service members court program garza filled out an application requesting a veterans court and the trial court refused to request the trial court's conclusion the veterans court was not a viable alternative because of the nature of the offense was  the state can see that aggravated child pornography is not a disqualifying offense for the program this day claims that the court's refusal was based on garza's prior conviction for aggravated battery this claim pine's no support in the record the court's very words were show that nature of the offense does not fall within the guidelines of veterans court the state posits that the court did not mean what the court said but something else altogether mr garza's prior conviction the phrase nature of the offense however seems and aimed at the aggravated that at the charge conduct which does not qualify him from purchase a patient in the program however even if this court agrees with the state's interpretation of the court words that he was referring to mr garza's prior conviction the court was still wrong because aggravated battery is not in his qualifying offense only aggravated battery that is accompanied by great bodily harm or permanent disability including that that limited to the list of offenses that he had a prior conviction for aggravated battery and the court did not know whether or not that i needed battery was accompanied by great bodily harm or with i mean the stitch it also includes the crime of violence language in the best  the those items that are not on the list the that the statute i would i guess what i'm saying is that work had the intention to loot straight aggravated battery then that would have been included in the list  harm or permanent disability ok and another ending again mr carson was eligible for the program otherwise he served in the united states marines for ten years he was honorably discharged and record strongly indicates that he would be willing to participate in the program he specifically asked for a transfer chip into the program both before and after trial and take no action allocution that a determination had been made that he suffered from a mental disorder pornography statutes to determine the allowable unit of prosecution in weeks when court found that the use of the word any in the statute made the child pornography statute ambiguous and in doing so relied on the reasoning of the illinois supreme court in carter who evaluated identical language and the u w by fallon statute which set stated at that time it is unlawful for a person to knowingly possess any firearm or fire ambiguous as to the unit of prosecution the court their court determined that the rule of law if he applied and construed the united w statute in favor of the defendant likewise the statute here impertinent part prohibits a person thirteen this statute like i said has identical language to the language that the carter court determined was ambiguous the statute therefore here is also in being us as to the unit of prosecution and must be construed in favor of mr garza th e state argues that makes wayne was wrongly decided and urges this court to follow murky instead the state says that the court and explain failed to consider how the focus of the child pornography statute differed from the  by felon statute at issue in conover while it is true that the focus of the statutes differ the principles of statutory construction and interpretation of why irrespective of the focus of the statutes being analyzed  statutes deal with possession of contraband the contraband is different but that distinction alone is meaningless the state offers no good argument as to why the concepts and statutory construction i've outlined in carter were not correctly applied in explaining as illness supreme court and carter held it is for the legislature to define what it desires to make the allowable unit a prosecution and the legislature has done just that for this statute it has amended the child the aggravated child pornography statute to allow for separate convictions just like the carter amendment as amended the statute now reads the possession of each videotape photograph or other similar visual reproduction or depiction constitutes a single and separate offense the amendment demonstrates the legislature's recognition that the plain language of the prior statute was ambiguous  the legislature knows how to allow for separate convictions and did so both in the carter minute and in this now amendment to the to the statute issue however that amendment wouldn't insupportable as if the murphy interpretation of the statute was correct and the explain interpretation was incorrect for the in the amendment took place in january of twenty fourteen well after mr garza was arrested tried and sentenced in this case this court should follow the factual allegations about who was to be called and what they would say for example mr carson said that his counsel did not call garcia's fiance to testify about the ages of the women depicted in the images or the practices employed in the work places where the images originated to there that the women were adults and his lawyer did not fail to call in a medical expert to testify about the tenor scale and the appearances of the women in the images the state in its brief argues that no expert was necessary because the trier of fact can rely on his or her own judgement about the apparent age of the child however this is precisely the point this defense wasn't just that despite their youthful appearance the women in the images were actually of legal age therefore a medical expert was necessary to inform and influence the court's age determinations this is particularly so where the defense presented no evidence at all and the state offered only the non expert opinion testimony of the arresting officers mr gore's also argued are also said an allocution that no search to locate the women in the images was mounted and that his lawyer did not seek out the sites for the images originated to establish the ages of the subjects and you know quote no request for funds to conduct such an investigation had been made this claim that council did not conduct a set of search was not only not conclusory or bald but it was actually affirmed by the trial court itself and this exchange between the trial or an attorney of using your should have alerted in the record that the judge had to even call a lunch break during the statement allocution after an hour and then it went on after that the issue that council has raised i'm sorry i  question to defense counsel the case had been set for sentencing and at the first sentencing hearing i defense counsel asked to have squire to undergo a sex offender evaluation that was allowed valuation the current case was continued a number of times when it came finally came the evaluation which was that the trial judge would know while funds for me to find these people in the philippines and so he said she asked their defense counsel did you ask for funds and then i turned down and he said no i did not make defendant is now asking what counsel at the earth the record shows the council had many meetings with defendant with regard to discovery issues and the court was asking about a guest was still discussing discovery and apparently he factor term in the age of these children and the the idea that that the council and council apparently consider that as a matter a strategy to fight not to try to track down who these children were determination the whole a person and i don't think medical i don't think expert testimony is necessary in this in this case in this type of a case i'm not aware of any case that requires either side to premium an expert to determine the age of the of the children in the as i said this is not a but a case of child pornography a child who's going to be age of eighteen or seventeen this is under the age of thirteen which is a little easier to terminate and then a teenager and i don't think there's any even the child average help in order for his child under the age of thirteen and then i believe child cannot reason to the age of seventeen now it could be that the judge could have looked at these pictures and said you know i don't think that aggravated child pornography has been proved i think this could be a teenager it could be somebody thirteen or fourteen they're from going to find you guilty of the lesser offense of child pornography didn't happen in this case so as i said this is a case i think with to be less need for your concern about an all just two points one has to be aggravating factor as counsel said and your honor brought up that there is a difference between aggravated child porn and regular child pornography and i agree that this is either of those are terrible crimes in the hood but nonetheless the lawyer does have an obligation to present zealous defense and not conducting an investigation and not calling in an expert witness who would or not even maybe there is there is no indication that the lawyer even contacted a witness to determine whether or not it could be said what the ages of the women in the pictures were there's no i mean the there and it wasn't just the women that were from the philippines there were some women that may or may not have been from the philippines in these pictures and also mr garza's said in the video tape that one of the pictures came from the swinger site and so it would have been  very little expense for the lawyer to do a search of that swinger side or to present evidence that the singer site contained a disclaimer at the at the beginning that all of the players and the photographs more of legal age  that's true but but there is a defense that as a child pornography statute includes a defense that if the person who is charged with a crime it's in front of defense that if the person is charged with a crime and prior to being charged with a crime they had made some bona fide effort to ascertain the ages of the people depicted in the pictures and now they go at least some way to presenting an effort to ascertain the ages of the players that if he had gone to a web site or had or had only been searching web sites that contained a disclaimer he goes to the opening of the of the of the web site and it contains a disclaimer and then he end into the website to look at these pictures of people better apparently useful that are apparently quite young but they're not in fact young if you can rely on the disclaimer i mean that would be a point that the state would be able to argue a trial of that that was not a sufficient effort that was not a bona fide effort but nonetheless the trial lawyer did not present any evidence at all and instead he attacked the the non expert opinion testimony of the police officers who were league legitimately unhappy with the pictures that mr garza had in his possession and the charge the trial judge information and evidence that was available to the lawyer and then the lawyers performance to not present any evidence at all and the exchange between the trial and the lawyer that the lawyer did not conduct an investigation that was secondly asked to the amendment to the top corner besides the legislature needed to clarify the statute because it was ambiguous and where a statute is in a big you as it is to be construed in favor of the defendant the