raised in our brief i'm going to focus on the sufficiency of the evidence are you just have one question i curiosity had so we had the vanderbilt clinic on this on the briefs but they are not here anymore i am running the venerable clinic this year also i substituted an ok not every i'm sorry did i i should have been clear no i and so you so used to being in a regular appointed attorney this year and there's not a student here because there were some issues i had concerns here because this is in charge of recent fabrication and getting that right i think yes you know long morning but setting that aside i mean the rule witnesses credibility is simply just been crossed as having made inconsistent statements isn't that just an independent basis on which i'm not talking about this statement right here but a statement can be admitted under do you want to be right and the answer your honor's and i think if you look at the language of the role the question and its it was not covered in the brief significantly is the question of when is when is a party permitted to bring in evidence of a prior consistent statement so the question has to be a what what has to does the other party have to do to say that there's been some inconsistency and your honor let me just say factually that there was an inconsistency and cavies statements throughout time that was presented on cross examination that would appear rightfully to to challenge the consistency of the statements over time even though it's not about a fabrication in this case of testimony that there is that the  as an officer of the court obviously i want the court to be aware that there was a defense presented that the statements were inconsistent over time and i think that i think that your honour's is definitely correct that even if this doesn't go on of the catchall that it may and it's why i really wanted the court to focus on the sufficiency of the evidence arguments ok well i give you full credit for your candor and and that's really the issue here is and i think i would hope that the court would look at the eight circuits approach to plenty arrows reddest and white ball and see whether or not this core and its cases of a similar nature approaches jackson v virginia the same way that the eighth circuit does i must admit having looked at all of this court's cases in all the eight circuits cases there does not seem to be a consistency in the approach and so with the time that i have it like to talk about jackson v virginia and how it applies in the context of cases like this one with jackson v virginia obviously due process requires that the there be the power of appellate courts to review a finding buying a trial court where then the question is whether or not the charges alleged have been proven beyond a reasonable doubt and so logically what that requires is is is is that the appellate court has to look at that and say is there any rational thought finder of fact you could look at this and say there was no reasonable doubt so it's the absence of reasonable doubt and right respectfully on behalf of mr j s i would submit that there is reasonable doubt here under jackson v virginia so much like the way that the circus treating it that i would like the court to really look at this question about what do we do when we have a child's vague statements about a sexual act not is the fine in the statute but as one would normally refer to a sexual act when we have charges of a sexual act that is very specifically defined by congress and eighteen u s c twenty two forty six two it's important no your honor the twenty two forty six two has very specific anatomical requirements for there to be a violation and eighth circuit in plenty arrows emphasized that there must be proof of those anatomical connections in order for there to be guilt under the jackson be virginia standard and here  s respectfully submit that there was not sufficient proof as in the circuit cases that we cite in our brief sufficient for this court to affirm the conviction i mean my recollection of those eight circuit cases is there were  recollection is that the references there were arguably more general than they were here must respect we disagree on that side if you got on with sis if i had to do with much more defined area of the body area of her crotch when i was raised that's what we call and nothing further whereas in the eighth circuit cases it was right next to the vagina the hole was right next to their ear and so in those eight circuit cases actually the testimony of the victim was far more specific than the testimony occurred here because you know ok i mean yes in the sense that there were it's a graph or it's more specific references to parts of the body i guess i mean right next to one hole or something correct very much much closer than the middle or in this case a pointing to the crotch by but  there was obviously that ambiguity yes and absolutely on and that's right next to and i mean i don't think i need to explain it further yeah understood and that's and it's that ambiguity of that that they give us is a circle referred to it that is the danger in these cases right and and if i could address a on that that the statute segregates the penis from the volvo men and women don't have the same ones so whatever she was referring to logically although this is a child or talking about whatever whatever she was referring to logically as something that men and women both that it has been her for the jury just looking at that part of her testimony conclude that she's referring to the part of the anatomy one uses to heed to your as opposed to defra case this was a been struck and the answer is is beyond a reasonable doubt  else and that's that's why what jackson be virginia requires is the question about how about you know after the fact she says that it burned like it was on fire brett she yes elsa's heard a lot correct and that's the issue here your honor because we know from the medical evidence that she that even though the nurse who did the first examination said that the victim had a not involving imaginal penetration dr klein injury the nurse didn't but the doctor found injury the nurse found injury to i don't believe that's correct your honor ok that's what i'm asking you i don't believe that's correct i believe the doctor actually said he saw no evidence of damage that was his testimony or injury and so i think he specifically said that there was not any injury that was visible you know i mean he did he didn't find injury in the sense but he did know this occurred eight days after the incident i believe was the medical exam and there were no signs of physical trauma the and that twenty you don't understand i don't understand that there was testimony that precluded the possibility of an additional penetration the doctor said specific doctor the doctor put on by j s said specifically that had there been by a seventeen year old male with a with an eight year old female that there would have been a notch or he's another word in the hymen that would be visible that was that was his testimony now but no it doesn't mean in his testimony i see my time as well i think we would want you to finish answering that question and then i might have another one as many as you want i mean somehow i'm here glad glad to answer anything that's the issue your honor with the statute because the statute doesn't require vegetal penetration it permits vole penetration and so the evidence here says we don't ever slight to ever sure there has to be something to ration violate the statute without redness would by the way be president fifty three percent of all normal healthy she has a g s later on when he had that infection nine days later when she was examined it was my recollection your honor it is that the medical evidence of the tract infection was contemporaneous with the nurses the essay any nurses sexual exam and but please check me on that that's my recollection even if it occurred later the fact the matter is is that there is a there is a  logical explanation a for the redness that would be normal for most girls of that age and be specifically pain urinating would be an obvious or repartition from having a urinary tract infection and here's the thing your honor because there's there is the medical evidence shows that there was not very gentle penetration but as you are pointed out there may be volpe penetration the question is how does a defendant have full the penetration not magical penetration that hurts as judge givens pointed out you know follow along with this argument her obviously her language and statute don't match you wouldn't expect them to but giving the best inference  to her to what she said about the incident the stand the the language for sexual act might have been met the ultimate questions going to be the beyond a reasonable doubt brett you're on and that's that's the issue and it's and it's that and that's really why i think in the end he jacks of the virginia case is up to the judgment of the members of the score i mean the question is really what what we want to have what the supreme court says we should have when appellate courts are reviewing jury verdicts or in this case a bench trial verdict is is on the one hand the members of this court weren't there to be able to see the witnesses and that's a weak institutional weakness of this body on the other hand we have to have some review particularly where you have a disturbance trial because single minds can make mistakes and so your honor i would submit and respectfully on behalf of j s i would submit that the eighth circuit actually is getting it right that when it comes to a crime of this nature a crime of the seriousness that vague statements even though that's the best we can do with children child witnesses are insufficient to protest show guilt or to  kate juvenile delinquency would be the technical phrase but in particular here looking at the medical evidence of the medical facts there is significant and should be significant reasonable doubt whether or not the requirements of twenty to forty six to  woman thank you thank you good morning me please the court my name is jeff davis i represent in the united states at trial of this matter i would like to address the question first regarding eight o seven because i've been going over judge edgar's opinion quite a bit and i you can if you want but i don't well i'm not so much eight zero zero seven but eight zero one d one b because that was amended in december of two thousand and fourteen and prior to that it was after right you speaking for messed up i would start with the medical evidence because it seems to me that that arguably that you should have a bit of trouble particularly when you consider the nurses finding of a you're near track infection and so on and so forth are taking it from there right and again this the standard of review this court said in seymour is but it's to be considered after viewing the evidence and like most favorable to the prosecution and any rational trial of their so in this case we had the child  state that he put his pee in her pee it hurt and it burned like it was on fire when she went to the bathroom eight days later she's taken for a medical medical exam and everything she says to those nurses is history of what happened to the nurses who said he raped me my uncle i didn't like it he put his thing in my thing i don't want to do it anymore and  there is no physical evidence or medical evidence but her again the standard is penetration of the volga over slate by the penis that's the outer area of the label and that's all we don't have to prove injury we don't have to prove beyond that pickerel points to testimony of the defense expert that had there been for penetration the heinen would have looked differently than what i give us your had there been full panel creation which apart from i don't have to prove full penetration what what is your response to his point well i think the response my responses and approach in this case i don't think children understand they don't have an understanding of pull full penetration and i'm not i'm talking about the medical evidence is it would you concede that we ought to take it as a undisputed fact which is kind of how mr pickerel that's what he's arguing for that the medical evidence here establishes at least  creates a reasonable doubt that there are there could have been for penetration no but what your counter to that his expert says it doesn't look like this well there's for penetration did you forget did you have a expert who testified otherwise or no i had the same nerves that did the examination that it had to go through where she said open hymen by the way all hymen are open if it isn't open there has to be an operation to open them so that was a misstatement by say nurse in addition to that she said intact she made a lot of errors but she documented through her report three different times that she was seen something that made her documented three times and that was her testimony and at the end she testified yes i do believe there was a sexual assault in this case she's the only one that exam expert who is a renowned expert in the field we've used him before and we don't question his expertise he looked at those reports and he said these you know these are red arrows thema is normal in some children and then he went through the other portions but he also stated that crim medical history in this case is ours sometimes the most important thing you have especially when it's a delayed examination of eight days you're not going to see a lot of evidence you're not going to see anything the majority of the time that these occur so you go back and you you know i think a lot of times they fall back on what the victim says happened and then what happens in the medical exam and examine when they're well done doctors will actually ask the child ok what happened and have them show physically show that in this case that didn't happen but we do have this child stating that she points to her going or in the nurse carsten even on cross examination said well we filled out this chart where you know valvo penetration and the questions were asked well you know children don't hunter stand that term knology did you explain yes and about the penis penis valvo penetration that was part of the chart and again the nurse asks you know she didn't document what the child said regarding those things in her report but she says i do these all the time and i make sure they understand so is it your argument that the nurse they're examining nurse nurses saw her eight or nine days later that her testimony would allow the trier of fact beyond a reasonable doubt to reject experts testimony that the condition of her hymen precluded the possibility of parole penetration i didn't think of it that way i think that's what mr pickerel say he's saying it that medical testimony by that expert precludes not just creates a reasonable doubt but precludes a finding a full penetration and i my question no i wouldn't disagree with really what what you didn't argue that no we didn't argue full penetration we didn't try a case based on full penetration we based our case on hope in attrition is defined right i understand you however slightly so that what about i mean doesn't that sort of throw out the window it burn thing if we're talking however slight i mean is there i mean i don't understand are you i'm not a doctor i don't think so see what the expert said like our expert the forensic interviewer she said when this child when they she interviewed her this child said that also and we had another expert friend waters that testified that does a lot of work with children of this nature and they said they both testified to the fact that when you have a child that exist it describes what happened that's one thing but when they put a physical reaction of feeling with that description that heightens their sensitivity yes and the credibility of this child as she said after she just happened  she didn't say she could be a very important fact but what about this euro area track business was that when she was examined eight or nine days after yes it was noted in the chart that she had a urinary tract and yes yes i mean till eight days lighter right right but again you go back to what this child said this child said when she's describing what happened correct and she says i remember when i went to the bathroom after that it burned it hurt a lot and it burned but not be true of the urinary tract and yes but i'm saying she put the two together and that's what our expert said when a child describes a physical act of this nature again they don't know what thought it's a problem i mean normally i mean i would imagine that the statement that when you have those two things together it's powerful evidence that an assault happened i totally get that i don't think they're thinking of the person who has a urinary tract infection and most of those answers right there simming probably they don't have that and i mean what but again we go back to the standard that this court has to review this case on and that's you don't independently weigh the evidence in this ace case or the credibility of the witness or judge edgar this was a bench trial and judge edgar sat through it he heard the victim he heard the nurses and he heard their experts testimony just wondering if we can really use this burning testament testimony about it burning afterwards can we of this child explaining everything is very important in that determination but these are all difficult cases and they are a lot of them and i never have but i've been doing these for twenty two years and i've never had a case where i've had physical evidence of f penetration you get a plea in those cases we don't have those so i don't disagree that is that is an issue but again judge edgar listen to all the witnesses he you know the just on that let's say we set aside the burning sensation for the reasons we've talked about this why isn't why isn't his  and if the judge finds her credible p n p you know i mean it's what what you used to pee i don't know if that's what that means because that testimony wasn't suited from the government the government was had the ability through leading questions to have all the specificity that the government needed to prove its case more that the government had the ability to charge j s under twenty to forty six to deal with simple contact with the genitalia and direct contact by something penis or not and it would have been a violation of the statute united states chose not to charge twenty two forty six two d they specifically said twenty to forty six to a which requires some proof of penetration and an eight year old child who by the way i don't have much time because i didn't want to i didn't think could be possible go through the time of the trial the unfortunate education of this child from initially saying nothing happened responding to a friend's rape responding to questions from the saying there is to clearly put incorrect information on her report through the investigators who and who violated the guidelines regarding interviewing child victims where the first time during the day she said nothing appen and then later in the day they came back despite the guidelines and then she starts repeating things adults have been saying so that even the words that she says on this record she's maybe credible as range she just doesn't have an understanding as to what is taking place sufficient to say that there is an adjudication of rape which is what took place here and that's the problem in this case and the united states really believes it's interesting