Legal Case Summary

We are now recording. Here ye, here ye, this honorable appellate court for the second judicial district is now in session, the honorable NB Georgian Sim presiding. Your honors, the first case on the doc at this morning is 2-22-0119, people of the state of Illinois, plaintiff, Apalee, the Jacob Headkey defendant's appellate. Arguing on behalf of the appellate, Mr. Andrew T. Moore, arguing for the appellate, Mr. David S. Friedland. All right, Council begin when you're ready. Okay, thank you. Good morning, your honors. First of all, I'd like to love your condolences, passing the Justin Tuzon. That said, may it please the court. My name is Andrew Moore and I represent Jake Headkey and the subpoena. The state here proved failed to prove beyond the reasonable doubt that Jake was not in an voluntarily drug condition at the time of his offense. Despite the state's failure, Jake was still found guilty after hearing in proper evidence arguments. In fact, the vast majority of the evidence used against Jake was entered in error through some 15 to 25 other crimes as propensity evidence, all but one of which was only supported by Jake's statements alone. Further, the state wrapped up its case by mistating the law on evidence surrounding involuntary intoxication and serving its own opinion to discredit Jake's experts testimony and repeatedly inflaming the passions of a jury by referring to Jake as an animal. That said, we're asking this court to reverse Jake's conviction involving R.K

. outright for issue one. And then the alternative, this court, so reversing remains for a new trial for issues two and three either think, agreeable or cumulatively. Regarding whether or not the state, Mr. Moore, during his testimony, during the motion of suppressed statements, the defendant was asked whether or not he was on any medication, any never mentioned ambient. What was the first time that the defendant disclosed to the state that he was taking ambient at the time of the offenses? That would have been at his right at the beginning or at his interrogation. It was mentioned. What did he mention? He mentioned ambient. Ambience not on the list. The medications he mentioned. In his interrogation, when he denied having any knowledge of the activities involving R.K. he said, essentially, he was taking ambient more at that time, so he offered that as a potential. I was referring to his motion of suppressed testimony, his testimony under oath. He mentioned form medications and some vitamins, but never mentioned ambient. I believe if I'm remembering correctly, the question was, what was he taking at that time? That testimony happened quite a bit after these incidents. He must not have recalled that he was taking ambient then because he didn't mention it. I believe I could be wrong, but I believe the question was asking what he was taking at that time. The question was asked. Thank you

. But, Council, didn't he deny taking ambient at that night, like the first night involving R.K. Wasn't that his statement to Balshard? His statement wasn't that he denied taking ambient. He didn't remember if he did or not. The week in question when he was babysitting R.K. he recalled having taken ambient two nights out of that week, and that was one of the weeks where that was the week where the initial allegations by R.K. occurred. I've got a note here and I'm going to look at the record myself, but I thought it 901 in the record. Balshard testified that he specifically asked the defendant if he had taken ambient at night, and he said he hadn't. It was after that that he asked him if anything, and appropriate happened, then he took a break, and then he came back and said he didn't remember, but R.K. It was probably correct. Is that accurate? If that's what Balshard testified to, it's contradicted by the recorded statement. They chose not to record anything before that, so in his recorded statement, it was used at trial, and as far as what the jury heard, that he was unsure whether or not he, when he had taken ambient, and he remembered taking ambient two separate times during that period of time. It's important to point out here, saying that he doesn't remember this, so what an R.K. can't put a date on when this happened

. How could he possibly even remember if he took ambient at night of when he doesn't remember when something happened? He recalled taking ambient twice that week, and increasing amounts over what he had taken previously after he moved in to that residence. The question I would go after you, then, doesn't that put his state of mind into play? Doesn't that introduce his state of mind? And especially considering that the allegation here is that he repeatedly did these things. Why isn't that admissible as to his state of mind? Forget, just setting aside propensity. Right, he had multiple incidents involving the same victim. So let's just deal with that. I mean, he's claiming voluntary intoxication, but isn't the fact that he repeatedly made the sentence with this victim. Does that counter the voluntary intoxication effected or the assertion that you're making that this was involuntary? I wouldn't say that. There's nothing to preclude. If he was experiencing the side effects, he could be engaging in the same activities repeatedly. There's nothing specifically about it, but it's also activity that he consciously is aware of, and that he admitted to the police, that he has a problem touching young boys in a sexual manner. And I'm glad you pointed that out because that's exactly that calls into question the state's case, because you can't just look at this the other crimes evidence in the isolation. You have to look at them in the context of this whole case. If we go back to November 4th, 2016, Jake's interrogation, it's important to remember that at the time, Jake made a statement, he didn't know which case, if any, he would be prosecuted for. This interrogation involved three different kids, not just R.K. He did openly admit to investigators that he has a problem. During the interview, he admitted to more serious and more numerous acts with JK and Dubai dubbed AX. Most importantly, if you listen to that interview and breathe Bossaar's testimony, Jake brought all of the activity with AX to him. He was forthcoming about that

. He wasn't reported for these activities, but rather he told the investigators about this all on his own. So you have to ask yourself in that context, why would he deny having any recollection of the least serious and the least numerous of the allegations against him? Why would you admit to 10 to 20 other incidents involving a kid that they didn't even know about? It just doesn't make any, it doesn't follow any logical. You're essentially asking us to re-way the evidence. I don't think it's re-waying the evidence. There's not really any reasonable explanation as to why Jake would have proceeded in this way. And that only supports his defense. If you take it in the context of his statement when it was made and how it was made, it doesn't increase the likelihood that he committed the acts against R.K. It makes it less so because why would he admit to all this other stuff? And it's not really asking to re-way the evidence. Obviously, you have to take this evidence in light most favorable to the state, but you also have to take references or you have to any kind of assumptions that the record requires you to make in the defendants favor, you have to make those as well. So I wouldn't say this is necessary. Re-waying the evidence that's more look at this evidence in how it came out. And does that, and remember, the complete extent of the state's case against Jake was this other crime's evidence. And our case testimony that the events occurred, but Jake never denied that they occurred. It was just as well as the defense own testimony that he had a problem with touching young boys. Right, yes, he hasn't admitted that and he is, oh, your argument is that just by coincidence, while he's taking that the average person taking ambient would touch kids, he's acting out in an unconscious manner through his admitted predilection to having sexual interest in children. A normal person engaging in this kind of unconscious activity would act out in ways that they would naturally seek. But what about the testimony that and the argument of the state that if this were true, his eyes would have been open, he would not have been pretending to be asleep. His eyes would have been open if it was the contact was as a result of his taking ambient

. That's not the statement is mistating the expert. Well, then the doctor tests how these defense experts testify that this usually happens when the eyes are open when people appear to be conscious. So how it happened and I believe it's been 54 of the record maybe if that's up the time I had, but the state asked if somebody may, and you know, the state themselves use the word may appear to be asleep when experiencing a state of automatism. The answer was yes, they may be, and then the state asked, isn't it true that their eyes would be open if they're sleep driving in the answer was yes. So sleep driving is different because obviously your eyes have to be open in order to effectively drive a car. Your eyes don't necessarily have to be open to engage in other types of unconscious activities. And again, the RK testified, he always appeared to sleep, he never responded, he never verbalized anything. In other instances that he admitted, he tried to mitigate his activities by, you know, talking to the Muhammad, talking to him about talking to Jake Hay about appropriate touch when he admitted that he purposely touched him, he tried to mitigate. There was none of that here. So you have to look at this evidence and ask what shows that Jake was awake. The state hasn't produced anything, aside from these other crimes that aren't necessarily probative, to show that he was awake and conscious at the time of that these. What he repeated the same behavior, the same behavior, not not like getting into a car and driving the car, he repeated the same sexual behavior. It's important to note that this behavior is there are differences between gay and isn't that up to the jury to decide? It is up to the jury to decide, but you know, it's also up to the appellate courts to determine if given this evidence that the state presented, could any rational jury have come to this conclusion? In my argument is that they couldn't, they only came to that conclusion because of this improper other crimes evidence and improper arguments by the state that allowed them to by misrepresenting what the law is surrounding in violent execution. So, council, let's move to the closing. You alleged that the reference references to the wolf and sheep's clothing makes, what about that makes made the trial unfair? So the appellate courts have been pretty clear with this, you know, for two of this in this line of work that you have such clear caseloam, you know, some kind of random story conventions such as the wolf and sheep's clothing, but you know, even beyond that, the Illinois courts have made it clear that you can't refer to the defendant directly as an animal. You can refer to other things like with Seenan Ladell, where the state merely asks, have you heard of this story, the wolf and sheep's clothing? And Ladell, where the state went wrong is they cast the defendant specifically as the wolf and the story and they cast the victims as the prey. And in this case, peppered throughout the closing arguments and rebuttal, the state's constantly going back to this, constantly referring to Jake as an animal. He's.

.. Council, if we were to assume that was error, can you tell me where the prejudice lies? The prejudice is that the defendant's facing the types of accusations that Jake is facing, you know, he's admitted that he has a problem, but in the jury's eyes, it's extraordinarily difficult for defendant facing charges involving child sex offenses to overcome even the most basic biases that the jury has. But then if the prosecutor goes further and is dehumanizing him to the extent where he's now a wolf praying on children, that's just harnessing that innate instincts that we have as a society, you know, to be repulsed by these types of activities. And it's it's harnessing that rather than focusing on the evidence of the case. And that's really where the prejudice lies there. Well, you also have this... You have not established that the evidence was closely balanced, have you? This is not a case where you don't have extrinsic evidence supporting the state's theory. You have the defendant's admissions and other crimes evidence. This is a... I would say that this is a class of closely balanced because the entire case came down to whether or not the jury believed Jake's testimony and his expert witness. The defense never really challenged our case testimony or that anything didn't happen. So his credibility is intact. What the jury had to decide was whether or not they believed Jake. And that alone should make the case closely balanced, especially when the state and its arguments and through improper other crimes evidence are attacking Jake's credibility in proper ways. So when everything comes down to credibility and the state's doing improper things that point towards that credibility, that's when the case becomes closely balanced and there should be a reversal

. You just acknowledge that there was other evidence. You had the defendant's statements and other crimes evidence that takes it out of the realm of closely balanced. It's not just our case testimony against the defendant's testimony. There's corroboration for what R.K. testified to. That does not mean the definition of closely balanced. I disagree with that, Your Honor, because whether or not our case testimony is corroborated doesn't matter in this case. What matters? I've said repeatedly, our Supreme Court and this Court has said repeatedly, closely balanced is where the evidence is, you have statements or you have evidence from the defense that is not corroborated and evidence from the state that is not corroborated. That is a case where you could say it's closely balanced. Here you have corroboration, an extension of evidence supporting the state's case and it doesn't meet the definition of closely balanced. I don't think that you can just look at other crimes and say, oh, extrinsed evidence, it's not closely. You have to look at the context of that other evidence. In this case, specifically, I'm not saying all cases across the board, but in this case, specifically, there's nothing about the other evidence that I get because Jake has admitted to all the other crimes, but this one crime he's denying having recollection to. He's not saying it didn't happen or not. That other crime's evidence isn't as valuable as if Jake is flat out denying something happened. The other crime's evidence goes to yes, yes, Your Honor. I appreciate that you have lost video, but your time is up and you will have an opportunity to respond to the state momentarily. In the meantime, Justice Perquette, did you have any other questions at this time? No, thank you, Justice Kennedy

. All right. I believe it was. Thank you, Your Honor. Thank you. Thank you. My name is David Friedland. Good morning. Represent the people of the state of Illinois. Happily in this matter, of course, I joined my colleagues. Early or statement offering condolences for Justice Hudson's back. And that is greatly appreciated. I mean, it pleased the court. I think your honors viewed the evidence right there. As far as his sufficiency of the evidence claim, the evidence in this case is absolutely overwhelming. It's not a closely balanced case at all. In his reply brief, the fence council is not contesting the ferracity or the credibility, and those are his words of archaic. I ask you this. I seem to hear counsel saying that at the trial level, there was really no contest about what our case said, corroborated, you know, to the extent of the hearsay statements coming in. But his point seems to be that the whole crux of this case is the state's failure to disprove his involuntary intoxication

. In other words, those events might have happened, but I'm raising an affirmative defense that I was unaware of the consequences. So, could you focus your argument more on that, please? First of all, the jury was properly instructed here. They're not raising any claim of improper jury instructions. The jury was instructed that to prove the defendant guilty, the fourth proposition was that at the time of the offense, the defendant had to have the substantial capacity to appreciate the criminal conduct of his actions or conform his conduct to the requirements of the law. So the jury was instructed correctly. In order to find him guilty, they had to find that he was acting voluntarily or knowingly and appreciated the consequences of his actions. So his, as going back to, I'm not focusing on, but as to in the light most favorable to the state, they heard his claim that he was taking ambient his assertions and they just rejected it. It was within their province as the determinations of the credibility of witnesses to believe him or not believe him once he was able to get the instruction. And defense counsel says that. He says that in his reply brief, we had one of the ways that the state could have disproved or proved beyond a reasonable doubt that he was aware of the consequences of his actions or that the defendant was actually conscious or that he was not involuntarily intoxicated. And basically that's, was he faking? And the jury heard Dr. Stifonix testimony, and I believe it was a rational inference that for the sleep driving his eyes would be open. They got to hear our case testimony that yes, his eyes were closed, but the repeated movements over and over again on multiple occasions cast out on the thought that perhaps he was really involuntarily doing this. And that's back up to the answer. So, doesn't the argument in the closing of contradicting instructions like 1053 and 1054 was nobody forced to defend it to take it. No one opened his mouth and put it down there and made him take it. Is any of that actually an accurate reflection of the jury instruction? Well, I think it's partially correct. I mean, that is one of the involuntary and faxication defenses is that he had to be forced and that's true. If you look at what was said right before, that statement, the first day, the prosecutor reviews the entire jury instruction, which included the issues instruction and included that he had the substantial capacity, he had to have the substantial capacity to appreciate the consequences of his actions

. Council also for the state also referred that he was taking the ambient knowing full well how it affected him since March of 2015. And so they have that. While the statement there is not an inaccurate statement of the law, it's one portion of the law. And I'd also point your honors to the fact that in the defense's closing argument thereafter, they clarified and when right back and addressed that. And the defense counsel said that the state talked about he wasn't forced, it wasn't rammed down his throat. Well, that's not the only situation. These side effects that doctors define, I talk to you are hard to gauge even for the professionals. And then they went on and so forth. And this is page one 1083 of the record. And addressed that the possibility that that in the automatism is a side effect of taking the ambient. They also then continued that you can't impune to the defendant that he would know that that that this was going to be a side effect and therefore did this purposefully. So if the state inaccurately or partially stated what was necessary for the involuntary intoxication instruction, it was cured by defense counsel's response. And more importantly, as I said in the beginning, the most important thing that governs is that the jury was instructed correctly and that that proposition was included that showing that the crux of the case was that he had to know that he had to appreciate and be, have the capacity to understand the consequences of his actions. All right, counsel, just to move on to the other crimes. I wanted to ask you what, how did the other crimes in each of these? So you've got other crimes with same victim, other crimes with JK, other crimes with AX and then RW. So how did each of these, that's by the statute? Well, the crimes with, they're all through a defendant's statement, with the exception of JK. The statute says you have to have specific instances of conduct, the specific instances, there isn't a requirement had it come from the abuse, ee, so to speak. The defendant, what better and more, most more reliable evidence is there than the defendant's own statement, sort of on prompted that he provided these individuals to the officers. So it certainly said that factual similarity as I detailed in my brief is absolutely frightening. It goes exactly to his sort of modus operandi, what he's attempting to do with, with these individuals, and the court, although not an extensive analysis indicated it weighed the probative value versus the prejudicial effect. And it's undoubtedly that this is prejudicial, but it's extremely probative, given the defendant's, given his defense in this case, the fact that he's putting his intended issue with this one crime, this one offense and this one boy, makes all of the other offenses and the other acts that he did do it where he was not on ambient, and I'd note it extremely probative and relevant to his intent. And Justice Kennedy, you asked opposing counsel, whether or not he had been asked if he had had, he was on ambient at the time of the fence, to front page 901. That was the time he was referring to JK. That question was specifically asked not RK but JK. So he's asked by the police officers during these other offenses that you're telling us about, were you on ambient? No, I was not. Well, this paints an entirely different picture and corroborates RK's testimony that he thinks that the defendant was faking and that goes to the jury's credibility, the jury's determination of credibility. What about so R. W. for example? Right. R. W. Colloquy in the interview, you mentioned 10 to 20 times. Do we have any indication of what R. W's age is? What exactly the physical acts were? Just to be clear, it's Anthony is the 10 to 20 times. R. W. was one boy, I believe in the car. Yeah

. It goes exactly to his sort of modus operandi, what he's attempting to do with, with these individuals, and the court, although not an extensive analysis indicated it weighed the probative value versus the prejudicial effect. And it's undoubtedly that this is prejudicial, but it's extremely probative, given the defendant's, given his defense in this case, the fact that he's putting his intended issue with this one crime, this one offense and this one boy, makes all of the other offenses and the other acts that he did do it where he was not on ambient, and I'd note it extremely probative and relevant to his intent. And Justice Kennedy, you asked opposing counsel, whether or not he had been asked if he had had, he was on ambient at the time of the fence, to front page 901. That was the time he was referring to JK. That question was specifically asked not RK but JK. So he's asked by the police officers during these other offenses that you're telling us about, were you on ambient? No, I was not. Well, this paints an entirely different picture and corroborates RK's testimony that he thinks that the defendant was faking and that goes to the jury's credibility, the jury's determination of credibility. What about so R. W. for example? Right. R. W. Colloquy in the interview, you mentioned 10 to 20 times. Do we have any indication of what R. W's age is? What exactly the physical acts were? Just to be clear, it's Anthony is the 10 to 20 times. R. W. was one boy, I believe in the car. Yeah. Offhand, I can't. He specifically said with Anthony that the boy was, I believe he says and how old was Anthony when that happened, I believe six or seven. So you've got six and seven for Anthony. He was asked how old was JK at the time. JK was seven and eight. And RK is, I believe, 10 if you do the math at the time. So they're all within the same age they're all within similar time frames. He indicates as your honors heard that he was had a problem abusing boys and he wanted to see his psychiatrist about it. So all of this goes to his intent and for the sufficiency at least, I certainly satisfied as the certainly sports of the finding of guilt. I would point out also that as your honors indicated, the defendant got to, additionally, some of the things that the defense council noted was that we don't have to credit defendant's statement that why would he say that he did all the other ones and why, but not this, but not RK. He's voluntarily abused all the other individuals, but not RK. You know, no one can speculate as to why a serial child abuser would have done one, why the statements he makes. I mean, it's impossible to get in the head of this defendant, but perhaps he had some affiliation with the family that was close friends with the grandmother. There's multiple reasons as to why he might just say I as it goes to RK. I didn't do that. I don't remember doing that one, but yes, I did all the other. Additionally, if you look at his evidence of his intent, not really addressed much during the trial, but right after he's confronted by RK's mother, he says he disappears. She says I want to talk to you right after RK's disclosure. And then he says I'm leaving

. Offhand, I can't. He specifically said with Anthony that the boy was, I believe he says and how old was Anthony when that happened, I believe six or seven. So you've got six and seven for Anthony. He was asked how old was JK at the time. JK was seven and eight. And RK is, I believe, 10 if you do the math at the time. So they're all within the same age they're all within similar time frames. He indicates as your honors heard that he was had a problem abusing boys and he wanted to see his psychiatrist about it. So all of this goes to his intent and for the sufficiency at least, I certainly satisfied as the certainly sports of the finding of guilt. I would point out also that as your honors indicated, the defendant got to, additionally, some of the things that the defense council noted was that we don't have to credit defendant's statement that why would he say that he did all the other ones and why, but not this, but not RK. He's voluntarily abused all the other individuals, but not RK. You know, no one can speculate as to why a serial child abuser would have done one, why the statements he makes. I mean, it's impossible to get in the head of this defendant, but perhaps he had some affiliation with the family that was close friends with the grandmother. There's multiple reasons as to why he might just say I as it goes to RK. I didn't do that. I don't remember doing that one, but yes, I did all the other. Additionally, if you look at his evidence of his intent, not really addressed much during the trial, but right after he's confronted by RK's mother, he says he disappears. She says I want to talk to you right after RK's disclosure. And then he says I'm leaving. He's gone and then he never addresses them. And where is he? You know where he is. He's then starting to move over into JK's house because that disclosure and police report was filed afterwards. So his consciousness of guilt is fleeing the scene immediately after being confronted by RK's mother. And RK provided an ongoing description of the methods that this defendant was using, the excessive hugging, the excessive kissing, the excessive and then three instances of touching. Or three instances, I should say, of sexual conduct. That was his testimony on the stand. So certainly as the deficiency and defendant's intent, the jury didn't buy it as evidence to their verdict. And so we would ask you to affirm the guilty finding. Well, can you can you respond to the argument that the state crossed the line in referring to the defendant as a wolf and sheep's clothing? And the state did it right out of the box. This was not something that was invited. It was an opening close to first few words out of prosecutor's mouth where the defendant was a wolf and sheep's clothing. Sure. And I think that the council was clearly trying to draw the metaphor that he was you as a wolf and sheep's clothing that he appeared in the cases to or in his actions to ingratiate himself with the victims. It's what I responded with in my brief to get into the family, to get into the houses and ingratiate themselves so he could certitiously abuse these boys. But you're right. You can't do that. And when is when is that message going to hit home? The prosecutors have to stop referring to the defendant as an animal. I fully agree that it's an artful and it shouldn't be done

. He's gone and then he never addresses them. And where is he? You know where he is. He's then starting to move over into JK's house because that disclosure and police report was filed afterwards. So his consciousness of guilt is fleeing the scene immediately after being confronted by RK's mother. And RK provided an ongoing description of the methods that this defendant was using, the excessive hugging, the excessive kissing, the excessive and then three instances of touching. Or three instances, I should say, of sexual conduct. That was his testimony on the stand. So certainly as the deficiency and defendant's intent, the jury didn't buy it as evidence to their verdict. And so we would ask you to affirm the guilty finding. Well, can you can you respond to the argument that the state crossed the line in referring to the defendant as a wolf and sheep's clothing? And the state did it right out of the box. This was not something that was invited. It was an opening close to first few words out of prosecutor's mouth where the defendant was a wolf and sheep's clothing. Sure. And I think that the council was clearly trying to draw the metaphor that he was you as a wolf and sheep's clothing that he appeared in the cases to or in his actions to ingratiate himself with the victims. It's what I responded with in my brief to get into the family, to get into the houses and ingratiate themselves so he could certitiously abuse these boys. But you're right. You can't do that. And when is when is that message going to hit home? The prosecutors have to stop referring to the defendant as an animal. I fully agree that it's an artful and it shouldn't be done. The case law is clear. It's but then it causes your honor pointed out to it comes down to how is he prejudiced? And simply in this case, this isn't the closely balanced case and he isn't he isn't prejudiced. So with that, you're on the response I have for your honest question. There's any others. Well, council, when do we pick a case and reverse it on simply the closing argument of the state? When do they appreciate our point? Well, I would I will anxiously await that case. However, here this is not that case. The defendant's statement to reverse this case based on the comments and closing argument, I would I don't believe it's warranted your honors. How about a letter from the state's attorney of public prosecutor to state's attorneys in the second district that it's intolerable? Stop it. Your honor, I'm happy to relay the message. I believe that council in speaking with the the council was concerned trial council and speaking with trial council, they recognize the questionable nature of that's that's that comment. I think that that message has been received, but of course, I will relay your honors comments or I'm sure you can address the I'm sure it will be addressed in whatever disposition your honors set for may appear in this disposition. Mr. excuse me, Justice Burkett, any further questions? Thank you, Judge. Justice Kennedy. No, thank you. No further questions. Thank you. I would urge you to go back on the phone and I'm not exactly sure how to do that. We can see you

. The case law is clear. It's but then it causes your honor pointed out to it comes down to how is he prejudiced? And simply in this case, this isn't the closely balanced case and he isn't he isn't prejudiced. So with that, you're on the response I have for your honest question. There's any others. Well, council, when do we pick a case and reverse it on simply the closing argument of the state? When do they appreciate our point? Well, I would I will anxiously await that case. However, here this is not that case. The defendant's statement to reverse this case based on the comments and closing argument, I would I don't believe it's warranted your honors. How about a letter from the state's attorney of public prosecutor to state's attorneys in the second district that it's intolerable? Stop it. Your honor, I'm happy to relay the message. I believe that council in speaking with the the council was concerned trial council and speaking with trial council, they recognize the questionable nature of that's that's that comment. I think that that message has been received, but of course, I will relay your honors comments or I'm sure you can address the I'm sure it will be addressed in whatever disposition your honors set for may appear in this disposition. Mr. excuse me, Justice Burkett, any further questions? Thank you, Judge. Justice Kennedy. No, thank you. No further questions. Thank you. I would urge you to go back on the phone and I'm not exactly sure how to do that. We can see you. I'm got audio on my phone and I'll video on the computer. All right, if we have an echo, we'll let you know. You may proceed when you're ready, sir. So I just wanted to touch on a few points that the state made here. So they their argument as the jury was properly instructed. So they were properly instructed that, you know, the four elements of this case, he had to do it and they were properly instructed on what is a drug condition. The state undermined those instructions because there's there's nothing in the instructions that explicitly state what the holding in Hari is is that taking a prescription as prescribed by your doctor and you get unintended effects, that's until involuntary intoxication. The state undermined those instructions by eliminating that by saying he had to have taken it accidentally or forced to have been taking take it. So there's the instructions don't can't remedy anything and if defense counsel argued against it, there's not, you know, the jury might not have believed it. The judge says, you know, these are arguments. They may have believed the state and that's why they found Jay Kilti. We don't know. So you can't just do what the state always does and eliminate these improper statements of law through jury instructions because the jury does pay attention to them. And I'm so alluded to the fact that Jay knew of the side effects of ambient in 2016, March of 2006. But let's talk about that for a little bit. He was prescribed ambient in 2015. His interview took place in November of 2016. The state itself, the defense didn't do this. The state itself motioned to exclude any statements about ambient made during that statement, which was granted

. I'm got audio on my phone and I'll video on the computer. All right, if we have an echo, we'll let you know. You may proceed when you're ready, sir. So I just wanted to touch on a few points that the state made here. So they their argument as the jury was properly instructed. So they were properly instructed that, you know, the four elements of this case, he had to do it and they were properly instructed on what is a drug condition. The state undermined those instructions because there's there's nothing in the instructions that explicitly state what the holding in Hari is is that taking a prescription as prescribed by your doctor and you get unintended effects, that's until involuntary intoxication. The state undermined those instructions by eliminating that by saying he had to have taken it accidentally or forced to have been taking take it. So there's the instructions don't can't remedy anything and if defense counsel argued against it, there's not, you know, the jury might not have believed it. The judge says, you know, these are arguments. They may have believed the state and that's why they found Jay Kilti. We don't know. So you can't just do what the state always does and eliminate these improper statements of law through jury instructions because the jury does pay attention to them. And I'm so alluded to the fact that Jay knew of the side effects of ambient in 2016, March of 2006. But let's talk about that for a little bit. He was prescribed ambient in 2015. His interview took place in November of 2016. The state itself, the defense didn't do this. The state itself motioned to exclude any statements about ambient made during that statement, which was granted. So it was the state's decision to remove that from the defendant's statement. It's removed from transcript and it should have been removed from the audio as well. So that's not something that the jury would have known. And going to the other crimes evidence, I didn't get a chance to talk about that, but I'll respond to your questions in the state's argument. So attend to 20 incidents involving AX. Those are clearly visible because we have no facts as to what occurred. He described one instance. And this court, this district, in fact, in people versus Sumbling held that a certified copy of the conviction alone can't be used to show other crimes evidence because there's no fact compared to the instant offense. That's exactly what we have here. We have 10 to 20 instances used as other crimes. The state relied upon them. There was testimony throughout the trial about them. But we don't have anything to compare it to you. So the judge is clearly an error for allowing those. And then there's a second here. As aside from, aside from your argument about other crimes evidence, the state is entitled to introduce any admission by the defendant that would have a tendency to establish an element to the offense. It doesn't come in as one that under the exception to the hearsay rule is as an admission. I would argue that if that's how the state chose to raise this, that it would only be allowed to use his statements regarding the instant offense and not other crimes. Once you get into other crimes, you have this added layer where the judge has to weigh the provative value of the prejudicial value

. So it was the state's decision to remove that from the defendant's statement. It's removed from transcript and it should have been removed from the audio as well. So that's not something that the jury would have known. And going to the other crimes evidence, I didn't get a chance to talk about that, but I'll respond to your questions in the state's argument. So attend to 20 incidents involving AX. Those are clearly visible because we have no facts as to what occurred. He described one instance. And this court, this district, in fact, in people versus Sumbling held that a certified copy of the conviction alone can't be used to show other crimes evidence because there's no fact compared to the instant offense. That's exactly what we have here. We have 10 to 20 instances used as other crimes. The state relied upon them. There was testimony throughout the trial about them. But we don't have anything to compare it to you. So the judge is clearly an error for allowing those. And then there's a second here. As aside from, aside from your argument about other crimes evidence, the state is entitled to introduce any admission by the defendant that would have a tendency to establish an element to the offense. It doesn't come in as one that under the exception to the hearsay rule is as an admission. I would argue that if that's how the state chose to raise this, that it would only be allowed to use his statements regarding the instant offense and not other crimes. Once you get into other crimes, you have this added layer where the judge has to weigh the provative value of the prejudicial value. Especially when it's used for a perfect propensity. That's the one better evidence of propensity is there than the defendant's own statement that he has a propensity to commit these types of offenses. What better evidence is there? He, again, you have to look at the context of how those statements came about. It doesn't make sense. He has an admitted propensity for this. He's apologized, asked for help. He had knows that he's wrong. Here's an example. Here's an example. A defendant denies committing a particular sexual assault against a specific victim. And then in a letter that he's written, he apologizes to that victim, but he also mentions that he had done the same thing to several other victims. Would that letter be excluded because he mentions other victims? Or does it come in? And what they could be redacted to victims? Well, here the defendant apologized. He said he was sorry that that arcade was not lying, but he denies that he committed the acts consciously or intentionally. Correct. And he established that in 2016 without knowing that he would be charged with this sentence. And his story never changed. His story never changed with JK. He pledged guilty to those. The state did not tell you what they wanted to do

. Especially when it's used for a perfect propensity. That's the one better evidence of propensity is there than the defendant's own statement that he has a propensity to commit these types of offenses. What better evidence is there? He, again, you have to look at the context of how those statements came about. It doesn't make sense. He has an admitted propensity for this. He's apologized, asked for help. He had knows that he's wrong. Here's an example. Here's an example. A defendant denies committing a particular sexual assault against a specific victim. And then in a letter that he's written, he apologizes to that victim, but he also mentions that he had done the same thing to several other victims. Would that letter be excluded because he mentions other victims? Or does it come in? And what they could be redacted to victims? Well, here the defendant apologized. He said he was sorry that that arcade was not lying, but he denies that he committed the acts consciously or intentionally. Correct. And he established that in 2016 without knowing that he would be charged with this sentence. And his story never changed. His story never changed with JK. He pledged guilty to those. The state did not tell you what they wanted to do. JK's case. That's probably more has to do with the state's inability to prove up this charges against JK. Because as you know, he admitted to certain things in his statement and JK ultimately denied him. And that kind of gets into this other crime's evidence in general. So the judge blank it admitted everything, not knowing what the state would be able to corroborate or prove up. It would have been more appropriate to reserve ruling on what can come in until they see what the state can corroborate. And then treat the statement, you know, redacted portions of his statement that the state hasn't proven up. The state's evidence directly contradicts portions of his statement. The victim's saying nothing happened. It just it doesn't. For somebody in JK's position to have sort of the jury to hear he's done this 10 to 20 times with no specifics. They're going to fill in the they're going to speculate and fill in the gaps. And it's going to become a worst case scenario where, you know, and that's why it's more and it's the same as a certified conviction, which can't be used. And it's important to note that the courts have held that when other crimes evidence comes in an error, it's rarely specifically for propensity. It's rarely something that is harmless and that doesn't warrant reverse. So the state has to prove beyond a reasonable doubt that with the proper evidence, they still could have found him guilty. The only evidence here is other crimes evidence. So it's impossible to separate the improper other crimes evidence with anything you determine to be proper because we don't know which the jury, you know, grabbed a hold of us. But unless you have any other questions, I see that my time's up

. JK's case. That's probably more has to do with the state's inability to prove up this charges against JK. Because as you know, he admitted to certain things in his statement and JK ultimately denied him. And that kind of gets into this other crime's evidence in general. So the judge blank it admitted everything, not knowing what the state would be able to corroborate or prove up. It would have been more appropriate to reserve ruling on what can come in until they see what the state can corroborate. And then treat the statement, you know, redacted portions of his statement that the state hasn't proven up. The state's evidence directly contradicts portions of his statement. The victim's saying nothing happened. It just it doesn't. For somebody in JK's position to have sort of the jury to hear he's done this 10 to 20 times with no specifics. They're going to fill in the they're going to speculate and fill in the gaps. And it's going to become a worst case scenario where, you know, and that's why it's more and it's the same as a certified conviction, which can't be used. And it's important to note that the courts have held that when other crimes evidence comes in an error, it's rarely specifically for propensity. It's rarely something that is harmless and that doesn't warrant reverse. So the state has to prove beyond a reasonable doubt that with the proper evidence, they still could have found him guilty. The only evidence here is other crimes evidence. So it's impossible to separate the improper other crimes evidence with anything you determine to be proper because we don't know which the jury, you know, grabbed a hold of us. But unless you have any other questions, I see that my time's up. Justice Perkett? No, thank you, Mr. Moore. Thank you, Judge. Justice Kennedy. No, thank you, Councillor. Well, then I thank you both for excellent arguments this morning. We will issue a written decision and do time and we are adjourned. Thank you. Thank you. Sorry about the audio issues. Oh, don't worry about it. Is that Joe? I'm here. Okay. Not you, Joe. Joe, Joe, Joe. I wonder just wanted to make sure who Lockler was and it wasn't someone from one of the agencies. Greg, stop there, according. Thank you, Joe.

We are now recording. Here ye, here ye, this honorable appellate court for the second judicial district is now in session, the honorable NB Georgian Sim presiding. Your honors, the first case on the doc at this morning is 2-22-0119, people of the state of Illinois, plaintiff, Apalee, the Jacob Headkey defendant's appellate. Arguing on behalf of the appellate, Mr. Andrew T. Moore, arguing for the appellate, Mr. David S. Friedland. All right, Council begin when you're ready. Okay, thank you. Good morning, your honors. First of all, I'd like to love your condolences, passing the Justin Tuzon. That said, may it please the court. My name is Andrew Moore and I represent Jake Headkey and the subpoena. The state here proved failed to prove beyond the reasonable doubt that Jake was not in an voluntarily drug condition at the time of his offense. Despite the state's failure, Jake was still found guilty after hearing in proper evidence arguments. In fact, the vast majority of the evidence used against Jake was entered in error through some 15 to 25 other crimes as propensity evidence, all but one of which was only supported by Jake's statements alone. Further, the state wrapped up its case by mistating the law on evidence surrounding involuntary intoxication and serving its own opinion to discredit Jake's experts testimony and repeatedly inflaming the passions of a jury by referring to Jake as an animal. That said, we're asking this court to reverse Jake's conviction involving R.K. outright for issue one. And then the alternative, this court, so reversing remains for a new trial for issues two and three either think, agreeable or cumulatively. Regarding whether or not the state, Mr. Moore, during his testimony, during the motion of suppressed statements, the defendant was asked whether or not he was on any medication, any never mentioned ambient. What was the first time that the defendant disclosed to the state that he was taking ambient at the time of the offenses? That would have been at his right at the beginning or at his interrogation. It was mentioned. What did he mention? He mentioned ambient. Ambience not on the list. The medications he mentioned. In his interrogation, when he denied having any knowledge of the activities involving R.K. he said, essentially, he was taking ambient more at that time, so he offered that as a potential. I was referring to his motion of suppressed testimony, his testimony under oath. He mentioned form medications and some vitamins, but never mentioned ambient. I believe if I'm remembering correctly, the question was, what was he taking at that time? That testimony happened quite a bit after these incidents. He must not have recalled that he was taking ambient then because he didn't mention it. I believe I could be wrong, but I believe the question was asking what he was taking at that time. The question was asked. Thank you. But, Council, didn't he deny taking ambient at that night, like the first night involving R.K. Wasn't that his statement to Balshard? His statement wasn't that he denied taking ambient. He didn't remember if he did or not. The week in question when he was babysitting R.K. he recalled having taken ambient two nights out of that week, and that was one of the weeks where that was the week where the initial allegations by R.K. occurred. I've got a note here and I'm going to look at the record myself, but I thought it 901 in the record. Balshard testified that he specifically asked the defendant if he had taken ambient at night, and he said he hadn't. It was after that that he asked him if anything, and appropriate happened, then he took a break, and then he came back and said he didn't remember, but R.K. It was probably correct. Is that accurate? If that's what Balshard testified to, it's contradicted by the recorded statement. They chose not to record anything before that, so in his recorded statement, it was used at trial, and as far as what the jury heard, that he was unsure whether or not he, when he had taken ambient, and he remembered taking ambient two separate times during that period of time. It's important to point out here, saying that he doesn't remember this, so what an R.K. can't put a date on when this happened. How could he possibly even remember if he took ambient at night of when he doesn't remember when something happened? He recalled taking ambient twice that week, and increasing amounts over what he had taken previously after he moved in to that residence. The question I would go after you, then, doesn't that put his state of mind into play? Doesn't that introduce his state of mind? And especially considering that the allegation here is that he repeatedly did these things. Why isn't that admissible as to his state of mind? Forget, just setting aside propensity. Right, he had multiple incidents involving the same victim. So let's just deal with that. I mean, he's claiming voluntary intoxication, but isn't the fact that he repeatedly made the sentence with this victim. Does that counter the voluntary intoxication effected or the assertion that you're making that this was involuntary? I wouldn't say that. There's nothing to preclude. If he was experiencing the side effects, he could be engaging in the same activities repeatedly. There's nothing specifically about it, but it's also activity that he consciously is aware of, and that he admitted to the police, that he has a problem touching young boys in a sexual manner. And I'm glad you pointed that out because that's exactly that calls into question the state's case, because you can't just look at this the other crimes evidence in the isolation. You have to look at them in the context of this whole case. If we go back to November 4th, 2016, Jake's interrogation, it's important to remember that at the time, Jake made a statement, he didn't know which case, if any, he would be prosecuted for. This interrogation involved three different kids, not just R.K. He did openly admit to investigators that he has a problem. During the interview, he admitted to more serious and more numerous acts with JK and Dubai dubbed AX. Most importantly, if you listen to that interview and breathe Bossaar's testimony, Jake brought all of the activity with AX to him. He was forthcoming about that. He wasn't reported for these activities, but rather he told the investigators about this all on his own. So you have to ask yourself in that context, why would he deny having any recollection of the least serious and the least numerous of the allegations against him? Why would you admit to 10 to 20 other incidents involving a kid that they didn't even know about? It just doesn't make any, it doesn't follow any logical. You're essentially asking us to re-way the evidence. I don't think it's re-waying the evidence. There's not really any reasonable explanation as to why Jake would have proceeded in this way. And that only supports his defense. If you take it in the context of his statement when it was made and how it was made, it doesn't increase the likelihood that he committed the acts against R.K. It makes it less so because why would he admit to all this other stuff? And it's not really asking to re-way the evidence. Obviously, you have to take this evidence in light most favorable to the state, but you also have to take references or you have to any kind of assumptions that the record requires you to make in the defendants favor, you have to make those as well. So I wouldn't say this is necessary. Re-waying the evidence that's more look at this evidence in how it came out. And does that, and remember, the complete extent of the state's case against Jake was this other crime's evidence. And our case testimony that the events occurred, but Jake never denied that they occurred. It was just as well as the defense own testimony that he had a problem with touching young boys. Right, yes, he hasn't admitted that and he is, oh, your argument is that just by coincidence, while he's taking that the average person taking ambient would touch kids, he's acting out in an unconscious manner through his admitted predilection to having sexual interest in children. A normal person engaging in this kind of unconscious activity would act out in ways that they would naturally seek. But what about the testimony that and the argument of the state that if this were true, his eyes would have been open, he would not have been pretending to be asleep. His eyes would have been open if it was the contact was as a result of his taking ambient. That's not the statement is mistating the expert. Well, then the doctor tests how these defense experts testify that this usually happens when the eyes are open when people appear to be conscious. So how it happened and I believe it's been 54 of the record maybe if that's up the time I had, but the state asked if somebody may, and you know, the state themselves use the word may appear to be asleep when experiencing a state of automatism. The answer was yes, they may be, and then the state asked, isn't it true that their eyes would be open if they're sleep driving in the answer was yes. So sleep driving is different because obviously your eyes have to be open in order to effectively drive a car. Your eyes don't necessarily have to be open to engage in other types of unconscious activities. And again, the RK testified, he always appeared to sleep, he never responded, he never verbalized anything. In other instances that he admitted, he tried to mitigate his activities by, you know, talking to the Muhammad, talking to him about talking to Jake Hay about appropriate touch when he admitted that he purposely touched him, he tried to mitigate. There was none of that here. So you have to look at this evidence and ask what shows that Jake was awake. The state hasn't produced anything, aside from these other crimes that aren't necessarily probative, to show that he was awake and conscious at the time of that these. What he repeated the same behavior, the same behavior, not not like getting into a car and driving the car, he repeated the same sexual behavior. It's important to note that this behavior is there are differences between gay and isn't that up to the jury to decide? It is up to the jury to decide, but you know, it's also up to the appellate courts to determine if given this evidence that the state presented, could any rational jury have come to this conclusion? In my argument is that they couldn't, they only came to that conclusion because of this improper other crimes evidence and improper arguments by the state that allowed them to by misrepresenting what the law is surrounding in violent execution. So, council, let's move to the closing. You alleged that the reference references to the wolf and sheep's clothing makes, what about that makes made the trial unfair? So the appellate courts have been pretty clear with this, you know, for two of this in this line of work that you have such clear caseloam, you know, some kind of random story conventions such as the wolf and sheep's clothing, but you know, even beyond that, the Illinois courts have made it clear that you can't refer to the defendant directly as an animal. You can refer to other things like with Seenan Ladell, where the state merely asks, have you heard of this story, the wolf and sheep's clothing? And Ladell, where the state went wrong is they cast the defendant specifically as the wolf and the story and they cast the victims as the prey. And in this case, peppered throughout the closing arguments and rebuttal, the state's constantly going back to this, constantly referring to Jake as an animal. He's... Council, if we were to assume that was error, can you tell me where the prejudice lies? The prejudice is that the defendant's facing the types of accusations that Jake is facing, you know, he's admitted that he has a problem, but in the jury's eyes, it's extraordinarily difficult for defendant facing charges involving child sex offenses to overcome even the most basic biases that the jury has. But then if the prosecutor goes further and is dehumanizing him to the extent where he's now a wolf praying on children, that's just harnessing that innate instincts that we have as a society, you know, to be repulsed by these types of activities. And it's it's harnessing that rather than focusing on the evidence of the case. And that's really where the prejudice lies there. Well, you also have this... You have not established that the evidence was closely balanced, have you? This is not a case where you don't have extrinsic evidence supporting the state's theory. You have the defendant's admissions and other crimes evidence. This is a... I would say that this is a class of closely balanced because the entire case came down to whether or not the jury believed Jake's testimony and his expert witness. The defense never really challenged our case testimony or that anything didn't happen. So his credibility is intact. What the jury had to decide was whether or not they believed Jake. And that alone should make the case closely balanced, especially when the state and its arguments and through improper other crimes evidence are attacking Jake's credibility in proper ways. So when everything comes down to credibility and the state's doing improper things that point towards that credibility, that's when the case becomes closely balanced and there should be a reversal. You just acknowledge that there was other evidence. You had the defendant's statements and other crimes evidence that takes it out of the realm of closely balanced. It's not just our case testimony against the defendant's testimony. There's corroboration for what R.K. testified to. That does not mean the definition of closely balanced. I disagree with that, Your Honor, because whether or not our case testimony is corroborated doesn't matter in this case. What matters? I've said repeatedly, our Supreme Court and this Court has said repeatedly, closely balanced is where the evidence is, you have statements or you have evidence from the defense that is not corroborated and evidence from the state that is not corroborated. That is a case where you could say it's closely balanced. Here you have corroboration, an extension of evidence supporting the state's case and it doesn't meet the definition of closely balanced. I don't think that you can just look at other crimes and say, oh, extrinsed evidence, it's not closely. You have to look at the context of that other evidence. In this case, specifically, I'm not saying all cases across the board, but in this case, specifically, there's nothing about the other evidence that I get because Jake has admitted to all the other crimes, but this one crime he's denying having recollection to. He's not saying it didn't happen or not. That other crime's evidence isn't as valuable as if Jake is flat out denying something happened. The other crime's evidence goes to yes, yes, Your Honor. I appreciate that you have lost video, but your time is up and you will have an opportunity to respond to the state momentarily. In the meantime, Justice Perquette, did you have any other questions at this time? No, thank you, Justice Kennedy. All right. I believe it was. Thank you, Your Honor. Thank you. Thank you. My name is David Friedland. Good morning. Represent the people of the state of Illinois. Happily in this matter, of course, I joined my colleagues. Early or statement offering condolences for Justice Hudson's back. And that is greatly appreciated. I mean, it pleased the court. I think your honors viewed the evidence right there. As far as his sufficiency of the evidence claim, the evidence in this case is absolutely overwhelming. It's not a closely balanced case at all. In his reply brief, the fence council is not contesting the ferracity or the credibility, and those are his words of archaic. I ask you this. I seem to hear counsel saying that at the trial level, there was really no contest about what our case said, corroborated, you know, to the extent of the hearsay statements coming in. But his point seems to be that the whole crux of this case is the state's failure to disprove his involuntary intoxication. In other words, those events might have happened, but I'm raising an affirmative defense that I was unaware of the consequences. So, could you focus your argument more on that, please? First of all, the jury was properly instructed here. They're not raising any claim of improper jury instructions. The jury was instructed that to prove the defendant guilty, the fourth proposition was that at the time of the offense, the defendant had to have the substantial capacity to appreciate the criminal conduct of his actions or conform his conduct to the requirements of the law. So the jury was instructed correctly. In order to find him guilty, they had to find that he was acting voluntarily or knowingly and appreciated the consequences of his actions. So his, as going back to, I'm not focusing on, but as to in the light most favorable to the state, they heard his claim that he was taking ambient his assertions and they just rejected it. It was within their province as the determinations of the credibility of witnesses to believe him or not believe him once he was able to get the instruction. And defense counsel says that. He says that in his reply brief, we had one of the ways that the state could have disproved or proved beyond a reasonable doubt that he was aware of the consequences of his actions or that the defendant was actually conscious or that he was not involuntarily intoxicated. And basically that's, was he faking? And the jury heard Dr. Stifonix testimony, and I believe it was a rational inference that for the sleep driving his eyes would be open. They got to hear our case testimony that yes, his eyes were closed, but the repeated movements over and over again on multiple occasions cast out on the thought that perhaps he was really involuntarily doing this. And that's back up to the answer. So, doesn't the argument in the closing of contradicting instructions like 1053 and 1054 was nobody forced to defend it to take it. No one opened his mouth and put it down there and made him take it. Is any of that actually an accurate reflection of the jury instruction? Well, I think it's partially correct. I mean, that is one of the involuntary and faxication defenses is that he had to be forced and that's true. If you look at what was said right before, that statement, the first day, the prosecutor reviews the entire jury instruction, which included the issues instruction and included that he had the substantial capacity, he had to have the substantial capacity to appreciate the consequences of his actions. Council also for the state also referred that he was taking the ambient knowing full well how it affected him since March of 2015. And so they have that. While the statement there is not an inaccurate statement of the law, it's one portion of the law. And I'd also point your honors to the fact that in the defense's closing argument thereafter, they clarified and when right back and addressed that. And the defense counsel said that the state talked about he wasn't forced, it wasn't rammed down his throat. Well, that's not the only situation. These side effects that doctors define, I talk to you are hard to gauge even for the professionals. And then they went on and so forth. And this is page one 1083 of the record. And addressed that the possibility that that in the automatism is a side effect of taking the ambient. They also then continued that you can't impune to the defendant that he would know that that that this was going to be a side effect and therefore did this purposefully. So if the state inaccurately or partially stated what was necessary for the involuntary intoxication instruction, it was cured by defense counsel's response. And more importantly, as I said in the beginning, the most important thing that governs is that the jury was instructed correctly and that that proposition was included that showing that the crux of the case was that he had to know that he had to appreciate and be, have the capacity to understand the consequences of his actions. All right, counsel, just to move on to the other crimes. I wanted to ask you what, how did the other crimes in each of these? So you've got other crimes with same victim, other crimes with JK, other crimes with AX and then RW. So how did each of these, that's by the statute? Well, the crimes with, they're all through a defendant's statement, with the exception of JK. The statute says you have to have specific instances of conduct, the specific instances, there isn't a requirement had it come from the abuse, ee, so to speak. The defendant, what better and more, most more reliable evidence is there than the defendant's own statement, sort of on prompted that he provided these individuals to the officers. So it certainly said that factual similarity as I detailed in my brief is absolutely frightening. It goes exactly to his sort of modus operandi, what he's attempting to do with, with these individuals, and the court, although not an extensive analysis indicated it weighed the probative value versus the prejudicial effect. And it's undoubtedly that this is prejudicial, but it's extremely probative, given the defendant's, given his defense in this case, the fact that he's putting his intended issue with this one crime, this one offense and this one boy, makes all of the other offenses and the other acts that he did do it where he was not on ambient, and I'd note it extremely probative and relevant to his intent. And Justice Kennedy, you asked opposing counsel, whether or not he had been asked if he had had, he was on ambient at the time of the fence, to front page 901. That was the time he was referring to JK. That question was specifically asked not RK but JK. So he's asked by the police officers during these other offenses that you're telling us about, were you on ambient? No, I was not. Well, this paints an entirely different picture and corroborates RK's testimony that he thinks that the defendant was faking and that goes to the jury's credibility, the jury's determination of credibility. What about so R. W. for example? Right. R. W. Colloquy in the interview, you mentioned 10 to 20 times. Do we have any indication of what R. W's age is? What exactly the physical acts were? Just to be clear, it's Anthony is the 10 to 20 times. R. W. was one boy, I believe in the car. Yeah. Offhand, I can't. He specifically said with Anthony that the boy was, I believe he says and how old was Anthony when that happened, I believe six or seven. So you've got six and seven for Anthony. He was asked how old was JK at the time. JK was seven and eight. And RK is, I believe, 10 if you do the math at the time. So they're all within the same age they're all within similar time frames. He indicates as your honors heard that he was had a problem abusing boys and he wanted to see his psychiatrist about it. So all of this goes to his intent and for the sufficiency at least, I certainly satisfied as the certainly sports of the finding of guilt. I would point out also that as your honors indicated, the defendant got to, additionally, some of the things that the defense council noted was that we don't have to credit defendant's statement that why would he say that he did all the other ones and why, but not this, but not RK. He's voluntarily abused all the other individuals, but not RK. You know, no one can speculate as to why a serial child abuser would have done one, why the statements he makes. I mean, it's impossible to get in the head of this defendant, but perhaps he had some affiliation with the family that was close friends with the grandmother. There's multiple reasons as to why he might just say I as it goes to RK. I didn't do that. I don't remember doing that one, but yes, I did all the other. Additionally, if you look at his evidence of his intent, not really addressed much during the trial, but right after he's confronted by RK's mother, he says he disappears. She says I want to talk to you right after RK's disclosure. And then he says I'm leaving. He's gone and then he never addresses them. And where is he? You know where he is. He's then starting to move over into JK's house because that disclosure and police report was filed afterwards. So his consciousness of guilt is fleeing the scene immediately after being confronted by RK's mother. And RK provided an ongoing description of the methods that this defendant was using, the excessive hugging, the excessive kissing, the excessive and then three instances of touching. Or three instances, I should say, of sexual conduct. That was his testimony on the stand. So certainly as the deficiency and defendant's intent, the jury didn't buy it as evidence to their verdict. And so we would ask you to affirm the guilty finding. Well, can you can you respond to the argument that the state crossed the line in referring to the defendant as a wolf and sheep's clothing? And the state did it right out of the box. This was not something that was invited. It was an opening close to first few words out of prosecutor's mouth where the defendant was a wolf and sheep's clothing. Sure. And I think that the council was clearly trying to draw the metaphor that he was you as a wolf and sheep's clothing that he appeared in the cases to or in his actions to ingratiate himself with the victims. It's what I responded with in my brief to get into the family, to get into the houses and ingratiate themselves so he could certitiously abuse these boys. But you're right. You can't do that. And when is when is that message going to hit home? The prosecutors have to stop referring to the defendant as an animal. I fully agree that it's an artful and it shouldn't be done. The case law is clear. It's but then it causes your honor pointed out to it comes down to how is he prejudiced? And simply in this case, this isn't the closely balanced case and he isn't he isn't prejudiced. So with that, you're on the response I have for your honest question. There's any others. Well, council, when do we pick a case and reverse it on simply the closing argument of the state? When do they appreciate our point? Well, I would I will anxiously await that case. However, here this is not that case. The defendant's statement to reverse this case based on the comments and closing argument, I would I don't believe it's warranted your honors. How about a letter from the state's attorney of public prosecutor to state's attorneys in the second district that it's intolerable? Stop it. Your honor, I'm happy to relay the message. I believe that council in speaking with the the council was concerned trial council and speaking with trial council, they recognize the questionable nature of that's that's that comment. I think that that message has been received, but of course, I will relay your honors comments or I'm sure you can address the I'm sure it will be addressed in whatever disposition your honors set for may appear in this disposition. Mr. excuse me, Justice Burkett, any further questions? Thank you, Judge. Justice Kennedy. No, thank you. No further questions. Thank you. I would urge you to go back on the phone and I'm not exactly sure how to do that. We can see you. I'm got audio on my phone and I'll video on the computer. All right, if we have an echo, we'll let you know. You may proceed when you're ready, sir. So I just wanted to touch on a few points that the state made here. So they their argument as the jury was properly instructed. So they were properly instructed that, you know, the four elements of this case, he had to do it and they were properly instructed on what is a drug condition. The state undermined those instructions because there's there's nothing in the instructions that explicitly state what the holding in Hari is is that taking a prescription as prescribed by your doctor and you get unintended effects, that's until involuntary intoxication. The state undermined those instructions by eliminating that by saying he had to have taken it accidentally or forced to have been taking take it. So there's the instructions don't can't remedy anything and if defense counsel argued against it, there's not, you know, the jury might not have believed it. The judge says, you know, these are arguments. They may have believed the state and that's why they found Jay Kilti. We don't know. So you can't just do what the state always does and eliminate these improper statements of law through jury instructions because the jury does pay attention to them. And I'm so alluded to the fact that Jay knew of the side effects of ambient in 2016, March of 2006. But let's talk about that for a little bit. He was prescribed ambient in 2015. His interview took place in November of 2016. The state itself, the defense didn't do this. The state itself motioned to exclude any statements about ambient made during that statement, which was granted. So it was the state's decision to remove that from the defendant's statement. It's removed from transcript and it should have been removed from the audio as well. So that's not something that the jury would have known. And going to the other crimes evidence, I didn't get a chance to talk about that, but I'll respond to your questions in the state's argument. So attend to 20 incidents involving AX. Those are clearly visible because we have no facts as to what occurred. He described one instance. And this court, this district, in fact, in people versus Sumbling held that a certified copy of the conviction alone can't be used to show other crimes evidence because there's no fact compared to the instant offense. That's exactly what we have here. We have 10 to 20 instances used as other crimes. The state relied upon them. There was testimony throughout the trial about them. But we don't have anything to compare it to you. So the judge is clearly an error for allowing those. And then there's a second here. As aside from, aside from your argument about other crimes evidence, the state is entitled to introduce any admission by the defendant that would have a tendency to establish an element to the offense. It doesn't come in as one that under the exception to the hearsay rule is as an admission. I would argue that if that's how the state chose to raise this, that it would only be allowed to use his statements regarding the instant offense and not other crimes. Once you get into other crimes, you have this added layer where the judge has to weigh the provative value of the prejudicial value. Especially when it's used for a perfect propensity. That's the one better evidence of propensity is there than the defendant's own statement that he has a propensity to commit these types of offenses. What better evidence is there? He, again, you have to look at the context of how those statements came about. It doesn't make sense. He has an admitted propensity for this. He's apologized, asked for help. He had knows that he's wrong. Here's an example. Here's an example. A defendant denies committing a particular sexual assault against a specific victim. And then in a letter that he's written, he apologizes to that victim, but he also mentions that he had done the same thing to several other victims. Would that letter be excluded because he mentions other victims? Or does it come in? And what they could be redacted to victims? Well, here the defendant apologized. He said he was sorry that that arcade was not lying, but he denies that he committed the acts consciously or intentionally. Correct. And he established that in 2016 without knowing that he would be charged with this sentence. And his story never changed. His story never changed with JK. He pledged guilty to those. The state did not tell you what they wanted to do. JK's case. That's probably more has to do with the state's inability to prove up this charges against JK. Because as you know, he admitted to certain things in his statement and JK ultimately denied him. And that kind of gets into this other crime's evidence in general. So the judge blank it admitted everything, not knowing what the state would be able to corroborate or prove up. It would have been more appropriate to reserve ruling on what can come in until they see what the state can corroborate. And then treat the statement, you know, redacted portions of his statement that the state hasn't proven up. The state's evidence directly contradicts portions of his statement. The victim's saying nothing happened. It just it doesn't. For somebody in JK's position to have sort of the jury to hear he's done this 10 to 20 times with no specifics. They're going to fill in the they're going to speculate and fill in the gaps. And it's going to become a worst case scenario where, you know, and that's why it's more and it's the same as a certified conviction, which can't be used. And it's important to note that the courts have held that when other crimes evidence comes in an error, it's rarely specifically for propensity. It's rarely something that is harmless and that doesn't warrant reverse. So the state has to prove beyond a reasonable doubt that with the proper evidence, they still could have found him guilty. The only evidence here is other crimes evidence. So it's impossible to separate the improper other crimes evidence with anything you determine to be proper because we don't know which the jury, you know, grabbed a hold of us. But unless you have any other questions, I see that my time's up. Justice Perkett? No, thank you, Mr. Moore. Thank you, Judge. Justice Kennedy. No, thank you, Councillor. Well, then I thank you both for excellent arguments this morning. We will issue a written decision and do time and we are adjourned. Thank you. Thank you. Sorry about the audio issues. Oh, don't worry about it. Is that Joe? I'm here. Okay. Not you, Joe. Joe, Joe, Joe. I wonder just wanted to make sure who Lockler was and it wasn't someone from one of the agencies. Greg, stop there, according. Thank you, Joe