in this case but i have to address questions on any of the issues we've raised just a quick factual background the testimony in this case the direct evidence about what happened here is kelly final operated a licensed daycare out of her home she cared head on her tile floor and that he then you know up on all fours or pushed up on his arms and legs forward fall forward and bumped his head on the tile floor forty five minutes later the mom called back to kelly's house to check on the child and concussion so she decided to go pick up early that was the only direct evidence about what happened in this case based on that testimony that there's no crime here so how did we get from that to a charge of aggravated battery of a child and really the case hinged on the medical evidence because there were there were no other competent eyewitnesses there was no video of what was going on in the house nobody else saw what happened and kelly didn't make any sort of incriminating statement so had suffered and that were identified by the doctors could not have happened the way i describe but they couldn't say how they happened or when they happened or exactly what happened the defense expert on the other hand testified that they then injuries could have happened exactly as kelly had described because there was a preexisting medical condition that the child in this case had and the key disagreement in this case between those experts was whether that condition existed and that condition being an increased level of what's called fluid so i don't get tongue tied i mean just referring to it as increased fluid as we were discussing the case the state's expert dr saving said she she didn't dispute that with that condition with the increased fluid you could get more serious effects including a subdural hematoma which was the the brain injury identified in this case i'm a question of whether the child had this increased fluid condition the court actually heard for expert opinions even though only two doctors testified to what those opinions were three of the opinions were introduced by the state's key expert dr saving through her testimony really only her commune should have come in and that's the issue we've argued in issue two of the briefs and then only one expert opinion was presented by the defense ultimately we get there should have been two and counsel is ineffective for not calling it treating doctor and i want to talk about those two issues a little bit i mean it and i hold doesn't sound like we're just adding up the numbers here but you know it was three to one a trial and you know really should have been one to two when the defense favor because that that's not what it boils down to it's not just a numbers game you know this was  key area of dispute whether this fluid was present and in the thing that determination in the court acknowledged there were conflicting medical opinions the court's decision on how to resolve those opinions was possibly have known when he made that finding that there was going to be a criminal case here you know he was doing what he needed to do to treat the child examining what had happened to treat the child and that was his sole interest and so this his testimony had the defense attorneys has offered would have been compiling problematic those that the state presented three opinions on this abstract seal fluid condition but only through one doctor and that was there she asked for a doctor then she also consulted with these other doctors and then she testified by the way their opinions are the same as mine you know wasn't so much my opinion depends on errors but it was my opinion is this oh and by the way these two guys they agree with me so yeah and i'm not based on what someone else did or you know a psych evaluation that's based on you know well another doctor i got his records and reviewed them and i get these test results and review them and i mean she's saying i did this myself i looked at the scans myself and i formed an opinion and my opinion is the child doesn't have this condition that i talk to these two other doctors not that my opinion is dependent on theirs but they do with me that's why it's substantive evidence when those opinions are being offered not opinions are exactly what you know and this this case comes down to the particulars and we're talking about the medical evidence because it is disputed this is and this is the key area of dispute whether this child had this condition  s here i disagree that that was what happened here because i disagreed that this record shows that those other experts opinions were the basis for her as a basis for her opinion was her own evaluation of stand her own  of what the condition was she didn't testify the basis with those other opinions she has invited all these other doctors also have these opinions so i guess  so that here these additional opinions were improper and prejudicial because the bolstered her opinion not explained at length the basis for it and the defense didn't have the opportunity to cross examine the doctors who had those opinions here because dr saving who was before the court in testifying had her own opinion and formed her own opinion based center on reveal and so those were improperly admitted prejudicial because again that the court specifically decided to rely on the state's experts because they were the ones who actually saw this child in assessing what happened in this case and given the course express reliance on the fact is that actually saw the child kind of leads us to the issue about witness again the court itself saddened it was persuaded by the doctors who actually saw the child that was the only distinction the court made really didn't find dr popkin act at all or you know his his case you cited for that proposition in the briefs this was a hotly contested issue this case hinged on the medical evidence because there was there was no direct evidence of any criminal acts in this case it's entirely circumstantial and those circumstances state's entire case rose or fall on the medical evidence in this case thank you i'm for that reason where there was no direct evidence of a crime and then the case did hinge on medical opinions  wilson versus clarke case dr saving specifically testified that in her field it was common to consult with treating physicians including radiologists and neuro radiologist in making diagnosis and to rely on other about the quietly and conclusions of a non testifying acts that he used in forming his opinion saving specifically tast of baghdad after looking at the records in this case and consulting with the proper people actually testif conclusion that there was no extra cranial fluid and i'd like to touch upon the defendant's assertion that when the child court stated it was considering the task monye of the treating physicians in this case when judge rose that made that observation he specifically referred to the saving on the treating physician at morris hospital and om the about the extra cranial fluid and also that the human to human tomo small wow he was a doctor that saw the child at the hospital  relief page twenty four under argument why she had much admit there the defendant stated that the testimony of the admitting doctor on the issue of whether or not there was extra cranial fluid would not be more instructive than a doctor that was reviewing a scan because the determination is not made in person fluid dr saving looked at the scan and came to the conclusion that there was not extra cranial fluid the trial judge in this case believed the state's witnesses and believed apparently that there was not although i do evidence of course that the defendant light on the witness stand which would be evidence of the guilt of her guilt she provided eight accident reports statement that was dated august thirtieth two thousand and seven which was entirely inconsistent with her testimony given and trial and inconsistent with all of the other evidence that was presented by the other witnesses what were the in this for example she stated that on the august him stated that the back and specifically told her that the baby had fallen backwards and hit his hand on the floor who testified that he had a large to say the owners had it was inconsistent with the grandmother whose granddaughter was also in the defendant's care who testified that when she came to the hospital proximately three forty five may have not been watching the i believe yes when she gives a version of who mans that it if she did that if she just accidentally hurt the child why wouldn't she have just said that she accidentally hurt the child by accidently dropped him instead she made up several versions of advances to what happened she also stated in her accident report that when she called the house ed that she had just two days previously provided enough formula and diapers and all her stuff that she provided for her just two days previously she also testified that she  wrongly telephoned the father's phone in that case thinking it was the mahler's and that she he told her something about him and stopped by to talk about getting back to gather the evidence didn't bear that out either so she was obviously calling because she was concerned about what she had done in trying to find out what happened so i think that when you have doctors testifying that it was a non accidental injury that the injury happened at the time that the baby was in the defendant's chair or and that it could not have occurred as the defense that it was an intentional injury and there were other injuries to the child's body that could not have know what did the court rely on for finding this was intentional and i think the same as making kind of a mountain out of a mole hill in terms of what it's called what it has called kelly's lying on the stand they say she lied on the stand because someone else at something different kids you know kids you hurt yourself things swell up the swelling goes down what's visible to one person maybe you know isn't another and that's not the end all be all in this case whether there was a bump still visible at the time they were  later you know year and a half later at trial two years later at trial in the states kind of picking apart these things that aren't really related to what happened in this case i mean her consider her statement is consistent about what happened to the child he was  babies babies are mobile in the sense that they move you know when they're trying to get going she was very consistent about how the injury happened what had happened on her watch and that the bump on the head bears that out that is it's not possible if there's no extra again which is why why i wanted to talk to court today about the issues i did because that really is that is the key here we're talking about you know could it happen the way she said it could happen the way she said and there's evidence to support that there could have been more evidence to support that you know had the defense attorney brought that it's forward i mean this is this is a close case and a tough case because she's the last adult with the child and really case she's the last adult with this child they mentioned in their opening statement they mentioned in their closing argument that you know she was the last adult with this other local children in there where her own son who was you but there were other mobile children in the house you know but nobody competent to testify you know to what happened there was another infant there at the time that this particular injury that she observed