it morning your honour's mad please the court counsel richard whitney for defendant appellant bradley van who's your honour's this case can and should be readily resolved simply by applying st year law school black letter law or reading the statute on the definition of assault in a case in which the state's own chief alleged victim witness testified that an imminent battery was not possible because mr van whose was physically too far away from him and in which neither of the state's i witness has testified that mr van hoosen made a single gesture or physical movement indicating that a battery was imminent no reasonable fact finder can possibly conclude that an assault occurred let alone that it occurred beyond a reasonable doubt mr rooney let me ask you a question please share the defendant was given supervision  and he has completed the supervision and the case has been dismissed correct so how can we give you really here the a judgment of acquittal would be different as far as public records are concerned than a judgment indicating that there was court supervision even though it was complete it court supervision does create a kind of legal fiction that you were never convicted because you completed the court supervision we all know this but it's still not the same thing as an actual judgment of acquittal and the reality is i think  we can take judicial notice of the fact that on the internet nothing ever dies right and other words mr van hoosen seeking employment for example can you will and in fact is not on the record but let's assume that something like this has happened employers can find this they will see on the record that a judgment of guilt was entered and that he completed supervision it's still a matter of public record employers can still find it there is still injury here there is injury in fact to mr van hoosen and that is why he continues to fight for an actual judgment of acquittal in this case  simply not met in this case accordingly i would emphasize that this is that rare case in which the facts and the law require entry of a judgment of acquittal from the court and i don't believe that this court will find it necessary to address our nd issue namely that the circuit court failed to advise mr van hoosen of his right to the assistance of court appointed counsel for post trial proceedings  find a defendant guilty of assault requires proof of threatening conduct as well as threatening words that creates an objective lead a reasonable apprehension of an imminent nattering none of these were met here the only thing the only element that was met here was simply that some threatening words to according to the state's witnesses to kill someone at some indefinite future time were  mr van whose but there was absolutely no conduct here and the only thing that even remotely comes close is that he had a motorcycle but there was no evidence that he ever turned on a motorcycle an aim it either of these witnesses that he drove it toward them instead the chief alleged victim witness here leonard black himself testified that mr van ho flying out of his motorcycle as i recall had a response to that testimony your honor at one point witness black did say he came flying up the hill he didn't he never said that he came flying up the hill toward me or he drove his motorcycle toward me or anything of that nature additionally the other chief eyewitness mr roman eck said that he was walking his motorcycle up the hill and he didn't start his motorcycle until after the threatening words were uttered so no one could accuse these witnesses of being a really rehearsed but fact of the matter is his do you have this contradiction in the testimony but neither of them ever said that mr van who's ever directly approached them and came within close proximity neither of the witnesses ever said anything to contradict leonard black's testimony of the alleged victim that he stayed at least fifteen to twenty feet away during the entire interchange of words accordingly for these reasons it's very clear that these elements were not met in addition i might mention that although i know the state argued in its brief well he said i'll kill you and now it's an imminent threat st of all i think english language just ordinary common usage of the english language saying i will kill you or you know i'm going to kill you israel is describing something in an indefinite future t right it's not it's not something that describes something imminent imagine if every time a parent who gets mad at their teenage son or daughter says if you ever come home late again i'll kill you is that an assault no of course it's not it's just describing it's an expression of anger and there's no doubt mr van who's was was angry but it doesn't describe anything remotely like an imminent threat and as a matter of fact as i pointed out in the reply brief the the words that were used i will kill you or i'm going to kill you are an exact match for the words used in the th district case people be cattle or where they were and also two witnesses who said allegedly said the same thing in the th district reached the correct result in that case said no that's not an assault because it is talking about some indefinite future  house to be the conduct and it has to be a threat of an imminent battery that simply was not present in this case you know the quote the burning question here is where was the conduct there simply wasn't uk it's also telling that in the court's oral judgments describing the court never mentions conduct it only says well it found the threats to be credible well made maybe a dead but that's not enough by the very fact that the trial court never even mentioned the element of conduct this is a further indication that there were insufficient facts to support this conviction for  assault your honour's if there's no further question not i just want to very briefly touch on the nd issue again i don't think it will be necessary to reach out but the gist of the nd issue here is simply that the court never advised mr van whos that he had a right to counsel if indigent now there was a point where he requested the assistance of the public defender but there was nothing in the record that says he was ever advised he had a right to the assistance of a public defender and he was never properly admonished either before the trial or between that judgment and the post trial proceedings when he after his  hired counsel did withdraw and there were indications in the record that mr van hoosen had some financial concerns such that he might not be able to afford his own attorney and apparently what happened that he was able to afford an attorney for the trial but for whatever reason he decided to represent himself in the post trial proceedings and yet the court again never admonished him hey you have a right to appointed counsel if you to have appointed counsel so again i don't think we need to reach that issue but if this court does find it necessary to reach that issue then i believe that that we that we succeed on the merits in that as well record my name is patrick daly i am here on behalf of the people the state of illinois going to jump right to justice morris question regarding the impact of court supervision and i understand this to be a question regarding whether we have  be taken into consideration in number one and maybe this kind of overlaps a little bit with what mr when he was talking about although the judgment of supervision does have that come non conviction effect to it it's still nonetheless a judgement dui to a felony even if the st is a court supervision so the judgment of supervision being as it is does have some effect that i think is distinguishable from an outright acquittal so i agree with counsel not regard secondarily i would have to probably verify this fact i don't know for sure but i do believe that the rules are somewhat different with regards to supervision versus acquittals with regards to how the process works for expungement later on down the road so i assault the defendant doesn't discuss it here at oral argument i do want to just briefly mention in the briefs they submit that this court standard review should be dyno on the basis that it appears that the evidence would or could be considered largely on contested i would submit though that the the appropriate standard to review is that which is typically associated with challenges to the sufficiency of evidence an ad is deferential to the trier facts findings below here we have a contest a trial there is no stipulation of evidence we have a vigorous cross examination of the state's witnesses as you'll see from the record and i think maybe critically most of apprehension of receiving a battery which is necessary for an assault charge you know this didn't come to the court as a as an assault charge so no one said outright well i thought he was about to hit me so much of the much of the court facts finding here really relates to the totality of the circumstances and whether the reasonable person in london black's shoes would be in reasonable fear of receiving a battery so therefore it escorts you to maintain  at a prior time to two answers to that number one there is some discussion in the record about the ten to fifteen feet distance now that was stated in terms of where the defendant was yelling and screaming and going on if a court looks at the facts are really happening in sort of a continuum from one black st appears was walking up the incline to the restaurant the defendant approaches  is that we're not we are talking about the reasonable person standard not necessarily the subjective standard so again although i'm not saying that that is something that's immaterial overtly immaterial i do think they have to be taken with a gigantic grain of salt because we are talking about a evaluation of the facts as a reasonable person might perceive them and i do think that black's testimony at trial be that as it was  certainly at least placed in his personal subjective belief that he was afraid of the defendant again he did not say i didn't think he was about to hit me or anything necessarily but he did he did indicate some apprehension he did indicate i believe romantic when the defendant had initially approached him the start of your away from him so clearly the aggressiveness of the defendant's actions did have an impact an effect on blacks you know perception of the  and again i did we were talking about really well defined as principal thesis is that we're we're a situation that criminality is based principally upon verbal threats that are being leveled against  black and that and it is true that assault requires along with any kind of verbal or verbal is going to constitute some basis for the offense some accompanying action we're not talking about a situation here though which was essentially you know wall i don't know what that retaining wall looks like or to what degree was even really described in the record but certainly they were in a position that they were kind of you know if you have each other it wasn't something like he was behind a testimony so again the record does not state the precise proximity of that particular kerns but he said he did go up alongside him and then at that point told him that he was going to kill him or i'm going to kill you or i'll kill you or something along that along those lines so what we have here then this is just simply just the use of words but here we have this defendant approaching  victim he's yelling and screaming he's making threats he approaches this location in an aggressive manner then retreats gets out as more of a cycle again approaches the victim again in threats at him in a way that i think from a subjectively speaking objective li speaking perhaps you know a and elderly gentleman like mr black being confronted with this type of behavior would find it to be of a nature that might constitute a potential battery you know yes your question real quick yes your honor and if i recall correctly permitting there'd been a history of you know not necessarily threads but just some confrontation  there just been history between the big and black in everybody bowl correct correct you beat me to the punch your honor i was about to ensure i mention it on top of all that you'll see in there's extensive discussion about the longstanding history of animosity  so again this is it's a pretty straightforward case as far as the facts are concerned is just a matter of whether this court agrees as apparently the trial court did and hearing the testimony hearing the witnesses and taking the threats in the context of what happened that lack of them placed in a reasonable apprehension of receiving a battery i'm not going to have time to get to the nd issue i think that i've laid out my position clearly there with regards clearly been an indication or discussion about the fun this request for a public defender there had been made before they went on the record and the events that ensued after that because i do think that that's important ultimately the decision about whether defendant with knowledge of to the issue raised by justice moore i did recall researching whether there was a moodiness issue i could find no authority for the proposition that simply because a court supervision was completed that that made the disposition move to where the judgment moved so i you know for what it's worth that's why i proceeded to file the brief i don't believe that there is any such authority unless something has happened in the last couple of years with regard to the standard of review i don't think we really have a disagreement on that issue your honor as i addressed in the reply brief the our supreme court in the brown case basically said that the standard for deciding whether there was insufficient evidence is the standard of review under any standard of review the evidence was on insufficient  happy to accept the state's concession that its own chief witness was not a reasonable person the fact of the matter is that mr black was not simply expressing a subjective view on page forty six of the record he was asked a question he never came very close to you though did he answer probably when he was yelling and screaming we were not real close a distance of fifteen feet maybe twenty feet that was the ch victim's own words and he never said anything to contradict him saying that he ever came closer so when counsel says well he approached him even that's not really on the record mr black's testimony was that he was walking along side but still maintaining a distance if not ten to one thousand five hundred and fifteen to twenty feet there was no evidence that he came roaring up the word was flying and again one of the witnesses said he was walking his motorcycle so i guess he was walking it up the hill very fast is the only conclusion we can draw from that war one of one or both of the chief witnesses for the state for not telling the truth regardless of that  simply don't get there there is absolutely no evidence of any conduct even saying an imminent threat of battery there was nothing to contradict the testimony that during this entire interchange mr van hoosen stayed fifteen to twenty feet away and accordingly there is a complete failure of evidence in this again this is that rare case where i believe a judgment of quick acquittal absolutely has