[00:00:10] Speaker 00:
Good morning, Your Honors.

[00:00:11] Speaker 00:
Ryan stood on behalf of appellant Rayshon Thomas.

[00:00:14] Speaker 00:
The court should vacate- Counsel, could you speak a little closer to the mic, please?

[00:00:18] Speaker 00:
Certainly.

[00:00:18] Speaker 00:
Is this better?

[00:00:19] Speaker 00:
Yes.

[00:00:19] Speaker 00:
Thank you.

[00:00:20] Speaker 00:
The court should vacate Mr. Thomas's revocation sentence because the information and the evidence relied on to find him in violation of Allegation 4 violated Mr. Thomas's due process rights because the government did not provide witness testimony for the substance of the allegations for Allegation 4.

[00:00:40] Speaker 00:
This court's decision in Comito and its application in Hall and Lundy compelled reversal in this case.

[00:00:47] Speaker 01:
There were five charged violations, right?

[00:00:52] Speaker 01:
And there were three.

[00:00:53] Speaker 01:
And all of them were

[00:00:56] Speaker 01:
Schedule C or something.

[00:00:57] Speaker 00:
Great.

[00:00:58] Speaker 01:
Great C. And this is one of the five.

[00:01:04] Speaker 01:
Does it matter?

[00:01:05] Speaker 00:
It does.

[00:01:05] Speaker 00:
And I'm glad the court asked this question.

[00:01:07] Speaker 00:
I would like to answer this question with four citations, the excerpts of record that I think conclusively show that violation of Allegation 4 drove the above guideline sentence.

[00:01:18] Speaker 00:
First, at ER 174,

[00:01:23] Speaker 00:
The probation officer, Ms.

[00:01:25] Speaker 00:
Devine, filed an amended order to show cause, which included allegation four.

[00:01:31] Speaker 00:
And because of that, she recommended a higher punitive sanction of 16 months compared to her prior recommendation of 13 months.

[00:01:40] Speaker 00:
Second, at ER 104, at the sentencing hearing after finding Mr. Thomas in violation, the same probation officer, Ms.

[00:01:48] Speaker 00:
Devine, argued compellingly to the district court

[00:01:51] Speaker 00:
that breaking and entering the window of the residence is violent and traumatizing for the children.

[00:01:58] Speaker 00:
Again, that's page 104.

[00:02:00] Speaker 00:
Third citation would be from Assistant United States Attorney Mr. Thacker, who represented the government below.

[00:02:06] Speaker 00:
He said, quote, I agree with Ms.

[00:02:08] Speaker 00:
Devine that that is a violent indication, breaking through the kid's window and scaring him.

[00:02:13] Speaker 00:
That's page 109.

[00:02:15] Speaker 00:
And the fourth and final citation

[00:02:17] Speaker 00:
would be to the district court adopting these arguments.

[00:02:19] Speaker 00:
At page 113 and 112 of the excerpts of record, the district court said, quote, I agree with the probation officer's analysis.

[00:02:27] Speaker 00:
Here is right on.

[00:02:29] Speaker 00:
And I think her recommendations are reasonable.

[00:02:31] Speaker 00:
They're scared to death.

[00:02:32] Speaker 00:
They're hiding in the bedroom.

[00:02:33] Speaker 02:
You said to the district court, or I don't know if it was you.

[00:02:37] Speaker 00:
It was.

[00:02:37] Speaker 02:
Thank you.

[00:02:38] Speaker 02:
If the court sustains this objection, as the court already noted, they're all grade C allegations.

[00:02:43] Speaker 02:
It doesn't meaningfully impact the guidelines.

[00:02:46] Speaker 00:
Correct.

[00:02:46] Speaker 00:
It doesn't change the guidelines.

[00:02:47] Speaker 00:
And that's absolutely right.

[00:02:49] Speaker 00:
The guidelines were seven to 13 months.

[00:02:51] Speaker 00:
The question is what sentence is appropriate.

[00:02:53] Speaker 02:
So is it your view that children have to come in and testify in these circumstances if the government doesn't show unavailability?

[00:03:09] Speaker 00:
Well, the law applies to all witnesses.

[00:03:13] Speaker 02:
But is it your view that in these kind of proceedings, the court has no discretion?

[00:03:18] Speaker 02:
If the government can't show unavailability, it has to have the children come in?

[00:03:22] Speaker 00:
No, I disagree with that reading of the law.

[00:03:23] Speaker 02:
I'm asking what your position is.

[00:03:28] Speaker 00:
My position is not absolutist.

[00:03:31] Speaker 00:
And so the court must not, in all circumstances, require minor witnesses to be present.

[00:03:37] Speaker 02:
Did you ever argue

[00:03:39] Speaker 02:
to the court that there was any particular reason that these statements to the police officers by the kids were unreliable?

[00:03:52] Speaker 00:
Well, I objected strongly and provided a number of bases.

[00:03:54] Speaker 02:
I understand you objected, but did you ever give the court any reason why these particular statements by these children were unreliable?

[00:04:03] Speaker 00:
Your Honor, I believe that my objection, if I can recall it, was focused on, I mean,

[00:04:09] Speaker 00:
There's a number of facial arguments that we can make with respect to step-children testifying against a step-parent who perhaps- But that's not my question.

[00:04:16] Speaker 02:
My question is, did you ever give the judge any reason why these statements by these children weren't reliable?

[00:04:24] Speaker 02:
Your Honor, I don't believe so, nor do I- Have you ever suggested to the district court that these statements were untrue?

[00:04:31] Speaker 02:
Yes.

[00:04:33] Speaker 02:
What did you tell the judge other than they're untrue?

[00:04:36] Speaker 02:
Did you give him any reason why they're untrue?

[00:04:38] Speaker 02:
No, did I tell the judge what the true facts were?

[00:04:43] Speaker 00:
Your honor I don't believe that I I proffered an alternative Theory nor do I believe that I'm required to do so under a commuter whether you're required to do so I'm asking if you did Okay, no, I don't believe that I did nor does it suggest your client wasn't there I

[00:05:00] Speaker 00:
Yes, we contested the allegations.

[00:05:01] Speaker 00:
We had both the preliminary hearing to contest the probable cause for the allegations, including Allegation 4, as well as a contested revocation hearing, where it is the government's burden to prove by a preponderance.

[00:05:12] Speaker 01:
So yes, I believe that... What's unusual about this case is that there is, in a sense, some corroboration of the testimony in the sense that similar things had happened several times before.

[00:05:29] Speaker 01:
many times before, apparently.

[00:05:31] Speaker 00:
Well, I would agree with your first explanation of several times before, perhaps.

[00:05:35] Speaker 00:
But nonetheless, I don't believe that that's necessarily corroboration of what M1 and M2 allegedly said to the police.

[00:05:43] Speaker 00:
And I would turn the court to the actual testimony instead of

[00:05:47] Speaker 00:
The summary of the police report provided by Officer Devine.

[00:05:50] Speaker 00:
I would look specifically at ER 71 and 72.

[00:05:53] Speaker 00:
Only one of the minor children through Officer Gardner's testimony said that they were scared and hid in the bedroom.

[00:06:01] Speaker 00:
The government did not inquire about the other.

[00:06:03] Speaker 00:
And then, Judge Bennett, if I could.

[00:06:07] Speaker 00:
Perhaps gently push back on the nature of your questioning with respect to what my obligation was in presenting it to the district court.

[00:06:15] Speaker 00:
I would turn the court to ER 74.

[00:06:18] Speaker 00:
And in our cross-examination of Officer Gardner, the police officer who was the conduit for the hearsay statements of M1 and M2, we sought to inquire of Officer Gardner about physical indicia of reliability of M1 and M2 statements, that they were scared.

[00:06:36] Speaker 00:
And the government objected on relevance grounds and the district court sustained it.

[00:06:41] Speaker 00:
And so, you know, we sought through cross-examination to try to better understand the nature of the fear that Officer Gardner was relaying.

[00:06:50] Speaker 02:
I'm sorry, you're talking about ER 74?

[00:06:53] Speaker 02:
Correct.

[00:06:55] Speaker 02:
I see here.

[00:06:57] Speaker 02:
Did you see any indication of physical injury to either of those individuals?

[00:07:03] Speaker 00:
Sure, and that would have been the start of our questioning about, was there any indication?

[00:07:07] Speaker 02:
I didn't see a question about were they really scared by the stepdad who'd strangled the mother breaking in.

[00:07:14] Speaker 00:
Well, I think that, respectfully, I think the answer could have been, I saw them trembling.

[00:07:18] Speaker 00:
I saw, a police officer could say, I saw that the children were white faced.

[00:07:22] Speaker 00:
I saw that there was,

[00:07:25] Speaker 00:
You know, some other indication of fear or injury.

[00:07:28] Speaker 00:
We didn't.

[00:07:28] Speaker 02:
But you asked about physical injury.

[00:07:30] Speaker 02:
That's the question the judge sustained the objection to.

[00:07:33] Speaker 00:
That's correct.

[00:07:34] Speaker 02:
And there was no allegation he beat up the children, right?

[00:07:37] Speaker 02:
That's correct.

[00:07:39] Speaker 01:
What about whether this wasn't an excited utterance?

[00:07:43] Speaker 00:
I appreciate the court's question on that ground as well.

[00:07:46] Speaker 00:
The government in its answering brief argues that this is an excited utterance because there was a nine-minute delay, or despite, I should say, the fact that there was a nine-minute delay between when the officers were dispatched and when they arrived.

[00:08:00] Speaker 00:
The record is less clear on how long it took the minor children to contact the police, as well as how long it took the police to dispatch an officer.

[00:08:07] Speaker 00:
So in the absolute best case scenario for the government, there was only a nine minute delay.

[00:08:14] Speaker 00:
There was no finding that it was an excited utterance by the district court below.

[00:08:18] Speaker 00:
And as far as I can tell, in this court's case law, there is a similar upholding of an excited utterance in this context.

[00:08:25] Speaker 00:
And the government, apart from citing the federal rule of evidence, hasn't provided an analogous case.

[00:08:30] Speaker 01:
I just simply don't think that this is- It might have been, but there was no finding by the district court.

[00:08:35] Speaker 00:
That's right.

[00:08:37] Speaker 00:
The district court found that it was reliable, sufficiently reliable under comito, but didn't independently find that it was an excited utterance, didn't make a factual finding on that specific point.

[00:08:50] Speaker 00:
I see that I've gone over.

[00:08:53] Speaker 00:
I would like to reserve the remainder of my time for rebuttal if that's possible.

[00:08:58] Speaker 02:
Fine.

[00:08:58] Speaker 02:
We'll give you two minutes.

[00:08:59] Speaker 00:
I appreciate you.

[00:09:00] Speaker ?:
Thank you.

[00:09:10] Speaker 03:
Good morning.

[00:09:10] Speaker 03:
May it please the court?

[00:09:11] Speaker 03:
Zach Alford, the United States.

[00:09:13] Speaker 03:
Judge Perzon, let me start with your very first question.

[00:09:15] Speaker 03:
I think you were right to note that there are four other allegations of the very same grade, and that means that regardless of this allegation, supervised release was going to be revoked and there was going to be the very same sentencing guidelines range.

[00:09:28] Speaker 03:
So the question of comito balancing is actually academic here, because that only goes to the merits of the revocation.

[00:09:34] Speaker 03:
The question this court has to look to is the consideration of the information at sentencing.

[00:09:40] Speaker 03:
And that's a question of substantive reliability and procedural reliability under the Franklin case, the Vandervoort case, and others.

[00:09:48] Speaker 03:
Now, in that context,

[00:09:50] Speaker 03:
This court, Judge Bennett, to your question, very much does place the burden on the defendant to show unreliability, at least substantive unreliability.

[00:10:00] Speaker 03:
There is an exception if you're dealing with accomplice statements or co-defendant statements, but we don't have that here.

[00:10:06] Speaker 02:
Because as I understand it, your friend is not saying that the defendant wouldn't have been revoked.

[00:10:12] Speaker 02:
The sentence would have been different.

[00:10:15] Speaker 03:
That's correct.

[00:10:16] Speaker 03:
And that's why I say, just to set the stage, what bucket we're actually in.

[00:10:21] Speaker 03:
We're purely in the sentencing bucket.

[00:10:23] Speaker 02:
This sort of hearsay comes in a lot at sentencing.

[00:10:26] Speaker 03:
That's right, and the burden has always been with the defendant outside the context of accomplice statements, which we're not dealing with.

[00:10:32] Speaker 03:
This court said that expressly in Franklin.

[00:10:34] Speaker 03:
It said that expressly in Van Buren.

[00:10:36] Speaker 01:
It doesn't, not only does it encode a weather oaks, they'd be revoked, but it also does encode the guidelines range, either.

[00:10:42] Speaker 03:
That's correct, because they're all grade C allegations.

[00:10:45] Speaker 03:
It would be a different situation if this was a grade B or something else.

[00:10:49] Speaker 03:
We're just not in that land.

[00:10:51] Speaker 03:
Now, even if you were to place the burden on us to show reliability here, this evidence was reliable.

[00:10:58] Speaker 03:
And I think it goes beyond just the question of whether this was an excited utterance or not.

[00:11:03] Speaker 03:
We do think it's an excited utterance, even if it's nine minutes removed from the situation.

[00:11:09] Speaker 01:
But the fact that there was no finding does seem, that's an evidentiary question for the district court.

[00:11:15] Speaker 01:
It makes it difficult for us to make that determination in the first instance.

[00:11:19] Speaker 03:
Your honor, this court, when it's dealing with hearsay admitted at sentencing, still analyzes whether it was properly admitted as reliable, even if the district court didn't make an express... I'm not talking about reliable.

[00:11:31] Speaker 01:
As an excited utterance.

[00:11:33] Speaker 01:
If we were going to decide whether it was an excited utterance with an exception to hearsay, we couldn't do that.

[00:11:40] Speaker 03:
I think you could because this court will still analyze reliability of hearsay at sentencing even when the district court doesn't do that.

[00:11:47] Speaker 03:
It did that in the Berry case, for example.

[00:11:49] Speaker 03:
I think it could do that here.

[00:11:50] Speaker 03:
But again, you can set aside the excited utterance.

[00:11:53] Speaker 03:
And I think you still have independent evidence that this was a reliable identification.

[00:11:58] Speaker 03:
So let me start with the fact that this same stepdaughter's identification of Thomas was in fact confirmed by extrinsic evidence at the hearing.

[00:12:08] Speaker 03:
What I'm referring to here is

[00:12:09] Speaker 03:
Not the June 9th allegation, which was contested, but the June 23rd allegation, which is uncontested here.

[00:12:15] Speaker 03:
If you recall what happened there, the stepdaughter said that Thomas was in the house, and then the officer who testified actually witnessed him come out of the house.

[00:12:25] Speaker 03:
So that officer confirmed that the stepdaughter had accurately identified Thomas on another occasion that's not at issue here.

[00:12:33] Speaker 03:
That is strong corroboration of the fact that the stepdaughter accurately identified the defendant on the June 9th occasion that is contested.

[00:12:44] Speaker 03:
Now you can add to that the point that you made Judge Berzon that this conduct by Thomas predates the June 9th event and it post-dates the June 9th event.

[00:12:56] Speaker 03:
There were proven allegations from May 23rd and June 23rd

[00:13:01] Speaker 03:
that Thomas had violated this restraining order, and on the June 23rd occasion, he did so by actually going into the house.

[00:13:08] Speaker 03:
It would be an extraordinary coincidence if wedged right in between those instances, someone else had in fact broken into the house.

[00:13:17] Speaker 01:
So I think that's probably... Well, as I understand, although they to some degree are contesting whether he was there, more than that, they're contesting whether it was reliable as to exactly what happened.

[00:13:28] Speaker 01:
I.e.

[00:13:29] Speaker 01:
he came through the window and they were scared and they went into the bedroom and so on.

[00:13:34] Speaker 03:
Your Honor, I think the fact that the identification was confirmed on another occasion as well as the prior similar instances all help corroborate that.

[00:13:42] Speaker 03:
additional piece I'll point you to that corroborates the window incident in particular is that Thomas's prior revocation was for violating the order by coming through a window.

[00:13:53] Speaker 03:
You can look at page 183 of the record where it recounts this prior violation for which he was revoked.

[00:14:00] Speaker 03:
And you can also just see it on the district court docket.

[00:14:03] Speaker 03:
It's docket number 160 and 162.

[00:14:06] Speaker 01:
And there was a fair amount of emphasis on the fact that the kids were scared, although

[00:14:11] Speaker 01:
Why wouldn't they be scared?

[00:14:12] Speaker 01:
So I'm not sure exactly how important that is.

[00:14:15] Speaker 03:
And your honor, that really didn't come much from so much from evidence as common sense.

[00:14:20] Speaker 03:
The point that probation.

[00:14:22] Speaker 03:
What's that?

[00:14:23] Speaker 03:
Well, I think that's what the district court said, but also it's the girl who called the police.

[00:14:27] Speaker 03:
That's right.

[00:14:29] Speaker 03:
But just to drive home this point, if you want to look at the page in the record that my friend on the other side cites, page 104, where probation actually gives their sentencing pitch, the reason he says that the children are afraid is he says, quote, I would be terrified if someone was coming through my bedroom window.

[00:14:45] Speaker 03:
So this is not really a fine parsing of the evidence.

[00:14:48] Speaker 03:
This is the common sense conclusion that anyone who has a grown man break through the window of their house is going to be afraid.

[00:14:55] Speaker 03:
So I don't think that's really an evidentiary point so much as a common sense point.

[00:15:01] Speaker 03:
Now, let me make one final point here, which is that even if you were to conclude that this evidence was wrongly considered at sentencing, I don't think it can be logically said that if the court had relied on Thomas' aggravated record and four grade C violations, it really would have given a different sentence than it would relying on his aggravated record and five grade C violations.

[00:15:25] Speaker 03:
particularly when two of the proven uncontested allegations involve violating that restraining order and one involves him coming into the house.

[00:15:35] Speaker 03:
And I think the record reflects that.

[00:15:36] Speaker 03:
The court is concerned with the aggravated record.

[00:15:39] Speaker 03:
It says at page 107, 112, 113, 114 of the record that it's concerned about the, quote, aggravated record.

[00:15:46] Speaker 03:
Sometimes it mentions the troubling record, the quite aggravated record, the pretty aggravated record.

[00:15:52] Speaker 03:
So again and again and again, it's focusing on the aggravated record.

[00:15:55] Speaker 03:
And then it also mentions the fact that we've been here before.

[00:15:59] Speaker 03:
That's what the court says.

[00:16:00] Speaker 03:
And it says that a 10-month sentence, or excuse me, that a 16-month sentence is not that much more than a 10-month sentence that he got previously.

[00:16:08] Speaker 03:
So that's a concern about graduated punishment.

[00:16:11] Speaker 03:
And then at page 114, the court talks about drug and alcohol problems that Thomas has experienced.

[00:16:17] Speaker 03:
None of those concerns have anything to do with the June 9th allegations specifically.

[00:16:21] Speaker 03:
The only time the court actually mentions the June 9th conduct was to refute the notion that defense counsel had raised that this wasn't a violent encounter.

[00:16:32] Speaker 03:
The court's basically saying that in some sense it's violent because children would be afraid to have someone coming through their window.

[00:16:39] Speaker 03:
But at the end of the day, the court's not really relying on this evidence as the basis for its sentence.

[00:16:46] Speaker 03:
So just as in Vanderwar Forest where the court refused to rely on offhand references made by a district court to conclude that that was the basis for the sentence, I think you can reach the very same conclusion here.

[00:17:01] Speaker 03:
So just to summarize, I think the court should conclude that the burden rests with Thomas to show unreliability, and that he hasn't met that burden for the reasons, Judge Bennett, that you outline.

[00:17:11] Speaker 03:
Is he still in?

[00:17:14] Speaker 03:
Is he still in custody?

[00:17:15] Speaker 03:
Yes.

[00:17:18] Speaker 03:
I believe so, but if he is, he's coming close to the end.

[00:17:20] Speaker 03:
I'm going to rely on Mr. Stitt.

[00:17:22] Speaker 02:
I can ask your friend if he's still in.

[00:17:24] Speaker 02:
What's his projected release state?

[00:17:26] Speaker 03:
Yes, I should know that and don't, but I am confident Mr. Stitt will be able to tell you.

[00:17:31] Speaker 03:
But you should hold that the burden lies with Mr. Thomas.

[00:17:34] Speaker 03:
Even if you put the burden with us, I think there's independent evidence of substantive reliability.

[00:17:38] Speaker 03:
And then finally, I think any error was harmless because the district court really didn't rely on this allegation specifically.

[00:17:45] Speaker 02:
Thank you, counsel.

[00:17:45] Speaker 03:
Thank you.

[00:17:54] Speaker 00:
Your honor, Mr. Thomas was released from custody about a week ago.

[00:17:56] Speaker 02:
OK, thank you.

[00:17:57] Speaker 00:
Your Honor, I'd like to begin where the government left off.

[00:18:01] Speaker 01:
What is the consequence of that, if any?

[00:18:03] Speaker 00:
Well, the consequence is that he's out of custody.

[00:18:06] Speaker 00:
The court should remand for resentencing without allegation for.

[00:18:10] Speaker 00:
And what?

[00:18:12] Speaker 01:
He's already out.

[00:18:13] Speaker 00:
That's correct.

[00:18:14] Speaker 00:
He's already out.

[00:18:14] Speaker 01:
Out of situation.

[00:18:16] Speaker 01:
Can he get another supervised release?

[00:18:18] Speaker 00:
He's still on supervised release for 12 months pursuant to the court's revocation.

[00:18:23] Speaker 00:
It's possible that the court would impose different factors for the supervised release and revocation, for example.

[00:18:28] Speaker 00:
Some of the factors were with respect to drug treatment, as well as how his supervision interlocks with the state court restraining order, where he has struggled for over a year to get marriage counseling under Medi-Cal if it can't, and so the restraining order remains in place.

[00:18:46] Speaker 00:
I'd like to transition back.

[00:18:49] Speaker 01:
Is there any realistic possibility with regard to those things that this particular incident could matter?

[00:18:56] Speaker 00:
Yes, I think so.

[00:18:57] Speaker 00:
Again, I think that the four citations that I started with.

[00:19:01] Speaker 01:
Well, that tells you maybe, maybe, maybe something about the custodial sentence, but why does it tell you anything about anything else?

[00:19:12] Speaker 00:
Again, I think that the point that I perhaps disagree with Mr. Howe most strongly about is how important the facts of Allegation IV were for the sentencing.

[00:19:24] Speaker 00:
It drove the amended recommendation by Officer Devine, the government's presentation to the district court.

[00:19:32] Speaker 01:
Is it accurate that there was an earlier instance in which he came through the window?

[00:19:36] Speaker 00:
I believe it was as part of the prior sentence, but it's different

[00:19:39] Speaker 00:
in an important respect that the children weren't there.

[00:19:42] Speaker 00:
It was the children saying that they were frightened and terrified.

[00:19:46] Speaker 00:
It was Ms.

[00:19:47] Speaker 00:
Devine's belief that she, too, would have been scared, really identifying with the perceived fear and then recommending the higher sentence, which all parties, apart from Mr. Thomas.

[00:20:00] Speaker 01:
If he came through the window before,

[00:20:02] Speaker 01:
And he came through again, that doesn't mean that he came through because the children were there.

[00:20:07] Speaker 01:
He just closed through a window.

[00:20:10] Speaker 00:
Sure, it also doesn't mean that the children were scared.

[00:20:13] Speaker 01:
And that sentencing factor, I think that the children... Children have lived in this atmosphere for a long time with these battling parents.

[00:20:23] Speaker 01:
One would be very surprised if they weren't scared.

[00:20:26] Speaker 00:
Well, I think that I would turn the court to Ms.

[00:20:29] Speaker 00:
Devine's testimony that I sought to elicit at this revocation hearing, talking about how she views Mr. Thomas as not only her spouse, but someone she wants in her life.

[00:20:40] Speaker 00:
If he's sober.

[00:20:42] Speaker 00:
That's correct.

[00:20:43] Speaker 00:
And she contacted the police for the first allegation or two this time as well when he came to the door.

[00:20:49] Speaker 00:
And with respect to his drug treatment that he'd received, Officer Devine's statements were positive and encouraging in that respect.

[00:20:58] Speaker 00:
He was candid about a single drug use, seeking treatment,

[00:21:02] Speaker 00:
Again, more to this court's review, I think that there were substantial other positive factors for Mr. Thomas that were dramatically outweighed by the impact to the children that the district court perceived by allegation for, and that the appropriate remedy is to remand for resentencing.

[00:21:18] Speaker 00:
If I could just, I see that I'm out of time.

[00:21:23] Speaker 00:
If I could just make one final point on the hearsay point that I haven't yet addressed.

[00:21:29] Speaker 00:
Under Franklin, hearsay can be admitted at sentencing if the defendant has a meaningful opportunity to confront it.

[00:21:37] Speaker 00:
It can't be presented through mere mouthpieces, as the court in Franklin said.

[00:21:41] Speaker 00:
That's what we have here.

[00:21:42] Speaker 00:
And in Vander Haas, if that's how we pronounce it, this court upheld the hearsay because those statements were presented, there were multiple

[00:21:52] Speaker 00:
independent interlocking statements that were otherwise corroborated by the evidence.

[00:21:58] Speaker 01:
That is what is absent here.

[00:22:05] Speaker 01:
Well, she wasn't actually there, so you couldn't.

[00:22:07] Speaker 00:
No, that's right.

[00:22:08] Speaker 00:
And that's the challenge in talking to Officer Gardner about it.

[00:22:12] Speaker 00:
We can't impeach or really probe the statements because they're just through Officer Gardner.

[00:22:20] Speaker 02:
All right, I think we have your argument, counsel.

[00:22:22] Speaker 02:
I appreciate it.

[00:22:22] Speaker 02:
No, we thank both counsel for their arguments.

[00:22:24] Speaker 02:
The case just argued is submitted.

[00:22:26] Speaker 02:
With that, we're in recess for 10 minutes.

[00:22:38] Speaker 01:
This court stands in recess for 10 minutes.