me please the court counsel my name is kathleen flynn and i represent nathan we are the trial judge wanted to reduce the thing your conviction for criminal sexual abuse to battery the fact that she ultimately did not do so was based on her belief that battery is not a lesser included offense of criminal sexual abuse this is a misimpression which defense counsel also failed to correct with available thore the trial court's misapprehension of the law denied nathan you're a fair trial and his conviction should be be reduced to battery as the judge intended was yes and say we're agree with your first proposition that battery may be a lesser included offense of criminal sexual assault and if we found that proposition to be correct we would still look at whether in this case that battery could be a lesser included offense of criminal sexual assault what i'm getting at is  criminal sexual assault and this will never the criminal sexual abuse statutes are kind of their own thing and indeed consent whether or not the kind of conduct was consensual is irrelevant consent is not a defense to these types of to these types of crimes and that is because in effect the general assembly has deemed as in this case sexual penetration between persons of these of the specified ages here in one thousand and fifteen to be inherently offensive it is illicit and therefore insulting or provoking the conduct proscribed by the battery statute so to answer your question it doesn't it doesn't really matter if the conduct here was consensual or not and certainly that particular element was not alleged  charging instrument what is evident here is that the charging instrument alleged that an act of sexual penetration took place and as i argue in the briefs that it can reasonably be inferred from that language that the contact which  us no he is he has been found guilty of criminal sexual abuse the trial court made that finding however she also made it very clear at the hearing sentencing the motion the motion for a new trial i'm  sorry that she wanted to reduce the conviction to battery we don't know why exactly and this court doesn't even have to reach that step is this court made very clear in baldwin another lesser included offense case the question of whether or not an offense is a isn't offense of another is entire east entirely separate from the issue of whether a rational trier of fact might find the defendant guilty of the lesser and not the greater this case there involves step one of th makes that the that in the case law and in our case well that's that's step two of the lesser included offense analysis and that usually arises in cases where the defendant is arguing for example i should have received a jury instruction on the lesser included  fense and i didn't therefore i was denied a fair trial but that is not the issue here this case rests on a very different principle and it's the principle of lenity now nothing there is not disputing i mean the evidence the evidence here supports a finding of guilt on criminal sexual abuse however the trial court in her discretion in her inherent power decided that she was going to reduce the conviction to battery has she done so would have been an reviewable exercise instruction on the lesser into the appellate court essentially said well either you know either you did it or you didn't and you know analogizing in this case either the penetration took place if it did your puerile to criminal sexual abuse if you didn't you're not guilty at all but that's not the conclusion of the trial court arrived at as i said before this is not really an analysis this is not really an evidentiary analysis this is looking for as a result i would like this court to reduce nathan and i think there's conviction to battery the record is clear the trial court would citations yes of them and not providing the she explicitly invited defense counsel to supply her with authority but she said that you know absent that authority she could not reduce the charge at that time defense counsel never followed up of some criminal thoughtful of years but not under the facts of this case we never even get to the ineffective assistance of counsel because counsel can't be ineffective for not coming up with a law that we would find would not be persuasive so i i want to understand your argument and what it's based on it appears that your argument is that sexual penetration is synonymous with insulting or provoking and is that based convict someone if the victim was at least thirteen years of age but under seventeen years of age and the accused was less than five years older than the victim that's what the statute said it doesn't say anything about insulting or provoking so what makes the act of sexual penetration albeit consensual synonymous with insulting and provoking to get the lesser included very well certainly we're not arguing here that every act of sexual penetration is inherently insulting or provoking the act alleged here is in the context of a criminal complaint alleging that a nineteen year old committed an act of sexual penetration on a fifteen year old now even though it's not specifically alleged in the complaint it was not consensual or by force or against her will you know such as the old rape statute used to used to have as i said before the legislature has deemed contact like this to be essentially criminal touching it is a list of sexual contact that  been outlawed and with regard to the dictionary definition i think it's important not to see battery in an unduly strict of manner the better start you prescribe a physical contact of an insulting well provoking nature now  penetration not might not necessarily qualify in every case is insulting it is certainly always provoking contact in the sense in the sense that it elicits a reaction it's contact with calm which cannot be ignored and and that correct well no court has ever addressed this directly the case have been rematch you can ok which would have been applicable authority for defense counsel at the time of the sentencing hearing had he come up with it there was there was  a young man who was charged with criminal sexual abuse based on an allegation of sexual conduct now the court found that the appellate court found in that instance that the state had failed to prove that the defendant acted for purposes of sexual gratification so that sexual conduct requires that the state proof of a sexual gratification purpose and that in that instance now once that element fell out and once that element was found not to have been supported by the offense of battery in this court should also so find  the charge against him which approach properly a pride a properly applied compels the conclusion the battery is a lesser included offense of criminal sexual abuse in this case the trial court's ultimate refusal to reduce mr moore's conviction to battery me of a fair trial because the trial court operated under a misapprehension of law alternatively defense counsel was ineffective for failing to bring to the attention of the trial court case such as in re matthew k which would have supported his client's position this court should reduce ne conviction to battery or in the alternative re man the case of the trial judge may reconsider her finding of guilt in accordance with the proper understanding of the law  novak that those illnesses the lesser offense which are not explicitly spelled out has had to be reasonably infer from the language the charging indictment when you resort to dictionary definitions when you stand before this court and say now at all x essential sexual penetration our battery is not a reasonable inference the charge against me in this case the defense argument doesn't lie with this court because the law on battery both in the criminal law and the civil law is consistent is to irritate to make angry to allow somebody to do something that could be criminally liable on their behalf is that i'm justifiable touch a provoking or insulting nature there's nothing in this case to infer reasonably or i'm reasonably that this actual penetration was anything but consensual in fact children of this age do not know the consequences of sexual acts and we are going to criminalize it is that right or wrong that's up to the general assembly of the people of the state when they elect their representatives after this against the found guilty of the lesser offense is necessarily find him not guilty of the greater fines in this case is not rationally possible all the elements were proven in this case beyond a reasonable doubt  were disregarded with this quote as long held what battery is in the criminal context and the simple concept nothing fits the definition that the defendant has proposed this court they use the black but the judges must look at the law the finest most are responsible for his criminal conduct which is proven at the trial battery was not proven at this trial as it's traditionally been defined by this court courts of the state and in the common law itself what has been proven as criminal sexual abuse under twelve fifteen see if i was nineteen victimise fifteen there's an act of sexual penetration you the state repeatedly argues that no reasonable trier of fact could have found mr muir guilty only a battery on these facts but again i wish to stress this is not that type of case this is a case about limiting which happens  verdicts and it certainly happens with inconsistent bench verdicts as occurred in people versus mccoy in which this create quite specifically noted that trial courts may exercise lenity in what they perceive of the as the interests of justice that that is what was occurring in this case i also wanted to point out that we're not arguing for any kind of exception to the to the criminal sexual abuse statute in fact  insulting or provoking i would say to both they have deemed this type of contact to be harmful to the mike to the thirteen to seventeen year old involved and therefore inherently insulting and provoking included offenses and it talks about whether or not one offense requires less facts or different state of intent in order to be considered and included included offense of another so it doesn't it's not really deter it it doesn't really matter that both of the offenses here are of the same class battery is still a lesser included offense of criminal sexual abuse the difference is that if he's convicted of battery he wouldn't have to we wouldn't have to register as a sex offender this is that correct