was harmless when you put the three together i believe it resulted in a finding of guilt on the cannot stand we have but i have three as i say three errors here the first one and probably the most egregious one was the refusal of the victim the victim's mother was living with my client's brother a man by the name of jason  we found out shortly before trial quite frankly that jason at some time after after the occurrence here that jason approached the police officer he knew they were friends he was according to the place officer very distraught was crying and so forth and he told the police officer that the victim had told him within the past few days that she told her mother michael had assaulted her because her mother wasn't paying any attention to her and we made an attempt several attempts and in fact to get jason up before the court he didn't want to come he did not want to come here and he was in point of fact on the day of the trial he was in a hotel only two blocks away my investigator and his mother i went and tried to attempt to get him to key to the situation is that displays a statement as i said that was made to a police officer and it was not made with the idea that it was ever going to be made part of a criminal trial we heard about the police officer if you like on thursday i investigator finally was put in touch with the police officer we sent a subpoena out cross the state will point to have somebody just serve him they were unable to do so they tried to serve him a couple of times we assume correctly that he was on his way with the victim and his girlfriend victim's mother to great falls which is exactly where he was so all after he got great falls of course we made various attempts to getting  unsuccessful the i submit that the government could have easily i mean the court could have easily told both sides to meet you want to put him on tomorrow morning we'll do it that was not done we basically were forced to rest it at that point know it's not that's not true that her father was not in the picture anymore your honor he had moved from the reservation for years earlier as i say they examined as a girl and during examination she made that statement to them to the doctor that maybe my guy and maybe my father touched me we were not trying to indicate in any manner that that was true certainly but if she had made that statement and previously about somebody else and nothing had been done about it then you then we have a question of reliability of the previous statement from the time the government objected to this on the basis of rule for twelve that's always set rule for twelve years touched by someone in the norm consensual manner that type of conduct would phone or forto good enough i just screamed not i think that it could have been perhaps kept out in some other manner but certainly not how was rule for twelve i rule justifying that we've had sexual contact with this person before i believe that's the purpose of  question that if it did come in at all it had to come in through the brother is impeachment of the little girl in terms of her accusation that she made it up or whatever it could come in through somebody that the brother had talked to and therefore there was no error at all in the judge refusing to to keep the defense from calling the police officer to testify what the brother would say about what the little girl said to him as your honor pointed out it's not a confrontation cla problem in the confrontation clause doesn't impact the reliability of evidence the rules of hearsay anyway you still have to have an admissible piece of evidence to to impeach or to confront a witness with regard to the pri think the judge but she made a good point how could it be relevant because it might have been true even if the even if you get back to the whole thing about the state with the little girl made when she was four four years prior to this incident that her father may have touched her we don't know whether it was true we don't know the context in which you know the statement was made and just leave it out there and as i point out of my brief to try to lay a series of inference this was she made that and then the government didn't prosecute the father therefore it must not be true therefore she's a liar a string of totally improper inferences and therefore it was that was also properly excluded and finally the lesser included offense mr actually has conceded that there was no basis for a lesser included offense is it's like saying my entire defense was alibi and but but i think i'm just serving of a self defense instruction i mean you have to have some basis for that's you go in you can't everybody in the in the world the who wants a sympathetic jury could probably say in a fraud case for example where pressure old is over a thousand or under a thousand and there's no can question of that but you know more than a thousand was stolen to throw a lesser included in there in hopes of a jury will say you know really nice guy let's give him the misdemeanor instead that's just not the way the justice system works and it