may place the court's counsel for mr alexander raised two issues in his brief i intend to focus on issue one the regarding the state's failure to prove the use of force but i'm happy to answer questions about issue two as well your hon is the state has the exclusive power in discretion to charge defendants in criminal cases with that power comes responsibility the state must prove every element of the ch reasonable doubt ok so you're saying bad day you're going to argue use your threat of force yes your honor ok when someone is sleeping is that still a requirement yes it is your honor i'm not suggesting that it is charge the defendant in that case where the defendant is and people versus lloyd makes this very clear which came down after the opening brief was filed in people versus boy the illinois supreme court addressed a similar situation where a defendant was convicted of seven counts of criminal sexual assault or an adult and into engaging in various sex acts with a thirteen year old it was undisputed that the state had proven that the sex act occurred but the where they charge the defendant under eighteen which charged on able to give knowing consent and there was not proof of that the supreme court reversed all of the convictions with the victim said she tried to get up  the complainant she testifies that she could not initially get up before she woke up she was intoxicated she couldn't actually get up because she realized someone was on top of her she was then asked pacifically how long it took her to get up and she said not very long at all she then said it didn't take long because first when i tried to get him off of me i couldn't move fast right on top of me again i pushed him got in over that's when i pushed him out so there's actually no testimony that she tried to push and he resisted or that he forced her to comply or anything like that the testimony as she woke up she was attacked did she realize someone was hit on her that when she testifies that she pushed him off is that she didn't want him court said that the use of force for the criminal sexual assault statute requires in exert a power and causing a person to act move or comply against his or her resistance and that's just what we have here is not a reasonable inference that he was exerting power in causing her to do something against her resistance it soon as she resisted he got up and apologized and if people versus them both then go is the only case the state relies on and denbeaux first to the state prove that and an apology immediately got up and apologize that doesn't prove use of force or threat of force in fact kind of the opposite it is sooner she resisted he got up and apologized and in people even close and i apologize that's even a suggestion all right go in and do what he did all right but in people versus lawyer the supreme court set any valuating a challenge to the sufficiency of the evidence under the circumstances we can only consider the evidence regarding the actual charges the state chose to bring and not the fact that he may be guilty of the one charge defense and frankly it's hard to get around that language here that about the cry out to the mother again that indicates that a sexual act took place and it wasn't something that was that she wanted and that's not in dispute ok so we can't also in her we put all these together and the burden is you know looking at it no your honor because the cry out to the mother she didn't say she doesn't doesn't she stays on top of me he was on top of me he wasn't anymore and it's not really in dispute that he was on top of her it's what's very much in was forcing her to do something against her resistance let me ask you this when we're talking about what does the word use of force me shirk when a big man gets on tap of a woman who is sleeping and she can that move you are telling me that dad is flat using force your honor that's almost like t state itself relies on it's also people versus haywood from the illinois supreme court which really is holding her down is in death the use of force your honor first there's no testimony that he's a big man that's it's entirely absent the record for size work and i thought factual situation like this where the encounter was up against a person who was asleep or drunk and it was charged and convicted as use of force then both sites that language in addressing it before reversing the conviction because  defendant and the complainant in denbeaux she pushed the defendant continues to engage in the sex acts intentionally the complainant and pushed again in the defendant got up so there is there is a first push there that's absent in this case and that still wasn't enough and then go and even if this court looks at the language you're suggesting that force could be used by  where the question is did he intentionally require her to continue in the sex act as i don't think it's a reasonable reading when the when she says it didn't take me long at all the pushing mom then i got your honor if i can just respond to that i think the disagreement we're having is whether simply not wanting someone is sufficient to prove force i would suggest the based on the case law there's never been a case holding that simply not wanting someone is sufficient to prove force she this wasn't this was improperly charged it should have been a case of unable to give knowing consent because she was asleep when it happened there is no case law of saying that unless a person it says lack of people vs pay would lack of consent does not equate to force and i think that is the answer to your honor's question as to not wanting someone that's a lack of consent the illinois supreme court has said lack of consent does not equate to force force is overcoming the victim by use of physical restraint or physical confinement or severe ear strength none of which are present in this case and that's straight out of the definition of the use of force statute in section five twelve twelve that's the use of force statute that's what's defined as use of force and that's not present here thank you connors continue with a sex act or prevent a victim from disengaging for example were defended as on top of the victim and the way to defend it prevents the victim from being able to move that is the sort of force that we have in this case the victim said that when she woke up she felt the defendant on top of her and she was unable to move she tried again to move and she was able to free herself and pushed the defendant away the demo case supports this proposition and says that there can be this passive use of force where the defendant uses or bolly inertia in order to continue with the sex act and that's what we have here you agree with alcohol that very instrument is proper difference that night i would agree with  but i would say this am i agree with that that there could have been because of added additional counts that the indictment we could have done and under age two as well but i don't think the evidence supported under a one as well so bradley was miss charges for us under charge in terms of the number of counts so we had it but there was evidence a record supporting the conviction sex offense onto the criminal sexual assault statute that is now what's happening in this case at all this is just a straight sufficiency question about whether the facts support the conviction i think counsel said she was going to address  sentencing and she didn't get to it i would only add that the defendant did not object to what the sentencing are denied first i never asked to make arguments in mitigation i did not object making objections didn't raise the issue in a post they please the court i just like to cite two cases one people versus haywood which i referenced a moment ago and he would discuss the definition of force shortly after the legislature had passed section five twelve twelve defining force and it said common sense tells us that the legislature enact in enacting a criminal sexual assault that did not intend to create a definition of force so broad that wouldn't it would include all conceivable notions of the word so the mere act of not wanting someone to be on top i think they would supports the notion that that is not sufficient and finally in lloyd which was decided just last year the court said we cannot substitute a conviction on an on charge defense involving different elements than the offense considered by the jury no matter how in a staple the findings to support the verdict might be and frankly your honour's i think the difficulty in this case is that the findings are fairly in a skate the ball on the subsection eight to that was not charged but subsection a one was not proven and where the state chose to only charge that it was required to prove that offense it did not in this court should reverse the convictions or reduced battery