system the state is entitled to one fair shot to convict a defendant on the charge him with a crime and personally a defendant is entitled should be protected from multiple prosecution once he has received an acquittal for the charge offense it is simply had said my notes are not clear or i might have missed something i'm going to reserve ruling i don't know like you argue on the element that i wonder about and the state came in and simply argued and said whatever was in the record assuming for the moment that it was sufficient with that bit of progress with bag and permissible as opposed to letting the state reopen the evidence to try to prove something that the judge already told them it's either missing or i don't know anything about it so if the judge had not made that case the sufficiency finding had not said as it did in this case have more leeway to come back and do that but here the state i mean the court made an actual finding a very clear finding that the state had failed to prove its own ok so there is a difference and in this case even though even if the court was mistaken and  evidence says the what the court terms it's finding is not what controls it's whether or not the court has made a finding that the state's evidence is insufficient substantive find and in this case the court did considering the state's motion it's very clear that the state has found has made an actual finding that this evidence was simply not sufficient which and evans is an acquittal because which encompasses a ruling by the court  evidence is insufficient to convict a factual finding that necessitates a necessarily establishes that the criminal defendant lacks culpability and any ruling which relates to the ultimate question of guilt or innocence so as evans has rejected those magic wor is there any situation where a court can take something under advisement not render her decision with the state be able to reopen at that point if the judge simply said i took this matter i absolutely absolutely have a problem with the fact that the state gets to reopen its case a month after trial my little bit more than a month after the trial but in this again in this situation the court did make findings which is where   welling that the place that got burned down was a welly but the state did not have to and the supreme court said that little still takes back it so again as i as i just pointed out if the state had come back a month later and said this is not actually an element of defense there will still stands and therefore has educations are still in violation of double jeopardy but the state in this case did not come back a month later and say this is an element that we're not required to prove in fact they came back and argue it is an element and it's so important that we have to reopen our case in order to prove it judge agreed defense counsel agreed everybody below agreed that this was an element of the affects the state is making an argument for the first time an appeal that  w especially to its benefit in convincing the judge to reopen the case not into let's suppose they don't take a contrary position but instead as they did but will assert that the record as it prove sexual penetration or sexual conduct they simply cannot do that to prove age it's as important an element as those other elements and let me ask you another question was it necessary them to prove that he was under seventeen argument is that they could have charged him with a less self defense but i know that i committed criminal sexual assault aggravated sexual abuse statutes they are other ways to charge which the state or and its court cannot do you have to start with the plain ordinary meaning of the statute which is that a person commits an aggravated criminal sexual abuse and i could get a criminal sexual assault if the person is under seventeen and defense defense counsel objected to the reopening of the case he didn't specifically object to the court taking judicial notice of the pleading or of it's quite fairly just said the court couldn't do so at that point in the process but the judge had indicated to the obvious and the williams rule which says that a statement must be unequivocal in order to constitute an acquittal it is a threshold for a defendant to reach kids double jeopardy analysis and in this case their statements that they rely on pages three o five and three of six of the record immediately preceded the trial court's stating that he was going to give counsel an opportunity to review notes point to evidence which means more further argument and i'm going to reserve that final decision so this is like the application of the first things i learned a lot of school which is the keep reading rule and if you keep reading received that in this transcript there was no decision made there was the trial court withholding judgment in order to permit further opportunity for argument and in that meantime it clear obvious that the trial for made an acquittal at any point during these remarks when remarks have to be may have to be examined in their entirety and the statements must be unequivocal where here the equivocations are court was clearly stating that they have that the trial court was going to reserve the final decision and is not in fact making the finding or ruling and permitting further argument raised earlier said that he has made that fine to give the state the opportunity to argue about what's already in the record ok instead the judge and says ok yeah you could reopen the proofs and then they might bring in a birth certificate  we'd have a problem with that would we if i had let them reopen the proofs and stead of just pointing out to me what they've already presented is evidence i mean how do you do that you know right i don't care what  that point but the state disagrees with the claim that this had been an acquittal for purposes of double checking but later i think a double jeopardy out of it oh by what what process permit for example in adult criminal court the there was a motion for directed verdict or granted finding and the judge says well i would be inclined to grant that however you know i recognize that there is this element out there and then the state says what they believe to be their protections that they believe they're entitled to under the double jeopardy because that's what they are asserting i haven't been prepared to argue the procedural implications of whether this was procedur unusual it would seem that such a delay it would be costly unusual but i'm not sure that prejudices defendants double jeopardy rights are or i'm not sure because the veto court can grant a motion to reopen proofs and i'm prosecutors once there's been a finding and then comes motion for reconsideration and your honor that's not really you know it's that sort of thing there's nothing of that here it was one continuous stream of the trial court recognizing that it was not actually going to make a decision on this case ok let's let's get past that right if they prove age ok the other issue about proof of age proper action is distinct from the question as to whether defendant has a due process right double jeopardy right slash do price this right to have his case reversed outright based on him what he claims to be the philly or the prosecution to prove its case beyond a reasonable doubt at the hearing in other words if the proof is insufficient double jeopardy farce of the trial how ever if there was error in the admission of evidence and that evidence constitutes sufficient proof a non jury proceeding it usually notice facts is conclusive it's proof that is proof beyond a reasonable doubt because it's conclusive and so i mean the question then becomes what was it  on something that was on the face of the pleading not an allegation of crime but on the face of the petition perjury dictation but then that becomes a question of whether he's entitled to proceed or not not whether he's entitled to a reversal under due process and slash double jeopardy for failing to prove to the petition and i guess the c sanction here is the case they rely on s m the judicial notice was only of the status of the court file because it determine whether he was in fact under seventeen at the time the fences occurred that is why this is vastly different this is not simply taking judicial notice of the status of a cleat and the fact that it was filed in evidence and that constitutes evidence of his birthday because the trial court did so it is in the record it is the evidence that was before the fire facts now that was improper not our various says that cannot be discounted that is still for purpose of double jeopardy barring a retrial or granting him a right to due process right to outright reversal because of insufficient proof it is still must be considered as part of the evidence you know i understand that you have no control over  cases charge but are there sex offenses perhaps even serious where the state would not have had to prove that he was under  history i believe i'm citing legislative intent as derived from the actual text of the statute as they were enacted and the aggravated criminal sexual assault has been changed because the institution of predatory kimo sexual assault which merely aggravates the crime the victim if the defendant i'm sorry is over seventeen but the aggravated criminal sexual abuse statute has not changed since i think it was nine hundred eighty four when they were revised and the subsection is part of this i mean skews so you want to see two or part of the s so i guess it gets down to the question of legislative intent are these completely separate independent crimes such that if he's charged under seventeen and then it comes and says well you know what i was actually a day older than seventeen at the time of offense and here's my  it or i was born in a foreign country and i don't know exactly what day but my mother told me i was born that day and the jury believes or find a reasonable doubt and now he's not guilty because sexual penetration or sexual contact with a minor under nine years old i somehow the legislature meant to give a pass to somebody based on whether this was charged under the wrong subsection this is all part of the same crime and if you look at the crime the way the language reads the legislature had a reason to do it this way and then this was the distinction if the if the defendant seventeen or over and the victim is thirteen to seventeen force has to be proved or threat of force but if victim is under nine it's not it doesn't matter but because of that distinction about that the legislature wanted to make force to try to force an element if the victim is at least to see nine years of age if the victim if the defendant under seventeen or at least thirteen years of defendant commit sexual penetration or sexual contact with my own victim understander nine years old period and then made a separate subsection for these situations where the victim's age is older than i because there's handgun by a person under eighteen i think vehicle conduct it is illegal conduct to possess a handgun unless you're under eighteen alleged it says that's a status offense you're not allowed to do that if you're under eighteen but the legislature never said you're allowed penetration with a person under nineteen oh unless you're under seventeen it's not legal for anyone who is older than seventeen it's illegal for anybody and in fact at the time this was in acted it had the exact same penalty whether you argument so whether due process requires the state to make a speech of killer fact an element of a crime but for example the state can't just say ok we're going to institute a new offense called the time and it's committed like one of the you know five hundred different ways and due process have to specify what the offender stage is so the question then becomes did the legislature in fact make it an element of the crime in which case due process would require proof of it because it was in those two aspects of that was the state even constitutional required to make this an elephant element in the first instance no they were not customs required they could prohibit this behavior regardless offenders age then the question is did they in fact do so when jurisdiction was different and now there's been raised eighteen but i don't think it has anything less they've intent here doesn't have anything to do whether that whether the beast would be charged in juvenile or tilt court i believe it was simply a matter of the legislature intend to make the separate offense right and that's exactly what the legislature intended although they separated them out for a specific reason because of the dealing with offender victims overnight that that's why it was separated because the requirement they wanted throw in the full force of trying to force  but this is not the statute that gives the court the jurisdiction and we didn't brief on that issue but this is now the statute that gives the court the jurisdiction this element exists anywhere if the accused is transferred to the adult court and they're under seventy so this is the step the under seventeen element would remain either way the argument seems to be essentially that this element is should be overlooked because that's not what it's supposed to be saying the statute makes this something that the state has to prove it's it's as simple as that and arguing that the they just made up a bunch take it out or that the jury instructions are somehow wrong because they misread the legislative intent goes far beyond reading the plain language  sorry they state as the state argues this they simply could have taken out their age but the fact remains they did not forget to take out the age it's in there in the statute and it's acquired to be proven as the state is correct  this issue was forfeited below but i get the double jeopardy issue but because it's double jeopardy this question look at it as a second wrong plain error because cordy's rights were substantially affected and williams and hendry are was that the at when cody was subjected to a second trial was at the end of the first trial after the state and the defense had rested presented all the evidence and the trial facts considered all the evidence is very u justice connects question it is of course procedurally unfair to allow the states to keep coming back and reopen this case for as many times as they feel they need to prove their case for example if the defense had pointed out that you cannot rely on our charging