trial the state offered a plea to a class a misdemeanor battery with probation and no requirement that he register as a sex offender this case was the fence a blow by the entirely normal and standard use of three principle tools of the trial lawyer one keeping out inconsistent statements two keeping out bashing testimony and three please lawyer had no idea what g v portability we're going to testify to therefore letting in billy statement on the theory that he's going to impeach him with it via denied anything happened to her deposition given the state's offer before a trial he didn't know that v v wasn't going to get up on the stand deny anything happened and everybody would be going home early the other thing the other problem with letting all of these statements in is the true problem in the statements is the prior consistent statements that were objectionable all of the and we say in our brief anyway or wants to get the inconsistency in front of the trier of fact the problem was seven repetitions all of them in admissible on proper objection the accusation what to the extent that that made a difference one of the one piece of the record that's not referred to in our brief and finding mr hines lee guilty judge craney said to say this case is not easy is a total understatement well without the prior consistent statements it might have been a lot easier to speak a little bit about the so called judicial temperance presumption as it applies to strickland prejudice in this case i don't know what it means to say that we assume that judges only consider relevant and probative evidence and then to say that the judge that could nord all of the hearsay in this we assume th says the judge ignored it but it was a reasonable strategy for the for the lawyer to have to let this evidence in that he knew the judge was going to ignore under the evidence rules the hearsay was absolutely admissible without a proper objection and there is absolutely no reason in the record with to think that the judge did not consider it i also believe that the judicial temperance presumption in particular the indiana court of appeals comment that it could imagine nobody better than judge craney since she sat on the trial to come to a decision in this case because there is the provision strickland at least with respect to prejudice unless the information comes from the record of the proceeding under review the particular the particular thought process of the decision maker is not to be can it's not to be considered and i think the perfect example where it's all right to consider something that happened before is where you have for instance it surety that sends out a note that is that says we're deadlocked and the jury and the judge sends the jury back saying well you're deadlocked but go think about it some more i think it's fine for a court then doing i found talking about her thought process which actually does very little of the indiana court of appeals does it for her actually i think that that's contrary to strict one thank you your honor and it please the court i think petitioner here is grossly overstating the record when he says that this case was entirely defensible up here this was not really he said she said case we had  testimony of v v making the accusations and the testimony of billy basically even at trial still saying that the circumstances of the touching occurred that they were alone together in the room at trial the only thing he changes he did not remember remembers and when pushed by the state on why he's changing his testimony about no longer remembering asked why if he's just doing it because he wants to get his father out of jail he pretty much collapses at that point and says he thinks it's time he just wants this to be over he doesn't even deny a trial that he's only changing a small amount of his test to moni from his statement to police because he wants to see his father out of jail well one disadvantage not allowing the here say statements and as something to evidence rather than impeachment is that it really did allow the state to preview in testimony before they actually got on scene did that help the state a great deal by sensually reinforcing in their trial testimony before the fact that well it may have to some extent but i think defended by a strategy wanted to show that there was a insufficient police investigation and he explained that before any testimony happened during his opening statement that he thought the sabbat investigation which many in the courts have then allowed course investigation testimony and that's mainly what this was i think his strategy also benefited in several ways by allowing that hearsay to come in if it was the impeachment was the course of investigation which were permissible reasons but it also showed extend the investigation it opened the door to the testimony about billy envies relationship which would have otherwise been probably kept up by the rape shield at least that was of the defense counsel's argument that it also brought in many minor and consistencies which probably would have not come through through mere impeachment for example the testimony in the statement was that the petitioner ordered v v to pull down her pants but then she testified that he pulled them down there's inconsistency is between the police statement and the truck levy's trial testimony about what ended the sexual act there's inconsistency is about the duration of the  act i think there's also worth noting that there's a possibility some of this evidence would have come in anyways first for the course of the best the geisha in but also because the v statement probably could have come in as a present sen credibility i can see a strategic reason to let in detective downing's now she you know in order to attack him is putting too much pain in the he but i am not sure i can see any reason with respect to billy i think it's important note that the indiana court of appeals never found this to be vouching they said well even if we assume there's vouching we're dealing with the trial court so all the risk that we talk about in our other cases of a juror not knowing to disregard vouching does not come into play here but if you look at the statement from detective downing the state did not ask a question that would suggest a vouching answer and said they asked what her demeanor was the officer replied she was childlike protected guard younger than her physical age she seemed to believe a ball so that was arguably demeanor i think billy's comes closer to vouching but as the defense counsel explained he let that go because he was going to then change his testimony to some extent at trial so it created yet another inconsistency that he went from believing her which probably would have been inferred from the circumstances anyways as he was the complainant to the police he was the one who had just guarded his sisters all night with a shotgun from their father so i i think under these circumstances there is at least not prejudice and it's probably within the realm of reasonable strategy to allow that in there begin to show a the changes in testimony and b to show what they explained as part of the strategy was that the officer was maybe global and just believed the children at face and didn't really do enough of investigation which was a major part of their argument both in opening and closing so it it helps that but and again because we're dealing with a bench trial here i don't think there's any genuine concern in fact we know that the charges that only came in through hearsay the court entered a directed verdict on both of those the allegations regarding fondling and deviant sexual conduct so it's clear from the record the court was only considering v vs testimony she made a specific credibility finding as part of her judgment i believe i don't believe the petitioner she reiterated that in denying post conviction relief saying that v's conviction would have been sustained is sustainable even though the hearsay came in so i don't think there's tru prosecutor was concerned on the day of trial that v b would not be able to testify at all so effectively the state would have no evidence so basically to cover that risk the prosecutor offered a misdemeanor with that is not that the state did not believe in its case but it was worried that the victim who was the most important testimony you know of her testimony is the only testimony of the circumstances of the crime because the other witness billie came in the sex act was over and at most saw her pulling up her pants or had to stand straighten up so the state was concerned it might not have any evidence but in the end it did have the evidence that supported the a felony and the court found v credible was the reason she would not just well she was a child she was nervous she was afraid she explained that's why she took back her during the deposition about a month before trial why she would deny that the sex act happened because of that fear and wanting to return to the family she was a foster child and this was what she considered to be her family even at that time and really was bothered that she was no longer allowed to have that family the point was she with the grandmother not at that point she act about two two weeks after the incident of the crime happened is when she was completely taken away from the grandparents and some point she went in so right and that was right before the crime happened she moved in with the grandparents and she was there only for a couple weeks after at some point the grandparents decided because these accusations they could no longer keep her as a foster child my friend just that again what happened in the truck or he just told this court that believes trial testimony was consistent with his prior statement to a large extent relying on belief prior statement that should never have come in and secondly respondent really shouldn't be heard in this case to argue that billy's videotape statement which is clearly inadmissible hearsay should not that was an important because in closing argument the statement with respect to the judge kranti directing a verdict on the fondling charges which the only evidence of which were was here say off testify so that if there was only hearsay admitted to support a charge she was cool she was not going to find mr hines lee guilty but that does not mean that she did not find that the rip seven times repeated billy repeating the allegation was admissible under some other evidence rule i think that a that argument was never made by anybody at trial the it was never made by anybody in the appeal sea it was not mentioned by the indiana court of appeals and this is the first time i believe that the respondent in this court is the first time that the the state certainly tried the important thing to remember that from mr hines effective in this case as the problem is not the prior inconsistent statements the problem is the prior consistent proper impeachment would have been getting a transcript of billy's statement video statement getting a transcript of v v statement getting having their duck positions ready and after they testify when once you know what they're going to say because again t v might have the respondents already said pvp might not have testified at all i mean that's one one reason at least the the state might have offered agreement the morning of trial the proper method of impeachment would have been to stand there and go line by line through their prior statements once mr heisley lawyer his highness's lawyer knew what those