he can obtain a trial represented by competent counsel in a case where the government's evidence rose and fell on the identification testimony of a single child who never who did testify that she never saw his face her attackers face michael goes who was convicted based on a face shot photo array and in court her subsequent in court identification there was there was a single thumb print your honor that's correct  but when the jury determined whether or not her identification was correct they did not know that in evaluating it they did not know that the child's first identification was of another man and that should undermine  discourse confidence in the outcome of this case the question before this court is in failing to get this evidence the fact that she identified somebody else first before the jury was counsel's performance so poor helpful there's a younger child the three year old identify her as k j she initially identified her father as the attacker the older sister the nine year old identified i'm sorry your got about another she did initially right after the incident she identified she yes the older sister testifies the trial she's a sixteen year old she was not home the night of the actual  intrusion that involve the two younger sisters the older sister testified that sixteen days two weeks before this incident she awoke to find michael goza in her bed essentially they talked and she walked him out and that's that's essentially the testimony here those that's the identification with respect to the fingerprint judge tillman the fingerprint could have been left at the time that that michael goes it was in the house visiting the older where the grand jury indicted is what i'm saying what this grand jury doesn't and that's about it's not relevant to anything he wasn't charged he wasn't he wasn't accused of sexual misconduct involving the older  of the middle ok i think that that's that's probably i mean i don't dispute what you're saying but i think that when the jury is weighing all this the testimony the t a a provided was that he she woke to find him in her bed he was basically touching her over her clothes and she said this is not going to happen in the end she walked him out and that and that's it that's the testimony whereas most of the other girls claim a considerable assault one one testify that she woke to find him her pants off and and she kicked him off the bed and he ran off and then there was testimony from the other child that another individual or certainly not not my when this incident happened and he did the argument is that the givens i had had purchased drugs somewhere else and he was he was pill pill shopping he purchased drugs in maple heights and the the th was that he couldn't have made it to fairview park within a certain amount of time in the middle of the night and and it's not exactly clear that he that when the incident happened so i well i don't i don't i'm not saying here that givens  done no frankly if under ed i should win any help but this is the this is a don't know of a case and it's a do no case because although this issue was raised in the petition for post conviction relief despite what the the word is is indicated and i just refer you to paragraph forty nine to fifty two of my petition it's part it's in part one of the ineffective assistance of counsel claim the court the trial court or the post conviction  court she concluded that the issues were race to the card and that's not that's not true in the court of appeals they simply missed the issue they didn't they didn't rule on it so no court has looked at this issue so i'm here asking you to look at evidence first of all in character and characterize this case is overwhelming if this case is overwhelming is overwhelming for one aspect and that is that mr goes was in the house on march  that that's the to the extent that the evidence is overwhelming you've got the fingerprint you've got testimony then then that's that's the overwhelming evidence but regarding the march twenty sixth incident there is simply no identification of took pains to to demonstrate that she was she was smart articulate bright honest heroic she she kicked this person off the bed and that she her she was reliable as a witness the fact of the matter is that extra evidence that wasn't presented that mr that mr givens she had identified mr givens immediately afterwards that that's evidence the jury should have accounted for because other than c i is identification there's nothing linking nothing well there is a link but but there is it's a difficult case to connect him on march twenty sixth well let me ask you this the it was on the back on the second you get that's correct and again because we don't have the timing of the fingerprint mr goes if he'd been there once and there's some indication based on two years testimony that he'd been there more than once because he he he had an interest in her he i think gone out on one occasion he had sold her drugs he sold drugs to her neighbor he could have been there and at any time he could have been there more than once he could have looked in tried one window and given up and tried the other it's it's simply not clear because they can't date the fingerprint i think i reserve the balance of my time for a bottle unless there are any other questions that's what i'm going to do thank morning your owners my name is scott chris i'm here on behalf of the attorney general of ohio representing warden i think the evidence was overwhelming although admittedly much of it was circumstantial but as i think some of your questions indicated the testimony of t j was very relevant to sort of his motive  his m o how he likes to do business sneaking in through windows he done it before in that very house he knew how to gain entry into that house and because he lived so close to  jarvis's and had a relationship however chen general with the older daughter he likely knew that there were younger girls in the house so he certainly had the opportunity and he had the wherewith al to do that the fingerprint evidence was significant because of the position of the bed in the room the older daughter testified that when he gained entry he must have used  window because her bedroom was under her bed was under the other window so he would have had to climb in on her head if he had done so when he came in for her so the fact that the fingerprint was found on that window was significant evidence that he had used that window on the night that he molested the younger two girls that was the side when do that with the it was the back window that he had the fingerprint that the bed was under and i believe it was the father who testified that he thought that the bed was damp he felt the bed and felt that it was damp that night when he went to investigate all the windows and doors in the house to see what was open and locked there she wasn't there that night now she was she was not living in the house at the time just to make sure i understand about the wind the prosecution's position was that there is interest to be drawn that the finger print next day after the incident with the two younger daughters the screen in the back of the house above the bad the it was pushed completely out of the way  whereas the screen was only partially open and the window on the side window further sort of further circumstantial evidence that that was the back window with the screen complete go out of the way was the point  on that night how do we know that givens who was the initial person the down abide by the nine year old was not in fact the perpetrator tect of mcpike i believe testified that when he did a search of the car  given his car which was parked at the hospital he found a receipt for a c v s pharmacy that was time stamped at a time that would put him in a different part of the city the when the crime was committed and so ultimately it was determined that he was basically pill shopping that night he had been to fees c v s pharmacy trying to get pills and then he was at the hospital  goes so lived he testified and i apologize i don't have the pit page i d i couldn't find it this morning he testified that that the jarvis's lived on a dead end street the dead ended into the basically the the hospital it didn't get it it was an it was a dead end street but their street easy walking right into a street that across which was the hospital and then across the hospital's parking lot sort of catty corner was a street that goes to live and that you could actually see goes his house from the group jerry says porch so it was easy walking distance yes that's correct i mean i guess you would you can see that in fact it was ineffective assistance of defense well i'm not a prosecutor and i'm not a criminal defense attorney but i do hate to concede deficient formants i will say that if the shoe were on the other foot and givens were the defendant here we know what the argument would be is that a stand up identification is incredibly coercive incredibly puk freds prejudicial and is inherently unreliable so you know it's possible that he to be scant reason that it wouldn't be something that you would want to put before the jury i on the other hand make my pike said in his affidavit that her that her identification of givens was tentative was the word that was used more than once whereas when he described her identification of goes in the photo array that it was you know practically immediately she walked over the photo ray said that he looked just like him and pointed  michael closer and walked away so i think the relative strength of the identifications would have would have rendered the testimony about givens to be not as consequential as goes i would like to know that goes in that goes to the prejudice yeah absolutely that's right you're polling what happened really have to be that we have to agree with you that it doesn't shake our confidence tha both felt that while it might have been deficient performance or certainly no prejudice here because the evidence was so overwhelming he had the motive he had the opportunity he was from the year with a landscape he'd been in the house before for a sexual purpose i believe for yonks a testified that we were both asleep so she just assumes that he was there the whole time i would accuse or perjury just not really any direct knowledge of what he did while she was asleep the  i want to take issue with counsel's characterization of the fiance's testimony is not a real alibi i mean frankly what else was she what else was what else is she going to say and what else would any of us do  it in order to demonstrate that we were some somewhere else or or in bed asleep in the middle of the night and she did she testify that she was asleep because he was against the wall because he has trouble maneuvering she would have i'm trying to say is that's a real alibi i mean that's his that's that that's what he had and that that's that's real and it's all he could do the fact that he also then didn't go after ca's earlier earlier identification is is is all the more prejudicial you noted that she identified in court and she did she was very confident that that's the guy all the more reason why the jury needed to know that she identified somebody else initially all this talk about the comparative the liabilities of stand up show up i d s versus six man photo arrays is is really speculation at this point particularly given this record particularly given the fact that i heard you and ridge and we the counts was ineffective for failing to bring in a memory of expert to explore these issues so that the jury would also have this information as well and granted we're not we're not at that point here but the coun then try to to weigh the relative the relative reliability use of these two different forms of identification there is no question that i would is identifications have problems we we've noted that the state of if they're used in a case of giving rise to a motion to suppress the identification so everybody is concerned with this testimony all the more reason why the jury needed to be aware of it and counsel needed to argue it  you know this is this is this just talk about this idea that this is an m all for him i just i call into question the idea that because goes it was interested in a sixteen year old girl that he would necessarily go in and molest a three year old or a nine year old that's that's simply not an m o and there are an awful lot of a lot of put courts trial courts where that information would have been kept out except in this case it was charged  again i want to go on and underscore that t a a did not that he was not charged with sexual misconduct in relation to t s a which which means that that somebody believes something here that there wasn't necessarily a nonconsensual attack going on ultimately your honour's michael goes on is serving a thirty one year sentence he received after a trial where he was represented by a lawyer who was dealing with his own discipline issues and was subsequently disbarred and that is part of this record and when his jury found him guilty there was important information there was a lot of important information we're here right now on one issue but there were other issues that the jury to this it i but but it's all the more reason why he should have a new trial why not get it right why not have somebody present it zealously represent undistracted they represent their client's interests you know