was originally charged and convicted of two counts of predatory criminal sexual assault and they separate and distinct count of aggravated criminal sexual abuse no one at mr kind of his trial stupid an defense of any kind or lesser offense or an alternative theory everybody was going for acquittal or conviction as the state would have it on dreck to kill as to count one predatory criminal sexual assault one of the two counts the second district reversed that for lack of proof on the anatomical element again during the course of that appeal the state never suggested that perhaps they're there proving the case was weak and off and that the other court should reduce the conviction instead of vacating it outright reduce i should say substitute because it is my position that it's not a proper included offense at this point in the to aggravate criminal sexual abuse rather than vacated outright and then this court issued supervisory order directing the second district to consider whether the proof would have been sufficient of aggravated criminal sexual abuse i guess presumably had been given to a jury  appeal concerns only that count so it has no effect on mr kind of those convictions and sentences and counts two and three essentially his defense the defense position in this case is there  sort of two overall themes two he norma's problems which are both of which are separately fatal to the state's position in this case of what do you can even get to substituting an aggravated criminal sexual abuse conviction for count one particular criminal sexual assault first its wavering forfeiture the state chose not to seek an indictment unless they chose not to tender include offense at trial they didn't even acknowledge it on appeal that it was a possible weakness in their case after the first their strategy had not succeeded then and only then does the state first bring up in a petition for leave to appeal to them really they not as a play on my reply brief a denial need to appeal in supervisory orders are not raised judicata they're not presidential so they don't and certainly the state never disclosed in its petition for leave to appeal but it did waive this issue let me just regardless of whether or not we should have issued a supervisor or we did yes and we've a kid the decision in gave very specific instructions what was to be decided by the appellate court yes and again my question remains doesn't that move the whole waiver issue because we put it it is you regardless of what the state or or the defendant had done prior to that my answer is still no and it's because there was no opportunity for the defense to have called the state on this waiver and this court issues the supervisory order and so the first chance of playing out in response is in the tele court and w knowledge the complete reality that the second district had no choice but to follow this court supervisor your honor my idea was to preserve that issue for this court because this court was not brazen that petition for me t opinion and we could see from it that the reduction issue was no raised to redress by the appellate court so this court was on notice that that issue was raised so is your problem at this point more with the court and i know you'll quickly because and i have had no chance to respond to it and i don't believe it was the supervisor order as a presidential ruling on the way or issue but the other the other main contention is due process essentially during under the coal and entitled to have the validity of validity of their convictions appraised on consideration of the case as it was tried and as the issues were determined in the trial court those issues were not try to determine in the trial court on aggravated criminal sexual abuse as an alternative substitute offense for count one using the united states supreme court's description of a federal due process violation and given the fact that even the state does not find any case or six suggest at all that the us supreme court would choose any other standard but the same elements slash abstract element test which i believe are used interchangeably this is not count as an included offense when you get to the point of your past the conviction where the conviction is over the trier of fact has rendered its verdict the charging instrument approach does not apply and in cold and again where this court held that these two  if they so choose to do so in discretion and their discretion excuse me so paul doesn't hold it clearly there are different standards because for one act one crime and double jeopardy as misguided or not in miller we  but i think using the double jeopardy you're using you're borrowing from something is what some people versus now if i was a double jeopardy case but talked about the idea of why it's not a double jeopardy violation under whatever approach you use is in and of itself and you know an academic question of law if that's it you're asking but my point is there is a difference between me and this court i get this court already uses more than one standard i think miller limited coltan in that miller you clearly have this court choosing the abstract element approach for joe for or for one act one crime also noting that the u s supreme court four chose that officially but that's a jury instruction case there's a different kinds of considerations when you're talking about a defendant or even a judge like in court and sitting as a trainer fact neither of those two entities has the power like the state does to offense gets to get the tender included offense even if those there isn't a strict overlap because it's in the interest of justice to allow some to do that a trial and the same thing i think was in play colton when you have the judge sitting as the trier of fact used to sees these two parties going back and forth oh an absolute acquittal an absolute conviction when he sees that the guilt is really somewhere in between but the judge like the judge like the defendant can't charge it the state has that option my example is this i want to back up early or worse someone could have a defense that's a separate offens not strictly a lesser included offense if you use same elements and that's there's case the local people resent tonio hamilton in the late ninety's in this court and that guy was charged with burglary of a house and his defense he was let into the house by a child his defense was i was i was at the wrong house i would went in thinking i was going to see somebody and then i got once at once inside he claimed that he realized he was in the wrong house and then decided to steal a purse which he still has in his attempt to tender a theft instruction as a defense was denied because b he won that case ultimately in this court under the charging instrument approach because it made sense that his defense was i had and i had it i had lawful entry i was letting this house i wasn't intending to commit a theft at the of my entry whether you believe it or not but formally to the intent to steal afterwards and so that's why it makes sense in the trial court stage to allow the charging instrument approach but once you've already gotten past that point those considerations of expanding the base included offenses don't apply and but that's a policy consideration i still think as a matter of federal due process again the core of the argument is you can't have a conviction for a charge that's not made clearly that charge is not made there's no denying it it's not instructed to the jury what standard of the u s supreme court using federal due process they always use the same elements  morning honest may it please the court and assistant attorney general steven sultan saudi on behalf of people think it's important to distinguish between what's at issue in this appeal what's not the claim raised this defend argued in opening argument the claim raised in this appeal is that defendant was denied his right to not be convicted of a charge that was never made that's the claim that was briefed in the opening brief that's the claim that was in court to determine if that one charge the fence was a lesser included offense of the offense charged in the indictment the way we make that determination and in illinois we use it charging instrument approach and colds and they have the exact same crimes predatory criminal sexual assault and aggravated criminal sexual abuse and determined that the lesser was a lesser included offense that same analysis applies here to failing argues that because the conviction is alternately entered in a six fifteen context on appeal that should change that that colton doesn't apply but colton occurred after the argue runs that after trial things change but the determination by the trial judge and col occurred after the trial the jury instruction phase happens after the trial at the jury instruction phase where it's undisputed that illinois would apply a charging instrument approach to determine if if if and instruct offenses a lesser included offense of one of the greater offenses and a diamant the trial is over there's no further opportunity to introduce evidence there's no way for the defendant to alter the way he defends against this lesser included made and that's the question here that's the question under a cold claim and the and that's the claim raised here we we simply asked was this charge made or not and he now says begins with was that was the on charge defense a lesser included offens greater includes and tells us how we answer that question and the united states supreme court has given states the latitude to make that determination united states supreme court if any are these roles the united states supreme court will gets to this issue alternately they won't elements approach but the united states supreme court is not going to get to this issue or at least as far as telling the states how to handle this united states supreme court has already said states are free to handle this aspects of the analysis on their own all the united states supreme court is concerned with is ensuring that this depressing process right not to be convicted of a charge never made is protected in illinois protects that right he sexual conduct which our purpose of sexual gratification arousal was was argued at least and was submitted to a jury or submitted to the trier of fact instructions and by argument and here that didn't happen is that a significant difference to distinguish that is a difference that is not as significant a significant difference for the claim raised here and that's not a significant difference for the application of coltan however on a picture it's clear that she's indicating that his thing is his penis he says her she says it was white and squishy and on count three which is the other aggravated criminal sexual abuse count the jury here found that defendant contacted the victims but outside his hand for the purpose of sexual gratification sexual arousal combining all these things it's clear that beyond a reasonable doubt that the jury would have found that intent ten element that your honor  brief it's clear that any error was harmless t from the people's argument that you pay any claims for food and i think they're sort of text book examples for when forfeiture applies and what it does not in the key distinction is that not only was there a supervisory order but the pell court took up the issue of whether power under will six fifteen at this court's direction and he she was fully briefed fully decided it's been fully briefed here so we know for the questions we would ask that this court from the judgment  the claim was submitted unclear and again in the court i just read in color was cited they get not responded to by the state petitioners defendants are entitled to have the dilute the validity of their convictions of praise and consideration the case as it was tried and as the issues were determined there is more to that were determined in the trial court not just charged but determined and that's why i think there is actually even an overlap with the present i did not give you a brief and is a crucial to the claim but it's simply another way of restating that it's for the jury to make the factual determination not to belatedly bring for the first time to an appellate court especially when you have an element that is not included in the charge again the state talks about colton being controlling and again that's the distinction as so there is the difference between that and colton and it's a constitutional difference to due process difference certainly cost him nothing in calling ratifies what happened in this case bringing up a charge after the after the state loses on appeal bringing up a new charge as it as a substitute for getting some liability out of the conduct after the strategy didn't pay off the the state's contention that there's a matter of state right in the outlined the difference between consider it a difference between including can see considering included offenses at the trial stage and after and this court even touched on that and miller when it cited to the florida supreme court in people versus big of the talked about during which was that which was which was separating double jeopardy i think your defense from trial instruction included a fence and this court ordered state versus baker florida supreme court case saying that the instructions were non constitutional the mr smith is charged with felony murder predicated on armed robbery he goes to trial he's convicted of both on appeal he argues it's one act one crime he's gotten consecutive sentences on the separate attendant armed robbery these schemes apparently jiffy lube oil place and then there was actually money actually taken from a cash register and then the victims were herded downstairs toward a safe with the intent that they rob the money out of the safe but things happened in that never occurred so the taking was now of the safe was never accomplished and so you tell a court says it's a separate attempt on robbery that's in these facts it's you know it's a that's also forcible felony so the use that to that it was a due process violation to convict mr smith on a charge that was never made or submitted to a jury or try refract and that's exactly what we have here this case has the extra wrinkle that i acknowledge that in some context and crim sex abuse isn't included offense and i'm not i would not pretend that the double jeopardy sorry we do process line of cases that i'm relying on would not would also apply to include offenses i would not say that yes and no i guess no i mean you know you could say that my problem is when you're talking about inference again i can't separate it from the question of who gets to make that and also what's the a joy these are separate appeal to raise you know reasonable doubt or i guess i could have done that here but it seems to me you don't get there because the l a court doesn't find separate and new elements there was a charge of france i believe it was money laundering it was a certain amount of money the fence was charged properly however the actual instruction failed to specify the  money amount however all of the evidence at trial was that the amount of money was over the amount that would have satisfied the offense this vendor didn't just make the money it had a defense on a different thing and that was fear that was called harmless  in contrast when this court has talked about a perennial lines of cases on brutally heinous but whether that would that standard term factor will apply the can score is drawn a line between factors like that and more objective factors like age the amount of money or the weight of a controlled substance here we have the purposes of sexual gratification we have to guess what the defendants motives were maybe it seems obvious but again it's a trier of fact that makes the squishy factual questions that makes all the factual questions if there are no further questions thank your honour's thank you case number one one three ninety nine eight people versus