day are not in dispute that is mr c high along with the other co defendants consumed a prodigious amount of alcohol varying from hard alcohol to be or to wine they became very intoxicated later in the stop the vehicle at one point especially assaulted ms brown after a period of time go over to another location within the reservation and murdered her the issue raised for this court's consideration is whether mr c pi should have been given a voluntary intoxication instruction with regard to felony murder based upon kidnapping felony murder based upon  aggravated sexual abuse and whether aggravated sexual abuse resulting in death should also be provided with the voluntary intoxication offense we turn first the felony murder charges the number of felonies which support a first degree murder conviction is a very short list includes arson kidnapping murder aggravated sexual abuse burglary robbery to name most of them this very limited list of felonies by their very nature provide the malice of forethought which gives the basis for a first degree murder the specific intent element of first degree murder is met when the underlying felony is are intentionally committed that is the belief that mr pyne although i understand most of the case law these offenses i consider general inten crimes we now must look to see when it comes in their raised in the issue of a felony murder offense is their requirements for specific intent to commit those underlying felonies in  proceed with the felony murder conviction so we can look at it as are all felony murders specific intent crimes regardless of the underlying felonies intent you are not entitled to intoxication offense so we have no under the reading of the felony murder no required specific intent for a robbery to become came back and said this guy is guilty of everything where is there any harm is there any reason to think could we say beyond a reasonable doubt let's put it that way that the jury  say voluntary intoxication didn't affect any of that other stuff right maybe he didn't really intend to rape so yes right we can go by looking at the chronological  history of the events the drinking history was presented as throughout the day there was a large amount of alcohol drank ms brown was voluntarily come to them and continue to drink alcohol it was a er or about the time of the alcohol was gone that the rape transpired after the right we have a period of time which was never fleshed out to a full degree because the individuals who were in periods of blackout however they were all cognizant when they got to the more secluded area the reservation at which point ms brown was murdered the jury reasonably could find that because of the prosperity the consumption of the alcohol to the rape and the kidnapping was intoxicated not cognizant of actions and could not form the mental intent however after the period of time where ms brown was drove to another room to another location the reservation has mental acuity returned he was able to understand the course the nature of his actions and therefore they could reasonably find that first degree murder with premeditation intoxication was not a valid defense so that crime not cannot elegy of the advance is important in the jury could reasonably conclude that he had the sobering up period including a period of time where his testimony was he passed out in the backseat of the car again consciousness and reasonably the faculties of his mind and it will make what di reasonably confuse the jury that is if it's not intoxication at this point how can i consider at this point although jurors do we give them a degree of sophistication it's very hard to explain you can be drawn for this type of murder but you can't be drawn for this been ruled that it was a defense to the felony murder kidnapping felony murder aggravated sexual abuse and aggravated sexual abuse resulting in death not the underlying aggravated sexual abuse not the underlying kidnapping because it's when we utilize that underlying offense to become felony murder and i believe you have to have a specific intent to commit that underlying offense and that's what makes it into felony murder if you want to save your last two minutes for i want to thank you very much facing life sentences at the end of the day so from that perspective we agree with the court's assessment furthermore through this course assessment that he was already convicted of first the kidnapping and aggravated sexual abuse which my client received life sentences for so when we look at this i ask the court to consider that some of the case law provided even by the appellee supports the idea that there must be an intent to commit the underlying offense to support felony murder that is not just the intent or the general the real crux that i ask the court took a look at this issue as does the nature of felony murder and the punishment that the potentially companies as much as death is that a crime that's circumstantial requires a specific intent to commit it and thereby think specific intent should the defendant have the intoxication defense available and i believe the answer is yes there is not case law that clearly defines this however really does give some guidance with regard to the robbery although it is specific to robbery when we did look at bargo that is one where they said there is it is a general intent crime robbery however again we go back to lilly and that dichotomy i think warrants with regard to the other enumerated felonies in felony murder which is a short list that in order to be found guilty of first degree murder  association with them there must be a specific intent to commit those crimes