thomas mr thomas was convicted after a bench trial of two counts of attempted aggravated criminal sexual assault and one count of aggravated battery and he was sentenced to consecutive terms of ten years ten years and five years in prison on those counts the state agrees with the defense that at least one of the defendants convictions for attempt must be vacated under one act one crime principles that we are asking your honour's to i don't vacate but to reverse both the attempt convictions on the ground that the state failed to prove beyond a reasonable doubt that cody thomas was acting with the intent to commit a sexual assault that he testified at trial and explained what happened and i believe that the evidence even sofia's testimony yourself but the evidence is consistent with his version of events which was that parents home his home doesn't live in the area they didn't have the appropriate money for a kid so they went to a quick sam's where cody got money to pay for the care they then decided  sophia's parents home and i think the videos pretty clearly demonstrate their state of intoxication and i'll get to that a little later i think that they're also significant in terms of supporting cody's version of events but what could he said happened was that they got her parents house they sat down on the porch he either fell asleep or passed out suddenly came to told sophia he had to get home started walking down the sidewalk and was going to call his girlfriend and was suddenly hit in the back with something didn't know what had happened and turned around saw a brick and react by hitting the person who had hit him and then realize it was sophia and that the evidence does show that immediately he was crying out for help he actually even said the neighbor who was the first one who i think heard noises said that she heard him crying oh my god what's going on what's happening which i think was consistent with his testimony that he didn't even realize what had happened he didn't know who it was after this night of excess of thinking between the two of them who are friends and coworkers and get drunk together in the past that cody had decided but not until he was at the front porch  parents house that he was going to ask a few over the head so he could overcome the resistance and he said underlying the whole evening was an inventor meant about homosexuality and making her inaccessible to your advances  seriously by the time we get to the sentencing hearing judgeship play it seems to just toss that conclusion by the wayside at the sentencing hearing he says i feel like this case is one where there was no premeditation really at all i don't see that mr thomas had been plotting this from early in the evening i don't know what tripped him but it just appears to be a random act of extraordinary violence but there was no premeditation that i can see at all now i understand the triers of fact have the right to make inferences from the evidence but the trier of facts inferences have to be reasonable and the theory of the case has to be plausible and there are several factors in this case that simply make the state's theory the case and the judge's findings at the time of the verdict implausible and it's not a rational finding there is for example the nature of the past relationship between  that's pretty much agreed to that evening up to the point of the incident there's a timeline really from the point where particular when sophia's last phone call to her girlfriend was made and to the point where people in the neighborhood first heard noises and all of them in that timeline at a little more in detail i met him there's connie's behavior after the incident where he immediately started calling for help and trying to get help for her  with respect to their prior relationship everyone agreed that they had been cold coworkers that were friends for years cody had always known that's a field with a lesbian there's no evidence at all that he had everts pressed any kind of hostility toward her status or any hostility toward any alternate lifestyle it never was fired as the evidence shows never heads sexually harassed her in the past or made any advance point of contention sophia testified that during the night in the back and even while they were walking home that he was trying to grab her hand that he was trying to kiss her and in fact sitting at the barricade kister cody said actually what happened was that she was making advances to me he was very confused by the understand what was happening and i believe those videotapes which is where i want to get into those those videotapes actually are consistent in the evening they leave sophie and cody leave from there about one forty five am and they go walking off across a grassy area toward sophia's home at that point from my recollection there several from the park there's no effort by him of their point try to grab her reach for her do anything else if you testified he was doing this the entire time even as they were walking home the next video starts at one forty six pm i'm sorry am when they're walking down this is the area where the your and they're walking down the sidewalk and even and that video lasts about three minutes even at that point they're walking in arms l there's no contact by him toward her it was no effort to watch her grab her and head back there's not even an effort by cody to help her up when she falls over after she your amazing is trying to get up there no physical contact between them and all at that point which is inconsistent with her testimony that throughout the evening he was doing this the phone call the last phone call sophia made to girlfriend came in at one fifty seven am according to the girlfriend one of the videos starts our shows them in the area of three twenty westbrook's i believe it is f one fifty seven says that they stopped in the middle of the street and then head off in i don't i think it was a southerly or a westerly direction but it's it's a dark video and you can see the street from some distance away that point well let me add the eat next thing that happens with respect to other witnesses is that shortly after two am a neighbor he groaning and hears cody's cries for help and he asked her to call nine one one so that's a little after two am but one of the police officers said he arrived at the home at two twelve so at most you have a period of time complaining about his girlfriend kody asked her for a beer or she i assume would have to check she said they had no beer then he jumps off the porch he's rooting around in the flower bed she's wondering what he's doing so he jumps down the see what he's doing she sees him holding a brick in the air in his hand she's saying what i want what the hell is he doing but at that point decides to turn around and walk away then she says the next thing she remembers was pain and blood and then down his zipper and only at that point he sees this blood pooling under head and that causes him apparently to cease in his efforts to assault her and he starts calling for the police it's hard to believe that all that could have happened in less than fifteen minutes it's also hard to believe that cody would have been reaching down for someone who was lying flat on the ground trying to pull down her pants and that see this large pool of blood which is what judge shiflet said in used him to start calling for help and if he had enough presence of mind i guessed to think what i'm going to ask her over the head with this brick so i can a or why would he not then have her hands up in his intent and really been white why would he leave her in that position i think it's i think it's very reasonable to find out what actually happened was both of that you see them both on the video sophia is falling over she has a hard time getting upset a hard time pulling up her pants certainly not unheard of that in a situation where someone is drinking too their relationship of prior relationship it doesn't fit with cody's behavior afterwards and it wasn't a rational finding in effect by the trial judge that you  to urinate to the next time we're at three twenty for us and that was about a block and a half so i think probably with their state of intoxication it was going to take them longer than five minutes or so to  seven am to shortly after two am yeah they could have gotten to the steps he fell asleep and was startled away by who knows what but that was only a few minutes i think it's the point you look at i sense that he was walking away leaving the area he's is hit from behind doesn't know who it is and he doesn't realize that sophia metz he said that may have been why kept saying i don't remember saying this but there may have been right i kept saying it's a dude because i didn't know who it was that it hit me so we'll there's no dispute he was he didn't complain that he had did not present any evidence of that but he i'm not trying to justify these he didn't actually try to justify hitting her what i'm saying is that it wasn't with the intent to commit  he was in his the train wasn't even trying to make a viable self defense claim he also by the way he did after the police first spoke to him did invoke  consuls so at that point we don't really have and more come from him until the point in the trial so i think this case is probably closest to brief and that's a case where there were some credibility issues a complaint in that case actually expressly testified that these two defendants had sexually assaulted her written and several several times that sexually assaulted her the appellate court look at the physical evidence in the case look at her testimony look at the testimony of one of the friends explained the defense version of what  these two sexual assaulting you they said let's look at all the other physical evidence let's look at the implausibility of of some of her testimony we don't believe that that's proof beyond a reasonable doubt and i think in this case to the events are to consistent with with that she knew the bartender no one at the bar said that he that cody had committed any kind of sexual acts toward her his behavior immediately afterwards his behavior on the video shows that there is no  evidence of any kind of say sexual tension between them on any of the videos and we have a substantial period of time on the videos where she said that was happening the entire time and the videos don't corroborate that testimony and then his behavior immediately after his cries for help was asked him asking to call the police he asked that the neighbor call nine one one those are all consistent with his version of the events we have as an indication of  version of the events prior to him and thermal attack on sophia was more consistent with the evidence and more plausible explanation of what had happened and that's essentially cancel our view here but in our brief the people detail the extensive bench trial testimony showed the defendants trial testimony and defend its assertions on appeal are clearly contradicted by the physical evidence and the testimony of the other witnesses specifically the testimony police said so i don't remember that event i was wrong in you know there was a specific fact that was not there and during the questioning at the scene but then it also sarcastically said to the officer who is questioning about what had gone on that in attempting to have sex read with her and this is even though the police officer at that time did not raise that as a possible scenario to him he had not accused him of that at  lesbian and that they had never dated and they were not close friends they had been called workers years or earlier they didn't have a lot of contact go through the system apparently the defendant had somehow that's not clear in the work and how they had a phone conversation while she was at the bar but he unclear but it is highly improbable that on this particular night sophia whether she was drunk or otherwise suddenly decided to work with or to try to have sex with a male this is not her history no sophia service she's been listening to him commiserating with an insult they get back to the house you're sitting on either on the step or on the swing whichever version you believe in she's again she's being empathetic toward him and such like this  that are you know during the interviewing process and this sort of thing and police officers at station if they didn't see any evidence of when it had been injured and he didn't say at the time that he had a medical problems even though he testified that it was quite painful this illness for him it almost knocked into his knee to the ground he's at trial he had excruciating pain is the way he described it is back in his it will if he was injured dead badly you would think at some point during that period of time that he would say something about being hit with a brick that happened this is not credible this also contradicts the conflicting stories of defendant told police you know he said that he'd been walking by her on the ground and then he also said that she had fallen if he has credibility if he has no credibility thus not really being believed doesn't mean what is others ok so what do we have in terms of non testimonial by either party that there is a sexual and has posed coun that he did zip but it's again i'm not going to swear that i'm just saying that's what it appeared to be on the video but when you see them walking away he's or one of them are you know their pants or great they're walking as well as drunk people feels pants were pulled down i don't know that we can necessarily say that sophia's pants were partly down but when you look at the testimony of all the witnesses who live in the area there's  different descriptions of what they see in fact her mom says her pants were coming down a little bit a neighbor said her pants were down a ways and other neighbor says her pants were down by the time the officer gets there who says all her pants are below her but that's all again that's consistent with what the neighbors are also tested and her parents are testifying to they see cody doing he's trying to pick her up and pulling are up and saying you're ok you'll be ok you'll be ok if her pants were already somewhat part way down because she had securely fastened them that's why there's these different stages that these witnesses are testifying case that show that that you know that the pulling council says well why would she it after being a lesbian her entire life why would she suddenly want to have sex with a male why we would hear thomas after being friends and issues a lesbian never expressing any kind of sexual interest or sexual hostility the judge found it was an act of hostility because she got hit in the head why after six years would he do that and why would he choose to do this in front of her parents house it's just not a rational scenario it's not a reasonable scenario of course he's going to distance himself from what's happening there because she had a serious life threatening injury but that and i would trying to sexually assault his friend so he's saying is that what you're trying to say to me that's not a confession that's like come on he said after their money everybody notions of day so that's actually a denial of an intent to commit a sexual assault with respect to comments about the defendant testifying about excruciating pain i've read that section of the testimony a couple times and he's talking in the present tense at that point he's it's not related to the being struck in the back by an object he said and there's no explain why would he say i have excruciating pain in my ankle he never claim an injury to his ankle he's saying i have excruciating back and ankle pain but it's not related to the past incident it's related to the i am not really sure why the question came out or or what the point of it was but it wasn't related to the point where he was injured or struck rather he really never claimed at trial that he suffered any kind of serious or permanent injury from that thank you your honor is if you look at all the evidence from all the witnesses you look at the videotape even sophia doesn't say he ever tried to do anything to remove her clothing i think also it there's an explanation for if he was lifting her up with another explanation for why his d n a might have been found on the upper part of her body he was trying to get her up and trying to tell her she would be ok that the state's theory of the case the judge's findings just don't make sense under all the circumstances of this case the past history of the two individuals his behavior after the incident and the state did not prove beyond a reasonable doubt professed to be beyond a reasonable doubt that he struck her with a specific intent to sexually assault her and that proof is lacking thank you thank you both for your arguments here today in this matter i'm taking under advisement