hope please approach state's attorney sarah macand i'm the half of the people the state of illinois are right and i'll tell you both and everybody in the courtroom thank you for being here today i know it was a struggle  not nearly as bad as it's going to be tomorrow so i consider ourselves lucky and miso danielle cow much time we feel like twenty minutes we do have another case and a half hour raised that are critical to the outcome of the appeal in my belief the sufficiency of the evidence is the most critical and i'll spend the bulk of my time on that the court is well aware of the standard of our of the standard of review and we're not dealing with minor insufficiencies or just one or two instances we're dealing with a case where there is absolutely no physical evidence to corroborate the word doesn't have to be physical evidence that there does not have to be physical evidence but in the case where the defendant's guilt or innocence rises and falls on the word of the complaining witness it certainly would would help it would help but we don't have it so that that's not the end of the it's not a case of the end of  didn't happen correct right i hope that addresses your argument i mean your question your honor i'm in this case it's our position that the testimony is inconsistent it's contradictory it's impeach it's and well that she admitted to having been drinking that evening and there were not contesting identity she didn't have glasses on and she she had vision issues which she testified to in court her testimony was said that he did not find in enough evidence for criminal sexual assault but he did fight enough for criminal sexual abuse so i was there he heard the evidence he saw there were these three witnesses and that the judge felt there was such i mean he said that that's what sexual abuse respects whether was on the fence or in the  reverse the judge on this credibility question because well i would i would point the court directly to people versus herman the parallels are pre market and i'll go right there both cases turn on the credibility and the reliability of the testimony provided by that sole eyewitness occurrence witness in herman this court found that the complainants testimony was too flawed to sustain a conviction in the main reason offered for reversing the conviction in that case was that the complainants timeline was off by six to eight hours depending on which account was looked at and that this court found that that was not minor in this case the complaint it tells the responding police officer  court point in on her when you evaluate complainants testimony drug or alcohol use is certainly a factor in their credibility their ability to rebut the judge from the credible and the touch and again we respect we disagree with incredible on the penetration correct and in fact the court it's unique here because the court sue a spot to order the transcript which back through it and based on that reversed himself and ultimately acquitted the defendant of all original evidence that she cried out there is no evidence that she cried out there is no evidence she tried to cross the street i am not here to fifty shame i want to put that out there but there is no evidence that there was any form of an outcry there's no evidence she tried to hail a passing is this court i know there's a passing car well i'm just referring to this court to be you're going opinion where the courts in that case said many things that you would expect to have happened based on this complainants version of events are the intersection of california and division it's quite busy right yes your honor it is quite busy and there are number of people as court has has clearly we appreciate the fact that you look at the video there was no interaction between them obviously there was never alleged to ha been in that in that video and speaking of that video the only thing it shows is that mr john i'm ok ample was present going back to the herman case the condom condom with d n a all over it showed interaction and showed testimony is very clear that the first alleged attack happens and then she's able to walk two to three or three to four or four to five steps away what's she walk well that's correct west down division street and so when you look at you're going the you're in analysis things that you would expect to be there but noticeably are not this is a the court has the picture it's warm it's grassy it's dirty that there was a little mound of debris she described and she was wearing white clothing or at least her shorts were white i think it's reasonable to believe that if anyone who came in contact with her either ms diaz or the original officer had noted any shovelled appearance on her they might have some  evidence technician yet that that was not done and nor was there any testimony that she appeared to shovel the closer you know you're just talking speculation on your you know make your equating that to me the only question is everybody should react a certain way i don't think that's necessarily true i mean people react to tragedy or events in different ways and cheap the fact that she didn't ask right i mean what some people don't maybe that she wanted to go home she wanted her parents that's what she wanted your honor certainly you know to people like you know reacts to stress situations away but the law doesn't carve out a special exception the law says look at what did happen so let's look at her statements and there is no outcry to ms vi's she doesn't even ask ms yes to call the police and there's her testimony was that she did but misty has her testimony was no she didn't call the police i only called the police because i didn't know what to do with a girl out late on the street the middle of the night can't reach can't contact her her family she wasn't going to just leave her there she was a responsible citizen in my estimation but let's look at what she did say first statement she makes is that it happened a full twenty four hours earlier then she says he kissed my neck she doesn't say that at trial he rubs my breast she doesn't testify to that trial he pulled out his penis she does not testify that at trial he rubbed it on me she has not testified to that at trial that i think is very critical it's a giant impeachment by omission but it's also critical because she told the officer that had she agreed to have medical treatment perhaps semen would have been preserved which would have been absolutely compelling but going back to her statements she claimed that she called the police she was impeached by that trial i missed yes she eventually had at trial that the full extent i think the the evidence or the exact question some substance of the encounters were exactly what she had testified to a trial and then she was confronted by her prior inconsistent statements and she nonetheless when she runs our boss she claims she ran into the arms of misty as miss yes says no she walked on which which brings the european opinion to mind things that you would expect to see one would be running one and none of those things happened and there was in consistency with with respect maybe two year point your honor his hands his hand his fingers his finger that possibly is what caused the court to go to the extra step of ordering the transcripts suicide and reversing itself but there are oceans of difference between what she first said the police and what she testified to a trial so i think that probably best highlights  best answers your question what's my argument about how this didn't happen and it hasn't been it hasn't been consistent and you know the piece in the first district says that if it's just one thing or maybe two things then maybe that's ok but here there are multiple things within her own and all we have is her word within her own testimony that are not corroborated by physical evidence and that are not corroborated by what she said at the beginning or what she said when she first had an opportunity to speak to police and i think it's it's really an explicit explicable for her to have said it happened a full twenty four hours it was yesterday you know a full twenty four hours  ago and i think it when you look at the fact that soon as this comes out on the media the police get a columnist offended that ultimately surrenders himself the right away i think that that's something that can be considered the with respect to the things that you would expect to see but that were not their age testified that she was able to push for assailant off on two separate occasions she didn't run away she just got up and walked away now if that were the only thing i were here was able to argue to the court it probably wouldn't even cross your mind to reverse it but this is not just the only thing it is kind of fits right into your you to pinion about things that you would expect to see if there was no screaming no outcry and no i'll try to ms yes that's another thing i think is really an important thing that we don't have here and we would ask the court to consider applying the herman opinion to this there are many parallels i know that you may disagree your honor but in that case we have a complain begged to go to the hospital and she was finally taken to the hospital here we have one who refused who denied medical treatment who refused to go to hospital and curiously instead of even being taken to a police station and process for any form of evidence she simply driven she was breathing heavily and appeared upset i would submit that if a cat call if she had just heard a call from a truck she may have the exact same reaction i would not argue that that that she has just been attacked and in both this case and herman the courts both entered reduced findings reversed themselves and reduced findings to lesser included offenses the other thing that the court can consider is things she couldn't remember she couldn't remember a lot of things about are parts of her evening which does go to her credibility under the case law she can't remember anything she got lost on the right home and certain he rubbed himself on her grabbed her breasts and kissed her neck they're not minor differences that would be our position and the last part of the reasonable doubt argument the sufficiency of the evidence we raise and we kind straddles two different issues i realize that it was a sentencing finding but nonetheless i think that it can be taken into consideration because at sentencing the court said i remember the case well no doubt or remember having gone to the extra effort to order the transcript i remember the case well it was in the early morning hours and then the work goes on to say i believe i saw the video granted you don't appear to be intoxicated and and the probation report says that you hadn't been drinking that sentencing i remember the facts well and then he gets into he found a circumstantial connection between alcohol consumption and the offense he only alcohol evidence was the victim the victim's consumption of alcohol and the court believed the defendant drank that night and there was a connection between drinking and the offense and he goes on further to say i believe you may have an alcohol problem and the reason that i've i think it's an appropriate argument to m is that the court then instead have had is the option and it's in the our appendix it was the option to if it's strictly a sentencing observation or it makes the court had the option to order him to undergo alcohol treatment in the court did not order any alcohol treatment simply set the court said it found a circumstantial connection between the defendant's alcohol consumption which may even be a disease for which he needs help and the facts of the case in essence the court made a finding that's completely not supported by the record there is absolutely no evidence whatsoever pre sentence  he decided the case which before i don't understand it well when you look at the but the court's comments i had the court i'm sure that you kept the court says i remember the piece well it's in the early morning hours and the court says goes into i believe there is a i believe there's a circumstantial connection with alcohol i believe there's a connection between alcohol and what i think happened that night but the pre sentence report doesn't say anything about yes he was drinking that night nor does have video in the court said the video doesn't appear to show that he was syndicated in tax conditions correct and then they thought that night that's correct and then the court nonetheless goes on to say but i believe there's a circumstantial connection between your alcohol consumption and what happened that night and then encourages the defendant to do some soul searching to see if maybe i'm correct on it is our position that that's a due process violation that is a finding that sent a finding a list of things he already decided and fourteen which according that a friend of the last consumed alcohol in july of twenty fourteen which would seem to suggest that he wasn't drinking at the time of this offense he wasn't drinking seems to suggest but i believe th when i'm sorry there may be a connection between what i believe happened on that night and alcohol consumption i don't know i can't see in the video that i saw anything that would lead me to believe you were intoxicated but i recommend you do soul searching and see if there isn't something about that that has a ring of truth to it so well trying to telling us you know you had an alcohol problem to stay away but it's certainly a unique tell into the court's thought process after the specifically says i remember the case well and then says circumstantially there may be a connection between what i believe happened that night and alcohol consumption there is the fact remains the fact remains there was no evidence that this whole fence ask the court to take a good look at that because there is no evidence of alcohol with respect to this offense other than that which the victim agreed that she drank that night which brings me to my third and final issue in that is burton shifting its due process violation in our view occurred when the court asked the as the as this court knows and is very very well familiar with faxed the court reversed itself after it found a fourteen year old young lady is perfectly capable of testifying as to whether an individual has inserted his finger into for her vagina or not and then i then the court said he was there they were there at the same time same place question go to the change in the burden of proof where where does this judge affect knows the burden of proof in his ruling it's on the state so he has a question and i understand how you can say one question which has nothing to do with burden of proof somehow change the birth plan it doesn't have any burden to explain right that's that's exactly my point but i'm going to i'm going to have to do with identity the question you know if you know if there was a question of identity during or not someone's digit was inserted into her vagina a finding with the court reversed two days later but the court also said and i also think there is corroboration in that these two are at the same exact location at the same exact time it was not a question it was a finding but the question that the court is talking about is when the defense lawyer was arguing his closing argument after he had rested after he decided not to call the defendant the court then asks how do you explain  this is not the case with one inconsistency that's backed up with physical evidence or two inconsistent these this is a case with multiple inconsistency and there are at least as many in consistencies here as there were clear and convincing testimony physical evidence as cooperation that's not required and it's the same standard for all cases for reasonable doubt cases it's it could be credible testimony of a witness and we appears to show that the at direct examination of the victim the judge inserted some questions to clarify penetration and with those were just arrested and he originally believed her and then thinking about it said i don't i don't think the judge in doing that found the victim to be incredible i think the judge reviewed the transcripts he thought consideration to the fact that it was not elicited during her direct examination or the cross examination her testimony would establish sexual contact and it was the settled so during the first attack he did these things that she did not mention and then according to her testimony she walked over and ron well sure and i know counsel makes much mention of night soon for help or walk away but the reality is she just underwent a traumatic experience and it's not contrary to human experience that testimony and anyway the consistency is way by the trial judge here he heard those inconsistency is in the whole entirety of her testimony and found that many holes were not enough to make   that case is so different from this case we had two defendants there who approached the victim and they take her to an alley allegedly and first of wait pull into that alley she gets medical attention she you know calls the police there's no evidence from the medical standpoint that she had any trauma to the players as her testimony was completely fence where he was pinning against the fence trying to push those to the side for the first fondling might have been stretchy they weren't there rather getting you out of the physical evidence was was not a five departure from it to make her testimony in its entirety incredible it's you know not completely contradicting her testimony is my point well you know if you like the victory you again are claiming you know all of this force assaulted the victim five blocks west on division would have had to come down he's found on division on the south side of the street where he was with side of the street behind the west sure and they saw that any inconsistency there are are just that testimony to manage the credibility of misty as the victim and i would point out that the his good police work he picked up the victim just hours after the incident and she willingly showed him her pass the first by stop then the second row and the facts and then the grassy knoll area and in his wisdom they watched the video surveillance he there's no testimony that he said your attackers on this video surveillance they were looking for for anything so fortunately for the victim she was able to identify her attacker unfortunately for  us she was able to discern who attacker was amongst money or she may just pick one out at random i e i think back the trial judge heard her testimony and found her to be place a bunch of guys in this store we don't know how many of them had like s u v s maybe only one maybe two maybe ten we don't know i don't know who your honor the classes point we're talking about a girl went to going by some power and chaps we have no evidence that she has a vision problem just that she wears glasses we don't know what the only thing the problem would be why would you work less if you don't have some  testified i only with looking at his face because that was her attacker oh two occasions she saw him up close and personal so i would say when she saw that video and there were many people in the video and she saw her driving that to me is a little peculiar like why even a fourteen year old that's in shock if he is free would be running in the opposite direction he apparently holds up her having been following her in the same direction that she's walking and i'm again and again he's in the car she starts trying to cross the street run the other way get away from him she didn't do that she's fourteen years old i she heard testimony is yes she pushed him off and walked away but soon after moments he grabbed her from behind him pulled into the grass you know her testimony she was kicking and she pushed him off and that she ran away at that point now i can't also fighting sure but she ends up the testimony that we need to focus on is that she was diaz and once you got away from the defendant after the second time where you go i ran west d ivision the same way i was walking and did you see anybody yes then you saw the female yes five blocks yes we get there deep misty has testified that she gets to her and her state how she could spare and navigates that i would argue that that's an inconsistency that the trial court weighed in did not find two relevant to  victim's credibility with the argument is how many inconsistency so there's a question of her credibility that's beyond that that you know  one plus one plus one we get three or do we still get your you know i think that's a question for the child judge who is the child of fact here who who weighed those inconsistency is inside we would never reverse a credibility germination and it's not often that we do certainly i don't think that there was anything so improbable unreasonable about a victim who's fourteen years old who's attacked by a stranger and yes perhaps fumbles her words she does not she declines to go to the hospital that is not contrary to human experience she wants to go home i think i'm gonna say that she wants to go to her family but hours later when detective burns comes to our house she is willing she wants to show him the route she was in a state of shock and i really think that most humans could empathize with that so has referenced basically says one bad apple will spoil you know the whole but it's really looking at testimony that's fraught with inconsistent seats and we don't have that outcry three days later the victim told her mother she was raped even though that case you know was more closely balance and there was a lack of physical evidence which w required else yes yes but the this court found that her testimony reviewed as a whole was not so unconvincing or contrary to human experience and did find that the finding guilty of criminal sexual abuse similar to this case so i just want to remind the court that under the standard of review there is no corroboration needed but we do have it identifies her attacker and there's nothing like to talk to testimony that said that identification was not reliable or incredible in any way and the trial judge heard that testimony in the victim's testimony and heard about the second identification in the photo lineup and also sorry identification in court so this is just a trial judge who was sort of observing everything and before he sentenced a family to thirty months probation on a class for which the family could have faced one to three years he was giving him some advice based on this report i don't think that's out of the realm of a sentencing hearing as far as the failure shift the people completely disagree that was let's say this was a but just to make his findings so i would argue there was no affirmative showing that he was shifting the burden and he shows that when he makes his findings right after the closing arguments here and i would point out as your honest point out both of the latter two issues were forfeited i'm posing i would ask that you refer to finance conviction for criminal sexual abuse and thank you for your time suggests that it's our position that a heavier burden should fall upon them when it comes to a sex case it's not our position at all but it is proof beyond a reasonable doubt and with that said there is no lighter burden because it's a young lady there's no lighter burden because she may have been upset in one thing that is not in the record many things or not but one thing is she didn't testify she was in a state of shock she didn't testify that she was you know unable to process there is no evidence of that in the record and just listening to this argument today there are so many times where the answer to a question from this court is i don't know i don't know i don't know why because it's not in the record it's not this is not pro beyond a reasonable doubt but i'm asking for special treatment we're certainly not asking for lesser treatment and with respect to the sentencing comment and my argument about the circumstantial relationship between drinking and the  circumstantial is not really a sentencing parlance word when you're when you're sensing an individual in this particular court talked about his belief that this fence was connected to motivated by influenced by this he finds alcohol consumption and to the point where hate you might have a problem i'm not judging you you know that's an illness do some soul searching and see if i'm right well that's not the standard that we have here and that those are the comments that were that were on the record just bottom line is the case was not proven beyond a reasonable doubt and we are asking that the court reverse the conviction thank you very much you're right we will