offer an alternative instruction or a correct instruction is that true that is true however they so then i'm wondering is it your position that based on the way the trial court ruled that the trial court would not have allowed the fence counsel to even go get a correct instruction to answer your question directly your honor we don't know what would have happened had trial counsel then allowed to below and now it's being discussed same issue here on appeal the state i like to begin with a quote from the illinois supreme court the criminal defendant whether guilty or innocent is entitle to a fair orderly and impartial trial conducted according to law this right is that i just indicated right i've believe the main issue is this whether you know people really know whether people were right so you have you can prove the felony by showing that you entered knowing or when you should know that people are present or you can prove by showing that the person remaining and so those are the two options right yes and i did was in charge him with entering when he knew or should know that people were present yes he didn't charge him with the president right then so going forward that was the element that was missing nonetheless the state's position is that this error was harmless beyond a reasonable doubt because when you're reviewing the there were two individuals present but only one of them was a householder what i believe the householder was a bar that would be rodney murdock and then he came on his sons were at home so he and his two sons were at home in bed asleep he had gone to the bar he was coming back and forth between the barnes home checking on the boys periodically yes and the last time he checked on the boys before coming home to find the defendant in this home they were in in their asleep correct yes and so the allegation is that the defendant entered knowing or when he should have known someone was present and it's a reasonable and friends that when he entered the boys were in their bed sleep there was no sign of forced entry right yes and i think one of the boys indicated that he had done something outside and came back in and forgot to lock the door and my remembering correctly i do not remember that the defendant and another person entered the home and been the homeowner returns one more time comes into his home and sees them sitting on his own to capture right yes so concern is what is the evidence the overwhelming evidence to prove that it was harmless beyond a reasonable doubt that he knew or should have known that someone was present when he entered the home well based on circumstantial evidence it's the evening time at night it's not his residence they seem to have known each other based on when the officers came with on the find at this bar it seemed like there was some acquaintance that they knew each other they were scuffling the way the defendant ok let me stop you there i want you to do this in carefully because they charged him with entering when he knew or should have known that someone was present so the fact that he knew the homeowner or that he saw me at the bar or that they fought after he arrived that would likely also know yes sons i don't exactly recall the specific instances but from when the state wrote its brief and reviewed the record then at that point based on the state's motion below it seemed somewhat overwhelming that it was beyond a reasonable doubt that a try or effect that have found him guilty  why the evidence at trial showed that he had signs that resided within that would be home that night and there be i don't i don't draw that inference the story of the hot same question what is it about this that makes you that would make a fact finder draw the inference that people were occupying the home that were occupying the home at the time to defend it and well that there was a lot of uncut uncontested testimony at trial uncontested in what way the defendant did not he didn't offer any evidence no he did not on cross examination there was nothing to call into doubt their testimony the sons testified that they were present at the home yes it's difficult to prove the men's right of a criminal but he put the signs they indicated they were at home and in the end they heard the scuffle after their dad had arrived and found the people in the home so that doesn't  knowing only reason we should have known that someone was there it definitely goes to the second way you can prove it in terms of refusing to leave because sure they saw the stuff all and they saw saying how that is to relevant regardless of but the state did not acquiesce to the air as it attempted numerous times to fix it the record shows that the state did take a recess to try to go on remedy there they came back and ahead and gives the improper instruction basically knowing that it doesn't contain unnecessary elements and i have to stand what you're saying i just have a hard time thinking that even if defense counsel had asked to go get a correct instruction that the trial court would have allowed in given that the trial court chastised the attorneys and basically said you've got a jury waiting and you're missing my trial ultimately requests this court to affirm the trial court's judgment as there was harmless beyond a reasonable doubt of the state doesn't understand your concerns with alternatively if you do not remain and to rescind this defendant  vacate his felony conviction the state based upon the record in its eyes would ask for a new trial rather than just they caving in convicting or sentencing him today the wrong aspect of the wrong part of the statute to charge him under with their information in other words all the evidence shows that he remain within after he knew the householder was present yes and there's no who said he was invited in so if he had been charged with that forget about the instruction it's the state would have a slam dunk that proceeded to do you it's your honor ok i did that in the state would agree with you yeah well i mean that's that's you know you're stuck with the case