action rather than simply finding the defendant not guilty that is precisely what occurred in this case specifically although the defendant was charged with armed robbery with a firearm  defendant the benefit of the doubt in found that because the weapon was used as a bludgeon it would be treated as accordingly the trial court found the defendant guilty of the lesser offenses of armed robbery with a dangerous weapon other than a firearm and aggravated vehicular hijacking other with a dangerous weapon other than a fire despite the fact that the defendant never objected in the trial court to the to the trial everything the hijacking with dangerous weapon other than a firearm are mutually exclusive from the charge of offenses from the firearm forms of the offenses the court further held that if that amounted to other american versatile air under the second prong because a defendant's rights a notice of the charge defenses to violation of that violated the integrity of the judicial process those rulings by the of hawk war were clearly wrong is this court held long ago to state every element of the lesser of finance and the missing elements can be inferred from the charge or news from it but how can we infer the defendant possessed a weapon other than a firearm from a church or an instrument that specifically allege that he possessed before well your honor that goes directly to the relationship the firearms have with all the other dangerous weapons this court has long held for nearly a hundred years that firearms are dangerous levels and that firearms can be  dangerous weapons per se if they're utilize if they're armed and people of loading here will be utilized or they can use dangerous by that by the mere characteristics that they can be used as a bludgeon that's precisely what happened here and so when a defendant is placed on notice that he's been charged with the offense of armed robbery with a dangerous what with a firearm he is being told in broad sense that he is committed the offense of all robbery with a weapon that he is armed with a well it is a particular type of dangerous weapon is a fire exclusively charges the station for murder for hire in this court specifically held that the lesser included offense of solicitation of an airplane or battery is a reasonable inference even though the charges specifically authorized only that the defendant had the specific the reason why i stress that is a compare is because even though the legislature in public ninety one four zero four did separate out firearms offenses they didn't amend the longstanding definition of what this court has identified as dangerous weapons if the legislature did not say the firearms are nothing or so what the legislature said was that firearms are particularly egregious dangerous weapons when utilized in certain offenses and there will be additional penalties if that is prove defendant guilty the court said that the fenech used the weapon as a bludgeon and pistol whipped the victim the definition of pistol whipping his hitting someone in the head with a handgun and sentencing the courts specifically said that the that he gave defended the benefit of the veldt because the gun was not fired so is it really true that the court found that the state failed to prove the defendant possessed a fire your honor i think the court decision there is proof beyond a reasonable doubt that the prior fact the trial just sitting in traffic has the discretion to rule that this wasn't a sufficient evidence of a fire right or wrong it was his finding and we we can challenge it clearly that the judge believes that he was that it was a gun clearly we know from the judge statements at sentencing the judge believe that he was forty in the defendant modicum of justice as we said in a reply brief the mccoy case that this case from this court said that despite the fact the trial judges may act out of their own view of justice doesn't prevent this court this doesn't this court can prevent them from doing it but they really shouldn't be doing that in the guise of public policy it was really what you it sure looks like there was sufficient evidence to prove beyond a reasonable doubt that this was a firearm but the court decided because maybe the additional fifteen year sentence that he'd just find something else it's purely supposition on my part because all novak did was one of the charging instrument itself and see if there are all the elements were there or colton said was now even if the elements are there we can look broader we can determine whether or not the can be reasonably  of the other elements in it is our position that in this case the allegation that the defendant was armed with a firearm by common sense means the defendant was armed with a weapon and if he was armed with a weapon that means that he was on notice that the jury that the trier of fact would find him guilty of the lesser offenses of armed as a dangerous weapon other than a fire in that a completely different you're out of yes they are completely different and that's that this is actually the significance of the coltan discussion i believe because much like everybody personal sexual assault and aggravated criminal sexual abuse are completely different offenses if the legislature has distinguish between sexual penetration and sexual conduct this court and colton said the prior fact exclusive nature of the statute has rendered the sexual conduct exclusive from sexual penetration and so therefore i think it's a very similar scenario if it seems to me that if the trial judge made findings of the gun well you talk about the charging instrument approach and how in the aggravated battery you allege the farm was used as a bludgeon but that doesn't help you does it because you have to have the main outline of the of the factual description of what the defendant did and that has always been the focus of the charging is or approach how is the defendant's conduct described what is the factual allegations because it doesn't necessarily have to be the elements of the offense  approach within the statute is to show the legislative intent underlying the changes in public at ninety one for all for is justice to i stated the legislature is trying to make it easier and more clear that if it's a firearm should be a greater offe e but under the charges from fortune has never been simply in an examination of the elements it is never simply been a discussion as to what the legislature one it's a factor to understand whether that this offensive amounts that  this a charge of an armed robbery where the defendant was found guilty not of armed robbery but of theft and even though there was no allegation anywhere within the charging instrument of permanent deprivation of the property this court held the common sense sense that it was a finding by a fire fact for a lesser penalty for a lesser offense out of whatever motivation by the trier of fact resulting in a conviction that was not clearly identifiable based upon the if we agree if we believe that this is error we know there was no objection what happens now and we understand what the appellate court is going to send your argument is that this is not our second on error so it's not second prong that allegation so that there so in this case the evidence would be is there any evidence of the defendant being prejudiced from lack of sufficient notice the public court here found the defendant was deprived of sufficient we can look at the record in this case and we can determine absolutely that there is no up it's of lack of sufficient notice because as i stated the defendant was charged with the firearms form erm forms of armed robbery with a dangerous weapon and every cases to look at the additional counts there be no additional factual charges to be made to take the crabbed view the narrow view that the defendant is espousing here that you should only look to the charge offenses is really run in a sense of the novak limited approach applied by the charging instrument as a lesser offense of the one charge so that's a little bit different from looking at the other counts but even if you can do that how can he be found guilty of not direction now is to whether or not the evidence proved beyond a reasonable doubt that it was a firearm is identified but staff there's no question about that is there in this case he said it was a go if yesterday so it was gone but he also explicitly found as a matter of law sitting just separate the legal argument for a minute for but i'm just curious how often in your experience are judges doing years in this case i mean should we be sending a message to judges in this particular case because it it strikes me that in this case be the because the the defendant smacked the victim in the head with a firearm the trial judge convicts some of crimes with a lower penalty right on the basis that he used a dangerous weapon other than a firearm so defendant had merely kept the gun in his person without using it it's the more severe penalty right in this case if he had just had the gun had it in his pocket yes it's a more severe penalty then in this case the pistol grip we have a reasonable yeah it and that to me seems absurd so i'm i'm wondering how often this is happening out there i mean the trial judge apparently wanted to give the defendant a break for not but in terms of your question regarding the message you sent i believe that was the message that was attempted to be sent in the mccoy case whether or not that message is heard whether or not that message is capable of being really goes to the role of the attention of the trial court so that sounds discretionary court in second klunk craney or is that an abstract question or is it depended to some extent on the facts of the case and what i'm getting to is this purpose of playing or a offense in determining what happened here did it affect the fairness of the offender's trial and challenge the integrity of the judicial process where the defendant seems to benefit by what happened instead of being prejudiced well the defendant benefited by being acquitted on what happened when the evidence seems to indicate the crown court could have convicted of the charge an offense and were serious offense or is it a more abstract question just because it is not if it is not a lesser included offense he cannot be unaligned so what if one is the precious the defendant here where let's say he was convicted of something that was not a lesser included but he could have been convicted of something more and gotten fifteen years more whereas the very briefly your honour's the first in response to your question justice garman as to whether or not the people could have or should have charge of the defendant in this case with the lesser offense of the dangerous latin forms i don't believe it was necessary or appropriate to do so duplicate duplicative indictments pose a problem across the board for everyone because it makes it more difficult here for trial to predict what the trial is going to be about the only difference in this case that had the no court had ever held other things in so that it would have been a very different scenario very different charging choice you made that in response to the counsel's assertion regarding the samantha v case and second from having improper additional convictions on a defendant's record or and there is a juvenile delinquents record because there would be no way to prevent them from being considered in band or in for old decisions or any kind of offense clearly the defendant still has an obligation to establish utterance had he objected at the time of trial the first question the judge would have asked is why are you saying that what is your prejudice would have been a discussion of surprise of unfair surprise exactly what happened in this court in the jones case jones again this court talked about common sense but more importantly it for purposes of this discussion talked about the absence of any complaint or unfair surprise on behalf of the defense because questions of propriety of the indictment questions of the scope of the indictment have always been assessed for purposes of prejudice meaning they're not kin or comparable to the second p to having no different no counsel at all or the defendant's attorney who was not ready for trial and it was clear on the run ins for that reason that this type of scenario where the defendant has a full and fair trial where there are no problems with the trial where the defense attorney successfully gets the conviction reduced to a lesser offense with a significantly lower sentencing range where the defendant is benefits from what appears to be a trial judge giving the defendant the benefit of doubt out of concern for that longer s fact has the authority to work with the defendant right or wrong for whatever reasons in once the acquittal was entered the implied acquittal in this case there's nothing that the state can do people can do and you've touched on this in your comments a moment ago about what the attorney should have gone or could have done had the attorney objected at the time the judge is saying well i'm going to find him guilty of what the judge perceived as a lesser included what  what possibly but more importantly your honor i think the key is that would have been the point where the judge would have specifically said to the defense attorney what is your precious with there would've been in the sales of precious we wouldn't be engaging in a second front in your discussion at all i would like in this case to colton were colton where the defendant did specifically object to the trial judge finding the defendant guilty of the lesser offense by claiming it was an adolescent good offense there was that discussion in the record in  colton about whether or not the defendant is precious that didn't happen here that absence of the discussion is what triggers the second problem in your discussion in this case but had the defendant made that we would easily be able to assess