most nelson in his treating psychiatry as testified at trial that is actions in dialing a stranger's phone number and saying offensive things or an involuntary tech and that he did not intend to harass abuse or offend the trial court explicitly except in this an rebut in testimony is true but false in nelson for failing to take medication the might have control of the tests this court should reverse mr nelson's convictions for two reasons first the state failed to prove that he acted voluntarily and second even if he did commit a felon terry at the state failed to prove that he made the calls with the requisite specific intent to harass abuse or a friend we define your honor a specific intent is in a tent in intent to achieve the results in other words to achieve the consequences of the action not simply to engage in the behavior in the end result in this case was he must be he must intend exactly your honor and that's when the court and trial court error here the court said essentially you knew this could happen and therefore i find you you're responsible you can't use this condition as an excuse but the mental state isn't now his mental know exactly your honor and in fact even the state in its brief only points to a circumstantial inference of intent that it says this court at the trial court could have reasonably drawn from mrs miller but i'm just saying you were just saying there were some circumstances there are that you could make a meeting in rome your honor i think what broadly speaking in some cases certainly this court and other courts just said that a trial court can look to you can look to an inference of intent based on circumstantial evidence because it doesn't have it's rare to have a specific admission but of the defendant in this case the expert which was lacking and so on then it's not reasonable to draw that inference so in some cases perhaps the court could draw the inference of it and based on circumstantial evidence alone and we're certainly not asking this court to  depart from that long line of precedent what we're saying is in this case it's not a reasonable inference based on the unprovided and explicitly accepted testimony by a trial for  your honor it would be less appropriate to use that reasoning in a specific intent case versus a general intent case so yes i think i agree with your honor and that point to that it's even less appropriate to draw that inference here where where the  mental state is above that is simply a general intent case and the trial court's factual findings on this point are critical to this for its review and what the trial court said it is i do have to accept it and by it he's referencing the fact that the testimony that this was a tick and involuntary behavior i do have to accept it because it came from the expert i don't have any expert from the state saying this isn't hard place so it's very clear what the trial  believed as far as the credibility findings he made he made them in favor of the defense testimony and then he went on to say he knew his symptoms were being treated you have no excuse for not continuing the treatments and that that speaks to your honor point as to whether the court was improperly applying hours under which is to look for the specific intent requirement here but it also speaks to the fact that there was no voluntary act here because failure to take medication is not of ontario not doing something is not an act and you can a person can be liable for failing for an omission act under the voluntary act statute only if you have a people duty to perform that duty to take the medication and absolutely not we also had testimony from the psychiatry is if i'm remembering correctly that it was not an intentional and the failure to take the medicine that he thought that he had run out and had not been able to get ahold of the doctors so that's the only thing that i can recall from some of the that said anything about why he wasn't taking the medicine and that suggests that it was not intentionally not taking your honour's recollection is perfect that is the only that's the only thing we have here in this record is that the doctor the state cross examines the doctor and dr fields testifying i believe he was unable to he ran on medication and was unable to get to me and dr fields was an hour away it's not only reasonable to suggest that it would have been difficult to get that medication and the state argues on appeal now well that was speculation they didn't make that objection a trial and it's not speculation for a doctor but must i believe that's what happens and that is as your honor just pointed out it's the only evidence as to why he stopped me taking the medication there's no indication that it was done on purpose and really if you think scary no your honor i don't think it was speculation because he was he was essentially hedging his bets he didn't want to talk about to something in court but he did say mr nelson told me that that was what happened that he had run out of medication so i don't think it's speculation it's him i suppose you mean unwilling to swear under oath that that's absolutely what happens but the ultimate outcome of that the state's reasoning is that mr nelson somehow done that on purpose so that he would have cause that result and even if he did people this is jones have the first district is instructive on that point it says that the person must have the specific intent at the time the calls are made state somewhat for posterous reasoning that's that would be assigning in a tent to him sometime months or about a month earlier before the calls were made not when the calls were made at the time the calls were was he medicated during the trial yes your honor he was on some medication it's not entirely clear what the doctor feels he was back to being used in the way it's a county jail at that point but the jail was taking him to dr fields periodically so that he could receive medication and be prescribed so yes he was on some medication and it's very clear from the record he was still taking to a great deal hopefully not as much as he would have without the medication but it's very apparent that he was haitian for thirty days he must have been out of his medication for thirty days and chose not to contact our thirty days and chose to instead hold within he says he's does that show the specific intent to commit the crime it shows the specific intent because he knew that he was going to if we assume that he knew he was going to make these phone calls and make these offensive statements and he knew he could have stopped them it shows that he reasonable inference from what from the evidence of his condo n if he knew that if he didn't take his medication he might have some laughs and his tourette's would come into play did he know that it was going to take the specific form of making the calls to mrs miller and saying the things that he did yes which are knowing but you know that they're anything mo not present any evidence to support the argument that you're making the trial judge made the decision based on the only evidence that was presented in court and you didn't you the state didn't prison a contrary witness and the state said i have no i mean the court said i have no choice this is the only evidence before me you're now making an argument as though you had a witness that we are certain that his intent is inferred from his karma both the fact that he did not take his medication that want to control them prevented him therefore he must have wanted to do these things the indictment in this case says this was his third more than third time doing this so mr nelson has a history and will continue to do so it's like that any other citizen you know if you guilty oh well i mean i mean i think and i don't recall specifically i and as i said it wasn't brought up i've been trying this which i don't do but you know obviously please the court i have two points i'd first like to respond to the states contention that we are back during a diminished capacity defense and second i'd like to respond to state's contention that this court would be giving mr nelson a quote free  diminished capacity defense is not a defense in illinois and it's not what the trout what trial counsel raised here or about we are raising an appeal and people versus hewitt which is the only case the state cites for diminished capacity the court said that a diminished capacity defense applies when a defendant is quote incapable of forming the requisite intent mr nelson has never argued that he's not capable of forming the intent to harass in this is very important to their claim that he is a nuisance to the community and that something needs to be done they could have petitioned to have him cimbali involuntarily admitted on an inpatient or an outpatient basis and  provided for in the mental health code if a person is either a presents a reasonable threat of danger to society or is refusing to adhere to prescribed treatment and is reasonably expect him to suffer deterioration as a result of his refusal the state can file a civil petition to have him in voluntarily admit if for example that on an outpatient basis there would simply be a court order required requiring him to take the medication and that would also solve the state's problem a voluntariness he actually had a legal duty to take medication the state might actually have an argument that he acted voluntarily in this case they didn't do that since the state that has made all the wrong choices in this case and has chosen to charge him and based on been fourteen months after the trial so it is not at all appropriate to say that that's what this the court was thinking when the court imposed when the court imposed a conviction fourteen months later the court made a passing reference that a person who  alcohol has a diminished capacity or never said that's what mr nelson let's return to your original question it was three hundred thirteen days i believe before he was tried and then he was held another fourteen months before he was