doubt insulting or provoking prong of the battery statute requires that the defendant make this a contact with a complete trial court's findings of fact here so that it was actually the complainant undercover officer al advancing any further any further did he say any further i don't have the findings of fact members but i can yeah no no i'm just asking does advanced mean that could that mean that the judge concluded there was contact that there was an advance could that mean physical contact and would you think that means soli you know no contact i don't think advanced by itself commune physical contact and i think when you take into account the fact that the trial court said he had his arms down  he does make a finding of fact that the defendant's hands were down to his side before the officer extended his hand to stop the defendant from advancing as he described it that's correct your honor there is an expressed finding of fact that his arms were down side all right but this was not a finding that in compass the whole incident or was that when the officer pushed out his arm to stop the advance of the entire incident takes about four seconds as is evident from the video and as he walks around the corner his arms are down to the sides the entire time and when the officer goes around he does a very quickly and extend his arm just so sunders never had a chance to get his arms up until just mcbride's question regarding what you can tell from the video here what is the central question that we have to decide here based on the video do we decide whether or not the alone without the video would it be sufficient that the op that the trier of fact the trial judge in this case sad that when contact happened between the defended the officer the defendant's hands were the finding of fact that the officer put out his arm to stop the advance of your client and pushed his arm into your client's chest how did we get here suggested that the original rule twenty three that referred to the judge's statements at the direct find were improper however motion for the directed finding the court specifically found there was contact he said that so how do we go from there to later saying that what he said there was not accurate regardless of what point it is there was no there was no finding of guilt at that point but the defense had moved for a direct finding and the trial judge denied the direct finding at appropriately make a determination at the end you're saying is his physical findings or against the average but he had concluded in denying that directive finding that there was a taxi what is it that he says in his is finding at the end of all the evidence that changes that well i think the that the comment at the motion for directed finding was made before my client testify and so it was made before he had that additional evidence to consider it way at the end of at the end of the evidence i he did say that it was alan they reached out to make contact with saunders which is completely contradicts his his earlier comment because those were made at the end of  evidence after my client testified most of the findings of fact the source for what didn't he say that the officer put his arm out only after the defendant advanced on him he walked yes but advancing a slightly different twist to it and that is that an officer is gauged in the course of his lawful duty which is to arrest individual individual comes up close to the officer ki in fact raises here and if the individual approaching the officer continues to advance towards him in a sense he has made contact this defendant i mean this this indivi once again what do we do with the video we look at the video in light of the findings of fact determine whether reasonable doubt remain and if so we have to revert yes but if the video you do not have to affirm even if you find that contact occurred here by saunders because any contact that occurred here was not insulting or provoking contect as a matter of law well let me go back just briefly to the other question now from revealing the record it's clear that this tape was played terms and from reviewing the record it's also clear that the officer described what the video portrayed yes the state's attorney was present the defense attorney was present the defendant was present and the judge was present and they're all looking at this video yes so i response to retry the case now or do we have to give some deference to the fact that this videotape that you're arguing shows whatever are we supposed to now try this case look at the video and retry the defendant is that what you're asking us to do no this is because the judge looked at it state looked at it the officer testified about the video the defense attorney cross examined about the video the video why why should we treat the video as if it's testable as opposed to scientific and that is simply subject to only one reasonable view officer that's clear from the back his arms not reaching just prior to that is it very clear that the defendant is right there in the mix but it's this visible person right there it's clear that he approached but the video and i'm not sure you can see what his left arm is doing at all times i'm not sure you can see whether he has something in his hand or not it looks like he may have something in his left hand but it's really not clear i mean the video is not really  a number or some kind of something on the back but it's really not clear what it hit and that raises the other question in terms of whether the officer said that sanders punched him with this right him or touched him with his left  correctly i think the implications of that of that are that you have a situation where the the complaining witness testimony apparently has been disregarded by the judge and yet still the judge found better because it seems to me that you're right that that the officer said i was i was grabbed from the rear of my shoulder and dragged off the narcotics suspect and in the fight is a fact well and which doesn't seem to be  but in the findings of fact it appears to me that the judge disregarded that this morning and said that the contact was not the the grabbing of the shoulder and the and the dragging off of the suspect but it was the high tech between your client's chest and the and the officers so what are the implications of the fact that that the the judge apparently is making a decision based on the video and disregarding video is unbiased i think i think just homer's question may have been directed a little differently and that is what if the implication is that it's a compromise for him what if he implicated him why shouldn't a compromise verdict be upheld if it's a trier of fact the terminations that the events were ambiguous and certainly if this and that was the antic yes the officer had a right to do that and there's we never suggested that the officer didn't do the right thing in this situation but undercover police officers they blend into the community and not every encounter between an undercover he found that the there was no way saunders known that he was a police officer i don't want to speculate as to what the implications of the trial court putting him of every felony and then committing a misdemeanor it may be a compromise verdict finding it does does that the talking of lenity yes yes of course the but a compromised verdict should not be upheld whether there still needs to be evidence beyond a reasonable doubt there's not a reasonable doubt of all the charges filed against trial judge's actual findings of fact or on a sufficiency of the evidence are we looking at a reasonable trier of fact so that we don't really focus on the words in every statement that he know what they said from the tape but then we have two different versions of what was said right from the off the circuit and from the defendant right and at some point the defendant does admit that he said stop it right he's the first person to say anything yes ok and the officer basically says he's responding to someone behind him right all right ok so you have a little bit of a credibility issue with with with your client testifying that he did know what c p d meant i don't necessarily think that's true because what he said was i didn't necessarily say i don't know what i meant he said it didn't click right away and this is in a matter of seconds someone's yelling at the deadly weapon the words that are being issued at the time so it makes your he's focused on whatever the possible that's going on in front of the right media it's a heated situation the second so so he just said it didn't look right away but then after facts that are inherently insulting or provoking facts that are on its face just so shocking outrageous or also that no additional actual context is needed alternative insulting or provoking cases can involve contact is innocent on its face but that that under the cases we should say it when police officers are trying to disarm someone with a gun that if someone comes up from behind them and tries to interfere with what they were doing that that isn't provoking the police officer i think that the issue i'm presented here is under reasonable doubt manifest weight as we look at this now can you say that an officer wouldn't consider their provoking when someone when they're trying to disarm a person with a gun and someone comes up behind them and says whatever he says and also advances on them that that's not provoked i think that that's not the situation here because the trier of fact found that saunders did not know that allen was a police officer both me under color and that's not the question the question is whether he knew was and if it's of the question is is the is the insulting and provoking related to the defendant or is it related to the person that's being  separates the battery charge into two different classes one regular citizens battery and one police officer back with a police officer very battery have to take into account the officer's actions and therefore the just me to to keep to take allen's police officer status into account here would potentially punish a lot of innocent contact his undercover officers blend into communities you know the situation look like a fight i can imagine any any other kind of situation involving undercover officer doing something maybe looks like he's beating up on somebody anything like that and if you say that just the fact that he's an officer and interfering with his duties is provoking then you risk punishing confuse him for a ordinary citizen that's true but in this case like i said it did happen in seconds and it did take us seconds for it to click i'll say from the perspective of the officer he does it for that reason to give notice to the individual approaches to understand what's really going on as opposed to misconstrue or think it's just an ordinary fight and in theory that is that this and that should you know happen every time the this situation any contact that did occur here is not somebody jumping in and throwing punches it's a minimal contact designed to stop with taking into account that he did not know it was a police officer this is not insulting or provoking because this kind of contact is meant to hold the situation down as the fighters to stop take a step back think about what they're doing contact meant cool down is in fact the opposite of provoking that's the sort of argument that in fact happened here we have the trial court's findings of fact you also have a videotape of justice mcbride pointed out is ambiguous to some very specific details of what i mean will have you looked at it lately i have not looked at it lately i if you ever look at it of this regard the officers toss them and say that the kick in he says that the contact is between the extended arm and the chest and so you know it seems to me you know you have to make a choice and either one of the very good and that is allen is standing also kind of on an angle with his back more towards the camera and this is a pipe camera whose sole purpose is not to directly film with every possible angle of this incident and we're lucky that we have what happens is you cannot  when you say he turned around very quickly that suggests that his witness and turning around was not and in fact as just almost pointed out the quickness in turning around was not fri by physical contact it was triggered by words and if it's triggered by words then or by someone approaching maybe by viewing him you know corner reside that sort of thing and being concer  that goes back to videotape you see the defense i mean we see ox around put his hand on the fence just and you see now at that point the video itself is i mean i we're talking about steps we're talking about hand movement that we are original stance is that contact was made between the defendant and officer allen and that that contact was insulting and cloaking based on that the situation that was and is based on this  unbelievably quickly so it would seem common sense and the entrances from the record that he was touch that caused him to immediately put his hand up and immediately stop or an advancement or it could mean that and said you know  what's going on here he says there was no expletive at all but it could be that the officer was responding to someone that you know was suddenly going to interfere with them himself and his partner trying to disarm a person who hasn't got it could be that there wasn't any tactic at that point it was simply the option knowing i gotta get this guy out of here so it could be that there wasn't any actual touching before that now let me ask you this are you bound by your are you bound by death well certainly child court directed out the aggravated battery charge and put that they are all right but then we get we get the actual information now that information says that he committed aggravated you know it was a police officer so the the actual battery charge that we've you know getting down to that says that he was again grab  argue is the the better i would argue that that is the battery and that is also supported by what's seen on the videotape by the people writing there aren't any cases though that would help us along those lines would you would you agree i don't remember reading something in so where's the evidence i appreciate what you're saying ice just circumstantial i get this point it is circumstance and what we do have here is we have a situation that officers attention was not focused on the suspect as officers attention was focused on trying to disarm struggling to disarm somebody in front of him when he has to suddenly deal with somebody coming from behind whose intentions he doesn't know he can't see right with regard to his memory i mean he did get hit by a car after the fact so i don't know and i would never presume to know what the officer was just trying to but he testified that he was touched that he was trying to he was scratched now whether or not just alone chose not to believe necessary that he was grabbed in the shoulder he officer flings his arm out my client walks into it maybe he can't stop himself from going before he sees the arm because of the how fast this happened that's not insulting or provoking conduct especially when you take into account the fact that you didn't know as a police officer  to an individual or makes physical contact of an insulting approval that's another question that we didn't really discuss with you initially and that is that when i read these findings of fact it's not clear to me whether what justice alone was actually saying was fed to contact occurred because this guy interfered and they'd both get hit by a car the record does suggest that he makes two different find that one is that the guy was empty and i'm not sure what we can get out of the record in terms of his advance mean did the judge mean advanced his body was on  or near or there was contact between the defendant's body and the oxygen at the very beginning of tape you wouldn't ever be able to say how many people are even there there's no way that anyone can look at that and say all the street people against the  does show though some things it's that you can sort of discern but you can't really tell getting you know how many people are out on this wall and you can see someone coming around which appears to be the defendant and then there is a point if you freeze it where the bend its back is to the the viewer and these whatever these other these figures are bitter against the wall there can't really see them you can see there's like so if you freeze it you can see that the defendant is very close to these people at the wall but are the people yes are what else are they how many you really can't tell but then he also seems to suggest that he entering is when they are the two of them are hit by the car because of the defendants interference well first as a threshold matter the conviction is under from the insulting  someone out into the oncoming traffic and be guilty of battery but this happened on the sidewalk so there's no way that anybody walking up on the sidewalk would know that a car was going to come from behind and strike them so there's no criminal purpose or knowledge on the part of my client as far as the police car why can we circumstantially find or can we can we say that it was proper for the trial court to find circumstantially that the death in the course of this advance on the police officer that