violation of due process in the use of pure propensity evidence i did provide historical and legal authorities in support of such a proposition i would urge that those be considered background material to inform the fundamental fairness aspects of the evidence before it that rendered it appropriate and not a violation of due process for the court to admit prior sex crimes difficulty the panel focused on certain facts between the prior offenses that were brought in for propensity purposes and the charge defenses and in one day the same sex acts were involved it was oral copulation both in the prior and in the charges and wired under four fourteen four fourteen as i understand it is different from for a form in that it is essentially is broader it does work for a for b normally for this which is that allows the jury to consider that if the ransom insects rhymes with minors in the past the jury evidence for sex crime if that other than the distinction that you're attempting to draw and i don't mean is this respectfully but i'm not sure that that your argument makes it is a distinction that propensity evidence can survive due process challenge also not all of them fail it so therefore the rule itself is not stationary unconstitutional but we have to ask whether the court in a particular case properly exercise well in theory that would be true and i suppose that the only circumstances in which i could imagine being persuaded that were the case is where there was substantial evidence to corroborate the charge crimes other than th so fundamentally affected the trial as to render it unfair and violation of due process that that encompasses a finding that this verdict was substantially affected undergrad and you square that with the other supreme court that whether or not correct analysis is considered a separate step analytically where you have had facts that rise to the level of fundamental fairness it is also clear that the same factors would support a finding that the jury it occurred at night i mean there are there are a number of elements that are that are similar he goes into her bedroom he groped her at night which is which is more here you have a you have an alcohol problem here as well but i mean these aren't that this with respect to propensity evidence can be in being admitted at the trial court level mcguire declined the supreme court declined to express an opinion on that issue therefore since there is no clearly established law the decision of the trial court is not contrary to or involves an unreasonable application of federal law with respect to the  issue of fundamental fairness i disagree with counsel the i don't believe the case law indicates that it has to be exactly the same the prior act has to be exactly the same as  if we were talking about the more generic other crimes that act of evidence then we would have to be looking at those sorts of factors similarity of temporal proximity the four or five  two situations that are very similar you can go down the line their family members that he sneaks into their bedroom with respect to both victims preys on that night and commit sex and sexual assault the may there was a difference with respect to the offense the offenses the prior offense and the charged offense in the may the two year old if you remember  we are looking at this position and that's the relevancy of this for to in this particular case was just disposition to commit sexual assault in a substantially similar fashion and that's what the district court ruled as is i would say only that we have a fundamental fairness problem when the trial of charges at charges involving acts against elena turned into a trial about whether or not mr torres had molested his stepdaughter this is a case where the jury was asked to spend a great deal of its time and effort addressing the question of child molestation and to simultaneously be trying evidence that has been put forward on every element of the charge crime they had a number of witnesses who were talking only about the molestation the prosecutor argued that you should believe elaine as testimony because of the need as testimony and while the crime in question from prior acts it was a legislative judgment indeed judge may about the courts are nonetheless required to make sure that that legislative judgment is not affect you ce was weak and presenting mr torres to the jury as a child molester had prejudicial value that outweighed any slight president value of child molestation is a much more emotionally offensive crime it's much more likely at least a preponderance of the evidence and once the jury satisfies itself that that prior act occurred then it can give it whatever weight it wants to in deciding the elements of the crime that the defendant is now on trial but once