at trial and two is the statement testimonial hears this court ordered the parties to be prepared to address cases that analyze when a witness is unavailable at trial though in this case the  but i believe in a situation like this which is not a memory loss case this is not a case where the witness got up on the stand and testified at length about the actual acts which of the accused or not and that had memory witness testify they're competent as a witness they go up they testify whether they are able to testify as to the acts that are charged sometimes there's a question of memory loss and sometimes there is sometimes they just don't testify exactly the same as the but in order to get to cross examination the witness has to be available to testify period it's not just what she did billable a cross examination what did she appear at trial and does appearance at trial mean more than that she simply sat there yes the six amendment requires more and you can look at people versus learn but you can also look at other cases that talk about requires more than simply being present when when you're talking about  confrontation and available to testify and appearing for cross examination all of those things are and this witness did not appear to test well she just sat there she hears here's the problem it it is to attempt to cross examine the witness why should we engage in speculation that the cross examination would have been for naught may very well been for mark given the importance of all this why shouldn't we know the record before swear she answers no questions on gross examination at all if that's supposed to be the crux of the focus we don't hear it here in other words but the burden of the defense to say if you don't think she's going to be responsible and cross her house and make a record and let's see here he says oh no further questions will press this in mara talk about a well i can understand why defense counsel might not want explicitly and sharp and rejected the idea that the infirmities associated with problems with the wrecked examination can't be projected on to cross now if there are problems with cross examination or direct if you keep saying that but would you agree that the minor did answer several questions that i grant you that she definitely ended up winning attitude issue but this wasn't a situation like you learn where the child just refused to say anything this if you look at this entire which i did apparent to me if you look at this entire question answer she is very hesitant to answer any questions she you know when asked do you have a successor what's her name she has to be everything has to be all from her she mostly is not her all they never determine whether she knows to be sure why all of these things are show that she was she did not testify with and with then really the meaning of six manic a fly and to say that that's a turn he had an obligation to try to cross this little girl who was clearly available and this is why i don't think she was unavailable because everybody agreed that she wasn't she wasn't present she did not appear to testify and because she was unavailable to testify her testimony her statement officer examination counsel but the first question still should be the first question should be did the witness appear to testify period much less for cross examination and it's the state's burden to bring a witness to test testimony may have been like and charged that she refused to talk about the actual assault that she talked about everything up to that including in poland in the room being pushed down the fact that she said no continuously and who she talked to afterwards so the only thing that she refused to talk about was the fact this is we're not claiming well the witness didn't get to be cross examined on this particular thing but the witness in this case didn't testify at all why we shouldn't require counsel what could be easier than when your defense counsel a situation like this in the court is this the defense counsel if any questions to ask now we have no questions about it for instance it's possible to not like but it's possible she would have responded and then we would be in a situation where you do have is recruiting and conviction based on speculation that would have proved unfounded had defense coun witness who essentially doesn't testify and then shuts down to make a defense attorney try to elicit youngsters from a four year old who is appears to have shut down is  herbal is is not should not be required this is not a case where there is memory loss and there was a strategic decision for the defense attorney not to ask her questions she as a witness she was incapable of being part of the trial and that is why all parties the state the court and defense counsel agreed that she was unavailable and because she was unavailable her testimony her statements to officer purposes of confrontation the case law is clear that if a defendant is going to complain about lack of availability they have to object or have to try to cross examine if they don't try to do that they have the claim that the witness was unavailable i think i believe it was the  it was the  a few questions before you say ok this witness is complete and ill when you have a witness who's present asking some questions showing some good if this was a case where the child to come in wouldn't even ask he needed to ask any questions because every party present in that courtroom saw that she was unavailable believed her to be unavailable the trial court looked at the facts and and made a determination a legal determination that she decision to not cross examine that one regardless if at that point a court and in the subsequent discussion as to whether officer should testify could testify it was assumed that the state was going to try and bring her back and it's clear from both that transcript that has been attached to the briefs and from the subsequent discussion on the record that not one of those three people the court the state or transfer me thought that she was available they are she was unavailable due to not just what she says on the record but everything her physical presence her mannerisms what she looked like how she acted in the courtroom which is not something that we necessarily removed as we are can't determine and that's one of the reasons why courts of review generally in a situation like this they defer willing to settle on speculation to reverse this conviction speculation that might very well be accurate she was going to test why should we want to do that we're how easy would it be just some questions and confirm the speculation