trial of aggravated battery of a child and sentenced to twenty four years incarceration we've raised two issues on appeal i intend to focus on the st issue which involves what we contend is the state's strategy of litigating mr hill's man's character but if your honour's have any questions about the nd issue which involves an initial crinkle inquiry i'm happy to answer those questions as well on that st issue there are a number of moving parts and i at least think that it looks a little bit like a number of other potential issues that are sometimes raised in these sort of cases and so i what i hope your honour's can come away with today is a clear understanding of what we are and are not arguing what we are arguing assistance of counsel the deficient performance was counsel's failure to prevent the introduction of unfairly prejudicial evidence the outline of the error that counsel failed to prevent was that the state spent an enormous amount of time and energy presenting a substantial amount of evidence on a variety of collateral matters that occurred after the child had already been injured those matters were episodes in which hill's men either physically avoided the situation sometimes lying to do so or in which he expressed concerns for himself and his own family when the child in the child's family were in crisis all of this evidence was used to paint hill's  uncaring towards the child and to argue that his lack of concern was evidence of guilt some of this evidence was also used as an opportunity for the state to bolster its case by having authority figures inform the jury that hill's man was guilty and was a liar and that the state's witnesses including the only other occurrence witness were telling the truth that is the state's case seems to be designed to engender distaste for hill men and then to argue from that distaste and in order to parse that i think it's helpful to consider what we are not arguing we are not arguing that  any particular statement by the prosecutor was itself a separate and legally cognizable error for example during rebuttal argument the prosecutor explicitly stated the state theme saying in reference to hill's men and the child's mother who was both hill's ms girlfriend and the only other adult who had access to the child at the relevant time quote i submit what's the difference is the mother's commitment to the child and quote that specific statement would not be reversible because it was in response to a defense argument but the key is that this was not the point at which this theme of tying guilt to selfish  indifference was introduced instead that theme was introduced early in the state's case in chief before the jury had even learned where the incident took place it learned that hill's man had spent part of the next morning soliciting sexual favors from a different woman while at the same time a police officer was knocking on his door and that he lied to that officer about why it took him so long to answer the door before the jury learned where this incident took place it learned that hill's men ha repeatedly tried to sidestep the c f s safety plan in order to gain access to his own child and that the c f s believed it had enough evidence to say that holzman had committed this crime and before the jury learned where this incident took place the state had already begun laying the basis for evidence that holzman had lied about a school conference the morning of or after the incident and only then did the child's mother testified to the actual events during the period in which the boy was injured but it was also through her testimony that the jury learned that hill's men had used the nonexistent school conference as an excuse not to go to the hospital that he had made further excuses not to go to the hospital that he had expressed concern that he would lose his own son because of these events that he did not ask about the child's condition that he had expressed nervousness about talking to the police and that he had contacted the mother while the police officer was waiting at his door to ask why the police were there and whether she had sent them this evidence was reinforced by call logs text messages facebook messages and forensic reports on the couple's phones and i know that those exhibits contain a significant amount of material that was not discussed in the briefs on my for my part because the state didn't talk about all of the material that it made available to the jury and so it wasn't clear how much the jury paid attention to that material but i'd encourage your honour's to look closely at those exhibits then the state plate interviews between hills men and a police officer that further emphasized that hill's been lied  about at school conference there were no explicit admissions during those interviews and this was an impeachment evidence because hill's men had not testified yet with regard to what happened after the fact it was not false exoneration evidence because having either a school conference or a broken down car would not have been exonerated but these interviews did include a police officers comments on the evidence including his believe that hill's man was a liar and  explaining for both his men and the jury's benefit that the child's mother had already testified under oath in a different case was subject to perjury charges if she lied and was therefore credible none of this evidence that i'm referring to directly related to what happened to the child the only possible rush relevance was to support a consciousness of guilt argument but the state presented all the facts that it needed in order to make such an argument during the testimony of the child's mother specifically that holzman said he would go to the hospital but never showed up and perhaps because he was not under arrest the evidence that he had avoided the police on his own was also in downs but that's who came out during the mother's testimony that he had contacted her while the officer was there are positions that the rest of this evidence was inadmissible in the context of this case now another argument that we're not making is we're not making any general claims about it miss ability for example the critique of the consciousness of guilt evidence was meant to show that the probative value of such evidence is limited and i'm not asking your honor t bar such evidence or to reverse merely because this was examples of such evidence we're also not arguing that the evidence was inadmissible merely because it was prejudicial and as they say all evidence is prejudicial when we of the evidence with the prejudicial effect we're talking about unfair prejudice and specifically the undue tendency to suggest a decision based on an improper and especially an emotional basis and under that principle our supreme court has held that the state is not entitled to present any and all otherwise it miscible evidence when the state possesses evidence with an undue tendency to suggest a decision based on emotion when the probative value of that evidence is outweighed by that undue tendency and especially when the state has other equally probative evidence that does not carry that undue tendency the state is not allowed to present that unfairly prejudicial evidence we're not arguing that any particular statement made by the judge was reversible error the trial courts post trial comments were not made in front of the jury but they were relevant because they demonstrate that the state made an emotional argument supported by emotionally charged evidence the fact that the judge found the evidence overwhelming but did so on the basis that hill's man was scheming conniving and otherwise poorly behaved shows that the effect of the state's case on the listener had little to do with what happened in the apartment and a lot to do with the listener's impression of hill's minutes of person it shows that the prejudice from this evidence was not fair prejudice finally we're not making a reasonable doubt argument we don't have to establish beyond a reasonable doubt that hillsman would win without this evidence that being said there were only to two potential suspects those men and the child's mother both of them were consuming cannabis throughout the evening no one testified to seeing the injuries occur although hill's man was not consistent about what happened afterwards he consistently denied hurting the child the mother testified to hearing sounds of violence that evening the implication being that these were the sounds of hill's been causing these injuries but she was not consistent in her description of those sounds and the child was handed off to her after those sounds and the child fed through the night the state's expert established the child would have been immediately symptomatic upon injury and would not have been able to function normally including not being able to feed normally which suggests that these injuries were not associated with those sounds we respectfully the mother could very well and very easily have been my client under these facts instead of mr hellman hillsman with that if there were no questions we would spends much time about what he does not argue but what he does argue is that the evidence presented by the state was overly prejudicial but the evidence presented by the state showed defendant consciousness of moral impression that is characteristic that moral impression is what the state presented the evidence that they presented including messages to another female while being you know was at the hospital with the child so defendant's attempt to distance himself from that crime from the moment it happened he lied about where he why he didn't go to the hospital several times he lied in the interviews over and over he lied about why he didn't come to the door all of this evidence is relevant not relevant i understand defendant's not arguing it's not relevant but it's probative of his consciousness of guilt which is circumstantial evidence of the crime as different said we don't know i mean there's two people in that apartment two adults and a child the child is injured the state's presentation of this evidence shows defendants like i said way to distance himself from that these exculpatory statements they're not conclusive evidence but they're evidence of his consciousness of guilt in that he's trying to to make it so he's he's not involved in the case defendant brings up his case with his own son which didn't come about until after the child was already in the hospital and the facts are to come to the surface he gave interviews to the police which the police testified to that he was in a conference of course we know that the person from the school came testified that he was not in the conference  it's it's these these types of lies that defendant told that were that showed his you know he's trying and trying to distance himself from this crime so it's the people's position that this is more probative and it's not substantially outweighed by unfair prejudice regarding ineffective assistance of counsel it's the people's position that he was not ineffective as this was all evidence that was relevant and probative  this type of evidence is generally out of bounds the problem here just to give one example is again the state is allowed to bring evidence that mr hill's been tried to distance himself from the case we don't deny that the question that we have is why it felt the need to introduce for example the contents of the facebook messages between m bowman believes your name regardless she's not involved in the case in any way other than the fact that he was messaging with her the morning of or after the child was injured those messages were explicit it was a situation in which he is his girlfriend is in the hospital with the injured child and he is he's carrying on an attempted tryst with another woman why what does that add to the case except to paint him as a cad and ultimately issue with that theme that theme is a is a problem but that theme is put forward by this evidence that adds very little to the case except i believe it could come in generally under the right circumstances i do not believe that it can comment in this particular case because again we're balancing the probative value of this evidence with the the possibility of unfair prejudice the possibility that the jury is going to look at that and respond in an emotional way instead of a factual way and that's actually the basis of our critique making basically you're making a for all three objection yes your honor that would be that would be basically correct yes and that's a harder argument to make because it's of whether the judges may be use of discretion correct that that is that is correct however the problem here for us is really that counsel did not make the objection and ideally we believe that the should have been the should have been litigated we should have a better record through which to examine the the court discretion because the record as exists it speaks for itself there is clearly something wrong going on here this is not that the majority of this evidence had nothing to do with what happened to the child and so again ideally counsel would have challenge this and we'd have a better record to address or with which to address your question your honor but i mean i can't just st of guilt has as an evidentiary concept has been around for a long time has been accepted in anglo american jurisprudence correct that is correct and that is my we're not asking again not asking you to reject that concept that would be an unrealistic request however it's important to understand and to recognize that while that concept is exceptionally old and well established within our legal framework it is a legal fiction it's a well established legal fiction but a fiction unless it's not based on science it's not based on it it's been described as a pseudo science and i think that that's an appropriate description of it and again while it's unrealistic for me to ask you to abandon that concept i think it is realistic to ask that we examine closely how valuable it that there's no there's no lip legitimate and consistent way of quantifying those reactions and for all all empirical bas certain i would agree with that i would agree and again i'm not asking to eliminate the concept i'm saying for example just just as perhaps the most dramatic example and i apologize i see the might my time is up to answer your question the perhaps the most dramatic example is the the claim that him not coming to the hospital is evidence of consciousness of guilt to my mind the emergency room is a place for family and no one no one has claimed that this man was part of this family and i i do well to her who the mother the mother's relationship to him they were they were they were in some some sort of romantic relationship but they had known each other for some short while they had ice ice i praise it that way because they had known each other at the time had known each other for two months roughly and had there's there's evidence that they had whatever the nature of their relationship it had been going on for maybe a month before this he had never met their fan he had never met her  i'll choose my words moving more carefully but but the point the point that i'm trying to make your honor is that when i look at this it makes no sense to me whatsoever for him to show up to the hospital to me i imagine my family going through something like this and i imagine being offended by his presence at the hospital and other people can disagree with that but that that is the point