please the court as i said my name is alice and shine i represent chelmer scientists go today i would like to focus on issue one whether the trial court erred in refusing to instruct the jury on the lesser included offense of reckless homicide right it wasn't intentional striking a vehicle repeatedly repeatedly although there is some question as to how many times right the key here is though that while the act of striking the vehicle may have been intentional  think is a dispute between the sides which is potentially very important and that is the standard of review well first of all i would maintain that reversal is likely warranted under either standard review whether it's or abuse of discretion however i think the standard of review divides into two different parts regarding the question of whether there was some evidence of reckless conduct  that would fall under the de novo standard of review because it's a question of fact the trial court's decision in finding that there was no evidence of reckless conduct  left turn sharp left turn when the final strike happened on the left back left a bumper of the navigator moreover there was some time so you see the fact that recklessness i think so because i think it could the jury could have concluded that it contributed to the instability of the vehicle causing it to flip over the previous trace whether it was one or two prior strikes so that were me that the vehicles were going closer to thirty miles an hour so there are basically this comes down to the fact that there are there is some evidence there is some basis for the jury to have concluded that and the affirmative statement that these people were being targeted because of their suppose it evolved with what would be considered by them as a rival street gang so then you have a situation where somebody identifies the occupants in correctly as it turns out as rival street gang members then makes a decision to strike their vehicle not one but multiple times including call it thirty miles an hour call or fifty or sixty miles an hour with the west with their i mean i think that's the thing at this stage we don't need to prove know that he actually that we don't need to prove that they would have found him guilty of reckless homicide but just that the jury had something to base their decision on under the abuse of discretion standard you also have no reasonable frier  that decision is a reasonable arbitrary not that if the instruction to those circumstances right because there was no because sorry because there was some evidence on for which the base of it the jury to have  conclusion on in addition more evidence of that which is also part of that could the jury could have relied on is the testimony about the wheels that were on the navigator that they were extremely white wheels with extremely narrow tires this was all seriousness and let's just take it to a different hypothetical let's say that there is you're driving a automobile or a vehicle like the defendant was driving in this circumstance and you decide to strike a pedestrian i think under those circumstances you would agree with me it would be not a reckless act it would be clearly not reckless under those circumstances wouldn't you right and let's say if it was a he was on a motorcycle instead of on the victims were a motorcycle and not i'm not inside a car that wouldn't be reckless either would right but really question then becomes whether the fact that they are in another enclosed vehicle would would arguably support recklessness rather than i mean i think here we have to look at the facts that were given in this case which is that it was and that you know the signs yellow saw a navigator that he weather whether rightly or wrongly feared or thought that he you know was threatened by or felt threatened by and preceded to strike it with the minivan he was driving through the key here though is that those acts while they may have been deliberate the hand over fist to somebody else right and that is a instrumentality which is not necessarily fatal depending on the circumstance there's a line of cases if you fire a gun at someone it's someone's direction that's not intentional well i think it's it's similar to interventions of a fact pattern where you're striking someone with your fists or knees or feet in that you are causing harm deliberately causing harm but you are disregarding the risk that someone could die from that harm here you have a vehicle striking another vehicle something that happens every day that does not always result in the euro or fifty miles an hour  here we need the key to focus on is that he was acting deliberately but disregarding the risk of his actions and that risk that he was disregarding was that the vehicle could flip over that the people in the vehicle because there was some evidence and that's what the standard that there only needs to be some or very slight evidence to support the instruction of reckless homicide and the judge erroneously concluded that there was no evidence like  he his ruling instead said focused on the actor striking the vehicle saying you know this was an intentional act i only see that he's striking this vehicle intentional however that does not address problem the issue with a lesser included jury instruction is that by refusing to instruct the jury on this lesser included offense you're removing from them the option of finding the defendant either guilty of first degree murder murder or equating him and in a case like this where there was clearly some wrong done the jury really only had the option of finding him guilty of first degree murder had we don't know what would have happened had the jury be given a different option and the option of saying well he did something wrong but we're looking to this evidence as well and that's something that's a question for the jury decide that the judge took out of the jury's hands in refusing this lesser included defendant states defendant is not arguing that striking was unintentional at trial that's not what counsel i didn't counsel write it was an accident he argued it in the opening statement he argued it throughout trial closing statement he  new york these guys are going around to the figure eight track of bessie into each other but certainly don't try to kill each other they're certainly not nets a trace and also in this situation now we have a defendant who's a b l for a gang incident and prior to his three attacks on the victims of fashion again signed and then but that's part of the evidence part of the other evidence is before the court is that this was an accident you just said valid argument i don't concede by any stretch of imagination that's what the evidence showed and councils concession today is admission that the evidence does not show this was an accident on the the fact that people got injured and died in this is not such an extraordinary result that was that was done for civil and whether or not whether or not to send an intended to have the van rolled over is beside the point defendant's actions are very very clear that he intended to do harm to the people in the van and but you tend to do harm when you punch someone to the question is what type of harm is it reasonable to attach to the person striking the blow either by car or by gunshot miles an hour a second hit even harder when the third hit this is this is not some punching this is this is something some this is an intentional act to cause serious a review there are some cases that suggest a standard of review of the  old is that substantially certain to occur and doesn't it describes a situation look here i don't believe so at all this is a decision because because of the multiple strikes the multiple returned a verdict in two and a half hours and listen this jury believe me they wouldn't care if they had the third is that with this case is all about and if they had a third option they would have acquitted and the intentional crying crimes friends is almost never right but the only the only as close as you get to it is his statement to the passengers saying they are trying to kill us there could the jury could have found that there was evidence  as i said before this is the trial court's error deprived the jury of the of the option of finding him guilty of the lesser included offense and