the sexual assault issue in this case it was gutierrez was charged with aggravated criminal sexual assault after scribes taken during the autopsy of the victim revealed the presence of semen the medical examiner however testified at trial that none of the those would possibly be consistent with a sexual assault but it's not a usual indicator of a sexual assault also being constructed very consistent with the victim being pinned to the ground for the purpose of strangling or stabbing both of which occurred in this case closely as i said the victim's clothes were not ripped or torn the defendant's own statement made no mention of any sexual acts taking place here and so in a case like this where the evidence raises the inference that any sexual acts occurred after the victim stet this which to hold the state is required to prove beyond a reasonable doubt that the victim was alive at the time of the sexual acts and there's sort of two reasons for this one is the nature of the crime  correct and also you don't have game for the placing people ok but i'd also like to point out that the jury also was not instructed on this issue so this court could find that the state failed to prove it beyond a reasonable doubt or that the  in refusing instruction refusing instruction a defense counsel offered on this issue and so the source of this is sort of the nature of the crime of sexual assault so that it requires  no evidence here you know suggests that you know where there is such a you know a particularly violent death if there were a sexual assault that occurred rejected least twelve times or ten times in reported cases why don't we just say it for aggravated sexual assault in felony murder cases for all time just occurred well the reason is that kind of sexual self is i mean force was involved it didn't even have to be force right then we need penetrator it does have to be forced in the whole act and i mean as a state you know it's clear that medical evidence isn't always required to prove every part of show otherwise i mean it's just your client's your argument that she was dead then i mean just because her there was no forced on them that's not fair this is a woman who have four children and the medical examiner stated it may not were children seventy one years old i mean christ but it's certainly unusual i mean looking at what happened here it's certainly unusual that in light of the violent way in which the victim died that there would be no injuries whatsoever or than just a course of found that it's more than just you know the act of penetration or the sexual activity but it leaves very long lasting physical psychological effects on the victim and so that's  the very nature of the crime not encourage people to kill victims no i don't i mean we could go in there should be guaranteed in this in the drug store and just take the money granted that you know i think in the we're certainly not consider kidnapping the rape that's ok you can't get death that's what we'd be saying and i it's just as might be question is is that a good thing why would we do sort of well you know cruel sexual assault doesn't have to prove that the state did in fact discriminate here we need to prove that there's some evidence from which to infer discrimination and here which here is met that standard at the start of the selection for the eleventh juror the proportion of african at the percentages fifty three twenty eight fifteen and two point six the final was six cook asians fifty percent as opposed to fifty three percent book asians or african americans sure twenty eight point two as opposed to twenty eight understand it which earned me fifteen as opposed to fifteen when asian which is two point six as opposed to two point six i guess that's even still we come down to the end just looking at percentages work african americans and succession of the arctic sceptic four of the first eight jurors accepted by the state were black there right yes indeed a page fifty one of your brief you see contrary to the court's ruling defense counsel raised at least the inference  factors that spring court has identified which raise an inference of discrimination here arguably for clearly raises a pattern of discrimination another point is that the african american perspective jurors who are struck shared really know characteristics other than their race but we don't get to the point we see of rich crime physically right now i disagree that's part of the one of the seven factors in reviewing that kind of fishy case is whether or not there's the pattern whether or not share other characteristics here that there were no characteristics other than their race that these for sure they different marital status different jobs they all said that they could be fair and apply the law the state didn't try to challenge any of them or cause on there was really nothing that distinguish them from other jurors that the state struck and so that is a very powerful factor in this case that shows i'm official case and again the state has you know regardless of what happened you know prior it's never it's always a violation of the constitution to discriminate in jury selection and so the mere fact that  argument we know how terrible the facts are in this case it's good to responding to thank you with respect to the aggravated criminal sexual assault the state's position is that this honorable court does not need to get to the legal question of whether the state has the burden of proving that a rape murder victim was alive at the time of the penetration because in this case the evidence overwhelmingly showed that mary was alive at that time the expert testimony alone defeats the defendant's argument the testimony proves that the ed all of the injuries except for the strangulation occurred prior to her death the medical examiner in fact testified that it was more likely she was alive at the time the sexual assault occurred given how a body was tight at the sheet and that there but the state's position first is that there's no burden that the state has to prove that she was alive at the time but the evidence here does show that she wasn't looking at all of the evidence in the light most favorable to the prosecution the only reasonable inference that can be drawn from the evidence is that she was in fact alive at that time the medical examiner's testimony proves that the physical evidence also defeats the defendant's argument it follows the hendricks with this honorable court held in hendricks where there was a seventy one year old rape murder victim with the same similar facts the defendant argued the same thing and this court said we will not draw a bright line that rejected the bright line approach and said we would not require the state in all similar cases to establish the precise time of death in order to prove a sexual assault upon a murder victim that's the ongoing criminal assault role it is rate where the defendant both kills and sexually assaults is victim in a single continuous act or in a series of closely related acts even if penetration occurs after the victims died that's because the forced element of action sex assault is satisfied even if the force causes the victim's death prior to the penetration the penetration occurs or is the complex because of the defendant's use of force under that will the state is only required to prove that the victim was alive when the series of assault began and we did back here there's no question that mary was alive at the time the sexual assault at the time the assault began it started when the defendant grabbed her by her hair and pulled her into the program and punched her in the face and not part of the ground and the assault didn't end until he choked the life out of her and threw her blood lifeless body under the floorboards of his apartment so the proper question is not whether the sex act occurred after the victim was dead but whether the murder in the rape formed a continuous chain of events here the facts demonstrate that  to her upper body and to her head were all related to the assault on her lower body the injuries to her upper body demonstrate that force was used in getting her to submit to those sexual acts and in this case we also have unity and time in location this all  d within a short period of time in the defendant's apartment there's no doubt here that it was one continuous act trial court was there and observed the entire jury selection process he observed all of the jurors and his decision was not against the manifest weight of the evidence in order to get past each one the defendant has to make a prime locations showing that the state's challenges were racially motivated and he didn't do that to make it beyond stage one he would have had to produce enough evidence to allow the trial court to draw an inference that discrimination occurred and he failed to do that and it's true the racially motivated removal of just one one juror is bad but that's not what we have here none of the strikes are racially motive and do we know that there's no evidence none of the seven factors support the defendant's argument that they were racially motivated if there are no other questions the people would rest on it's brief and in closing that people would respectfully request this honorable court to affirm the defendant's convictions and sentences for first degree murder aggravated criminal sexual assault burglary and concealment of a hom also thank you your honor briefly with respect to the batson issue the state really offers nothing to show that the straits to defeat the defendants in france of racial discrimination so again we ask you to apply those factors many of which  way in the defendant's favor you know and indeed the striking of forgers in a row suggests a pattern of discrimination with respect to the sexual assault issue  the state's attorney argues or points to testimony from the medical examiner that it's more likely than not that the victim was alive at the time of the sexual assault what she's pointing to however is evidence that came out of the  the medical examiner testified that it's more likely than not that the absence of injuries to the genital area was because the victim was not alive at the time of the sexual acts and so i'd ask the court to consider that as well victim was not alive at the time of the sexual acts to either give the jury instruction and offer them the chance to decide that issue or for the court's the time the inference is and if that doesn't rise to pr