n the matter is her cognitive ability to communicate back and forth and with what she was able to say why for instance assuming for a moment that  to be able to drive me to work the next day or were slapped i believe in this set of circumstances the content of the communications of go to her state of mind now i know the danger is every as well simply because she wanted to have set the combo doesn't mean she wanted to have sex your client and i agree that's a general rule but i would compare this to the general rule let's say other crimes sex j however it could be brought to other crimes others could be brought in for a limited purposes one of those lewd purposes is to give a continuing their view of what was going on that  e and we can avoid and i think that's what's going on here if you come in as a continuing narrative and we can oh boy the risk of the jury making that leap well she want to have sex next and she want to have sex with j by offering a limited instruction like we do in other crimes of events this evidence is not being introduced to show that simple because she wanted to have sex and that she would have sex with jay it goes to her state of mind during during the but to consistent with the repute structure to bring out that she was interested every search for her why isn't that a good balance well in this particular case i think is it comes down to the stories of the two individuals involved the bed my client gets in and spoons with her basically and puts his arm around her at that point it's worth of stories to urge rianna said she fell asleep and woke up to my  i don't understand as a hypothetical yeah but i think you possibly could under the scene in the same circumstances it's happening in real time while she was you know the defendant in this case  communication you lose communications in this context such as what occurred here i'm not sure i'm not sure of the distinction you drop but if we don't agree with th i would suggest of messages to the recipient about having sex added to that the fence theory of the case yes his theory of the case in the respect that it goes to the state feel this is you know what is the jury already thinking really i mean caging drinks from her favorite bartender but at the same time apparently flirting with him later texting you know the jury is probably thinking they're not texting about their plans to make a business trip to indianapolis next weekend it were formed  says if there would be such a term in two thousand and fifteen comes across as a loose one of the century from what's going on in the bar and what she said how she says regardless of what think she's desperate to get out the house so there's no way should we throw them stroking the defendant or my my client if she doesn't want to be there anyway she's there their whole theory was in my client frequently stated supreme court rules are mandatory directives and not suggestion and rule three forty one eight seven plainly states that an issue not raised in the initial brief it's not to be brought up in reply and is not to be brought up  oral and therein lies the rub a situation has been created where a defendant is not being held to comply with mandatory supreme court rules they are trying for pitcher on their head and they are saying regardless of what the mandatory rules state it's the state who must first bring up plane air in their brief before i am responsible or required to bring up for the term plane air in mine because forfeiture applies to you what is left is a situation where defendants are regularly ignoring their for pitch or ignoring their responsibilities under plain air and waiting to see if they can catch the state in a gotcha moment because the state didn't catch them to begin with if they are so to the extent that reply brief suggested that that practice of waiting to see if they can catch the state for failing to catch their burden i simply want to suggest and state that i think it's not only inappropriate but it's contrary to mandatory supreme court rules it's not my include the batsman issue in his post trial motion and it was forfeited in his initial brief he for the first time argued the seven rivera factors and said that the trial or it prevented him from making a fuller arguments now in his reply brief he is arguing that the trial court is the better place to argue the seven rivera factors that he set forth in his initial brief and that the trial court failed to properly guide him through the process  for my part i'm asking the court to find that the defendant failed to carry this burden under the first step of establishing a prima passionate evidence of discrimination and i asking you to reconsider your ruling and shop which i realize just the siding with the only number  valued and respectfully the supreme court is i believe on my side on this if you read your mayor rivera meant what it said and what rivera's said is that it is the moving party who has the responsibility to establish that she evidence of discrimination in rivera and in davis which are two cases that were largely relied on by this court and shop it was the court there that was the moving party and the supreme court was careful to distinguish differentiate the responsibilities that come when it's a defendant making that challenge versus a trial court making that challenge so it's show all wrong distinguishable or get on that issue wrong and i know the side justice teichmann was on the panel that was the iceberg of my titanic when i found a life and i'm here to try this again the supreme court said that it's when the court made the argument that court is responsible for making the record because it's the court's findings that are going to be reviewed to determine if there burton the burn the defendant usually has to carry but because it's the court that has to make this record it's essential that they articulate those findings at no point though in rivera and davis did the more even slightly suggest that the trial court is to articulate the rivera findings in all cases and it certainly was never the slightest suggestion that a trial court is responsible for holding the hand of a defendant and walking him or her through the process when he fails to do it consistently the supreme court has said it is the moving parties responsibility regardless of whether that this defendant or the trial court and if they fail to make that record it is against that moving party if any in advocacies will be held in shock however the defendant made one argument one factor argument and that was there had been two african americans challenge at that point and excuse and there were a pattern existed he made no other arguments on any of the other factors in responding to the defendant's challenge the trial court only addressed the fact that the defendant actually writes this court found there and said that in fact he should have addressed all those other factors and articulated them on the record behalf they've been appointed yeah and i think they generally do an excellent job for instance in figuring out what arguments have been forfeited the trial level on what they can argue and how your suggestion to us would be a sound one and all we dealt with were who said breach because as i say all said we can hold to a very high standard in that they do as i say an excellent job we have a significant number of beefs however to this court of appeals from criminal cases where we have why we counsel who for like a better way to put it routinely do not  so how do if we're going to follow your approach how do we deal with this through a significant number of cases from the private bar where they private counsel and so if they're going to be practicing for this bar they should be familiar with the rules that are for them your suggestion would be if the defendant his initial piro doesn't say i  with supreme court mandatory and i recognize that there would be excess circumstances where this court would have that right to say it is a bar on the parties and not on us and it may be a circumstance where you would ask for additional briefing because the state is put in a position you know by the time if it's not raised until reply we don't have the record we don't get the record back so there are other remedies because of fact that the bar doesn't apply to you and because you have the right or supplemental bring those could be but as you know just as time when i was here yesterday on a private counsel case and this issue came up there was nothing extraordinary about that case  in my opinion would have warranted the effort work and yet this or rarely disposes of a case based on or which are so again the state can't put in their breathe ok the issue is for it and then not make that companion play in their argu to the one that will come in reply here going back to the argument won during the jury selection if you follow davis rivera strictly there was no error here during the jury selection the defendant did not make any challenge when the first  hitney's sir sorry german mary george was excused when the second one was excused what the defense counsel said is i would like the court to recognize that the state has excused two african americans in response to that it was the state that said excuse me are you making a batson challenge here and the trial court similarly responded yeah i'm not clear what's going on here defense counsel then said i'm asking you to make a foundational finding first that there were two african americans that used and then yes i'm making at bats and challenge there is no evidence in the record contrary to the pendants assertion that the trial court denied him an opportunity to present fuller evidence or that the trial refused to conduct an inquiry the record shows that's all that was and based on all that was offered the trial court responded and found that he had failed to establish a bad relationship so it is my position that not only did briana's ability to consent i disagree they're trying to hear the records of was very clear on what his responsibilities were he had to balance these two rights that arguably are competing and he said that he would allow will combine to testify that he had personal contact with briana between two and four thirty that he received phone calls and text messages from her up until four thirty he could testify to her observations of her when he was at the bar her physical condition her ability to have a conversation and was she coherent all of those things were fair and all of those things arguably are directly relevant and go to her ability to consent t not apply as she had no prior history with this sentence to the second one is where it is constitutionally or fire and this court has said that brave victim's sexual reputation to be directly relevant and therefore constitutionally  it must make a meaningful contribution to the fact finding process again the disclosures of the specific content of her communications with the home but do not meaningfully aid the fact finding process of whether she sex several hours later with a completely different person the evidence that was directly relevant and that was admitted was testimony from looked home by the cab driver barkman who was look defendants roommate and the defendant himself the briana did not appear to be drunk testimony from bargeman that briana asked where defendants bedroom was and made the comment that that's where i'm going to sleep testimony from brianna herself that she voluntarily undressed leaving only underwear and a tank top on and testimony from look homa that throughout his communications with her up to four thirty she was coherent in contrast the content of the text messages the defendant once is simply going to show she was her mistress is going to show a willingness to engage in sexual activity with somebody else and it goes to her sexual reputation and it was properly barred under the ra the communications the rape shield statute applies to acts and reputation and you are reviewing the trial court's ruling on the balancing on this under a discretionary standard on a argument that there was a prior false allegation of any nature and it's clearly distinguished and i do not believe as a matter of law that communications you still have to go back to the two exceptions is it's a tax a communication they could argue to be included to indicate a past evidence of a sexual history between the person that's receiving that and this victim or is it constitutionally required is it directly relevant to the issue at hand here it's going to have to be on a case by case basis based on those two exceptions that are it's clearly identified as when you can circumvent the  until the required proof to address plain error now as far as the other issue the rape shield issue is my argument that the rape shield law simply does not apply the ra law to very specific parts of a sense of sexual contact and reputation of the individual these conversations are not reputation evidence reputation is and of the general opinion of the individual within the community it's not somebody coming in and saying oh yeah she goes home and different guy every friday everybody knows that so the rape shield does not apply what the sta i believe the evidence in this case was relevant to the state of wyoming it supported my client's version of the events he has a right to have the jury see the entire picture it was part of the continuing narrative of the whole evening it