defendant acted because of mr wall vocals race nd there's a very real possibility that the jury convicted mr porter based upon his actions toward mr walpole child even though he was indicted for his actions toward mr walpole himself this is a constitutional error with regard to the sufficiency of the evidence maybe the best way to look at this is to look at the government's best evidence to marshal their best evidence and then compare it to the cases cited by both parties relating to the same statute if we look at the government's best evidence they have a statement that was made a year after this incident where mr porter guess is that mr wall vogel might be half black it's better than the he doesn't guess i wondered that myself and so i watched the video and  concern was is that law enforcement would have approached him and said will you think that the young boy african american so isn't the father probably too and that would have been one thing but that's not how it went down in that interview it's just the defendant acknowledging and saying that the father is i think he says half negro and so there is no prompting that's in his head it's not something that he figured out here that's correct your honor there is no prompting and i believe what he actually says is that he looks white but he's probably half negro those are the words if i remember correctly your honor and though has extremely limited evidentiary significance in the sense that it was a year after mr porter was involved in this incident and as an aside your honor it was also after a state case on exactly the same issue paragraph fifty two dollars in the pre sentence report references he was charged in the state system with aggravated assault based on this same event does that relate to whether he perceived the victim as african american it could inform his thoughts a year later during as opposed to it has thoughts of the moment mr porter was and unabashed it very vocal racist as is clear from the record and yet at the time of this assault he never commented on mr he certainly did to his son presumably he would have to mr walpole if he had any belief or any indication that he was african american you're on the way the inference should we draw it just isn't that a some proof that he thought the father was was negro or black with the make up of modern families in the frequency of adoptions and things like that your honor no especially in light of the fact that not one witness observed mr while vocal as african american the neighbor the apartment workers they all believed him to be latin was thinking he was latin american because there was no evidence that the one that was produced against latin americans against spain and it would certainly make the government's case that this is because of rely on the fact that he had an animus against him because he was spending that's correct and there's also a lot of evidence that he did have animist toward  the hispanic race your honor because he kept saying your blacks are correct when the cops came didn't he if you talked about dismissed this other racial statement because it was a year later but right at that moment when the cops came wasn't he a rainy mccombs because he was accusing him of being black weber's yes your honor he was that is not an indication though of how and so then he says when the cops come to rest him for that event well that's terrible you guys you're arresting me but you're just racist so isn't that some evidence your honor at the time of mr porter's arrest he talks about why he was being arrested and i think gives the best information about what he thought and what he knew and he says it was because he had racially maligned this child even at that time so that statement didn't specifically mention the child go to the to the place what that he say exactly he talked about how the child kept writing his scooter around the apartment complex and how he had used a racial slur against the child and he said i probably shouldn't have done that or something along those fair inference that he knew the police were there because he actually had attacked someone and it wasn't the child yes your honor i think that is a fair in but it's not a fair inference to think that he attacked mr wall vocal because of mr wald vocals rates well been you know why why why wouldn't it be given the statement that he made if it's if it's a they're there for his attack on mr wall vogel and he makes the races they meant then why wouldn't that relate to the attack on mr wall that statement is not as a general statement doesn't know where mr porter never had any indication of belief that that mr wald vocal was black short of that statement which may or may not have related to mr while vocal at all and his statement a year after the fact i don't know that that is a fair inference your honor are you saying this is something i hadn't understood are you saying that even the defendant perceived that the father was half black that the government still has not proved its case because no i'm not saying that if if mr if there was sufficient evidence that mr porter believed mr still have to be because of his race if mr oswald vogel were half black and mr porter believed that the attack wasn't because of that then the government still hasn't met its burden because that's what the statute requires and that's part of the problem here let me make sure i understand your position on this point if the court found that the defendant indeed did at the time believe that the father was half black game over for you know you know why because the statute requires that the government prove that mr porter something that's where they're proof valid and you're saying he acted for another reason namely that the father was challenging him as far as his statements to the son show that  correct your honor mr porter stood on an enclosed porch he didn't go seek out mr walpole mr wall the local approached him when two feet away from his confronted him about the statement that mr porter made toward his child so you're saying that if the seven year old boy had been had we're one hundred percent black and the father had adopted him and was one hundred percent nordic that you would or would not it that you're saying in that instance no conviction nothing which i am but i'm saying your honor that mr porter would have acted exactly the same what if the father were one hundred percent black then would you concede the conviction in this instance or no your honor have you made that argument i don't understand that from your brief yes your honor that this that honor if you look at the cases that i could i just guess since we're the fox moving i just want to ask about your your nd issue i had a i was having a hard time understanding that one because how could the jury possibly convicted mr poe order for using force against the son when there wasn't any evidence that mr porter used the earth attempted to use force against the son your honor that's not  the elements or what the statute requires well but i don't understand your argument to be about statute so much as as an argument that by virtue of the way the evidence was presented in the closing instruction fifteen element number one talks about the defendant using the force or threat of force but doesn't specify who not force or threat of force has to be one talking about that one time about the evidence and and  the government didn't put on evidence that he had used force against the son the threat of force that is is there any evidence that he threatened the son when he said to me that is a hard question is there any evidence yes your honor what is the evidence the evidence is when he told the son on the father you and your and words son get out of here did hit the father yes all right one last question about that how could that not have been an aggravated assault your honor the government's argument with regard to aggravated assault rests on essentially the fact that the jury found that there was a dangerous weapon and on assumptions about how that weapon was designed the fact that it's a dangerous weapon alone though that it's serious bodily injury doesn't mean that mr porter intended to cause death or serious bodily injury or bodily injury at all those are two of different inquiries so it's this is an intended argument yes yes and if danger is left and it left a found but even bodily injury on or let alone intense to cause we're talking guidelines i'm sorry we're talking guidelines on the assault i enjoy the jury doesn't have to find it's simply a preponderance of the co tractor there was a photograph in the record but there was also a statement of the neighbor saying that she couldn't see it connect she told that to the police officer at the time and there was a statement by a juvenile witness that was referenced in the pre sentence report where she said she never saw that mr while bogle was hit by the cane at all if the judge has a choice between two competing options and they're both reasonable th a abuse of discretion standard it can't be wrong for the judge to choose option b even if i or this court would have just chosen option a one quick follow up for the guideline and in applying aggravated assault what aggravated assault we apply is that the city utah is at the federal definition for the guidelines that would be the federal definition in the guideline charge it in this sort of language with african american man for all intents and purposes being an element the phrase african american is used in the indictment is not relevant to the if of the offense we the government is not willfully injure intimidate and interfere with an attempt injure some so with m w an african american man and he identified as an african american in his testimony but his actual race is not an element of this crime or other hate crimes shouldn't chin indictment just say that the dependant perceived him as african american and therefore intimidated so or i think it could have said that your honor but it's  brief dykeman sometimes have additional language that is there for informational purposes if it is not part of the elements the government is not wired to prove that simply by virtue of being would you do it the same way again tomorrow or wait you know i can't i wasn't the u s attorney john but you work for the office would you charge this the same way again to morrow and if not why not i think we would charge of the same way because there was sufficient evidence in this record to show that porter attacked mr walpole because of his race or color and viewing the evidence in light in the light most favorable to the government it cannot this court would have to find not only that that was one plausible read it but that no reasonable juror could have found that that statement wasn't a direct reference to mr walt and i would submit that that given that he was being arrested for the attack that  told mr porter that he be calling the police before him and that that's the most logical reading of that statement and that th when mr old folk i'm sorry when mr porter was arrested in arizona  your summary of the evidence and we heard you're posing counsel give with what she thought was the relevant evidence what have you identified that she didn't identify as evidence going to this issue is it just the jury's ability to observe the victim or is there anything else or are we operating not on the same page both both is there something that you're adding i think the major difference between the government's position and defendant's position is that consistent with the case law we're looking at the totality of the evidence in other words could a reasonable jury have looked at all of understand the totality of the evidence point you're making i'm just trying to understand if the the two totalities each of you have sketched out are the same or  you are you giving us more than what we heard from the a pal let me raise one point that there i don't believe the defendant has raised in the body cam tape the church phillips referred to where mr porter says  that that mr walt folk was probably have to grow and his sons were one hundred percent which i believe leads to begin friends from a reasonable jury that he was concluding that porter was at least part african american because his son was but then  goes on to say and i don't want anything to do with any of them i told them at the complex i don't want anything to do i don't want to live near any of them and i think that belies any playing by the defendant that he was distinguishing and fill in the blank that's correct and so to say that that means the father on this on all things well well about referring to what he said to the property manager before the attack what i'm referring to is what he said to the officers in arizona after the attack he said he said right after he said that he thought mr walt focal was half negro and then he said he thought his kids were one hundred percent african american he then said i don't want anything to do with defendant proceed the father as half black your opposing counsel says that's not good enough because you can attack half black people for some reason other than race and here he's gotten himself in a confrontation and here comes the father and he reaches out with this zapping cane and zaps him in the knack that doesn't have to be because he doesn't it doesn't have to be  but because of a son or because of these problems that he alleged to have had with confrontation which were not presented in the record they're mostly presented that something well we heard the phrase because  previous argument and and we're also hearing from you the phrase could a reasonable jury but could a reasonable jury find the rest of the standard is beyond a reasonable doubt transported back to utah he said if you put an african american myself but i have aren't we now kind of moving into the general animus evidence that i think i think the defense is conceded that that evidence  if the court would permit me i'd like to turn to you are the issues are cross appeal and i hate assault must be able to other questions about ok i can i have a question on that ok on the ag on the aggravated assault you agree that it is an that that's what the district court did in the you know i don't really district court all right so so so it's the intent issue and for you to succeed on that issue on the you'd have to show that that finding was clear error correct that is correct all round how are you going to do that ok and here's why it's clear if you here's why it's the only conclusion supported by this record a dangerous one such as porter aggravated assault and this is not committed in the territorial limits of the united states but i believe in certain we've both parties have applied the definitions of the sentencing guidelines and i believe the court applied the definitions of the so that definition you mean i understand you can have an aggravated assault and that territory that you then use this and it's in guidelines to apply that that we don't have that here don't we use utah aggravated assault and what does that say about  intent i can't answer that your honor the court the district court was operating under the and the preamble of probation office when it made its recommendation was operating out of the sentencing guidelines definition of aggravated aggravated assault which is an assault that involves have been an error about the court not giving a sentence under the alternative of two h one dollar which says three which says that the base offense level should be then you would have ended up with a sentencing range that was six or seven or eight months instead of six to twelve months it would have been twelve  was given and i guess there's always an assumption the courts district courts are reluctant to do to vary from a guideline range so that might suggest that there was  there so i guess my question is did you argue to the district court that the sentence should be under two h one point one eight three as no turn if yes we did and are you arguing now that that is an independent grounds for are you mean that it ought to be go back for reasons we are and with that that approach at least would get around the concern about whether there was intent to use force to do serious injury or not because it would only involve simply the use of force which there can hardly be any doubt at all well remain and clearly has to occur on the error of not applying a base offense love and because the statute tracks language of the sentencing guidelines as your honor recognized our position on aggravated assault is that the court may disagree with us on this and remember still be appropriate but that there was no other conclusion in this record based on how that there was an intent to cause serious bodily injury that's when there are there is with this is the said look it was just chaotic it was things moving around arms and legs everywhere and i mean it's a little hard for me to say on this record that just record just was clearly erroneous in declining to find an intent here but i don't think that there's any way that you could say that there was no use of force and so i think at that point we could say at least under two it's one one hundred and eighty three that there was area you should go back and reasons under that provision is there any procedural reason why that approach should could not be used here no there is no procedural reason why that approach and then you lift it up and then you press a button and you activate the shock device and that stun cane which is what makes it a dangerous weapon and then you a flight you strike the your victim and then you appl sorry about that like to thank both counsel for the your arguments this morning the case will be submitted and counsel are excuse