may flee the court also running or is representing gerald edwards the defendant poet in this case we raised three issues in our direct appeal the first issue was whether  state failed to prove beyond a reasonable doubt that the defendant had a specific intent to kill each individual and he was in fact convicted of killing the second issue is one of the trial work here in refusing to give a lesser included drops and i would like to start that argument by quoting the trial court judge how this quote occurred if you and of the formal conference on jury instructions it's in my briefcase thirty six or thirty seven and i would quote i think one of the easiest ways for a court to be reversed and for the case to be tried again is to not give lesser included offenses in view of the facts intentions or which a jury could reasonably conclude that the defendant was guilty of the lesser included rather than the charge so i'm going to err on the side of caution and give jury could conclude that's what he did the state can certainly argue that he did both the home invasion and the residential burglary if they don't believe that he threatened the in the use of force but they could still find that he went in there with an intent to commit a felony which would be the unlawful restraint well but when we're talking usually you see this in this is th the intent to steal hastert got it then they could find guilty of that not burger right sure ok now let's talk about home invasion and here the argument seems to be that because he formed the intent determination by the jury whether or not the defendant threatened the imminent use of force on the other occupant in that apartment there was conflicting testimony about whether or not there were threats made to him her name is julie julie strat in the apartment there is conflicting testimony from julie from the audio conversations that  defendant and numerous law enforcement personnel had throughout the course of this nine hours in fact it wasn't until later on that julie the alleged victim here of the home invasion slash residential burglary funny how you look at it that that she later that that she never during this incident stated the defendant had a gun to my head and threatened me that this was brought up later on so it's it's it's unclear whether we were the jury would sort of automatically divined that there was in fact rotten imminent use of force or not so if there was no threat of force then the defendant could have been found guilty of residential burglary but not home invasion apartment while certainly reasonable to assume that people outside the apartment were contemplating you know perhaps getting it by a ball it's  might shoot back and if they do anybody else in that  well if if you only look at the facts of this case there were no shots into the building i think a large reason for that might mean then that julie was also in the apartment and that you know that the law enforcement didn't want to shoot her accidentally or saw him but i think that also speaks to the fact that the law enforcement didn't seriously believe during the course of this that they were that the defendant was trying to kill them their actions and how they viewed the situation that i mean there was there was continuous audio recording conversations this whole time the defendant was saying i'm not going to shoot the officers i'm not shooting and the only person that's going to get hurt here's me i'm not going to shoot any officer you're not going to hurt julie and i think that you know sort of in a backwards way goes back to the defendant's state of mind if if the officers don't  case and as as a further point i would like to make is that if it's not a dispositive issue whether or not those elements are the same either  it follows the charging instrument approach and not the statutory elements approach i've i feel like maybe you that you were alluding to the elephant you know comparing the different elements and our argument in both of those things can occur they can both be true but even if they're not that does not preclude the lesser included offense the lesser included offense instruction to be g and i guess my question doesn't that but isn't there because the residential burglar fires that element of truth if you don't have to have a home invasion it can't legally be considered a lesser with an offense i would disagree with that with that characterization under the charging instrument approach which is the approach that should have been used by the trial judge and it's clear that the trial judge did initially use that approach when he says it fits the facts a reasonable jury could conclude that's what happened he relied on the charging instrument approach later on you know after those two quotes that i began my conversation here with the judge then changed his mind is that there was a recess break for lunch and then the judge on his own reconsidered and said you know what i'm go to not give those other instructions because the elements are not all the same so we change not only the way that the approach that he used which which argument is is the wrong approach based on people versus lock there is a broad outline or if there is a description of the lesser included offense than that can be if the language and there are all the how on some lesser didn't form the intent to laughter when building but in this case you seem to hang your hat on the fact that he formed his intent to commit this unlawful restraint before he entered the building and therefore while that may very well make him guilty of burglary it doesn't don't also don't think it's dispositive when he formed his intent if it wasn't oh he it's argument that he formed his intent before entering that building but that that intent to continue for the duration of the time that he you know unlawfully stranger you know for eight nine hours i mean it's clear that she tried to me which is a home invasion right big it could be a home invasion the question of whether or not it's a home invasion revolt you know it depends upon whether then i'm not it's implicit in unlawful restraint his if you're straining somebody against your will by some type of implicit use of force otherwise if the person is free to get up walk away and they have no reason to believe that you will cause them harm that they walk away there is no unlawful restraint and you just implicit in the charges in the concept is that the person is being restrained against their will how do you screen somebody against their will by either actual or implicit or threat or use of force force that alone would not make it a home invasion more you mean what if you leave out tracking down next week and sure for the sake of this argument yes that might be my point is there are occasions where he could be found where he could be found not guilty of home invasion and guilty of residential burglar you know maybe lock even door and not having access to a key is no force there but it's certainly confining and restraining somebody so then after the first prong here for the charge an instrument approach you know whether or not th charging instrument broadly outlines the lesser included then the question is is there any evidence that if believed by the jury would support giving the lesser included jury instruction number one the way i like analyze this a little bit but maybe going backwards let's assume for the sake of argument that in this case the jury was instructed on residen and therefore because this is a court of appeals which is lost or you know will we can find him guilty of that but in a situation where he's either those you want to give the not guilty then then i think that i think question whether the with in the evidence or the jury decided it should have been a question for the jury in the jury should have had another option of reckless destruction a firearm an aggravated assault it's the there's there's a medium that you cannot see through you don't know where somebody is on the other side you can't shoot at them you can shoot maybe in their direction but it's going to be reckless it's going to endanger bodily safety you're going to destroy a firearm rec thorough consideration especially when there should have been a third and fourth option presented to that jury of reckless discharge and of aggravated assault let me ask you one other question about that because we don't know how to murder and attempt door i feel like that can be better characterize as reckless conduct as a you know we or intentional conduct which is required for aggravated destruction of our of the mental state you know for reckless distorted you know was just elevated for that of aggravated destroyed it's got to be intentionally or knowing shooting out in the direction of police well the police for obvious reasons we're standing right in front of the window right that is is i would respond to that by stating that they were quite spread out i think it's clear from all the evidence here that if the defendant intended to kill any police officers there would be dead police officers i hate to put it in that in that term but it's i feel like that's obvious  looking at all the evidence about his location where you shooting he had so many opportunities to shoot police officers so many and he didn't he didn't shoot anybody he said very good you know this nobody's going to herbicides me i'm not going to do any officers he was true his word nobody got shot nobody got hurt