content that the motion as to whether or not he was going to say i do remember reading that there are you remember reading that there was that he was not saying he was going to hit min it was him he was challenging them in with him best her act be but by the time of trial and even during opening statements defense counsel placed him in the van and explained that it was going to be else is there jury to conclude from that testimony besides that they're talking about a sexual assault and then also this see i'm offered into evidence and it went back to the jury people's exhibit twenty eight which was a  it was something about why did you tell did you tell the detective that she was not wearing panties and then he said something like well i don't remember  all you know do you don't remember her you're not sure so it had nothing to do of about a rape it was what he was asked what he told the detective the next day on the phone but even without the rape comment at that point the jury to disregard back the decoy to tell the jury to disregard the one rape comment but up until back there was no question what was going on i mean the jury was the jury going to conclude from this woman running out of in your it's a sexual function rylan there's this that's important because she wasn't there to testifies that there was no way to meet that it means there was no lack of d n a evidence and then the g g testimony tipped the scales here the impact of a nother woman claiming morning once again obviously identity was an issue in this case but let's be clear about the record for a minute the court has asked about the record the people had ten witnesses comprise three hundred and fifty pages of testimony defendant testified on his own behalf one hundred and four more pages atwater which is the witness that has been described here today that took the woman in the car and drove behind the car gave the license plate to the police and eventually transferred the woman out of the car his testimony and lack was twenty pages he never mentioned one thing about the circumstances beyond seeing what he saw taking the woman in the cars and thought she was in trouble driving to the police giving them the license plate number and in the seventeen pages of cross examination he also didn't say anything but the seventeen page of a twenty one page cross examination where he was repeatedly questioned about what he told the police what do you remember what you recollect and he said well i remember i told us that she was screaming and she said she was raped when she ran to my car of jackson immediately struck and the jury had been informed before i water testif that he was going to testify for a limited purpose of identification and it was coming in for also the circumstances of arrests as it related to them so they don't even warrant immediately stricken and they were obviously admoni mistrial motion outside the presence of the jury and the court noted that yes that's statement had been excluded but it came in on cross and it could have come in as an excited utterance and so the court ultimately determined that it harmless and i don't think there's a question then that there's some discussion in the brief that it could have been an excited utterance because the officer wasn't or that at water wasn't excited and that's that's obviously incorrect but i will of the evidence regardless of the declarant availability scuzzy the explains what happened with that water and where he goes and what goes up now so that's our now the question is is the identification evidence necessary because that's part of the argument here let's think about th him the phone that was found in the car that was actually traced back to the victim in this case and then he told another detective later in the day that some girl named key should wrap her i d and her phone the idea again was the victim's in the case after he gave her  a gas station so that is what the state had a reasonable doubt case was looking at as we proceeded to trial now he gets up at trial gas and he says oh i took maybe into the car and he has this entire scenario where he paid her thirty  discretion we're talking about how we link i just sentence so ten days later at large driving down the same street in the same area about the same time and this woman comes flying out takes her into the car because he thinks she's in trouble he  follows abby and he gives that license plate as i said to the police and eventually transfers the woman to fit inside of the carcase and the current case really just explains the two ways that identification evidence can come in yes it can come in his m  who did not was not involved in the case as he transfers that woman to the officer the officer then begins driving around with this license number looking for the van he finds the registration information he drives over he finds the van parked on a street near where it's registered and he makes arrest of the defendant she's actually still in the back of the car at that time and he makes the arrest of the defendant and that van is the very same thing and that a b c has described and that her id and her  somebody stole a bicycle years earlier doesn't mean they stole a bicycle today that's not what it was introduced for so clearly identification was at issue clearly the circumstances of the eros were important because we had to  and water actually doesn't see who's driving the van except it's a bald guy so he can't so his descriptions very dense but links these individuals and these cases is the van and all the things found into the van so clearly looking at the rest of the evidence talking about the victim in arkansas this case the man runs out to this senior citizen home where there is video and they see her on video running with her pants half off she immediately goes to their security guard tells him i've been raped please call the police and he does we do have that video we obviously have talked about the thing and she makes consistent statements the hospital nurses that she goes to a few hours later yes she goes home for us she gets a kid she takes care of what's needs to be taken care of and then her and her mom start on a bus down to the hospital and eventually she gets around but she makes consistency admits to the nurses and of course the fan and is in possession of the phone and the driver's license and he gives the statements he gives to the police could the reasonable probability be that without the one statement made seventeen pages and cross examination that somehow this case would have been a different verdict i think the answer is there's no reasonable probability there was a lot of progress in this case and as the court well knows most of these sexual assaults you're not going to have more witnesses there rarely in the middle of the stream but we did have some video that was instantaneous we did have the security guard right there on the scene and we did have a lot of consistency  statements so at the end of the day the fence counsel simply disagrees with the and women in order but has not overcome the presumption that the jury found load at the court's repeated instructions that you were to consider atwater's testimony for a limited purpose and this case the people argue that to get a fair trial and his conviction should be affirmed there is an additional requests for credit for time served the people have conceded that either this court can correct it or can go back under the new supreme court rules but with there are no further questions thank you thank you vividly then the state talked about it during opening and closing her purse it was repeated often interscope was off and she wasn't wearing underwear and the good point i have is that identity was denied mr johnson his right to a fair trial and for those reasons we ask that you reverse them or man for a new trial thank thank you and we'll take the case of your life that we have t