it was a murder case a second murder case and the issue that a defense raised on appeal was that the trial her here by considering the threat of harm because it was a  is it a factor which should even be considered do we even consider the possible threats not only to the person that the bullet was aimed in the general direction of but do we look i could give you the reverse will you know i don't know my feet and there was nothing for twenty miles where i had massive evidence that there are dead people were actually endangered i don't think that the poor can consider the to me that it's your position that because of this baseline we're not supposed to make any further requires as to what the totality of the circumstances were now it may be if you could argue reasonably that since it was a department the compartment versus hitting the rear taillight is more or less egregious the question is whether or not the judge should even consider those relative factors or those relative the facts right now to say no not  twenty justices had since question is it's not inherent in the offense so this morning i actually looked up in the dictionary and inherently is an inseparable part and implicit is understood been that directly factor is not meant to be rigidly nuclides because powell is seen dictates that a sentence appear in according to the circumstances of the case and i think that kind of includes questions by all of  equal you know he can piers you know shooting six feet over the house and with you know a bullet that weighs this rate by somebodies ear in this case the tragedy was taking the circumstances injured is that correct in the assistant state's attorney said no the bullets were removed from the truck and they didn't strike the person inside the judge asked how many bullets were shot at the truck the assistances there were two recovered from the truck she believed them from the engine compartment and then the defense attorney said if she he believes that there was just one bullet which was recovered later  not out on an isolated rural country road with nobody around that could be endangered certainly the tourist case illustrates the danger of you know firing you know within the city limits offense when you're determining the appropriate sentence within the range clearly the trial court is doing that here when even when he mention people in the area so it didn't cool one serious bodily harm but it certainly threatened serious bodily harm or death under the factual scenario presented to me so clearly he is considering that and then right after th time even though he wasn't legally permitted to do so i believe send him to the department of corrections as necessary under the law but it's also necessary to deter others from committing a similar  lowest double digit sentence that he could impose on the defendant it's clearly due to his criminal background he referred to juvenile histories for read this he then said you know perhaps the defendant's adult history isn't so bad as i've seen from other defendants but that adult history is only four years to which were spent in prison and the judge noted  isn't an inherent element and i think that intent for serious harm isn't necessarily an element either or either the implicit in the factor because i think defense counsel followed up with they believed that there was a bullet recovered later and that was only one of them so there's not a definitive answer we have a disagreement on that but i think that i would go beyond that and saying that the threat of serious harm is inherent in the offense how severe the threat is or how severe the threat