under both plain error prongs if this is a case your honor where the parties agree that there was no compliance with the supreme court role which the supreme court itself mandates trial judges are in this case it's across the board and this case is in fact one which townson points to as a case which needs to be reversed because it fits both prongs both the plane er and in fact she even says he had she actually did all the time and yet she also testified she wore condoms and in fact she insisted on it munis says that choice refused to perform oral sex on munis where is tourist says she three of which required her to ride a bicycle to and from round trip three hours to and from the defendant's home to become a victim one up the floor had her being picked up in a pickup then and now she's afraid of scenes by the mysterious sandy and she's afraid her parents are gonna lose her home and say indicated a screen jury could hair brown could have been trouble by the skin the inconsistency is which i submit are major maybe more than that the fence counsel at that time still had a predatory challenge he did he did and she said it wasn't happen again the problem there it doesn't and here's why she said it when asked with these and she because she's not being screened by the four thirty one b principles where she can say that she can understand and accept these he doesn't have enough information to know whether or not she can be fair and see if the judge in this case doesn't even ask her whether she can follow the law and this is there are some cases that have come up since the year where they discuss a correct closing argument we've got a closing argument on the presumption of innocence they are where the court tells the jury that they had to defend it retains the presumption  until the jury is convinced that the he's been proven guilty beyond a reasonable doubt not unless they are convinced and it's somewhat it's communicating to the jury is that  you will be convinced but just don't do it the former this one point in time counsel be mindful of your time if i could could we hear from you on the subject of the plea related statements and the child pornography charge defendant tried to broker a deal at the police station and then they move into the witnesses where they bring this up where you have a felony review assistant who testifies that defendant morning kiran t c want to probation before he would speak and then it's and bringing it out in the open the state of the argument closing argument the defendant set the terms which under which she would plead guilty and in the spring forward world of this issue this can't be timeless friedman hill and others have  this individual in there is thirteen you simply can't tell it it could be as i indicated my brief that females come in all different shapes shapes and sizes and you can have someone who is eighteen and having under developed body and you know what's really surprising i think is that they even rock this charge because when you die i think the court  notice that when you have these type of cases you have many pictures when you're prosecuting a child pornographer not just one and you the state while there was there was some evidence here that there may have been some was and with regard to the computer being disassembled there actually was no competent evidence to say when the action puter stopped functioning and and there was simply no physical evidence that was recovered to say they had to find in him to start going back to the the pornography charge and the you know testimony about the individual involved in that but but it gets even more to the point that there simply wasn't any habits this is not a child porn pornography charge where do you have small children and that is frankly where you know that this is child indicated in plaster and then and again and thompson that it's i think you can say kind of sick of this issue and the second prong arguably the second prong argument is dead there is no second prong argument here they made very clear  thomson that structural error refers to those things that the u s supreme court has already referred to a structure this is not one of them i would agree if there's some evidence that there's actually a biased you're not speculation that maybe the head of a issue we assert that the evidence in fact was overwhelming here counsel began with a statement that was actually stricken by the stret trial court was made several times during trial that there is no evidence of a broken hymen here frankly the defendant in custody make several statements along the lines of first of all i'd like a glass of water a second i'll confess if you give me probation you when you're in i want to get as the defendant has to exhibit a suggestive expectation to go she had a plea and the expectation was reasonable in the totality of objective circumstance just in terms of the factual scenario just to make sure we have it right he came into the police station police come take her to the station and when she gets to the station the police call mom moms at work and they tell mom your daughter's here now you remember the defendant's the stepfather and this is the natural mother your daughter's here we'd like you to come to the station alone don't tell the defendant you're coming and this is significant because of what's happening back at the ranch where he's disassembling we can assume the computer and burning something in the same and the timing is important so then he runs to the station or drives the station shows up and they haven't finished talking to the girl yet and we know just from reading the transcript she had hours of things to say and so they had to get a handle first on what it was she was saying happened before they talked to him so there were there was a gap here and eventually they did talk to him and he finally says and the time here is interesting too because he finally says i'll talk to you but i'd like some guarantees and i'll make a confession and it it's at that time that his lawyer shows up at the station three in the morning and the the police through the right thing they say ok here's your lawyer talk to your lawyer and that of course relates to the to why that that conversation was terminated not because he said i want to remain silent or anything else is terminated because it's later showed up in the police let him meet with his lawyer at that point the lawyer and he assert his right he goes and the police groups will say on of that he goes into the lock up and initiated contact several hours later at that point it's a detective an assistant state's attorney who are talking to him and again they start talking to him and they say and he says he wants some guarantees and they say no so there's no back and forth it's always him and they say no in this area here that we're colloquy we're hearing here in the dialogue and that talking really about the motions was pressed but rather the admission of the plea related state heard by the jury of the first reason is that they never asked that it not be heard by the jury that way this issue they didn't ask that this be suppressed on that basis and it and you have to ask pacific in this case this statement they moved to have suppressed because it was i'll give you a confession if you can guarantee i'll get probation and then it's argued in closing argument if those aren't called the tory statements isn't isn't that something that could rise to the level plain air well if it was a plea statement sure but it wasn't and i don't think it meets the test under friedman friedman itself recognizes that these cases you have to you have to differentiate between those things there admissions and those things that are  case unlike many of the cases cited by the defense he hadn't been charged yet he hadn't had an attorney you know in an adversarial setting there was no charges to plead to there was nobody that when he first brought it up there was just a police officer wasn't even but you're not saying that he wasn't aware of what was being alleged i mean in one of the conversations when the police officer talked and he said you've got more problems now we just found out about  yes i mean but seems it seems like it's not a stretch to call this an attempted leak well he says i'll confess he doesn't say he doesn't want to go to jail that that's clear but there are no there's no formalities obviously and that goes into the totality of the circumstances who he's talking to the first time it's a detective then it's a detective is a story he talks the text in the tech there's no there's no back and forth there's you do this we'll do this the several occasions he says i'll give you a confession yes and that's that's the issue that we're you know i don't think it's really much different than than what the court was talking about in part and then they cite the levy case the federal case where we talk about an offer of that's an admission you know that they could come in as yes to somebody saying i want to begin to negotiate i'm willing to confess and cooperate and work with you and and this is this is in between those two things isn't what it is and if but i would say it's very  this statement i'd like to cooperate i'd like to give you information and without saying in return for right and he never said this word that word he can troubles me i mean these are right i want to guarantee i want it's a quid pro quo i'll give you a confession but you have to give me guarantees well that sounds like a bargain to me but here in his history it has to be reasonable and for him to be facing as you say he knew that there was some trouble for him to be saying i want to guarantee that it's going to be probation or that i'm not going to jail that is it's a reasonable thing to say because he's clearly they're not going to give information right with it's clearly unreasonable it's a ridiculous thing for him to say you knew what he was facing argument of course was he knew what he'd been doing over the course of these several years and to argue that that he would be someone who would be worthy of consideration for just a pass if i could and the child pornography the the evidence was an eleven second video tape and you had an investigator who came in and said that he went through the files on this d v d and one of them that jumped out was thirteen year old give head yes that was the testimony right yes on a d v d that said it was a stuff right next to his computer in his house the computer that he had access knew to know the passwords to anything else we've looked at the the file however the d v d and what it is they're all numbered one through whatever and this one happens to be number thirteen in the previous year all doesn't appear on there at all i mean there's no there's no testament there's there's no evidence it says thirteen just thirteen yes and before it was twelve a picture of a porn star and there was another one numbered i think fifteen fourteen was missing afterwards which was another appeared to be sort of an adult porn star shad that there worse there was some adult pornography on there as well yes never fact what the investigator testified to was that it was all quote garden variety adult porn except for this one that got his attention that said thirteen year old give head and in a case where you're talking about two thirteen year olds  the difference between a file number thirteen and thirteen year old would you admit could be significant it could be significant but i think again or with the jury and again his testimony in terms of whether or not he thought there was a thirteen all there was it wasn't even necessary it was an additional thing the drill was a but it was objected to defense counsel didn't jack that was object that is qualifications on the computer forensics but the defense counsel did object to his ability to offer an opinion as to the female participants age and he said in his opinion based than her being small stature and having underdeveloped breasts that she was definitely a juvenile yes he did say that and again you know he was qualified as an expert in what and in computers in child pornography and an expert is not necessary for this and the jury is entitle to just view it  it's one of those like obscenity we know it when we see it type things so the jury is entitled to if we just introduced that clip by itself that would be enough to to prove the defendant go we see in the clip and you know i don't know how you can say you look at it and that's definitely a juvenile i just don't know how you can say that well the female participant does not clearly look like she's anything like thirteen or under eighteen and the traditional reasonable doubt test is whether any reasonable trier of fact could determine based on when bet you'd make based on doing that clip whether or not a juvenile was was involved and i would assert that based purely just on that tape alone out and the cases is still monumentally overwhelming on all the other charges there were i think they went to charlie recently for forty one counts or they started with forty one they went with twenty three  defendant is convicted of numerous counts we have conceded on one particular count but right the fact of the matter remains that on the major counts if you exclude that evidence the evidence alone of the two young girls and they gave they were they were dozens and dozens and dozens of instances of abuse in this case so to hear this girl to  you know complete uniformity between the between the two girls it's not it's not hard to understand why g m would not remember everything that happened to j t j m was abused dozens if not hundreds of times her testimony was virtually unimpeached she if this was all made up she's a tremendous actress i mean she was able to tell the same account and she was never impeach with any discrepancies any major discrepancies from the beginning to the end starting with this unreal bizarre story of getting in a band but you could see how it would happen to her and she she admitted you know i i was i thought this is a great thing we're going to have a band and i was going to be get these clothes and so i understand how she could fall into this type of thing there's i don't think you have much issue there there's plenty of evidence so the question is really whether putting in the statements of i'll give you a confession and whether nap you know sort of piling on with this or not graphy charge with eleven second clip of somebody who's never   statements that were asserted to be plea bargaining statements clearly they are admissions there's no question i mean the reason they tried to you know they didn't want them in a trial is because they want to bash and again they didn't raise this issue at trial they only raised the  they've looked at these as as inculpatory as even friedman in all those cases talk about these are inculpatory statements the question is is there an additional factor we're getting them into the two prong test under friedman that there's not the additional factor and if you look at the other cases that we've cited in the br i think you'll find that is this case is more like those cases then like a somebody who's been charged and then they actually get into the real what everybody would recognise as plea negotiations because the defendants had no subjective reasonable belief in this starts to plea bargain and that simply is not a requirement here secondly the state brings up the hard case which they cited in their brief and in that case the defendant in speaking to a police officer says well what can you do if i cooperate and the reviewing court says there's no rudimentary evidence of a plea negotiation there and in the room here this case also cited by the state the defendant  again to a police officer brought up well i can post i have money at my house i can post it for bind i can turn informant i'm afraid of going to jail because of a vendetta from the gang and the court again said will defend us here making any terms under which he would plead guilty but but in this case he did he said i will i will take kobe shit and i don't know how the more rudimentary there can be and and what's interesting is that while it is not required that he spoke to the felony review assistant so and to say that to argue well the felony review assistant doesn't have the authority to negotiate a plea with him well that's not the issue here the issue is did the