetration in this context when it when it's when it's about a digit in the sex organ the intrusion is required just to clarify that point there must be an intrusion so if the however slight yes exactly but our outside is inconsistent with inside it's just that simple there their opposite outside is not consistent and certainly does not corroborate intrusion and  the state's argument about what jasmine was thinking or why she didn't understand this pure speculation and that point i would directly job the court's attention to richmond because in richmond there the defendant  contemporaneous crimes he said that he penetrated made contact in that case because it was to sex organs he penetrated the vagina then the anus and run incident and the child victim said that that's right because the state corroborated penetration of the anus just as in this case they corroborate contact with the vagina they did not corroborate intrusion of the giant and you must throw out that count and then my final point is just that  or discard it completely that's exactly what the state wants to corner them into doing you can either have it all or have none of it but my whole point is that they were deprived of the middle ground and he needs a new trial thank you a reasonable doubt would be for example if jr had said well i thought i might have felt something in my private part but i'm not really sure where she said i well i just woke up and i saya his hand might come out of my private parts so i'm not really sure person into the focused electee world they must corroborate every element that is otherwise only proven by the defendant's confession and i believe that the case law that i've cited actually makes that point quite clear in particular s