donald are all those cases they say that you cannot be in for and that's because the child's intense may not always be for the purpose of sexual gratification be curiosity could be curiosity is just soldiered said in donald  under the circumstances courts look to a variety of factors none of which are termed it look to how close the minor is to adulthood his maturity how police put the contact whether it was under clothing or any signs of arousal such as whether the minor asked the victim to touch whether he should or any parts of his body took off his clothing whether there was a bit in an erection heavy revealing or sexual talk here logan was just fourteen at the time our knowledge of sexual is not proof of sexual gratification of sexual intent it just means it could mean that the minor is curious and in this case low who had been curious about that or the hurt as was the sensation that she described when being clean by her father does not go to the intense that loba happen and the reference to logan's consciousness of guilt does also not prove that he touched the are for the purpose of sexual gratification what the court said regarding the consciousness of guilt if the logan was willing to acknowledge up to a certain point but not willing to acknowledge the ultimate act the court is describing logan's act not his mental state at the time the incident occurred the only evidence we have as the logans intentions was yars consistent testimony that logan was a white discharge from her medical condition state like the trial court simply jumps to the conclusion that logan is guilty of the truck or the state of knowledge of the stand or that this intent can just not be imputed to a minor but both jump to the conclusion she told logan that she was going to read him his rights she then leaned in and she warmly assured him that he was not going to jail and that he was not in any trouble she then said have you ever seen cops only thing on t v so you know when they say all that stuff right and then shoot a few seconds later she read logan his miranda rights now miranda warnings are designed to impart upon the suspect the whole awareness of the warnings and the rights being abandoned and the consequences that come from that abandon in with the detective's assurances that he was not in any trouble not thirty seconds before she provided the warnings logan was without  awareness of the rights he was abandoning and the consequences stemming from that of bana the state never explains how the logan could have been provided with the full awareness that the man miranda warnings are designed to provide with these second review of miranda was quick here now only were they read to load it twelve seconds there was no further explanation the detective did not ask logan to repeat back the warnings in his own words he was lot more detail in brief there are a multitude of factors when addressing the voluntariness of a statement here logan again was just fourteen but effective also multiple times promised him leniency she told him that he was not in any trouble white's she also repeatedly said that whatever happened it was a mistake it was an accident it's ok she also in the very beginning of the isolated logan from his mother separating him from the one person that he may have relied upon for guidance and who could he could ask questions up in the middle east yes interrupt you for a moment the state says th evidence of his innocence he used the denials as more of a shield against the evidence instead of the sort and i think the closing argument bears that out he did not the state's evidence with logan's analysis completely unnecessary it serves no legal or practical purpose and logan has already did ninety charges by taking this case to trial instead of feeling guilty and not only that you're honest but logan suffer from difficulty with cognitive thought and that he had each child after file after yes so counsel although this was the case during the case the slogan haiti for i believe a diagnosis since he was in second or third grade i appended to the opening brief but there was no mention of it at all at the trial if this court however believes that this may have been may please court counsel good morning honors my name is john zimmerman from the fourth district code prosecutors office i would like to actually began on the opposite issue that counsel started with this appeal ineffective assistance as your honour's are aware strick on hol lawyers representation of the defendant is not deemed to violate constitutional safeguards unless the lawyers performance fell below an objective standard of reasonable and so prejudiced the defendant the fence of the case the defendant was denied a fair trial defendant needs to  came up here and began arguing prejudice rather than as justice airs points out discussing reasonable representation which was trial strategy in this case let me ask you a question could you file a motion to suppress and los and then still use the trial strategy that he appeared to be using could you rephrase that question sure i filed a motion to suppress the judge listens to it says now i think warnings radically he knew what he was doing and you have at the trial could you argue the same strategy i eat lack of evidence of sexual gratification in this case yes your honor well then why is it objectively reasonable to skip that step when i would say that most attorneys would see this is probably a problematic state there are there are some things well that yes i mean i think there are a lot of things wrong with it but if anybody would concede that a question ought to pop up in your mind about how well he  how well informed he was in what he voluntarily gave up his rights so why wouldn't you fight i mean i understand it in this instance we're talking about trash strategy though why would your strategy be to fall i'm going to file that this attorney took was below an objective standard reasonableness for example if we disagree with that you lose well if you look at the other evidence in this case even if the motion to suppress was granted to help him make his determination yes or no he did explicitly states not contesting that fact right but still obviously that was a reason it was defendant's word first of the victims word so of course is going to weigh the credibility between the two and find inconsistent some way or the other and then that's why he was so focused on the statements of respondent whereas if there were no statements by respondent as i previously stated there would still be enough evidence to adjudicate in delinquent for example the out the white stuff with his fingers very sick it wasn't a consistent testimony that he was trying to clean up white stuff it said he touched in the privates it felt kind of funny her pants and underwear were off for the touching the victim's mother stated that the victim told her some similar story the victim's father discussed the day of the incident that he left and that's when this allegedly occurred the father says he would frequently help clean out the white stuff around her privates and that when he did it would hurt sometimes she would cry the respondents mother similarly that the victim said it would hurt to talk to testified about the investigation and the prior unfounded somewhere allegations the advance practice nurse which was not discussed much in respondents brief she was an and then she stated that the victim's description may be accurate as a sexual touching because if the victim's privates were touched in such a way that wasn't forceful or painful it could take all rather than hurt and the definition of sexual conduct in regards to the criminal sexual abuse here is whether as used in the charges here it means for purpose of sexual gratification or arousal of the victim or the accused so it's not just solely whether the excuse was being aroused clearly this advanced practice nurse testified that it's very well possible that the minor was aroused but she didn't know it because she doesn't have that type of mental awareness of the sexuality of the act so or i'm just saying if we find that the statement should have been suppressed and on the element of sexual gratification all you have is what's in the record in terms of the evidence what the remaining evidence  to make a finding and affirmation based on the evidence we just discussed regarding the expert witness who found that the victim could have possibly been sexually aroused rather than the man named her reversing because those around h issues her biggest trial tactic was to attack the mothers and the victim's credibility and the mission of this interrogation video is relevant and helps further this defense because the fence because throughout it responde is relating back to these prior unfounded charges he's saying things like the victim's mother that was trying to get him in trouble again and there's various references through this and if you look at the fence her respondent only witness it's the d c s as investigator who testified regarding these prior unfounded allegations and was basically stating that the victim's mother was alive lacked credibility because there was a custody dispute going on between these two families and so that was another trial strategy that without defendant's own words to sum up kwok proper it that it lacks a lot of credence and credibility so that was another issue th expected testimony of witness whose i when this account was particularly damning and fact given the strength of the state's case for its only hope was for presenting a mitigating mental state was to use his own statements from the confession and to testify at trial regarding his mental state at the time of stabbing so here that someone somewhere the first time it would have gotten up on the sand to testify as your on a noted you had eighty eight h t issues you know that may have affected his ability to properly answer questions to his benefit that may have hindered his ability to properly answer questions on cross examination and that's another trial tactic is allowing defendants testimony and through this video full of expel torrie statements wary to humanly denies touching the victim rather than having to get up on the stand being nervous being cross examined i think that's a valid trial strategy that counsel and acted about the the the volunt g what miranda is all about this united states position would be that as counsel's conduct was reasonable you do not need to address the presidential aspects of potential presidential aspects of but there is some further explanation our view would be one the fact of us have the same cops that's the defect of trying to get him to relate and then he says yes i know cop so you know what i'm talking about that's trying to further his understanding that he knows what he's running away was are so that is the state's position on those issues that is the subject that might be the subject even  those points but you would also have to show that outcome of the trial would have been different had the evidence than suppress which i have previously argued today that he would not be able to fill that how do we know that counsel understood that his client  that would be part of traffic strategy not putting him on stand that is true there is the possibility that this was discussed private trial but as your honor noted it's not set out explicitly in the record until that later date so i'm not going to regardless fissions the evidence this is somewhat then overlapping between what we've been discussing i laid out all the evidence and if your honour's deem that it was proper to have the beyond a reasonable doubt to mention logan's discussion about the unfounded allegation in the interrogation if this had been strategy counsel again would a champion the fact that logan talked about the fact that he had been accused previously by this girl's mother this was not done during closing and regarding the you're just disconnect your question according to the c f s investigation worker there was there were several it's very distinguishable with the appellate court in for hell that without playing the interrogation at trial and without the defendant therefore test them testifying along with that interrogation the state's evidence against ford was overwhelming the opposite is true in this case without logan's recorded interrogation the evidence here was very very i don't think we can i think frankly i think that deals directly with the whether or not there was a in effect of the systems and whether it should be remanded or new hearing your entire argument even with the suppression even with the statement above you believed it was insufficient yes on assuming if we were to take that statement out it would even strengthen further strengthen your argument that though the evidence was insufficient