evidence and argument can make up for the absence of an instruction that sets out all the required elements of the crime and i guess i don't see an decide that the conduct was burglary without intent to kill but because felony murder elements exist down there is enough to find conspiracy or agreement to to commit the crime that resulted in felony murder i understand the law permits inconsistent verdict but isn't at least somewhat troubling that mr anschutz was not convicted of first degree murder itself does not s here is that the jury was instructed on a theory a prosecution that does not legally exist the theory being construed the conspiracy to commit felony murder the record is replete and i tried point as much as i could in the extreme brief of the instructions by the court and the argument by the prosecutor in this case to show that in fact the jury was instructed in such a way and the prosecutor argued in such a but the conspiracy instruction did not identify intent to kill it did not in that it identifies soley premeditated murder it simply told the jury that conspiracy requires intent and in agreement to quotation marks engage in the conduct constituting the off and he often is first degree murder the jury was instructed to commit first degree murder one of two ways either through premeditated murder which obviously involves an intent to kill or through felony murder which is committing an underlying felony which results in a death contrary to opposing counsel's view of the record i believe the record is absolutely clear that the underlying fel y in this case was burglary that the burglary was absolutely based and limited to an assault that's what constituted the burglary and that was the basis of felony murder the prosecutor repeatedly argued to the jury  these defendants are guilty of first degree murder even if they didn't intend to kill quotation marks it doesn't matter that they didn't intend to kill quotation marks even if they went in there and jean ours has been killed accidentally it wouldn't matter and the the prosecutor's whole argument was that all of these people are guilty not only of the substantive off sense of first degree murder whether they intended to kill or not but they're also guilty of engaging in conduct constituting the first degree murder guilty only of second degree murder absolutely me an example somebody chicken south of conspiring get nervous under but what being an example the basic idea of conspiracy is that it's a crime that is completed before the objective of the conspiracy is completed you can conspire to kill somebody and then never kill them and never do anything more than form that agreement you've so i think i think the record the record is absolutely clear in this case that the jury was misled was improperly distracted into believing they could convict on a crime that doesn't exist i think there was a supreme court's answer to the sort of questions it's clear that there's no such crime in arizona and i think the verdicts that were rendered in this case he even if this were a harmless error and i don't think it is that since nine hundred thirty one and stromberg versus california the u s supreme court has said repeatedly over the course of the last seven years that when  jury is mis instructed that miss instructed but instructed on and i'm constitutional theory a prosecution and there are multiple theories that go to the jury and we get back a general verdict when they don't i then if i which theory they relied on the court has to set aside the verdict because it's impossible to tell whether they relied on the unconstitutional theory is it really an unconstitutional theory or simply an element is missing i think it both your honor i understand where you're coming from and some of those other cases raise issues of affirmatively lawful or permanently justifiable conduct and that those are implicated here the issue here is whether the intent to kill element was clearly communicated to the jury so that we can have confidence that their verdict reflects the determination there was intent to kill intent to kill or are missing element cases are sometimes a little different seems pretty clear that you can have a harmless error analysis  don't know so i think there's two different ways to go in this case either way get you to the same result we're under that here which that's a high standard for for or gives a lot of deference to the prior determinations what in particular would you want to or is there a particular supreme court precedent you would down or five that that were in conflict convict people of generic crimes they have to be specific elements those elements can't be unduly vague in the jury has been struck that on those elements and that's what the sort of the court relied on i'd also point to nader any sufficiency of the evidence argument it specifically said when we have an unconstitutional theory going to the jury and we don't know whether the jury relied on it we're not going to weigh the evidence and say well there's enough evidence to support the because i think mr van chick has been convicted of a crime that literally does not exist and if that's not a violation due process of law then i don't know what is thank you thank you do