add up to ten minutes for their argument the opponent will have five minutes very bottle please not only the clerk of the court is permitted to record these proceedings morning morning we are still morning yes yes criminal sexual abuse to sustain a charge the state must prove the three things one the victim was under the age of thirteen secondly the perpetrator was over the age of seventeen and finally that the defendant committed an act of sexual conduct with the victim the jury after jury trial that is the jury found defendant guilty of one of the two counts of aggravated criminal sexual abuse in the relevant statute in this case is seven  five slash one hundred and fifteen dash this allows certain hearsay testimony to be admitted in a victim's out of court statement not recorded or were without the ability for cross examination when certain criteria are met and that is that the either the child is subject to cross examination or if the child is unavailable that there is adequate cooperative evidence of the subject nature of the specifically provides that all out of court statements for those statements to be admissible she has to be subject to cross examination in our brief i cited people vs learnt and as an aside i know that the state indicated in that learning has been heavily criticized and not followed however in all of the cases cited there was one criticism in a concurring opinion and that was in  dabney the court indicated that they did or did not inclined to follow it and they do not agree with the ruling all of the cases that have been cited in oppositions of people says learned have a very different factual basis than both learn as well as this case in this particular case when k f was put on the stand by the state she testified testified to very background information nothing accusatory against the defendant the only thing she said the only thing she testified to relating to this case was that she told the truth at the cac interview  all of the other cases cited the alleged victim gave either some accusatory testimony testified as to the abuse in one instance but not in other or some of the cases dealt with identification testimony memory loss issues all of those cases are distinguishable from this particular case as well as people vs lurk in learn the court determined that witnesses presence an answering general questions satisfies the burden one hundred and fifteen dashed this is exactly the case here if if the state's argument is to is to be followed what that basically means and what they basically said is that the defense because the state failed to question the victim on the allegations that are the subject of the charges it would be the defense's job to not only question the victim in their case and bring up the issues that were not brought up in direct examination and then discredit the victim and try to cross examination her on the very testimony they just elicit as the court people versus learn indicated that's a trojan horse and any criminal defense attorney isn't they're not going to bring up evidence against their client in cross examination that was not brought up in direct examination that opens the door for the state then on raycroft on redirect to to get out more information that than they did in their case and chief the only so basically and as the court in this case determined the child didn't testify it wasn't subject to cross examination basically unavailable pursuant to one hundred and fifteen dollars dash ten since she did not make any accusations against the defendant while testify because of that the statements made by both parents  cac interview were improperly admitted hearsay evidence that made it against the defendant so for that argument that reason the this case should be reversed secondly the trial court irritant denying  directed verdict after the state rest of the st time as i'm sure you're aware the state actually rests to twice when asking for a directed verdict the defendant or whoever asserts that the evidence is insufficient to support a finding of guilt that is exactly the case here at the close of the state's evidence when the state rested there the one of the issues or one of the propositions under jury instruction not criminal number eleven point six to a the defendant committed an act of sexual conduct has to be proven that was not proven in this case there was no testimony to that and pursuant to one hundred and fifteen dash ten the child did not testify to any accusations against her  because of that the directed verdict in and of itself should have been granted the state failed to elicit any accuracy or any excuse or to a testimony against the victim and then after the court there was there was a discussion between the the two attorneys and the court and this the state argued that the cac in st the state argued the c s the interview was testimony then further down in their arguments and negotiator and in arguments on a case both for the argument of directed verdict answer reopen the case the state conceded that it wasn't evidence but that it was there to allow the victim to not have to testify to which the court stated it is not there yet i asked for case law to show me that the  victim doesn't have to testify and none had been provided at the state argued basically that the hearsay statements were cooperating evidence but as the court indicate verdict throughout those arguments the court asked the state whether it was standing on its evidence at one point and i'll quote the transcript the court stated so it's your position to stand on the evidence  and move for and defend the motion for directed verdict at this time to which the state responded it is shot or even after being given a prompt by the corps you sure you want to do this you sure you want to stand on the evidence presented to the state yes so that then and then that the court can reconvene following morning and ask for case law regarding the fact that the child did not have to testify or be subject to cross examination they they then started their arguments again regarding the issue of directed verdict and reopening the case the state at that point indicated that he indicated that the c d c he knew the c d c is not evidence here your honor i mean this is the purpose of the statute is to allow the defendant who is under fourteen of age to be able to introduce and then he was cut off and the trial court indicated it's not no one ever decided that the statute was to allow an accuser to avoid making a statement of the crime under oath in court and thereby be available for cross examination directed verdict in this case i that the facts are there for a directed verdict the court should have at that point granted a directed verdict against act against argued and i will direct the court's attention in and a motion to reopen there are four factors that the court must consider and whether or not to allow the state to reopen their case the st is the existence of an excuse for failure to introduce the evidence whether the failure to interviews was inadvertent or whether it was a strategical move by that party the nd is any surprise or unfair prejudice to the adverse party the rd is the importance of the new evidence into the movement's case and forth whether there were cogent reasons that justify denying the motion to reopen in this case after submitting the brief and reviewing the case for all arguments awful or clearly support the defendant's position to  to argue against incident for the court to deny the reopening the failure the excuse or failure to introduce the evidence was not inadvertent in this case one case that i read dealing with  issue of motions to reopen a case was a carjacking or a car stealing a car and they didn't get the make over the model number and the testimony so the court allowed that because that was inadvertent everything else as far as the elements of the case had been testified to in interviews and evidence in this particular case that wasn't verdant it was a strategy and m's in fact during the arguments the court stated quote you wish to call her in a change of that strategy unquote to which the state again responded that is true so clearly the failure question was strategic and when the state realized that strategy was not going to work backpedal and asked to reopen the case that was made on yes and no your honor if it is correct that the state later indicated well if you're going to grant that he didn't say this exactly but it just is if you're going to grant the motion for directed verdict i want to reopen my case earlier and throughout the arguments the court kept asking if it was his position to stand on the evidence that was presented whether it was the state's misconstruction of a statute or not understanding the statute is is  a reason to reopen a case and give the state a nd bite at that apple the case should have been presented pursuant to both the statute and the i p i criminal number eleven dollars which indicate that there has to be would argue that the surprise to the defense whether it was a surprise or no surprise as a criminal defense attorney i wouldn't think it would be a surprise to me for the state to ask to reopen a case when a judge might grant this motion so you sure you want to stand on that evidence but i don't believe that the prejudice the surprise would outweigh the prejudice just because there's no surprise to the defense the defense has no obligation to tell the hate you didn't meet your burden there you probably should you know do something else before you rest so the fact that there might not have been a surprise if probably was a surprise to the defense that the state did not question the child on any of the allegations against the defendant but certainly it was prejudicial if a court if you've got the decision to for the court to either granted directed verdict or reopen a case and possibly have have another evidence for a jury to convict that's certainly prejudicial against the defendant and it wasn't anything that did the president failed to do that that made that failure to question quote i find that the state has very little basis to support it it is not new evidence it was a calculated strategy to proceed as they did so again although this evidence is essential for the state to meet there to sustain the charge of aggravated criminal sexual abuse it is not new evidence to the state did not find out about this evidence after they they rested their case they knew about it all the time  clear analysis that's patched to this particular argument so that to argument has been forfeited for purposes feel nonetheless this court has the discretion in the power to reach even for food issues so i do want to discuss the substantive merits of the argument in making a decision whether to permit the reopening d of proofs the court is vested with substantial discretion and therefore this court's review is for whether that discretion was abused this is a highly deferential standard  made that well the state was sort of sticking to its guns here they didn't believe it needed it i think that the states argument in their regard below is absolutely right because learned is not prickly this i did it the state had met its foundational requirements under one hundred and fifteen dash ten a certainly the station to be penalized for sticking to its position below but nonetheless the state recognized appropriately that the court was going to likely grant a motion for directed verdict is not as much more than a simple thread of their point and so therefore it perceived in the court for could perceive in its exercise of discretion that this was important new evidence so the x factor weighs in the state's favor as well number four code reasons exist to deny the request this sort of a time with everything else there is no coded reason to do so the reduction of defendants arguments defendants councils arguments below was that well the state had all the opportunity in the world to put on accuracy of what happened leading up to the particularly trial in this case and so therefore to simply argue or stay there well the state has crack at it and didn't do so there's a cogent reason doesn't leave a lot of wiggle room for courts to ever exercise their discretion to allow reopening because every reopening is triggered by something that the state did not put out in the st instance so those three factors i think no doubt and the defendant is not wrong is there in the representation of the record of the state and said well we had put on our opponents this way because i'm relieved that that's all that we have to do and this is part of our strategy if they want to call it that so this is not a  and in that regard then i would transition here to a discussion of the learned decision our position is there i learned it was not correctly decided the courts have come to a similar conclusion this court has not yet reached this particular issue and as far as i'm aware of this is one of the st times that it will be able to do so but her final washington to my criticism dies it there's a whole string of flag cases disagreeing with learn so i learned is i call an outlier which is maybe a little maybe a little strong there but i do that a witness is available and subject for cross examination when the witness takes a stand it willingly answers a question an opposing party has the opportunity process examine the witness now i will stop here because when the court looks at the record you will no defense attorney never posed a single question to this particular whims it all ok and courts have been pretty pretty clear that if counsel never asks any questions of an attorney understand the th amendment only compulsory acquirement that the witness be made available and be subject to cross examination the excuse a jury prerequisite which basically turns the th amendment by basically telling the state you have to force a confrontation ten denying the defendant's motion for directed verdict after the state rest of the st time granting the motion to reopen troops and then again for denying the motion for directed verdict that the state rested the nd time so i would they're arguing again is that and i keep using the trojan horse because that's exactly what it is that the state is arguing that if the state doesn't bring up any at you so or becky's that accusations against the defendant for the defense to cross examine then the the defense has to do that the defense has to bring up the issues now what did he do to you all of those kinds of things that should have been brought up in the direct that is the state's burden to prove the  proposition that the defendant committed an act of sexual conduct it is not the defense obligation to prove that or to establish that and then again defeat or refute it and try to cross examine on th  th amendment states that the witness must take the stand willingly answer questions willingly answer questions and according to case law this the cross examination of the witness based on the testimony of elicited and direct for instance what the allegations are to try to refute whether the memory of the witnesses good whether the child is saying something different in the testimony then she as testimony as far as the the end and it has an analysis of the case law on motions to reopen i respectfully disagree obviously i've gone through what i believe  why they favor the defense in each one of those and i would stand on the argument made in the brief as well as and in the previous argument all four factors favor the defense that the motion to reopen would be denied  i don't believe that that in granting that or if this court were to agree that the proper erred in reopen allying state to reopen the case that that means no case can be reopened again inadvertent issues things that  witness comes forward at the last minute that there are you know after the testimony or something like that but this wasn't new evidence this wasn't a verb and this was a very prejudicial to the defense and again because the argument that it was a cogent reason because he might have prevailed or that that's not a cogent reason i think is it is not true i think that's the very real reason that the that the state should have that his motion to reopen