have up to ten minutes for their argument the public will also have five minutes from bottle please not only the clerk well the court is permitted to record these please the court i'm jennifer lastly on behalf of the defendant appellant mr brandon keppler errors by trial counsel and the circuit court deprives mr kepler of his constitutional right to a fair trial to be clear mr kepler is not challenging the admission of our case sexual allegations which were admitted under section seven dollars however he his trial attorney was ineffective for allowing jurors to be flooded with irrelevant and highly prejudicial physical abuse allegations from r k who was not the complainant in this case and where these allegations would have otherwise been inadmissible other crimes and other bad acts evidence because of that mr kessler was controlling with r k and that she couldn't do or say anything unless it was his way jurors were told that our case friends had that she had told them about the physical abuse and some of our case friends testified that they had seen r k with a black eye and bandaged ribs when she talked to them about the abuse for mr kessler and counsel also didn't object when the state argued that it must have been horrible for r k to live with her abuser and the mother that didn't protect her now in that list of items which the jury was flooded with the only one the jury was told that it could not consider was that r k had a seizure when mr  knocked her interests into a stove no reasonable attorney faced with the facts of this case would have allowed this evidence to come in where it was highly prejudice prejudicial and otherwise  other crimes and other bad acts evidence from someone who was not the complainant in this case now for one second just all those things that you said that you know that arc a complained of  brought to someone's attention what was the timing just so that on claire from the time that those things occurred to the time she brought those forward and how does that relate to when her and her mother moved out of the home was with her stepdad so i believe that she and her mother moved out in two thousand and sixteen the stove incident was two thousand and fifteen she claimed i believe some of those incidents may have been in two thousand and sixteen however there was no pretrial hearing about these physical abuse allegations there was a hearing about the sexual abuse allegations so we've got details on those but ther physical abuse allegations to friends so friends did get on the stand and testified that she had told them about the physical abuse allegations however they testify as to when she told them in relation to when they took place they did not and no reasonable attorney faced with the facts of this case would have allowed the physical abuse allegations to come in not only that but counsel had a pretrial ruling barring evidence of mr kepler's sex offender conviction and that he was a registered sex offender and counsel questioning brought that evidence in before the jury and this was a trial within a trial something that even the circuit court judge admitted and this wasn't just likely to confuse jurors the record shows affirmatively that it did confuse jurors after the defense rested one juror informs the bailiff that the testimony was confusing and wanted to know if they would have access to transcripts so this was a textbook case of a trial within a trial on our case allegations and again r k was not the complainant in this case not only that but the trial court's errors made this even worse after a juror expressed that the testimony was confusing the trial court allowed impeachment on a collateral issue where it allowed detective whetstone to testify as a rebuttal witness about our case credibility based on other sexual allegations she had made against other people involved in this case this truly was the trial within a trial that the case law prohibits and here these these errors mattered the evidence here was not overwhelming and that's something that the case that the state does not dispute in the briefs not once does the state deny that the evidence here was not overwhelming with respect to him seize sexual abuse allegation c was the only eyewitness to the alleged sexual abuse and she initially denied that there was any under age drinking and she told the c f s and officer make ward that mr kessler did not touch her did not make her feel uncomfortable did not give her alcohol and she felt safe at his home when c did admit to under age drinking she initially claimed that the girls were trying to drink without mr mrs kepler finding out all four girls testified that when he kepler bought alcohol for them and when he kept her mr britt mr kepler's wife was the only one that appeared in the pictures presented at trial at trial in c said she weighed about one hundred and thirty dollars pounds had at least eight shots and was intoxicated but knew what was going on however she also said she could not remember what happened after she cried in the barn the other girls testify the insee vomited all over herself and was unable to care for herself needing help getting in the bath so the only eyewitness was incredibly intoxicated and gave multiple multiple versions of what happened with her st version completely exonerating mr kessler of any wrongdoing r k testified that her parents letting her drink on february th was a once in a lifetime event and that they only allow them to drink wine coolers and in c said the arcade parents were strict so in order to believe the version presented by  k parents went from being strict on friday and letting her have a once in a lifetime drinking of wine coolers to pushing them to get drunk or go home on saturday insee claimed that the weekend of this incident was the  st and last time the only time she went to the keppler home while mr kessler lived there and she claimed that mr kessler grabbed her after she exit in the bathroom around one or one thirty am defense witness mark that recalled being there when he attended mr kepler's gathering in february and he recalled him see an arcade being present back usually left around midnight william brown remembered being at the keppler home on february  when this was alleged to have occurred and william browne said he was there until one hundred and thirty or two am both beck and brown said that no minors drink alcohol and no minors ever appeared upset r k confirmed and jurors had to consider this inconsistent inconsistent trial testimony from the juvenile to regarding who was present on february th and what exactly happened and the state's evidence was in no way  overwhelming had jurors not been repeatedly flooded with the physical abuse allegations from r k the outcome of this trial very likely could have been different and i just want to point out i've got about a minute left but in the brief the state at no point denies that this that the physical abuse allegations would not have come in but for trial counsel failures here and say also at no point d kepler's presentation that the evidence was not overwhelming in this case your honors mr kepler was denied his right to a fair trial and we will respectfully request that you reverse and remand for a new trial matter this court should affirm the defendant's conviction of criminal sexual abuse because trial counsel did not provide an effective assistance and the defendant has failed to engage in a full strickland analysis and his brief th trial counsel asked questions or object the supreme court in strickland vs washington provides us with us the standard to apply in cases such as this stating when a convicted defendant  complains of the ineffectiveness of counsel's assistance the defendant must show that the counsel's representation fell below an objective standard of reasonable notice in light of all the circumstances further stating an error by counsel even if professionally unreasonable does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment accordingly any deficiencies in counsel's performance must be prejudicial to the offense in order to constitute ineffective assistance that offended must show that the errors had an adverse effect on the d on the defense it is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding that i spend it must show that there is a reasonable probability that but for counsel's unprofessional errors the result of the proceeding would have been different now i read i read the balance and what you just stated i see them arguing throughout the entire brief that without these errors now come would have been different i'll be honest with you i think you've got an uphill road in my opinion on this case and so you're going to really have to convince me that these errors had no bearing prejudice from pages forty two to forty six of his opening brief it is false that the defendant discussed prejudice for five pages the defendant took page forty two dollars a partial sentence on page forty three dollars and a paragraph worth of rehashing all the ways he claims his trial counsel was an effect of to explain how he was prejudiced on page forty six dollars honestly with such an essential part of the strickland analysis taking up so little space it's understandable how the defendant could think that the state would have missed this but the state or not it seems the defendant's entire theory of this case rests on the idea that the jury was flooded or overwhelmed by irrelevant or overly prejudicial evidence due to some failure by trial counsel and the state's point in some is that most if not all of the evidence that i found it refers to was not irrelevant and the defendant has failed throughout the brief to show how it was prejudicial in effect the defendant to seeking that this court eliminate the prejudicial step of the strickland analysis when he argues a summation of legal conclusions for about a page and a half defendant got progressively more physically and verbally mean and the defendant would take out his aggressions on market and that he dragged her up the stairs after finding out she had a secret phone and the nd is that our case testimony about that the defendant had hit her in the mouth repeatedly on one occasion bruising her left and had also kicked her repeatedly while she was on the floor trial counsel asked for a side bar after testimony of a secret phone and a seizure and though he did not explicitly say the words i object the trial court responded to the sidebar as if it was an objection stating i'm going to sustain that prior objection during the sidebar tr counsel made it clear he was taking issue with the testimony about the secret phone stating twice that he was under the impression r k would only be testifying to three incidences later asking the court to tell the jury to disregard the testimony about the secret phone and the seizure in regards to the live incident the defendant st claims trial counsel is in effect of for not objecting to the lip incident then in his  that a fair assessment of attorney performance requires that every effort be made to eliminate the distorting of facts of hindsight to reconstruct the circumstances of counsel's challenge conda and to evaluate the conduct from counsel's perspective at the time because of difficulties in hand in making the evaluation a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance that is the defendant must overcome the presumption that under the circumstances the challenge action might be considered sound trial strategy stating further there are countless ways to provide effective assistance in any given case even the best criminal defense attorneys would not defend a particular client the same way that a fan that claims trial counsel provided ineffective assistance when he did not object to our case testimony that she told her friends about physical abuse from the defendant c k and am testimony saying r k told her about or told her friends about the physical abuse from the defendant and  am went into specific details about the abuse for the trial counsel allowing evidence of physical abuse and could be trial strategy much to the same way that offend now attempts to highlight inconsistency is in testimonies of the minors trial counsel attempted to highlight and consistencies in the testimonies as well as the timeliness of the abuse allegations from r k coming from her mother and the defend allow that to happen a trial yes you're i believe the instance you're talking about he had asked him a yes or no question and v d c a fast agent went from the yes or no question to explain the process of whatever particular thing he was talking about and in that process he had to explain that they have to for people who have  i mean after the fact not immediately but after the fact the defendant did ask for a mistrial and your honor is i see that my time is coming to an end so i would ask for these reasons you affirm the defendant's conviction of criminal sexual abuse thank you  your honour's trial counsel is supposed to provide an adversarial check to the state's case and it's clear that that did not happen here the state in its argument has repeatedly cited the  strickland analysis the the case law the opening brief was clear about the prejudice the prejudice here isn't a complex issue we don't need a thesis on the prejudice the prejudice is that council allowed jurors to repeatedly hear otherwise inadmissible evidence from r k about physical abuse allegation and there was no reasonable there no reasonable trial attorney would have engaged in a strategy to allow all of this evidence coming in especially where our case friends got on the stand and confirmed that they had either seen or had been told of the physical abuse a reasonable trial attorney would have limited his focus to the sexual abuse allegations which r k had not disclosed to before to anyone other than dustin danner who she said that something had happened a time or two and other than that that was as far as she went with disclosing the sexual abuse allegations however where the physical abuse allegations were shared with friends and friends had seen those and even where there was a picture arcade  reasonable strategy here and the defense does not shift the burden from the opening break to the reply brief in both the opening brief i believe on pages twenty nine dollars thirty cents and in the  a strategy it was ineffective assistance where no reasonable attorney faced with these facts would have engaged in such in such a strategy and i believe this court's decision is people vs what you are provides great guidance on this point in that case council allowed the jury to be repeatedly flooded with allegations of the defendant's other crimes he had committed to demonstrate that before when he committed all these other crimes he pled guilty that's how you know he was guilty and here he's taking it to trial so he must not be guilty here since he's contesting it and going to trial this court found that no reasonable attorney would allow jurors to be flooded with all of those other allegations of criminal conduct or bad acts and this cases is very similar to fletcher no reasonable attorney would do this here and i would like to point out to the court that again the state fel to explain even when pressed by this court how this could have been reasonable trial strategy and the state does not dispute again mr kepler's assertions regarding the lack of the evidence against him for him these sexual abuse claims not once in the briefing and not once here oral argument does the state take a stand regarding the strength of its evidence presented at trial and i think that's very telling  one more thing with respect to come in testimony the state argues that defense counsel asked a yes or no question it's clear that no reasonable person would have expected to just answer counsel's question with yes i do recall obviously defense counsel's question to cummins prompted an explanation of why i come  prior contact with mr kepler and defense counsel let cummings answer in full that he was a sex offender that mr kepler was a sex offender and the state claimed that counsel asked for and mistrial following cummings testimony that is not true counsel did not ask the jury to be instructed to disregard the testimony and just did not ask for a mistrial at that point it was at a separate point that counsel asked for a mistrial on separate grounds and the transcripts bear that out your honour's that living under saddam in that regard in the commons of the line of questioning there were twenty two questions right question was if he had a prior explanation it does no reasonable witness would sit there and think that counsel wanted to hear yes i do recall a reasonable witness would say yes and here is what it was about and your honors i think i'm out of time the