witnesses a single witness who was there as the alleged incident occurred on september th that witness testified that she had a fuzzy memory of what occurred that she did not remember what occurred that it was a blur and that was because she was drinking you know under this the court allowed us to dorothy to testify with regard to her memory as well as the nd point that we would like to raise is that the court committed reversible error in allowing order of protection to go back to the jury not only admitted in the evidence but also published to the jury now while the honorable court trial court level found that because the issue was not objected to at trial that the that the appellate has way that issue we ask that this court review it under the clean air and often this order of protection was admitted and if they can time for two possible reasons of this order protection was properly admitted the st is that the they told the judge that there was an agreement between the state and the defense with regard to redacted porson the order  protection now wait a while that may have been true prior to the testimony of the witness in this case the witness did not testify and to allow a legal emission of this order protections pacifically this order protection was not admissible as a prior inconsistent thinking laws clear that in order for of something to be admitted as a prior inconsistent statement several factors have to be met the st of which is that the statement is inconsistent questions about whether or not water was born on her she was not asked questions about whether or not she was punched she was not asked questions about whether or not mr exactly allegedly made statements to her regarding smashing her head in she was asked what occurred she testified to partially of what she remembered she stated on page thirteen line one thousand three hundred and fourteen through fifteen i went after him further on down the page line twenty it was physical in both ways excuse excuse me one minute i don't know who's making the noise and if it's you so i don't have any problem with that but if everyone else does the pain of those tones or their device muted can we please do it because it's just didn't happen and then the order of protection was admitted well this actually didn't happen and furthermore we ask the court to consider three factors the fact that the witness testified that she herself did not want to obtain the order of protection but that she was directed to do so by the iraq an officer she testified she herself did not write the order of protection that it was written for her she did not wish to sign the complaint in this matter and she did not wish to move forward with  charges in this matter and then it's reversible error to have that order of protection and that's evident by the fact that the jury found mr isn't he not guilty of domestic battery with regard to bodily harm and guilty with regard to  of an insulting and provoke nature it's clear that because the evidence in this case was so slight that the jury relied heavily on the improperly admitted order for touchtone with regard to our st point our initial point regarding the beyond a reasonable doubt standard even in this case when looking at the light most favorable states under reasonable to the end or the courts have found that in order to sustain a finding of guilty with regard to th district case your honor in that case court found that in order for insulting him provoking domestic battery to be sustained a conviction for such the court must look at how did the complaining witness or the felt that she was part of that situation too she didn't get in that was to sign complaint and that was to move forward that's clear your honor that missed or c in this case did not feel insulted nor provoked by what occurred between her and mr testified again that she went after him if anything and she she started it and so your honor based upon the evidence that came out without any further corroboration we only have testimony of one witness that was there and by the state so we're left with the question of how can an individual be facing a loss of his liberty how can he be now convicted of this domestic battery where there's no crime aeration and by the state's own admission that their own witness was  credible your honor and so for those reasons we ask that you reverse the finding of guilty in this case a dish really your honor the court committed plain error by admitting evidence of photographs that were improperly testif power takes issue your honor with a lot of the way that that the testimony came out at trial specifically with regard to point to our order of protection it was clear if that portion of the transcript that the state was essentially testifying for missed or see and each and every question was objected to by the defense with regards to the testimony being leaning in all of those objections your honor were overruled aside from the initial objection to the state with miss dorsey and didn't this occur didn't this occur didn't this occur and it's all from the what we determine to be cumulative or hearsay  inadmissible order of protection and so your honor although if this court should find that because the order of protection was admitted without objection a trial would you ask the court to consider with regard to the plane  doctrine we asked the court to consider fundamental fairness in that regard and the fact that this is not a surprise this argument that we're making the argument was made to the judge with regard to the publication of the order of protection we can see that it should have been made with regard to the admission of the order of protection but it was made and laid out to the court with regard to the publication it was then raised again in the post and it's been the forefront and the crux of our argument your honor in the guilty and we ask that this honorable court find as such finally your honor the state raises their response to our brief that many of the of the improper evidence  admissions were under the invited error doctrine we asked the court to look at the case cited by the state people of the state of illinois versus alvarado a l b a r a d o in that case your honor play a portion of the video but must play the whole video the defendant in that case because he really had no choice the court held that he did not recur invite acquiesce to the admission of evidence that is such the case here your honor  and we're not asking finally we're not asking the court to retry the case or substitute judgment but we do believe that because the jury found that the defendant did not commit bodily harm the state's argument that any for that occurred with the c classify these injuries as minimal or minor but that's irrelevant for our argument your honor as there was a finding of not guilty as to bodily harm with regard to causing those alleged bruises on  because she didn't call the police there was an there was testimony that she texted her daughter but again when the door when the door there was a knock at the door with it could have been her daughter she didn't even want to answer it in fact she testified she went back to bed and that she wanted had and page thirty she testified that she hasn't she remembers the incident that occurred on september th that or today and that's very important for purposes of our argument your honor because the state contends that the order section was properly admitted as a prior inconsistent statement however the st prong needs to be met isn't that the testimony at trial must be inconsistent with the prior statement and we've touched on that's already but your honor the said that ms dorsey testified that her memory was better on the date of trial and that parts of or coming back from the day of trial that is the testimony that should have been allowed before the jury there was no allegation that this witness was  combative of a civil or outright lying and case law held that without that indication without some sort of testimony something we can point to in the record where mr speaker and there's even certain points your honor where the state is asking mr orsi well did you tell the people that drafted the order for section which was not miss dorothy what she wanted to include in that order of protection and she saved how long i wanted it and then the state fumbles for a nd about what kind of follow up question and it's very clear in regard to that portion of the testimony that ms dorsey is attempting to answer the question that the state is asking her and she she answers it's of the best of that came out of trials civically the water throwing that occurred the officer that arrived on scene testify that he did not observe missed or see to be wet he didn't observe the floor to be wet she never indicated to him that water was thrown so we have testimony at trial that is consistent with her prior testimony to the police officers but then we have this order of protection which a state contends is inconsistent and your honor the evidence at trial that is what should be presented before the jury and that is what the jury should consider by a longing this ancillary piece of evidence to come in without meeting and your honor we ask the court to look to the history of the prior inconsistent statements statute that porch previously that includes us that prior statements that were that are not taken under oath are typically frowned upon to be admitted into evidence your honor and that's why it's very important that all of the foundation is met with regard to allowing a prior inconsistent statement because it can be extraordinarily prejudicial in this case it was the opponent's position is that that was the reason that mr  was found guilty and without the admission of that inconsistent statement which our position is was not an inconsistent statement at all he would not have been found guilty and we asked the court to reverse the finding of guilty for those  record was supplemented after our finding our discovery that the record was incomplete with if if if your honor does not have that portion in in front of your honor we believe that your honor can still consider the arguments with regard to the evidence as they were presented at trial the fact that your honor has the actual written post trial motion our position would be is sufficient for the justices to consider because the filing at the hearing on the post trauma motion and the fact that the court did rule on the post shall motion we believe that any timeliness objection should be waived for all purposes it's because it's just as if we did not have an argument in our push on motion honor we believe that that jurisdiction is given to the reviewing court once the the notice of appeal is timely filed and once as long as a post from ocean was filed in litigated in the jersey action for purposes of reviewing course your honor with regard to the issues presented is to allow no unfair surprise so here because the issues were laid out in the post trauma motion which your honor does have then your honor can make the determination of whether or not these issues were properly presented to the state and to the trial court ok actually that's all the questions i have thank you justice chopstick do you have some questions i do and i apologize i know i don't know what the problem is why i couldn't be heard the one of the issues that you raised with cumulative error in order to have reversible error in and of itself and we believe that we have met that standard with with each and every error that were alleging your honor so we do and i know that the courts of held cumulative error in those case all  this for purposes of today's hearing the two issues that we believe are the strongest are the reasonable doubt issue that the state failed to meet their burden and the fact that the order of protection was improperly admitted it got in of itself is plain error and but taking everything together certainly is cumulative error enough for reversal but individually in another itself we've also met that burden we believe your honor ok so those are the two issues but you're going to focus on the focus on those two and stay away from some of the other questions that i have with respect to the quarter protection v the prior inconsistent statements you don't deny can be used  a in a domestic violence case oftentimes the order of protection is used as a prior inconsistent statement isn't it ye now go ahead i don't believe that it's in an unusual thing for the court to include as a prior inconsistent statement i think in this case with the this set of facts it would be unusual to allow an order  in this type of case where we have a witness who's testifying that she remembers better today that she was fuzzy because and that is important because we're not we don't have a witness here who's saying i don't remember something of a battered person what she did say she did say he didn't recall several times didn't she absolutely or honor however rather out of the transcript she states that she doesn't remember because she was drinking and that's a desa bit different from saying i just don't remember because too much time has passed or maybe she would she felt more confident telling the police this is what happened and then now she's testifying at trial and she's afraid for whatever reason certainly in those cases in order for attention actually would would probably help both sides and definitely the fact finder and the determination of law i think in order protection in those cases and that's why i believe that the statute if we look at the history of the statute that's that's why it exists in this case your honor we have a witness who told the police what happened on september th she then on september th goes and takes out an order for traction at the officer's discretion she does not offer that order protection and that order protection has allegations in it that she never told the police initially in her initial statement so therefore and then she testified consider the lugger but those are inconsistent statements which would go to the weight of her credibility correct i mean good in the state to lay the proper foundation they could have done better but they laid the foundation that she made an inconsistent statement the time the play the circumstances of the statement so it doesn't this all come down to the w to be given to her credibility respectfully i don't believe that the that the state made the proper but laid the proper foundation to admit this order for to action as a prior inconsistent statement and the reason for that your honor is because when on page twenty of the record it was sustained and then the state said do you recall what the argument was about the witness i really don't during the argument what happens i'm not sure if you recall did she recall what with what it was about when she gave the order to protect the in the order protection your honor if she did not recall what the what the argument was about she recalled that it occurred over i have it here your honor breaking her glasses and bruising her face he also then told her if he wanted to smash her head it so that is so why all the different from what she initially told the police so we're not talking a prior inconsistent same with regard to she's testifying a statute is written the way that it is why it white only allows for statements that are either testified to under old or one that someone has personal knowledge of or something that somebody signs the reason those protections are in place in the statute is for purposes like this where we have such a wildly different statement than that and the the strongest reason that this should not be admitted your honor is because we have the complaining witness mr testifying or i would be happy to record but with with cases with regard to that what with this case because it is such a unique situation where the order for traction was so wildly different from anything that was previously testified to i don't believe but we would be happy to supplement the record with regard to that i doubt your honor in this case and i think the the stronger guilty beyond a reasonable doubt looking to miss dorsey's demeanor and behavior after this september incident occurred and even with regard to this order for to action that can be taken into consideration so she testified that this order for to action was taken out the very next day so by looking at what is contained there in this order of protection we have somebody who looks and this is not just speculation it's clear from what's written in that sort of protection we have somebody who obviously is either upset or spiteful not insults and assaulted and provoked and we know that because we look at her the way that she acted when the police arrived and we look at the way that she acted after this incident allegedly part by again going to bed not answering the door those faces yeah i don't just agree with you but isn't that isn't that the purview of the trier of fact the jury the jury heard all of that they saw all of that that was their determination to give the weight that they feel was appropriate to those instances misstatements and that inconsistent as you submit behavior how how did we reverse what the trier affected in this case  this case the state had such slight evidence and i think with with the evidence of the order of protection by including now it's clear that the trier of fact relied heavily on these fact could not have found this in your honor the fact that the state concedes in their response that mr dorsey testimony was and i'm looking for their briefs i'd like to quote it directly they can see that h was essentially unbelievable and she was the only person that was there on that date she was the only person besides mr is actually himself that were allegedly that were there on that well let's talk about that you're saying that those are inconsistent verdicts correct the one the nd verdict form was insulting or provoking that's the last you need to move left for insulting provoking then you do for the bodily harm correct the how is that an inconsistent verdict going to our position would be that that the insulting in provoking it doesn't have to be less necessarily respectfully as they're both classy misdemeanors the elements are are different but it's not necessarily that lesbians to be proven it's a different element so in in light of the insulting and provoking provision the state must prove beyond a reasonable doubt that there was an unwanted touch that was that was insulting and provoking and in order to determine the insult in provoking and that is one of our arguments in our brief that that statute in and of itself is unconstitutional which we asked the court to review under th would your argument be better counsel if he was found guilty of bodily harm and not just insulting or provoking yes ronna are i would be different because the way that the evidence the trial court level we believe that because they were admitted although we will there minute an error those photographs demonstrated some sort of bruising or some sort of injuries so if the jury found that mr actually did not commit those injuries he did not inflict bodily harm the bodily harm that was allegedly depicted in the photographs that were admitted by the state at trial the the fact finder  but certainly had they found him guilty of bodily harm and not guilty of insulting provoking we would be in a much different posture here because in the u k thank you very much i get your argument thank you i have no further questions just in your piece twenty of these trial transcripts i'm going to find these i think the officer directed the complaining witness in this case to obtain an order protection but did that mean she had to do certainly an authority figure may feel compelled to comply with that order or that direction i do think that that is maybe not risings level of course is but it's certainly instructive for her to go and obtain this order protection and we have what we have a situation here where this witness was almost held in contempt of court was issued a petition for rule to show cause and almost brought before the court to show good cause as to why she didn't show up or she would be arrested and thrown in jail so certainly an officer telling her you should get an order of protection i would say at the very least as instructed by counsel where did this incident occur where is this condominium located so mr was actually relocated to crystal lake in order to remove himself from the situation and so that is in error in our brief on ph for the carpenters all police responded they responded to  to carpenters bill and then later on went to crystal lake where they spoke to mr azikiwe where he was cooperated and gave his version of the events as a part of that would be a bear in our grief do you know of any other errors in your brief that on your part or whoever wrote this brief and i suggest not direct that you be more careful in the future now during the course of the testimony of our witness here didn't she say that she was freaked out she was upset how she how she felt after after the incident occurred and your honor that that portion of testimony also gave me pause after reading the rancher case to see how did she feel after this how did she react after that and i think that that statement could be taken in conjunction with her earlier testimony where she states that she came at mysteries like you st and that she did not answer the door because she believe and he's twenty one that she felt part of the situation too so her being freaked out and upset i think that that is common for anybody that's involved in this a mutual argument and particularly in the argument that involves not mutual combat but but physical altercation where in that person is the aggressor and the two police officers show up on my carpenter's ill doorstep and want to talk to me i think that being freaked out as it is a natural reaction i don't think it's reaction that rises the level of insulting and provoking and certainly but now so you're not on the jury and it was the jury's province to take the instructions that they were given and apply the evidence that they had heard and why is it not reasonable or not consistent with their verdict that they determined that freaked out upset and a huge fire as related to her daughter  constituted something and provoke or provoking testimony you know it's a not reasonable because we because the the evidence the way that the evidence came out with her testifying that provoking and certainly i was not on the jury and i think that we don't know what the jury found was insulting and provoking because quite frankly the evidence was all over the the testimony was always there was an order of protection that was completely uncorroborated by any other evidence since and it's important in in these type of cases to look at not just the complaining witness the testimony but the other testimony of other witnesses and we had two officers that testify because kate and all none of their observations were consistent with what is contained in that order for text and there's no observation of broken glasses or i mean wet hair wet clothes none none of that was told to these police officers when they arrived and her statute requires a prior statement under oath and the only one we have here other than hers at trial is her testimony or her the information in that order of protection that she signed under oath you are absolutely we just asked the court to consider certainly cannot be considered her testimony to the police for purposes of prior inconsistent statement as it does not rise to the level of what it's needed in order for it to be properly admitted as a prior inconsistent statement but just for the courts to consider whether or not the order of protection was actually inconsistent with what she testified to a trial and certainly this order of protection i believe that the admission of a verified order of protection  typically can be allowed in this case your honor because the witness testified that she herself did not write it and she herself did not wish to take it out i think that is important for the court to consider yes yes it is signed by her but certainly your honor it was admitted in air base upon its previous was the police officer that directed her to file this standing over her at the time she signed the order of protection i don't i don't know i i doubt that allowing the continuance one of the issues that we raised in our brief that we believe we asked the court to review this under an abuse of discretion standard is that the trial court improperly granted a continuance for the state on the day of trial progeny have allowed continuances where witness is unavailable on the day of trial but we asked the court to consider the fact that others there were other witnesses that were available on the day of trial the officers were there and while the state made an oral motion for continuance this motion was not in writing supported by affidavit as required by the statutory rules and regulations and we believe that the state should not have been allowed to continue on the b of trial  of trial she was not going to show up when i will also call a phone call or any type of contact with the complaining when it's particularly when we have a pretrial where the state answers ready and says if they're going to be ready they should have had contact with you have to have properly served her with a summons i think you counsel i have no other questions you will have an opportunity to respond if you so choose and now we will move on mr three holes or any argument you knew was to offer may please the court counsel items that are on behalf of the people of the state of illinois defendant alleges multiple issues on a very low and a very limited record i will try to address them in my in my time that i have very briefly i take issue with the fact that opposing counsel indicates that i stated that the complaining and complaining witnesses testimony was unbelievable that's a misstatement of the brief  and it's a thing that happened within the overall brief and the arguments basically overstating or misconstruing facts in the state's brief i did state that the state introduced a prior inconsistent statement yes i  can see that i was properly admitted pursuing the statute but in no way did i state that that made her testimony unbelievable i believe that the argument attacking the petition for order of protection is the most  genuineness of all the arguments made by the defendants the defendants arguments she analyzes them under a denotable standard a review d that is not the standard of review it's an abuse of discretion that the  discretion in admitting this piece of evidence and i acknowledge that defendants incorporated this issue in her post from motion however we don't know what arguments were admitted to before the trial court we don't know the comment made by the trial court when it decided that the petition was properly it mated hence the lens is not a day novo review it's we're looking at the trial court's decision and we can't do that based on the lack of the record nevertheless the defendant does argue plain error but i'd like to see the point that the state and defense counsel agreed to the redacted version and the specifically asked defense counsel do you object to its admission and defense counsel stated no we do not know the the state proceeded and proceeded to lay its foundation now and defend the petition those are two contradictory arguments what was it she didn't provide information what was in the petition or she read it at trial nevertheless i do believe that it was properly admitted would like to go on and address the other arguments mentioned with the mentioned during her argument every guards to the motion for the continuance which is granted defendant argues that it was an abuse of discretion  she states that the state didn't file a written motion beforehand but the state didn't know the witness was not going to show up they had they did it the state didn't do due diligence and so and issuing a subpoena in december of tw seventeen and the original scut scheduled trial date was in march she didn't appear during a preacher's pre trial date and furthermore the people sites people beat moriarty with sense for the proposition that an informal initial request is of no consequence when it witnessed fails to appear furthermore the state memorialized its motion afterwards and and also in regards to defendant's argument that the chalkboard erred and excluding defendant's statements within the within a police report according to that according to defense brief that statement revealed that defendant said that the victim pushed pushed pushed him and that he pushed the victim after she kicked punched and grabbed just wrote this statement cannot be found anywhere within the record and it's not included within defendant's st motion and  there also no transcripts from that hearing nevertheless there is a reference to this request in the post from motion filed but again we don't know why the trunk court denied the request nevertheless and defendant's brief  he argues that it should have been admitted under rule eight o five b three under that rule a defense of the declarant statement must be against interest and when you analyze the alleged statement within the defendant's brief it's not against his you know interest it supports a serious self defense furthermore police reports are generally not admissible evidence in regards to defendant's argument with the trunk or sought to admit allegedly testimony from police officers regarding evidence that the police were called to the to the defendant's and victim's home i really wan purposes later on on the day of trial defense counsel filed a nd motion in limine e they argue that any statements about prior domestic incidents as hearsay and should be excluded to such on the day of trial they argued that it should be excluded because it's hearsay it's very hard to attack a trial court's decision when you're arguing the opposite officer the officer testified that when he spoke to the victim he referred to past incidents with different things now since the defense since the defendant open the door to prior instances  requested that it be allowed to ask clarifying questions according to the state the victim was alluding to a past incident regarding her finger now the trunk court allowed the state to question the  witness but prohibited the state from asking who caused the injury to the victim's finger during questioning the status quo hit your eye the state never asked who caused an injury  testimony and what she stated that he that he commented on or i and took photos and and took photos of her of her face hence the the state did not commit any error in that regard the state would also like to address the defendant's argument that the trial court improperly admitted photographs taken by the victim of her injuries i'd also i'd like to point out the defendant is not contesting the admission of a photograph taken by officer lippy the state introduced state's exhibit six and that exhibit officer  took a photograph of the victim states yet defined as not contesting that admission only admissions only photographs taken by the victim herself as this court does find error with the state does not believe an error occurred is harmless because there was already a photograph admitted taken by different individuals and this case the officer but defendant does not contest the relevancy of the photos taken by the victim only it's a photo a witness can have knowledge of what the matter can have knowledge of what the matter the photo claims to be and the proponent of the evidence only needs to prove a rational or rational basis upon which the fact finder conclude on which it's authenticated now at trial the victim said she took the photos within a couple of days after the incident with the fence and she said that the photos fairly and accurately depicted the photographs there were on her body photographs taken of the defendants which also does not contain a time notation but you don't need a time notation for that there's no requirement that this notation be placed on the photograph in regards to defend its argument that the evidence was insufficient to prove to prove that he knowingly made physical contact of an insulting or provoking nature when he struck the victim on or about the head or body he argues that the victim's versions of events were inconsistent they did in peach and insufficiently credible the jury was presented with this testimony from dorsey the traffic was able to observe her testimony and judge it against the other evidence admitted at trial defendant is essentially asking this court to substitute his his own judgment for that of the trial facts which again go six obvious president precedent as a rule reviewing court will not retry the evidence respectfully request that this on a report affirms defendant's convictions and uphold the constitution ality of the domestic battery statute thank you counsel i just disturbance of you have any questions is one question what was the basis for the motion to continue the st trial date be completed when this unexpectedly showed up that was the reason she didn't show up that's it ye s quite simple we subpoenaed her there was no indication that the witness showed up and that's why the state asked to continue the the trial and again that's within the abuse of discretion of the truck ok motion the post promotion counsel said that she or ari supplements to the record had been filed did you receive a supplement to the record there is a supplement to the record but not the one not a relevant one  mean there is a supplement but i got when i brief the case i have not received notice of the supplements i'm not received notice of the motion to supplement the record nor i have not received an order of the court granting a motion to supplement and so when we motion but based on defendant's statements she made it seem that it was a supplement a motion to supplement the record i believe it was a full trial motion but i'm not sure since i never received such a motion ok thank you very much address the issue with regard to the supplementing of the record i don't want to misstate the procedural history of the case the record was supplemented on an agreed motion between myself and the state if there is additional things that are missing from the record then  i apologize and i don't mean to indicate that those have been supplements that i trust mr train those representation with regard to the issue of the substantive versus formal amendment of the complaint your honor the this was clearly a substantive amendment and counsel's argument that as soon as the state received the police officer complaint in his and her hand that's when she realized that simply not the case the case was pending  a year and the case had already been set for trial by the state's own concession prior to the time that the complaint was amended it's certainly a substantive amendment initially the complaint indicated that there was a punch with a closed fist that's very specific about what occurred and then it was amended to include just vague general bodily harm your honor and so the opponent's position is that that was a in order to make the allegations broader in order for it to meet the state of the state's case easier to prove and certainly in this case run of the charging document becomes immensely important because the jury found what we believe our in reviewing here people versus last in its nd district appellate court case with regard to prior inconsistent statements i have been searching for a case where in an order of protection was considered improperly admitted i don't believe that there is a case on point with the allegations contained in this matter your honor the court did ask mr trail about the motion for a continuance that we believe was improperly grants and we believe it was an abuse of the court discretion to grant that in that  case the witness told the state that she did not want to proceed that was brought to the state's attention at the state so inspired ready on that thursday before the jury trial so that they were going to be ready for trial but she was properly served and so then they they made an oral motion for continuance which was granted and then issued a petition for a whole to show ha's against this complaining witness who indicated that she did not wish to proceed it's our position she did not wish to proceed because she knew that her testimony was false that it was fabricated that what she testified to what trial was was flight agonists was evidence that she was the initial aggressor and that's important donna we believe that we also establish a case at the trial level that there was some indicia of self defense and we raised the issue in our brief that once that evidence of self defense was established that the state failed to rebut that affirmative defense of self defense beyond a reasonable doubt which is required by statute and we don't believe that the state did that the state presented the testimony of two witnesses in their case in chief one of which was actually there for what occurred on this of temper forty eight and her own evidence that she testified that she was the initial aggressor that she came at him for that she believed it was mutual and she did not want to pursue this because she believed that she had some partment as well your honor and they stated that the evidence presented regarding that the injuries on mr is actually compared to dorsey were they indicated that there was a slew of injuries and dorsey they indicate but the jury was not allowed to consider the statements of mystery's that he immediately there after what occurred on september th the trial court we believe again abused its discretion in not allowing this evidence in this statement in this testimony and because certainly this statement would have bolsters not only mr result he's claim of self defense but missed dorsey's testimony that anything that any injury that she received was after she had already become the initial scratches red marks and bruising were pretty consistent with any injuries that were that were shown to be honest or c but going to those injuries again we believe were improperly admitted those photographs but more this case and your honor certainly seem an excuse me in fact your time would you like to sum up your position rather and for those reasons we believe that even in viewing the the evidence in a reasonable a standard no reasonable time after the complaint was filed and after the motion to amend was filed but before the motion to a man was acted upon by the trial court did you or anyone representing the defendant here file a motion for bill of particulars no your honor however on the date that the amendment was ruled upon that march date which would have been several days or the day of trial counsel for mr azikiwe did argue that this amendment made the charging document unspecific and i did essentially make that motion for been that could have been done by the defense i think that the defense's position was that because at all relevant times here too the complaining witness had indicated to the state that she did not wish to perceive now that the that this was going to be a matter that was not going to move forward to trial and specifically on the day that the state was granted a continuance when mr orsi was served when she communicated to the state she did not wish to proceed and when she failed to a bill herself to the court it was the defense's  position that the state would not be moving forward with trial in this case based upon the lack of evidence the strength of the evidence in their case and that that that the case would not have proceeded to trial thank you very much  counsel thank you very much for your arguments the case will be taken under advisement we will issue a written decision in due course and we will stand and brief recess now to get our next panel on line thank you