over the next case please acknowledge those in counsel who did not write the reefs in this case and to thank him for his presence today mr sumburgh was convicted after a bench trial of one count of aggravated battery and sentenced to six years incarceration he raises two issues on appeal one alleging that the trial court relied on evidence outside of the record the other alleging that some burst right to be present at a critical stage was violated i will be discussing the first issue that is court resolve the question over a question of credibility and part by relying on its own technical evaluation of the cause of the victim's wounds this had the effect of establishing an element of the offense specifically the use of a but if white is good long and we believe that it still is good law it is outcome determinative in the words of white and as quoted by the supreme court in people the manage the holding in white was that the ability to examine a cut and determine the instrument that needed is beyond the province of common knowledge that is precisely what happened here here the trial court explicitly put it's not process on the record the judge explicitly told us that he examine the cot and determine the instrument that made the cut based on the physical characteristics of of the car but we also in this case we've got the victims say that was a couple that is true that is true and if that's all that we had on the truck market certainly make that the same credibility determination based on that and we would not be here today however on this record that's not what happened on this record or the trial judge explicitly told us that the credibility determination the determination of what it was that caused the wound and thus what it was i would absolutely agree with that however that's not what happened in this case in this case the judge went on to say that they cut this cut looks like it was made by a nine it was not made by i do not believe it was cetera this is not a situation in which the judge just said you know based on the testimony of the witnesses and the abbot inside fine for the state this is a situation in which the judge said i do not believe that th characteristics of cut by a knife versus the diagnostic characteristics of a split caused by a punch all right is not within the common with is not within common now and that's that's the the judge looked at the the wounds and based on the characteristics of the wounds determine what made the cut second that the state argues that whites no longer good law primarily because it exactly it's just not a reason not to follow a case i would contend that it hasn't been relied upon because this is a thankfully rare back pattern this doesn't happen very often there's no need to do it to have dozens of sites to people be one it hasn't been overturned it's still good law and while it's true that it it's never been relied upon for this very narrow question of  a knife wound order or a diagnostic diagnosis of the cause of the wound it has been cited by illinois courts including the illinois supreme court and it is reasoning on that narrow point has never been question and i would simply argue that that's a distinction without a difference the classification of the alleged involvement didn't factor into white's decision it is not dependent the white holding isn't dependent on the fascination can't that this sort of observations can't be reliable i would also note that the trial court in white was significantly more thorough in the analysis that it put on the record than the judge was in this case  unlike in this case the white judge's analysis of the when this is credibility also explicitly relied on other physical evidence on the record and and other evaluations of is credibility other other other factors in terms of the witnesses credibility and yet this court still a reverse in white and it follows again that if white is good l then it would be outcome determin unless there are questions i think that this is a very simple application of that case and if that case is the law then we would ask your honour's to reverse a remand from the drop we thank you thank you reviewing an overview of the facts that were presented at the bench trial a victim jerry fox testified that he was walking toward a friend's house when the defendant call them over the phone and begin screaming at fox and threaten to beat him up fox was unaware of any knife noose and continued toward fox box reached into his pocket for his own life before he could pull it out the defendant struck fox and it left temple with a knife that he had been holding calvin headlines a friend of a mutual friend of both and he intervened in get defensive back into his truck foss was taken by his brother to the hospital for treatment where he told medical personnel that he had been cut by a knife and fox in his testimony knowledge that he had been drinking defendant testified that he lived in the building where the incident took place on the date of the incident defendant was on his way home when he received a text message from the cell phone fox and his girlfriend used dating that defendant should pay back money that fox of the defendant owed that he had his knife on him but he did not remove it from its sheath so the laceration on fox's head was caused by his fist calvin healing intervene and get in then back into his truck and to do that evidence was people's exhibit one which contains the medical records records from deals for cottage hospital regarding the treatment of fox's injury the medical records contain an injury in which the treating doctor described the injury as a laceration to the left temporal aerial process face that had been caused by a night the doctor documented that farce received a sutures to close the wound then the nursing documentation stated that last reason was straight in approximately three centimeters l also in admitted into evidence were two photographs of the injury taken on the date of the incident in closing argument the prosecutor focused on the medical records the photos and then defendant's credibility since he has prior felony convictions quote as i look at this i don't think an expert has to come in here and take a look at it this is a clean cut this appears to be a knife but not a split by a business a deep one and it's a straight line i don't believe this was made by a fifteen and  at the time of trial fox has ghar so clearly the trial jurors was looking at the photographs at the time you made the comment about the deep cut otherwise you would not be able to see that that could have been and at this point the trial judge found  in which the doctor specifically stated that the wound had been caused by a knife as the holding of weight is not applicable to this case and further the people argue that white was wrong just like the majority in white agreed with whites argument that the contact with the jacket piece of glass from broken bottle making these comments the court was doing nothing more than considering the evidence in view of common knowledge in the ordinary experiences and observations of life it is well established that triers of fact are court of the right to consider evidence in the light of their intelligence common knowledge and experience of mankind accordingly the trial court's comments in this is proper and quote the people submit the whites per se rule that no tr determine in light of common knowledge whether a cut was made by one object or another is or is opposed in other reasons is ludicrous really unclearly denies there is a fact the right to use your own life experiences and off your reasons in making decisions especially where as in this case the testimony indicated that this brief in deep laceration was caused by either a knife or bare fist hitting the victims were in the temple as a supreme court in hot consider the evidence quote in the light of your own observations and experience in life and quote people last score to reject the majority holding a white he follows that just as high as dissent in the  and certainly in the light of one's own experience a nice cut compared to a hit if you strike someone with fist there will be a bruise there will be swelling if you hit someone hard enough to cause a skin split you will not motion for a new trial new used as the for remit for a new hearing on the motion any and we know that in woods our supreme court reiterated that the defendant's constitutional right to be present at trial does not embrace a right to be also present at the argument motions prior to trial and subsequent to the verdict thus defendant did not have a right to be present at the host trial hearing on is looking for a new trial and defendant also asserted that there was a may please the court i suppose my my primary response is what does the bruises from such a punch look like how much swelling is typical of a wound caused by a hunch i don't know why look me how man doesn't know and that's a good question but let me ask you this this is a case in which there was an error or we allege there was an error the judge impermissibly brought in the evidence that was not on that had not been properly submitted it's outside of the record w  we couldn't sustain the standard necessary to overturn a reasonable doubt that's not the question here the question here is was there an error but under white there clearly  was that error prejudicial and in this situation where the judge has explicitly told us that it was that he would have consider the defendant's self defense claim had he not made this erroneous determination that otherwise there was sufficient evidence for him to make that prove simply because a case cannot sustain again on a review which is not which is not at the trial level the judge is not for the same reasons that justice schmidt is saying now on this record i think it's difficult to make a credible argument on that but that's not that's not the issue here  in terms of the second issue there's no there's no realistic this view that there was a valid waiver in this case the state hasn't argued that there was a valid waiver the question is just whether or not it requires remand for a new hearing our cases say that when claimed in a post trial motion has brought up new fashion all allegations that is the hallmark of prejudice in this context and that it requires for a man in why didn't they just  it is true that counsel did not orally interrupt the judge's findings of fact but he repeatedly renewed the the issue through the post trial proceedings and our contention is he was not under those very narrow circumstances required to interrupt the judge while the judge was passing his sentence his judgment i would argue in it and again it was not my brief but i would argue that at least on the very narrow question that we're looking at that this was a credibility contest at the judgment and it was a credibility contest and you could if you chose to reach under the first