with me please the court counsel my name is katherine hart from the office the state of polk founder and i represent the appellate brandon p the only in united states constitution and give every person charged with a criminal offense the right to confront his accuser that right is triggered when the accuser makes a statement that is considered testimonial hearsay and that statement is used as evidence at trial in order to satisfy the confrontation clause the cues in witness must be available at trial where the statement may not be used to trial courts make to determinations when considering whether to allow in as evidence at trial the hearsay statements  accusing witness first is the witness available and second is the statement testimonial hearsay in this case the state has correctly conceded before this court that  j the complaining witness was unavailable a trial and that her statement to officer hogan was testimonial hearsay every party to these proceedings with the exception of  has agreed that based upon m j his actions at brandon's trial both verbal and nonverbal she was unavailable to testify that finding of an availability is the sole finding possible under the understands exactly what in unavailable witness or unavailable witness is the state's concession does not get rid of the confusion that the fourth district opinion has created  having said that the ultimate issue here is whether this was harmless error ye in other words she was never subject to direct examination defense counsel likewise did not attempt to examine what was clearly an unavailable witness as the state itself has asserted that defense counsel has no opportunity to cross examine when the witness cannot testify at all it was no surprise to any of the parties present during branden's trial that the court found m j to be unavailable as a witness under one fifteen ten and for purposes of cross examination because she did not testify because m j was unavailable as a witness the only way for her hearsay statements to officer hogan to be admitted brennan's trial was if the court found her statements not testimonial hearsay which is what the court did the state has quickly conceded again before this court that the trial court was wrong and the united states supreme court said in crawford which is washington statements taken by police officers in the course of interrogations are also testimonial under even a narrow standard and that narrow standard is clearly present here given the facts of the case with her what's the significance of the d n a evidence under the harmless error standard or specifically in this case this is a constitutional error and so the state has to prove beyond a reasonable doubt and it's their burden that the error did not contribute to the verdict in this case there was some scientific evidence there were two exhibits the first one a is something called indicated strongest possible finding and one being the weakest this was a one and so this is this evidence exhibit one day has very tangential relevance really a finding what indicated semen means is is not entirely clear in this case the second exhibit when she was d n a d n a evidence on m j is underwear this evidence was not semen they were able to determine that brandon could not be excluded that's not a match could not be excluded at seven loci out of sixteen which is not a finding that is considered very strong in the field of scientists who do d n a evidence and that's discussed in my brief and i believe even the state talks about that it is clear that the d n a was male but again this is a three year old child all that means is that a male touched her underwear so did the male touch her underwear to do the laundry to persuade a laundry to get her clothes out we don't know the most important thing to remember in considering whether the state has met its burden beyond a reasonable doubt that the  and what m j actually said was he did this and put it on like that is extraordinarily and without officer who prints testimony that he put spit on my finger and and put it in my vagina and i told that to my yet nuncle and in addition that we didn't put as we enter on her without evidence you the only evidence that a crime was committed is extremely vague how non verbal statement that m j makes to her mother and to say that officer hogan's testimony did not contribute to the verdict it simply isn't possible in this case again the standard is just do this or contribute to the verdict we ask you about the standard you argued that the r it's still harmless error but it's a higher standard the standard is did the state prove beyond a reasonable doubt that the error did not come to the verdict so should not be looking at other cases that use general harmless  standard talking about whether the evidence was overwhelming and that's not what we should be looking at there are three factors which this court and then seated in people versus patterson and people versus one person and then there mentioned again talk about was the evidence to put it of was it overwhelming was it cumulative those are all things that can aid the score in determining whether the state has met its burden of proving that the error did not contribute to the verdict but that is the ultimate determination did the error contribute to the verdict in this case at this trial and i think another thing that you have to look at was the lengths the trial court went to to get the believe it's before the state decides that they're not going call and back and the court actually comes back to the parties and says this is also admissible under seven o five  two dash eight hundred four c it's a volume sixteen record fifty six fifty seven that's actually an abuse neglect statute the court and then the court after it's clear that m j is not going to be testifying agrees that she's unavailable and even though the court is presented with cases that clearly show that this is testimony hearsay and even after this court statement in rwanda street where this court said we mean not a bridge constitutional guarantees simply because they are a hindrance to the prosecution of child sex abuse crimes but the trouble points as well that that can't possibly be what you really meant so i'm going to let the send the quarter obviously felt  testimony was incredibly important to the case it contributed to the verdict holmgren's testimony was plainly relevant and extremely prejudicial testimonial hearsay an error in admitting plainly relevant evidence which possibly influence the jury adversely to a litigant cannot be conceived as harmless that's what the united states supreme court sat in chapman versus california this state has not met its burden of proving beyond a reasonable doubt that the improper admission of the highly prejudicial testimonial hearsay from officer ho grand did not know and let's look at those those separate facts first let's talk about we already spoke about what angie statement to her mother actually was now if you look at it it's it's not very clear  lucas's testimony is simply that he was in the room with brandon his sister m j and sister elia so that's four people in this room and at some point because m j was on the floor with her shirt on and her pants are now in direct examination the state never clarified is that payouts are under pants and in the testimony true of the trial that it's never clear whether she was naked from the waist down and that's all  said that's it we don't want somebody helping her get dressed what was going on we have no idea that the state doesn't get any more information from lucas lucas doesn't say anything about brandon in relation to m j as for  up and possibly as indicated semen what is that frightening mean it means nothing and the d n a simply means that a man or a boy or whomever somebody with male d n a touched the underwear again this is not a semen this is not semen d n a this is not sperm d n a it's just male d n a and in the course of of a day or a week or how often do various people touch clothing doing laundry helping to get kids dressed helping them to go to the bathroom she was three years old who knows how the male d n a we don't have enough information and how can you say in the absence of this other testimony that there was sufficient it's i think those difficult to basically go and ring the bell once we're all over the worst of all evidence comes before the jury that it's impossible for them to do this regard i think that was part of your argument are included in your argument how do we determine standard the question or the inquiry is simply did the air contribute to the verdict it is not in this absence of this might there have been a guilty verdict did this evidence contribute to this and i think that the facts of the case clearly show that it did this is a very high standard this is a constitutional error and the test is is harder and that's what this court found and people that the air imac ace contributed to the verdict and that was in a case where there's actually a confession so as instead plea in this case the error of admitting the testimony hearsay contributed to the verdict and that is again the standard here did the error of admitting this testimony her say contributed to the verge of guilt against ren and pete and the answer is yes clearly all of the evidence presented to him his he has fairly detailed findings but he clearly considered officer hogans testimony as part of the case error of admitting this testimonial hearsay contribute to the verdict and with our officer hogans testimony you have an extremely vague statement from a young girl who does not appear to be able to speak very well it's not clear what exactly her statement her mother is he did this and put it in my p p and you have this inconclusive scientific evidence even lucas his testimony does not actually state that anything happened in that room and so to say that officer hogans testimony did not contribute to the verdict is not possible under the standard  constituted harmless error i don't think there's a dispute between the parties as to what the appropriate standard is the overall standard is was the error harmless beyond a reasonable doubt this court has explained it elaborated on that standard to say that there are three considerations that should be used in assessing that ultimate question one of those is whether whether the air contributed to the verdict focus on the error one is whether the other evidence was overwhelming and one is whether the added and that was a brony easily admitted was duplicative and in this case i think it's clear that the evidence was duplicated of and the remainder of the evidence was overwhelming by pinning down exactly what the outcry statement wise counsel has made the claim that this statement was not verbal that there was some confusion as to what the actual content of the statement was fine twelve of the record which is cited in the reply brief is the transcript of the hearing on the admissibility of the testimony this court should look instead of the actual trial testimony of teresa her trial testimony was that her daughter came to her and said that respond it puts it in her peepee that said by name seventeen page eight the cross examination that occurred at the pretrial hearing was not repeated at trial so what we have no basis on which to believe that this wasn't back to nonverbal communication from the record it appears that the child did say to her that the respondent put spit in her p i also don't think that responding is really disputing that the outcry statement occurred as theresa sat there for that issue is whether statement that was made admittedly was a credible statement corroborated by other circumstances we did have a bench trial in this case and that means that we have the benefit of the trial court's reasoning we know why the trial court found that this outcry speak what believable the court cited and you and even stated outright aside from that this statement to the mother everything else has to do with corroboration of the three year old statement that cr aeration was all properly admitted we know from the fact that the respondent spent the afternoon with the victim in a bedroom upstairs with other small children shortly after he left  five to ten minutes m j came to her mother and her initial complaint was a physical one she says that she had to go to the bathroom but it hurt me it was only when trees asked why that was the case that she volunteered spontaneously the statement that respondent had to put spit in her p p d teresa immediately acted on her complaint she took the child first to response parents and child's genitals would have touched the underwear and i think that's significant because there are innocent explanations for why male d n a might be on a child's underwear maybe there was an adult male who helped her get into her panties but i admitted in error this points made clear that the only time that even a small child statement to a police officer will be deemed not testimonial is when it is given under emergency circumstances that just didn't happen here we had a two day delay between the time of the event and then the questions by officer state took the position that it did made some comments about how much of the only judiciary has decided this case and it did this issue these issues availability in a much different way than with the state appeared in quotes for cross examination in other words the poet the court decision defines availability in terms of physical presence and not as what occurred here that the city's conceded that was unavailable so what should we do with all of us should we address this how do we address it can we ignore it is this really an issue as the appellate court decision says that is all i think he says that given that most of the  because of the concession that record is under cavallo in terms of what she understood at the time that she was giving her testimony did she even understand the difference between the truth and why the appellate court power to address errors that are obvious on the record it really shouldn't be in the business of raising issues that have been heated below and that the parties are not trying to dispute to the extent the court rules on availability i believe it is the appellate court's actions in this regard that merit discussion the the problem this that the public court created by addressing this issue but it's it's really is that a concession it fell that it should be given effect here the court i think it's difficult to look at this record and decided to know both whether the child was available or not court didn't even apply the appropriate standard of review i would also know because this was an issue that should have been under an abuse of discretion standard and the appellate court never acknowledged that standard or applied it because of that standard this court really isn't faced with a record on which it could hold that it was an abuse of discretion where the trial court could observe the child's demeanor to find that she was unavailable but until the appellate court interjected that issue it presumes that you have a competent witness on the stand and the question is whether she has testified in sufficient detail to enable effective process demonstration that appears to be to be the gist of the case on which the appellate court would lie the problem here is that the appellate court i think miss understood the basis for the finding of on availability and that said under the facts of this case this four year old child was unable even to answer basic background questions and she went back and forth on how many sisters she had in the cases where it is as been an issue as to whether a defendant can argue that a child was unavailable and have not attempted to present them and those cases rests on there being a witness on the stand who gave at least song testimony given some substantive testimony so the issue that the court addressed really under the facts of this case isn't reason in this case is something that you should all be in agreement on which is that you do not have a competent witness and she's not available for either direct examination or process the emanation what about the structure of standard about the issue about fear in the child but realigned as was an opinion of the court and this court did it the child's perspective becomes relevant only if the police if the police officer is not involved in in it taking these statements in a police investigation context at that point the trial bailable yes the court mentioned that being frightened is deficient to find on availability in addition to incompetence is also another basis for an availability of the trial court didn't err in that regard in finding her unavailable under the standard that this court has articulated and the confusion i think arose because the court was applying the standard that was meant to apply and non police situation faith the part of the trial court in citing a different statute as a potential basis for admissibility the circumstances though reflect that the issue was not her statement to officer  was other statements that she made to respondent parents and the issue those were not admitted at trial and the issue was whether those were in the notice that was filed sufficient to comply with this statu one fifteen dash ten the court said it might not meet the notice requirements of that statute but there's another statute maybe we can argue about whether there admissible there but the state said we're just not interested in admitting that testimony and the record shows that the court bought hmong and hard about whether the statement was testimony on the court just made an honest mistake in applying the test incorrectly so is it's really not fair to say that the court was acting almost as an advocate on behalf of the state here the court was trying to maintain a fair proceeding raising all the legal issues that might come up even issues that the parties ended up not presenting the court made sure that proper procedure is being followed at all stages in some this court has before it the trial court the actual finding that and jay told her mother respondent puts that in my p p the court also knows that the issue that was before the court was whether there was sufficient for aberration officer hogans testimony did not go to either issue he can he confirm that m j told teresa with this statement and he also said that he asked whether it was true or not but that really didn't get to the alternate issue is the statement that she made credible and corroborated and officer holmes testimony does not speak to that point and the remainder of the record shows that the trial court had sufficient basis for finding that this was a credible outcry statement by a very small child who really would have no motive or necessarily  turn whether or not the evidence was overwhelming that is one of the considerations was whether the evidence was overwhelming and you think you have an answer is overwhelming the evidence was overwhelming correct  what i'm getting at is not that the evidence was sufficient she support the trial judge's holding it said the trial judge stated his reasoning on the record you know exactly why he founded that this occurred and if you look at that reasoning it's clear that nothing that the court relied on in making that binding is impacted by the admission or not admission of officer hogans testimony so i'm suggesting the court can at this point look even at the subjective rationale of the trial court and then making that analysis should should find that officer holder in testimony really did not contribute to the court's the finding that this was a credible complaint of sexual abuse that the error it issued did not contribute to the verdict change so that is clearly state the and the court this court then goes on to say that things that you can consider to determine that are might have contributed to the taint that's at two thirty two and i second forty three in answer to your earlier question just to stay is does this court need to talk about availability the problem that we have with the fourth district is that they sort of went out on a limb in their decision and i'm going to quote their language here despite m j is apparent unwillingness or inability to testify so their standard as he can when a witness gets on the stand and cannot testify or will not testify in terms of the fear are they afraid of testifying that's ok they've been brought to trial and then they can tell you their name and then they're available and to leave that out there and not yes in a sense the court's finding is is negated but there's still this question and all of the cases that the fourth district cited really had to do with memory was their memory loss the what m j said to her and if you look at teresa statements all through the process of preliminary hearing one fifteen ten statement trial it's clear in one fifteen turn statement she said as defense counsel says this is a volume twelve record fourteen again this is the one fifteen ten hearing trance counsel says she use the actual word spit and tere says she went like said he did this and put it on my people so again this is not an entirely verbal statement this is how for a one half nonverbal and i just want to direct your your focus once again to the standard here which is that there's a constitutional error testimonial hearsay was admitted in violation of the confrontation clause and was that testimony did it contribute to the verdict  and the answer that question is yes it did we would respectfully ask this court to reverse and remey and for a new trial the thank you thank you for these number one one