seventeen hundred sixty one sixty five and sixty one ninety five us feed johnson and we reverse the order of the whether or not battery is a different offense than assault and battery while you are the statute that used for comparison title twenty one section six forty five says assault battery or assault and battery and it explained that those were the legislature and this is to the extent there is some ambiguity there i would direct the court's attention to the uniform jury instructions specifically port ash one which lists as an internet three instruction instruction for violation of six forty nine well those are separated by slashes in this court and to explain that slashes could result would normally indicate means it lists assault next to battery and assault would you agree that at least under hamilton in the hamilton panel's interpretation of mathis it has to be clear in order to be considered divisible now your argument that a saul would be a criminal offense under six forty nine a but not under b might create some lack of clarity with regard to the separate ability of battery in  and battery but it's certainly not dispositive is it well because all your argument does is counter the very compelling argument under titties and under hamilton  that because the instructions to the wee g instructions say that the trial judge should instruct on all of these alternatives in which the evidence can lead to a finding of a criminal offense that the judge should instruct on each one of these options that are separated by slashes so if you combine your poit with the point that was made in titties and in hamilton all that means is the judge should instruct on both assault and battery battery and assault it if the only finding that is supported by the evidence for assault not the other two options then it should be treated as a and congress and the chance to veto i guess you'd say the rules but the supreme court i don't think votes on the commons they don't vote to approve the comment just the rules the court from legislation or in the orders say exactly what happens with the committee commentary but we do know that under the gear hamilton want to get hamilton entities each one of those panels in published opinion specifically were lying on the instructions to the to the wage instructions group on the issue of visibility to the committee comments i i don't believe that they relied on the committee comments i could be incorrect on library for simple assault and battery then what do you do with the fact that the instructions in their comment they say that in the sun speaking now all of their or sixteen says that six more nine is two explanations first of all as to the simple assault and battery and this was explained by the court of criminal appeals and hall the whether you want to say it was a mistake or something an anomaly the legislature did not adopt a crime of simple batter here the legislature did adopt a crime of simple battery that has to mean something while the committee commentary while the wheaties can be instructive and can help clarify situations they have to be read appear to be making in your brief now which is to incorporate wholesale essentially the definition of the sold into assault and battery i mean it doesn't necessarily follow that when you say that every assault and battery includes assault that that meets your incorporating every aspect of the definition let's assume it does then mason has a different view of what coral injury or her her whatever word it is uses in this context so i mean why why is this why should we be are persuaded now then the panel was a maze well you are wired julie what the mason panel relied on was common law definitions from other states i would suggest there are two reasons why though that's not appropriate first of all title twenty five section one which is the general definition for oklahoma says that where a term is not legislatively defined it's given it's plain ordinary meaning mason acknowledged the plain ordinary meaning of quote her would be bodily pain or injury m concept why why is it such a leap to say that assault is not as well i mean i don't understand why the explanation in mason would make perfect sense here the question would be what is common law and the common law in that we should draw from what the legislature nine hundred ten did i mean how does it i mean that's not i'm sorry that doesn't give me certainty i see that i'm overtime can make one quick response that this court and addressing these issues assault definition of assault has not changed it ha thank you thank you the court my name is kyle wacken hyman from the federal public defender's office in the western district oklahoma and i represent darrius johnson and if i could quickly go over the procedural posture this case and why we're absolutely we originally filed no some think  publish decisions from this court as well as our understanding of what oklahoma law is help us for the panel during the argument discuss certainty and i know that this court as well as many courts have dealt with the frustration that has come in light of johnson and what is vile and what is not violent and frankly i thought that assault and battery offenses from oklahoma without more say a dangerous weapon or deadly weapon that had been resolved those offenses simply did not qualify and those that is the operation of the sentencing courts of defense counsel prosecutors below and what they won't do well to that point i mean following up on his  argument you have one case where there was insult and battery that involved where there was a conviction involving a slight touch i do ok what case is not to get there one of the problems we have is that the oklahoma court from appeals doesn't publish a lot of its cases but we do have a conviction discussed in a case that came before this court twice eric cuts the most recent citation is seven o two fed appendix six six one that came here on a grant of johnson relief for the exact same conduct and from the original opinion back in two thousand and eleven on direct appeal the court described what the the assault and battery consisted of which was quote reaching out from between jail cell bars and grabbing a female correctional officers officer by the hip in the buttocks region that was offensive conduct it was against law enforcement personnel and that was sufficient for a conviction under the mean what is published and enters and not it is and that's something that does control this court yeah but the verb grabbing i mean we can go back into the actual records to find out exactly what it was originally charged a sexual battery what you think that means is contrary to our precedent it was clear also identified that in footnote five of its concurrence it singled out oklahoma's a state that permits offensive touching outside the scope of johnson a footnote what what the government has attempted to do in this case is to import its own interpretation of oklahoma law in contrair in contrast to interpretations from published decisions of the school it began in smith's decision that came before johnson which the court squarely held that this precise while this type of offense does not qualify as a violent felony but it did qualify under the residual right it does and we believe that it is not visible you know i get that but i mean the want to making is that there smith there i'm not saying smith doesn't help you but it doesn't see me that smith answers the question does it something to the mix then the question becomes well how do we how it was a certainty that this defendant who either pled guilty or is found guilty at trial that was convicted of battery or assault and battery when there's no meaningful distinction in appeals and in the jury instructions so that's another wrinkle that we would have to address should assault add something now there's not the government's argument is appealing in the sense that the statute does indicate assault and battery and battery and what is the difference between those two separate offenses frankly i think there isn't a difference i'm not entirely sure why the legislature has identified two separate offenses of assault and battery and battery i would address or at least direct a court to a jury instruction defining the assault and battery elements that oklahoma uniform during struction for dash two six which lays out the elements of assault and battery and importantly does not indicate any additional threat of force it is willful unlawful use of force or violence upon another person still tells us what modicum of force battery they have a separate instruction for battery they have an instruction that split it in with a little dash mark between assault battery and assault and battery that's a problem for dash two and for dash three define assault and battery they do including bodily injury which present just something that along the lines of curtis johnson would not i'm not going to concede that but i would like to say that when it comes to what are the elements of assault what are the elements of battery what we have is the lease on its face the common sense you would be that this combined to essentially two events and battering us all ok well we have a definition for better we have a definition for it's all definition berthold says bodily injury the statute is corporal injury necessarily includes an assault and doesn't answer the question of whether the assault and murder them to the battery involved or oral injury as that term has been interpreted in oakland case law and the committee commentary  it can be accomplished without the requisite level of force necessary under the act because assault can be either a threat of an imminent battery or an attempt at that and so the the controlling battery from steel defines how much force is required and the attempt to battery does not require any additional level of force the government has not cited the case and i'm aware of none but but the threat is not dispositive though because i mean right under the a c c you know you can have a violent felony admit you have a thread a while and ors right correct ok so i mean that doesn't answer the question of whether the a so what the force is involved in  maybe i misunderstood you and i'm sure i misunderstood the question the point that i'm trying to make if this doesn't answer a question not sure that i can that assault as defined in oklahoma law does not require that threat of injury because oklahoma that it is essentially it's an attempt a battery or a friend battery battery doesn't include violence could be an offensive touching but i guess what one struggled with then is still the stand alone definition for assault  and what to do with the language of corporal injury and how those two things in iraq right yes that is one of the conceptual hurdles i would say to uniformity among oklahoma subsection easy on the did on this whole question of whether it should be viewed as divisible or not and specifically that that's a section that talks about the fact that you would relate back to whether the officer engaged in conduct that section there was an understanding that assault and battery and battery would be duplicative and perhaps that's why it was separate between assault and solvent better i'd like to make a brief comment on the directions from the the oklahoma has two major ways of committing that offense one is an assault or battery or salt and battery and then another is reaching for officers firearm during at any point and it was that distinction that i think the committee was trying to make that in that second method which i believe is subsection d there's no need to instruct on somebody but there is on the first now why didn't the committee cite two for dash two six i don't have a satisfying answer to that but a lot of this is  unsatisfying but what is clear is that this panel is is somewhat bound by previous published decisions i point to the plethora of cases cited in my brief that define simple assault and battery cases it's not requiring the amount of force  and also there is a panel decision very recently addressing the very exact same arguments and rejecting those arguments and i'm on aware of a situation i know that's not controlling but when  and perhaps this court is aware maybe the government can point out where a panel of this court within months comes to a complete opposite conclusion of another panel on the exact same arguments with the exact same stature and i submit for all of the reasons in our review talking about when the first opinion is in the published correct yes mason sorry the mason decision mason controls but it's not binding it's well thought out i'm not exactly sure why it's unpublished i know it wasn't argued but it was submitted on the br