the court we're asking your honour's to reverse and remand for retrial all counts because the district court erred in three ways first the district were abused discretion because it used an incorrect over expansive definition of dangerous weapon in its instructions to the jury on the assault with a dangerous weapon counts the district court's definition was incorrect because it conflicted with the earliest panel opinion in a circuit defining dangerous weapon under section one one three that really is panel opinion from one thousand nine hundred four was united states vs hollow and it defined a dangerous weapon as an object quote used in a manner likely to endanger life or inflict serious bodily harm that definition is constrained placing reasonable limits on what can constitute a dangerous weapon in a given case but the district court used a definition that conflicted with all it define dangerous weapon as quote any object capable of being readily used by one person to inflict bodily injury upon another person now the district court's definition conflicted with hollow in two ways that each independently render it inadequate as a matter of law and the first thing that the it was a sufficiency of the evidence case but the defendant argued that the item he used was not a dangerous weapon and this court held that it was a dangerous weapon because it was used in a manner likely to endanger life were inflict that brief apologize you know if you can't you can't well i wasn't a trial judge but i'm pretty sure trial judges attempt to to fashion  instructions from the prior eight circuit decisions discussing the statute but in another context what if yes they are decisions or were instruction issues can qualify as a dangerous weapon but the definition the definition used by the district court places no reasonable limits on what can qualify as a dangerous weapon and i'd like to use perhaps count six in this case as an example which is the count charging the use of the plastic hanger based on the evidence introduced at trial the jury could have concluded that the defendant hit the victim one time with a plastic closing are now under becalmed definition or the district court's definition the jury was virtually compelled to conclude that that was still a dangerous weapon because it was capable of causing bodily injury whereas under the hollow definition the jury it's entirely possible of the jury would have concluded that that object using a hanger to hit someone one time is not using it in a manner likely to endanger life or inflict serious bodily harm and so i think that is an illustration of the fact that hollow provides a reasonably limited definition of dangerous weapon but the look calm case and the district courts definition are do do not provide that and so it whether it can cause bodily injuries without reference to the facts of the particular case so for example hitting someone one time with a hanger that's capable of causing bodily injury used to hang or by itself without regardless of use is capable of causing bodily and whereas under hollow hitting someone one time that may not be used in a manner likely to cause serious bodily harm or in danger or life yes but it's possible but  this is a case where it's not a sufficiency of the evidence case you don't draw all inferences in favor of the verdict on a harmless error you ask is it reasonably possible that the jury if correctly instructed would have found the defendant not guilty and ssion under the hollow definition isn't it is reasonably possible they could have found him not guilty so i would say that's that's a concrete illustration of the difference in the second deficiency of the  definition in the district court's definition is that it gets the degree of injury wrong it only requires bodily injury whereas the hollow definition requires life in danger meant or serious bodily harm  that also provides a reasonable limit them another point i'd like to make is that among the other circuits the vast majority of circuits that have defined dangerous weapon under section one using sufficiency cases which are all it where we always are reviewing on a particular set of facts with an instruction that's been given to say this was this is sufficient don't say anything about what might or might not be sufficient in the next case i understand your are what i would point you would probably like this one where the injuries were so bad and so serious to that is that let's begin take count six for example that's the hanger count based on the evidence introduced the jury could have concluded that the defendant hit the victim one time with a clothes hanger and under the hollow definition i is that we do have another oh i'm sorry i said hanger i mean i may have misspoken i'm sorry ok all right and i just move on briefly to the second issue  because the charge and polluted the word series yes i understand what you're saying so i think that the government makes the same point in their briefs and what they do is they focus on all the injuries in the aggregate but the jury the jury was supposed to decide if he was guilty with respect to each individual count and the testimony by the victim about what the defendant did was fairly vague and the government didn't prove which objects cause which bruises so our point is that using the hollow definition it is possible it is reasonably possible that the jury may have found him not guilty of a given count and are that much more stringent definition simply because what was that yes your honor others then we would ask for a reversal on remand of the non harmless error counts and i would reserve the remainder of my time for a bottle it please the court counsel kevin choler for the u s attorney's office in south dakota arguing on behalf of the government i would like to start with the prejudice point here and talk a little bit about the undisputed evidence in this case and the reason is that as your daughter's know that's the government's backstop on all of the arguments in this appeal the evidence here regarded the physical abuse of this the nine or ten year old child and the resulting in this injuries and that when entirely under spirited at trial the evidence was about a child who showed up to school with bruises on her body such that the superintendent the principal the school called in a law enforcement agent who then met with this child and viewed bruising all over her body lifted her shirt in abrasions and different healing stages took the child into the the why don't you move right to the point was evidence there was evidence as to each tool of abuse here the child testified as to each incident each item that that she was hit with in fact so her testimony will establish obviously serious injuries from each tool that she was hit numerous times with each tool of the injury mean that the instruction we should mandate is serious injury not multiple multiple whacks right areas injury and the evidence show serious injury from the use of each tool well there was not evidence with respect to anyone being able to tell forensically after the fact that this particular portion of the bruising was done with a coat hanger she talked about how she was hit multiple times with each thing on different days and different parts of her body that were str the the child was then taken to a facility where a physician there viewed her the extent of the injuries all over her body photographs were introduced into evidence the visitation center up to another facility to get c t scans and x rays because she also had concerns that the just the significance of the bruising on this child could even harm her kidney function so the evidence here was of very severe abuse now turning to the question of this jury instruction with respect to assault with a dangerous weapon any case crime of whether if it wasn't briefed and it's meant that it's not something that i have any information i would be helpful to the court on it today on the jury instruction with the assault with a dangerous weapon count your honor judge logan you're correct that all of the cases cited deal with sufficiency of evidence we believe that that does not result in a scenario discussed under mater where this court is bound then by that the first panels ruling on an argument where there is conflict as your honor pointed out when sufficiency is a standard the court isn't dealing with the standard has been handed to it by the district court and how it's been instructed there that's true of all the cases from other circuits as well what this district court had before it in terms of the case record from this from this court was twenty years five different opinions  that when cause to go through the elements of eleven thirteen a three define dangerous weapon as a question for the jury but one that is defined as an object capable of inflicting bodily injury i agree that it's a first impression issue for this court what i would refer the court to is the language of the statute itself and that's i think what the court was focused on in the lecomte case when defining the elements the statute itself doesn't talk about in danger in life or serious bodily harm it says assault with a dangerous weapon with intent to do bodily harm the term serious is something that's been injected here by the defense in this proposed instruction now statutes the other sections in eleven thirteen used the term serious in certain the application notes for the notes following the commentary notes following that they do talk about these different lines of cases now i would like to talk  briefly about the question on the south dakota jury instruction on the guardian issue here that was a question that was raised initially by defense counsel about using the south dakota defen e statutory defense and the district court expressed i think appropriately concerned that you know this term guardian is a legal term of art and to allow a jury to make a factual determination as to whether this individual's or guardian seems to be an odd thing for court to do and ultimately ask to sort of take a breather on it and to research the issue and to come back later when reviewing the instructions in the district court did that and came back telling counsel that his research of the term guardian and south dakota law showed no instance in where a guardian was defined other than as someone who was given some legal status by a court and again i think appellants counsel in his brief does a good job of outlining some other south code statutes my research has shown no occasion where when the south dakota legislature has defined the term guardian they've defined it as anything other than someone with a legal status appointed by a court so i think the court was well within its discretion here to not give this instruction because this was a defendant who no one argued had been in bude with any sort of legal status as a and that's where i was going next reasonable and manner and moderate i think it is agreed in a criminal case like this i think the jury should be entitle to that for from the relationships of the evidence shows so maybe someone who  that de facto guardian by reason of family situations or what well see why that can't wait that person could be entitled to the instruction on this defense even though there is no way you know no one and no one in the south dakota legal community would say he or she is a quote guardian in the instruction that was given in this case it included the term without just cause or excuse in other words need defense was not hindered in any way because because the defense was allowed to argue just the theme of its case that the reason that this child over the course of three days with four objects  was because i had just cause or excuse i was concerned about her quote unquote bothering you always so that was then hinder the defense in any way in fact that defense was built into the instruction that was given  question is about whether the court abused its discretion by not giving this extra instruction on south will go to law and we believe this record got that right and i want to circle back to where we began the argument again because i'm still a little bit confused  as i understand the argument made by the defendant is sensually that there should have been a different instruction given if you look at the statute the statute kind of makes plain that what a dangerous weapon is is really just there's two things it's it first needs to have the capacity to cause bodily harm right and then second it has to be used in a manner sufficient seems like that's a reasonable interpretations dancer right i mean now isn't it all harmless i mean at this point except by choosing the pleaded out weapon by weapon by weapon do we then have to tie any resulting injury to it seems to me that well that's the argument that they're advancing you say well you're hit with a hanger you know the cop says no definitively on that question it requires only that the government present i'm quoting here sufficient rule for twelve question that that's been raised as well it was a very very limited rule for twelve exclusion that the district court ultimately arrived at here and that was concern that that the defendant couldn't testify about her quote unquote touching boys there was no problem and in fact the government agreed that evidence of you know contact aside from those things now you look at the record about what came in regardless of that and there was testimony throughout this trial that in my know violated that motion in limine but we didn't object to it so it came in it was before the jury the young girl testified she got hit because defendant thought quote i was bothering boys claim she was she claimed i was honest about that correct which which is and if restraint or correction has been rendered necessary by the by the misconduct of the child and the force used as reasonable in manner and moderate in degree i would have thought that was your well and i prejudice argument and i agree entirely and i thought i did say that as well there's no question that this was a reasonable manner and modern and agree that from what was  do agree now the other part of it is that he wasn't that the defense wasn't constrained in making its general theme that what he did was was justified and  instruction the child abuse instruction that was given included that without justification or excuse i see my time's about up if there are any other questions of the court and happy to answer it if not would simply ask that these convictions  i would start by responding to the questionnaire judge erickson you asked about the well com case and the fact that it says that you don't actually have to cause injury in order to have a weapon qualify as a dangerous weapon i would agree with that but in this case our argument is that the reason that the government had to prove the injuries is because the testimony about what the defendant did to the victim was vague so it couldn't be inferred that the items were automatically dangerous weapons and that was our point and the to cause that degree of harm and that's why the in this case the proof of which obvious cause which bruises was important but it wouldn't necessarily be required in any given case and i would like to move on to the guardian issue which was discussed by opposing counsel and what i would note is that he said that the defense was not hindered by the failure to write this instruction but i would point to some quotations from the transcript i think refute that claim so in refusing to give the reasonable use of force by guardian instruction the district court stated quote mr spotted horse had no more authority to touch this child than i did the fact that the child was living with him has no legal significance transcript page one sixty two here that's correct your honor what then the government stated to the jury in closing argument quote he was not her legal guardian he the point is that it's right in what i'm saying is that isn't it's entirely possible that the jury if they had been given the guardian instruction they may have reached a different verdict with respect to the at least some of the counts they had considered the reasonable use of force by a guardian yes it would have been their defense counsel would have been able to make a much more robust argument you just said the prosecutor argued would not have been argued if if if the instruction is what the guardian question at issue factual i'm not sure i'm understanding the question or i don't understand your argument ok so and besides which you don't address how any reasonable jury could have found that this was reasonable force and moderate and reasonable in manner and moderate in degree right and again i would dispute that count six as an example the  the extent of it was very vague so our argument is that the jury could have found that with respect to each individual count that there was reasonable disciplinary force thank you ana thank you  i would note in both of these last cases that the reply briefs were longer than the government's brief now as judges reading twenty six preview in a in a roll in order to prepare for