dissimilarities recognize again it's the actions of the defendant that gets into this but i guess all boardman is if the trial judge didn't even acknowledge that they were clear similar if that isn't recognized by dying to johnson smith that he set out facts that were given her so that cuts against it being meaningful because she could have weighed back and forth if she's got something that she has to weigh in correct also yes gives evidence is not much of an explanation i don't have a line that i can draw from what is enough is enough but some explanation recognizing that there are dissimilarities and saying hopefully i think it's you know and she does say the thing that does reach the conclusion that it is more probative than prejudicial but different it's never just of the at the end of it always a balancing test but the similarities between the actions of something done for which doc smith talked about johnson and that case there was the same visual or penetration of war and babysitting i think is slightly enlarged i guess that's why the arse mother testified that's why she was there her his niece wanting to visit him more subtly different but yes totally staying the night that is similar but that access similarity is not as important from the courts perspective in multiple decisions as the nature of the offense which is different clearly dissimilar and was not reckoned with but of course none of that's your view if you find out me that's something that you came from we're making the argument today is that the killing of effect of all of these statements around closing and are part of should not give this court confidence that mr kidd received a fair trial because there were so many instances of shifting the burden of proof trying to  are going very near the end of the lower bit from the prosecutor she twice told the jury over a sustained objection the defense could have brought thirty seven and had to testify shortly thereafter twice told the jury over another sustained and then of course just making something up or base assertion that she was scared or get to the jury especially in the bottle when there's no time for a bug or otherwise explain from the defense perspective it's also not allowed now an ongoing theme throughout the entire state that's and that's a good go for the idea is that just doing it over and over again it was subjected to sustain drivel please disregard that doesn't cure the here on earth or you where it talks about just the repetition alone draws attention to things the defense maybe some regard and in this decisions and how do you know a single instance where the prosecutor indicated that the defendant somehow scared witnesses away was objected to sustain in the court still found that wasn't enough to cure the error because it was making  make a decision based on the motion and sympathy for the victim versus focusing on the evidence which then goes into the to see arguments which is the you know the attempt to get sympathy from the jury of them to make the decision based on that improper about that but it's going over all these other dish will work for some purely in the choice of the prosecutors does nothing to be done does not touch upon the evidence at issue how they can weigh her credibility or not it is not geared to bring honor there are some of the similarities between the two offenses the r and a c c world timidly penetrated in different ways but the gist of the acts here are more similar than dissimilar consequence to a number of cases say that they emphasize the nature of the abuse but often particularly the smith case not only to the court their focus primarily on the ages of the other fences but it noted that the other crimes up properly excluded them so there are similarities here that the court probably considered and ultimately this cannot be found to be an abuse of discretion simply because the court to not recite ad nauseum every basis for its findings this was brief eighteen pages of testimony there were four discreet references to her closing argument and they all specifically went to the propensity and the comments that testimony was corroborated by c c went to the scription of the trailer as to its layout so this was have occurred if she was there in the trailer essential indicating that her presence in some way made the commission of the acts impossible and the people are allowed to respond to that and that is what these four preserve during closing arguments it is proper for the prosecutor to call to the attention of the jury that they have the ability to help that appearance at trial so long as they from the burden of proof which is the really are those comments is that the people do not from the burden of proof which  that's not actually borne out by the record prosecutor's comments there went with respect to defense argument that this cannot of occurred in the small trailer if she was there and the people were arguing for inference that the reason she didn't go problem there but ultimately any prejudice from those comments was cured by sustain the objections and properly instructing the jury and to the extent that defendant suggested this was a repetition of the same comment trying to over d the instruction we have here actually three different lines of arguments that there was a subpoena power that theresa feared him and the argument that scott had some ideas in his head about what he c about looking at things on preserve errors these don't rise to the level of reversible error nevertheless plain with respect to the comments made towards defense counsel's argument we have to again look at victim defense counsel attacked her credibility for on a number of bases arguing expressly that she was dishonest no less than eight times the defense counsel argued that the art actually made up this story as a ploy for defense counsel is brief makes a point that some of these occur during the end of a closing argument but the credibility of witnesses is always an issue and the people don't need to wait specifically to listen and challenge to say something about the credibility  witness here and the references to or even voter ability go directly to her credibility as a witness the primary avenues of attack on the art work that she can remember some details about the start day she closing argument and argued by the people now these are all there on her credibility which is always at issue and the comments in rebuttal in addition to being proper arguments as for credibility were responsive to the attacks on her that the crime charged there was not predatory criminal sexual assault this is really the conduct at issue here was of seeking out the trust of the parents getting access to these children isolating them extent that the prosecutor then rehash that testimony during closing arguments is calling the jury's attention to specific testimony that it heard and the people are allowed to argue the evidence that was  explain that however that's not what they actually did a trial you can read the closing orders and draw your own conclusion to that but that's not the focus of the argument that was not an attempt to do that in the moment to those twelve jurors they called accumulating forty after which is nothing  years is that humans a fact it is the sum of all the parts together that is why disappear for so dangers it does not bring us a consistent belief that defendants get a fair trial and that's what took place here we acknowledge a lot of effect that's why we're asking you to reserve it for playing there but it was error to make those statements there was a lot of those comments and it really effected the entire trial from the st words the prosecutor talk about very much to the end of what the pro