two thousand and eight instances of other crimes evidence and these are conservative numbers because what we did was we looked at just the good by how that occurred on the weekend and just the time period from two thousand and two until two that time period two thousand and two two thousand and eight was approximately at fifty two weekends a year four hundred sixteen occurrences then times by the five girls now this is conservative because we didn't look at the fact that in addition there was testimony from the girls that holidays the entire summer as well as for three of the girls emily jane and megan what they did was after they finished high school introduced as such this is analogous to the carcamo new case which is the only case that really deals with a volume of other crimes evidence such as what we see here and you start with the proposition that additional issue on our case of the fact that we don't think it was a missile because the trial court was not given a meaningful opportunity to valuate that evidence by means of the of how this actual evidence was a medic but certainly the primary thing four sisters that were alleging the same thing so by virtue of the fact that they were forced the sisters in each one was an aging that it was propensity evidence just by virtue of the four counts evidence became the focus of the trial if we look at the opening arguments the state again laid out how each witness meant grandpa in two thousand and two if they would go if we retained and that there was this is the state then argued that the girls would have to stretch their minds to go back and search their memories to find out what the charge bloomington offenses were specifically charged conduct so in the opening statements it is the other times evidence that's the focus the state doesn't even talk about the charge conduct then you have each of the other kinds of evidence that was presented and your honour's in the case of william browne that came from this district in two thousand and one that was something that the court looked at in the pronto case there was a there were twelve day in state no this became a focus of the trial this became a mini trial with in that trial and because of that that was inappropriate again what we have is if we look at the and this was something your honor was talking about the expense of number not there each charge these one counts each of the four girls but the amount of other crimes evidence that was presented in the form of  testimony was so much in excess of this with regards to annex that she offered ten times more testimony regarding the other crimes evidence than she did regarding the charge conduct courtney five times as much twice as much emily five times as much and megan her entire this was one hundred percent of the crime evidence and so what we see with this is that in relation to that one count there is this huge bond that this jury is presented way this huge volume of information and other crimes evidence and this was just hugely prejudicial under the car the money case the me possibility that this could have confused the jury the mere possibility is something that allows for a reversal because it is so prejudicial and in this case your honour's we have more than the mere possibility of jury confusion what we have here is a jury question that demonstrates there was actual confusion who jury wanted to know ten we are supposed to look at the iowa missouri him and it's uncontested the state in its brief talks about the fact on page twenty two and cage thirty three they talk about the share of the sheer numbers and the volume that was presented in this case i don't think that that's a contested issue but when we look at this this blog volume is given to the jury however the trial court does not place any limits on that the amount of bad of that other crimes evidence i use of this evidence if we look at areas which is the case which is cited by the states in parades one other times witness testified and to approximately twenty instances but in parade float in case look there were procedural safeguards in place that gave her confidence that there was in this jury's verdict so that the she could see the jury would not confuse and the so it's a procedural safeguards in parades that we saw was what the judge did was he said to the prosecutor the trial court said mr prosecutor choose your top two or three incidents he limited it thousand and one case the court is fair bet that propensity instruction is imperative because of the importance of making sure that the jury is not confused so bad the importance of giving them an accurate instruction didn't he must have done some that's what they talk about beer and in this case we don't have any of those elements there are no at no time was this jury instructed one of the other crimes evidence was what it limiting it me anyway this is going to lead to jury confusion and that's what in the brown case the fourth district talked about is the fact that to have confidence in that verdict that this man's guilt or innocence is decided on the evidence on the on the charge to fame alone you just can't have that when you have the volume and the focus of the evidence the other issue that we have in this case is the manner in which the this evidence came forward mr moore was deprived of a fair trial because of how this evidence with the method the trial court  couldn't conduct a reasonable analysis regarding the meaning a reasonable and meaningful analysis because he didn't have all the facts in the at the hearing the seven point three pretrial hearing his judge spared i don't have any facts on the charge to conduct the state the judge at the trial court was they in it with i'm reasonable for him band at the oral argument on the seven point three hearing to rely on the state off the cuff response that oh yeah with regards to be charged conduct good bye hugs were involved why was the son reasonable et that you're on a certainty and if we're going to look just the funding in touching it i would say under the walls case the pira touching if you're just going to talk by touching then they're supposed to have more specificity in walt's rather  just the mere description of you know the touching by sherry game the fundamental problem is this huge overwhelming mass of evidence based came in and confuse the jury and this is something that kunt bet really concerned the trial an issues the trial court when two extensive trouble to lay out a record in both he's written orders and been in the are all arguments statements on the record and he said he was given term of years four to six years the state has fared we don't have any more specifics so the court had denied the motion because they were apparently no more specific to provide however a trial they were specifics provided sophists the instances  family occasions where things occurred the second instance that really concerned the trial court was this issue of the other crimes evidence he went to this was that message because i relied on this refreezing tayshaun that they've turned out to see different from what was presented at trial and this provided and gave the the judge its substantial court's if we look at this this is the case also where we couldn't consider this the admission of this huge amount of evidence as harmless era the other crimes evidence was a material factor in the conviction  mr moore and the sheer mass of evidence that we have the so prejudicial he was deprived of a fair trial if we look at the absence if this other evidence had not come again the state's case the evidence on these would disparate counsel was not overwhelming they contained as i said each girl these were all girls that testified about instances that had occurred eight to ten years prior each girl provided very vague testimony on that and it's a very interesting case because the charged and the other and charged conduct all of this occurring in public allegedly all of the detective testified that none of the girls ever as a tech told him bed they saw any other girl touched so there was no corroboration not even by one complaining witness of another complaining  prosecutors referenced at the pretrial hearing that the charges involved goodbye hugs because the charges did in fact inviolate goodby of the victims testifying to thousands of is that this the prejudice is not there this is a case where the defendant himself relied upon the volume of the other crimes evidence thing was a conspiracy on the part of the grandchildren because they were angry at their mom and therefore they got together fabricated these charges  over the course of several years given that theory evidence of a longstanding history of being lest it really goes to the heart of the defense claim eight if the children have maintained a good relationship with him despite this following how much does it how much weight this should be given to this theory that ok they made it all up because they were angry at mom we have another question here it is clear that the victim was and those fifty grand daughter were probably allowed to testify as to some other sexual abuse upon the part of the of the relationship and to remove the danger that the victims credibility would be attacked by the fact that the only referred to one instance when there's been many particular instance any more fully than the dead so the question then becomes given that this evidence was admissible where you draw the line you draw the line ok you can only bring in court said that given the fact that there was one hundred witnesses called with multiple witnesses testifying regarding the other  then the xpress testimony that on these five specific occasions these five pacific acts took place all supplied by fifteen witnesses saying that that is a answer was the answer that there would be a question yes oh ok i had a look that was the that was the i don't know if you get i don't know if it's the one they requested or the one that they agreed server but it also suggests the question would have been asked by for the fact the jury heard lots of evidence in three different states but again given the about the amount of ammunition the defendant gives the state for impeachment and when he gives the state the ammunition there's no arrows in the state using that any nation i think that that is apropos in this situation where we do just have general testimony that every time i'm this is a paraphrase but every time i saw the defend it he would give me a good like that to be given to the court at the hearing it just says that a summary of the witnesses testimony is proper that is what the court had here in the state's response with the list  or more areas you want to bring out as other trials of those defense counsel have the opportunity to fleshed out that evidence or to flesh out the  well the claim on appeal is that the trial court did not have enough information my point is simply did not have enough information regarding the other crimes evidence to make a valid decision my is charging that he funnel his granddaughter the state wants to present x y z ok the only evidence that it is offering it x y z that not specific detailed testimony as to twenty five thirty five hundred different instances with just a general statement every time we saw him he would last me i think that that is an entirely different situation to say that ok you can only say that every time he saw me in the year two thousand and five he w particular where we have here where there's an allegation that the children had made a report over affairs that was disregarded during nor in the whole scenario nunley talk about the fact that once they decide certain evidence that they missed the ball that evidence and effect method must be limited so that it's only given in enough detail to the court the reason for which when this case goes to trial do i know as a prosecutor that your part of your defense will be this is fabricated and it may arise out of family  if that is the defendant's posture then doesn't other crimes evidence that involves a time period before it discord before the divorce before family problems arose isn't that evidence doesn't variants become more essential in terms of propane and city and similarity and so forth then it would if that other crimes evidence was only evidence regarding about the time that there was family discord i don't know if i've asked them about the chronology we've got abuse beginning here allegedly it's other crimes it's later we have family discord and a divorce and one of the ideas will be if this only came to light when their adolescence only closer to the time and motive to lie it could be true that it could be supported for that reason however again here because of the huge value of the tame and you can't get away from the fact that there was this huge volume and  then no limitations or instructions to the jury regarding what they could use it for i do i know i have limited time just want to address the issue of the jury question because i think it is so important your honor they did ask the question which indicates that they were case you can look at it because that the importance of the issue and reading to the jury confusion because it didn't care up the problem because thing eleanor there was also good by hudson other crimes evidence by virtue of the judge just crime to the charge contact to allow the judge to make that decision it was then reasonable that the state didn't they have the burden we don't charge and we argued this f h hearing there are no facts judge you can't make this decision he should