after the first trial he was convicted of two counts of predatory criminal sexual assault this court ordered a new trial finding various evidentiary errors at that trial after this court remanded because for a new trial the state refiled and aggravated criminal sexual abuse charges it at dismissed prior to the first trial it also filed a brand new credit for a criminal sexual assault charge one that it never filed before mr bolling was convicted of those two charges and he was convicted of one of the remaining predatory criminal sexual assaults so my position as i stated in that issue three that the convictions for the two charges that were filed prior to three or five it was duncan says the duncan says it was inconsistently done it was charged discount five it was presented to the jury as count three i think to cover for the gap he'd been acquitted of the original three at the first trial so they didn't want to strike the jury on one two four and five so five this three three is five and that's one of the cancer you're saying should the state should not have been allo versus currently and assess out of every step analysis that i think works as well as anything in the first step according to that decision to defendant has the opportunity to objective we prove the existence of the retaliatory motive and that he would not have been prosecuted but for that motive we have a number of objective facts in this case that believe satisfied that test first we know that count four was is there a problem though where the defendant raised no issue or let's assume when i say there's no possible explanation that incorporates the truth force and share this there's nothing that could be served here so judge here's why we did and it's not a violation of the because and here's why and here's why there's there could be as i see it no correct truth explanation they said on the record that we knew about the allegations in count five from the get go as soon as she was interviewed by detectives silent so the only thing they can present is an objective intervening circumstance something that happened after the appeal and before the trial that happened before the first trial they've already given their explanation it's legally an adequate and there's absolutely no reason that remained it for an explanation and the state has absolutely suffered no harm by defense counsel's failure raised they gave their best explanation it's legally an adequate and as far as i can see it's all over the only reason why their explanation doesn't really matter is because there doesn't even have to be an actual there doesn't have to be an actual prosecution in order for there to be reversal the u s supreme court has repeatedly stated that the appearance of indebtedness is what is important here the rationale for this rule is we don't want defendants this defendant in particular but other defendants who might be aware of this case they're not to be deterred from exercising their constitutional rights such as their right to an appeal by vindictive acts by the prosecution so it's the appearance tom the proposition that actual retaliatory motivation must inevitably exist that means even if they could say hey we're not as long as it appears to be indicative it should still be reversed and in fact the  been dismissed and reinstated in the same prosecution a sort of the allen decision from this court that was cited in the reply brief the currently case relied upon by the state is distinguishable because it talked about when it talked about pretrial talked about a case that it completely separate cases that been dismissed and had never gone to trial and was not part of the case that was appealed now personally i think his wrongly decided because it was based on the site give that if a prosecutor brings a new case that couldn't possibly be retaliatory which i think would say that people lack imagination of course you could picture a prosecutor resurrecting some other case in an effort to punish a person if that's what he wanted to do but the point is the defendant cannot be put in a worse position than he was prior to his first trial after winning on appeal prior to his first trial on this case that aggravated criminal sexual abuse charge and been dismissed for whatever reason by reinstating it has now been put into a worse position than he was prior to us first trial for  a for example that he could dump a bunch of charges on the defendant and then say it's not indicative when you look at it like the johnson case they talk about the state's powerful motive to not have to  retry a case a powerful motive to deter people from appealing and i think the demo to not wanting to retry a case would apply whether here the original prosecutor or either some other prosecutor that still extra work it's  confusing the cases that say the state has a chance to rebut and the cases that say the appearance of it is enough because the appearance alone you know deters the exercise of the rights again it's my position that in this particular case you don't have to reach that question because the state has already offered its explanation and it's legally an adequate side i don't see that this court has to decide the question of whether or not somebody has a right to rebut this charge because in this case they can't so i think of the court's questions that covered all the points i was going to make on that issue if there are no other questions and that i would like to briefly discuss the first issue the improper instruction on count five which was presented to the jury of scout three the elman instruction in that case it was predatory criminal sexual solve which requires a penetration it states that the defendant committed an act of sexual penetration as placement of his hand or finger on the sex or now because it's a hand or finger of the statute clearly requires an intrusion however slight and unfortunately the jury was instructed that there need no intrusion they were instructed that putting it on was sufficient to me it's as plain as day that the instruction tells the jury to convict mr bowling without finding any and any penetration any intrusion they can find only that the hand or finger was on the state however thinks that my interpretation is an adjective i would say that any i would say that the state's closing argument and sur jury in fact would have adopted my interpretation that they would have believed that it did not have to be any interim intrusion no matter how slight in the prosecutor's closing argument he did discuss the correct definition of penetration that was given that there had been an intrusion however slight but the rest of his closing arguments ignored that requirement and then talked about the language putting it on for example he said the skin of h touched the skin of her badge an area that's count three the prosecutor said the skin of his hand made physical contact however slight with the skin of her pageant all area it has to be penetration however slight not contact however slight and at the end the prosecutor asked the jury to convict my client for placing his hand and fingers on her bad area as i think it will say referring to the instruction those arguments explicitly told the jury that on was sufficient while legally obviously it isn't it has to be an intrusion no matter how slight the only other argument from the state i would address at this point the state believes that the fact that there were correct argument that there was a correct definition would cure the error in this case the short answer to that is that would probably be true if the jurors were lawyers and they were lawyers who are familiar with criminal sexual  the problem is obviously they were not so they don't know which jury instruction is correct so they cannot possibly say they could only guess whether the elements instruction was correct or whether the definition was correct so we can't rely on conflicting instructions to cure this error and i would further suggest that the prosecutor's repeated statements that they could convict him for putting his hand or finger on would cause the jury to select the improper elements struction the one that said it would cause them to reject the correct definition instruction injurious to any questions i don't recall raising i don't recall that they did that i don't closed the prosecutor i don't remember their names so again i would ask this court to pay two convictions for counts for and five to grant a new trial for the would remain if you were ejected dismissing those two counts and i would be asking for a new versus just mere speculation yes there are there was testimony that would support a finding of actual penetration and what was out she told captain the prosecutor indictive when he has had absolutely no chance to chance the fish claim that his statement we knew about the charges is an explanation for vindictiveness is farcical never accused of being indictive there is a possible explanation for the recharge or for the new charge based on victim's tests with a trial single case this test which shows that these charges were  are viable than i thought before the first trial that's a possible explanation that is not being disputed this or he could have had a for further conversation with the victim between the two trials which lead him to believe that yes to a new trial in different law the defendant was found guilty of the misdemeanor lynn applied for the new trial and was charged with a felony based upon the exact same facts the exact same offense and they said no you can't charge that they're more serious offense for the same conduct robust their injuries argument is that this is a situation where because we've always done it this way the best of all possible reasons yes and as the general rule one basic rules the defender the fire title for a fair trial or not it and this i think this case work i don't recall they were not i think because of the additional well it depends on before the start of the trial because the aggravated count was no prosper the state after the start of the and this is not the touching my head is completely distinct from any of the charges that were involved in the first one so that this is not in the senate has raised the  certainty or problem with the instruction problem with that argument is this offended never raised any objection to the prosecutor's closing argument at trial and he also did not raise a separate issue regarding the prosecutor's closing argument on the sex organ and how is that not inherently contradictory because you look at the instructions as a whole and they use that as to language with even in  week or intrusion how are slight if any part of the body i understand what the definition of sex and race and how that breeds but what i'm trying to figure out is what are the jurors to do with that language and her finger on the sex organ are are you saying that they should know to just disregard that because they can't regarded in any way and give or literal interpretation because it misunderstanding to require penetration or is it your pleasure him her figure on the sex or it could have been done that way and it defended objected below  what type of conduct is required because the defense was not that yeah i touched her but i didn't touch inside her the only time i touched it was getting her back and  incivility not intentional or anything like that is his defense was i never touched her in any way shape or form whatever so this distinction between o in is this is sematic one being raised by the defendant now to try you know creating an imaginative interpretation of the instruction to which he agreed below  trial errors or but i submit that in this particular case the errors that were raised are not severe enough to require asked to prove penetration so when the state whether it was intending to differentiate or not added that to the i p i it really generated the confusion of something just to make clear there wasn't a circular definition three the definition yes right right yes and you know a further area of confusion is that if it says a body part has to have intrusion however slight and you know that there was some dispute in the past about what constituted a body part that required intrusion now it's clear that finger gods but the jury wouldn't know that and they might well of the soon sufficient