here the trial court in this case crafted the jury instructions to compensate for what it believed to be deficient laws this trial level judicial activism violated a where's right to due process and a fair trial a the fact that the jury verdict was a product of emotion rather than legally sufficient evidence i'd like to start by addressing the uncertified issue by jury instruction fourteen was a directed verdict that minimized the state's burden of proof in the final paragraph of instruction fourteen the trial court told the jury that if it where i had sex with a minor and if she was under the age of fourteen then they must find him guilty of either sexual assault or lewdness by taking the element of criminal intent out of the equation the court invaded the province of the jury and violated mcguire's right to due process and who do that exactly since you charged correct looking on me on account that he was convicted yes your honor the jury was properly informed of the elements of sexual assault however in jury instruction fourteen the court minimized the intent element discussing over and over again only consent which wasn't really at issue think it's clear from the court's comments outside the presence of the jury that the judge did not believe that a minor of this age could ever consent and assumed that a jury would feel the same way for her may be true that that's what he said outside the presence of the jury but separate jury instruction actually in instructing the jury on statutory sexual seduction the language of the court was as a matter of law a person under the age of sixteen is incapable of consenting to the above acts being intercourse and i think that is part of the troubling jury instructions as a whole because it was not clear that that language applied only to that single charge and not to all of the charges being presented to the jury additionally in explaining the difference between sexual assault and lewdness the court told the jury that well consent is never a defense to lewdness again focusing on consent rather than the elements of criminal intents and not let me understand this is a hate b s case right and so you have to show that there was some violation of clearly established law in connection with this instruction yes or so what is the principle underlying your issue what is the the law was violated your honor in this case i would say the political u s supreme court cases are in re wish it sullivan versus louisiana and united states versus martin lynn and supply company which collectively stand for the proposition that the state has to prove every element beyond a reasonable doubt that the court is not allowed to issue a directed verdict for the state and most specifically that age erecting the verdict is one that resolves some or all of the factual elements of the offense charged and i w d submit that in the final paragraph of instruction fourteen when the court told the jury look if there was sex and if there was under the age of fourteen then he must be guilty of one of these two offenses not mentioning the element of intent whatsoever that the court at that point issued a directed verdict because it resolved the element of intent which was an issue for the jury to decide what was the defense of trial the defense in trial was mistaken belief as to capacity to  consents and this defendant in this case requested a jury instruction on that theory of the defense which the court refused to give and that's issue number one before the court is the error in failing to give that instruction this was that i think a combination of both she did in fact have the capacity to consent but even if the jury found she did not then mr knew where i had a reasonable belief a reasonably perhaps mistaken belief in her capacity to consen was either running because of a disability or otherwise she was either able or incapable of actually consenting and the supreme court of florida said that your the charge that you're a lying on doesn't apply to the clause and there via the statute that he was actually charged with and that's a construction of state law by the state's highest court and what what do we have out previously in analyzing the u s supreme court's case of matthews this court said that a person is entitle to be instructed on the theory of the defense if one is supported by law and two it has some foundation in evidence that a supreme court never said that the request instruction was not supported by law the concurring decision actually went on to say as the majority correctly recognized this was a correct statement of law and the nevada go ahead i'm sure and that a supreme court further recognized as much by saying that it was ok for the jury to consider this defense even without being given this request a jury instruction o enough but i would say that that's the test that this court laid out and that's how this court should analyze that is whether or not the nevada supreme court made a finding that the requested instruction was not supported by law and no such finding was made and then finally the last issue in this case was sufficiency of the evidence which i think is a very strong issue your honor reading this statute the issue in this case was whether the minor was mentally or physically incapable of resisting understanding at the nature of the conduct the state presented no evidence that the miner in this case was mentally or physically incapable of resisting or understanding quite the contrary as far as her ability to  age i mean the jury was certainly entitled to take into account her age for the age was one factor for the jury to write but that's he said no evidence i think that's some evidence and quite compelling evidence actually for most citizens who would be called upon to serve on a jury of law was in nevada at the time of the offense and the question was isn't whether any eleven year old could ever consent it's whether this eleven year old had the ability to resist or to understand she testified that she wanted to have sex that she liked my client was in love with him considered him her boyfriend she said i know that i could have said no at any point and i believe that this immediately would have ended i did not say you know i wanted to have sex so while the ability think no reasonable jury could conclude that even this eleven year old was incapable of of granting consent i just it's an argument i grant you that but i don't see how you can stand there and say that the government put on no evidence whatsoever and all of these jurors must have been drunk out of their minds to convict and i your out of the evidence also shows that this particular victim testified i knew about the birds and the bees i knew why adults have sex i knew that in order to become pregnant a woman has to be  man has to ejaculate in order to get a woman pregnant she even knew what hope insurance was and that it meant she could go to a doctor she understood the nature of the conduct and the state in this case did not present any psychiatrists psychologists or other mental health experts to say that this eleven year old did not have that capability you know i'm still having trouble with what the theory of the defense was was the theory of the defense that she consented or that he believed that she had  consented it necessarily had to be both your honor this set the sexual assault statute in that it has two parts of the state primarily argue the second part which is this inability to consent he was charged under the whole statute so he both had to  will not prove but the state would have had to prove either that the victim did not in fact consent or that she lacked the ability to do so that your prejudices that the jury  consent the proffered instruction that mr nowhere wanted to offer as a matter of state law was not available the first being stayed behind he cut the second being his own case hundred to peel which under bradshaw's from courts as we have to take that into consideration and the nevada supreme court was quite clear it doesn't even take a careful reading of the supreme court's decision to reach that conclusion they say straight from the opinion while the whereas for reproduction of the the proffered instruction may have offered an appropriate defense in a forcible rape case it raised in an opposite defense to a charge of non forcible sexual assault or compasses the dissent to consent is distinguished from actual consent so it was inappropriate in this particular situation a defendant can offer all sorts of instructions that present correct statements of the law that doesn't mean that they apply to the facts of his case and that's what the supreme court said here when and forcible rape case this instruction didn't apply to be just as in a forcible rape case in a case of this sort  wouldn't there be a reasonable mistake as to the victim's capacity to consent wouldn't that be a defense if course under the statute he was able to argue whether he reasonably should have known that she had the capacity to to to consent and  argument was available to him it was something he did in fact argue in front of the jury and trying to jump over that and say that this really was just after tori sexual seduction and so what the supreme court in about a supreme court said is when you look at the instructions as a whole really what his defense was was this is statutory sexual seduction he was able to argue that he was able to conclude that based on what he had available to him that he didn't know or had no reason to know that she lacked the ability to con that i observed he was able to get up and argue all of that of course the jury rejected that they found that here we get into the sufficiency of the evidence that this eleven year old child who was an elementary school student at the time didn't have the capacity to understand the nature of her relationship with an adult someone who was her mother's ex boyfriend who came into her life as a father figure something that she had lacked turned higher life and when we look at the way that she testified at trial and the sufficiency sufficiency of the evidence supporting this claim we have to view it in the context she was testifying after she had gone through a pregnancy after she had delivered a child she had spoken with law enforcement officers about the nature of this case she had spoken with c p s workers about the nature of this case and what went on and why it was wrong so her knowledge of what she testified to is that i understand how a baby's maid is coming up after she's gone through all of this and has experienced it it doesn't really show or is not really indicative of what she knew when she first entered this sexual relationship with mr nowhere so we have to kind of view it in that lens she'd had all this experience prior to trial that would have given her certainly some of that knowledge but even with all of that experience she still got on the stand and could not explain to the jury how this even occurred she said the first sexual encounter is she's in her room doing drawings and he comes in to look at the drawings and somehow they just engaged in sexual intercourse you can explain how it happened do you and she was quite upset that she was being forced to basically put this man that she still cared for quite a lot so i'm not sure how much we can read into the lack of details or the lack of sophistication in her testimony because i got the some of that was she knew what was going on and she did not want to what to help the prosecution very much that's certainly true but we can look at the way she described sexual intercourse you can even say the word sex when asked to scrub out happened she couldn't use the proper terms for sexual organs she just kept referring to everything as private parts he put his private parts in my private parts and so when we're looking at her age and maturity and what she really understood at the time we can take into consideration some of those things that have nothing to do with whether or not she was reluctant it's just her knowledge and her uncomfortable level in discussing these things which is expected of a now much school student on the sufficiency argument couldn't the jury say i don't care how sophisticated this little eleven a two year old could consent to a sexual relationship with an adult but that defense is available under the statute it goes the same with an eleven year old as a society i think we say that eleven year old elementary school students cannot consent to this type of relationship no matter what they get on the stand especially when they're getting on the stand and saying this stuff after they've had this adult who was a trusting person in their lives kind of groom them into this relationship you see the evidence that he was acting as a father figure he was taking them to church taking them on family outings k man is the mother's boyfriend when they break up and he starts interacting with the child that the daughter and you know going into his family history and telling him that he was falling in love with her and and really taking advantage of th fact exactly they can take age they can take maturity they can take their relationship and they were instructed on all of those things so i don't think this is a close call in the sufficiency of the evidence especially when you have to view this evidence in the light most favorable to to get i'd like to briefly address for you right out of time here the uncertified issue of course just from an outsider making the record there is still no certificate of appeal ability on this so it's not quite properly before the court but if we were to get to the merits of this issue i think when you look at instruction fourteen in conjunction with the instruction as a whole but even just reading the plain language of instruction fourteen it constitutes a correct statement of nevada law and nowhere does it say you have to find sexual assault or you have to find lewdness with a minor the district court and then about a supreme court both agree that when you look at the instruction in isolation it might be confusing to a jury as you read the law but of course the law is jury guilty of sexual assault these are the elements that you have to find beyond a reasonable doubt and it listed all of the elements including the intent on and for sexual assault then went on to say if you're going to convict if you find that there was consent and that this victim had the capacity to consent and you're considering now lewdness here's what you have to find beyond a reasonable doubt including the intent element of blueness which was that there was intent for sexual gratification when engaging in these lewd acts with a minor and then it just concluded by saying if the minor was over fourteen or if there was no sexual intercourse you can't convict of either but under strict reading of that paragraph it doesn't say that those are the only ways you can't convict you have to read it in conjunction with the preceeding paragraph to give all of the elements that had to be found beyond a reasonable doubt can you remind me did the judge instruct the jurors basically to go in sequential order like start with sexual assault and if you convict on that you stop and then only then do you go to the next one or i can't remember how how that i'm not clear fit the instruction on sequential order but there is an instruction that says if you find him not guilty of sexual assault you also then need to consider statutory sexual seduction you can't convict of both so there was that descriptor that differentiated the sex between sex statutory sexual seduction excuse me and then the minor victim's lack of maturity is a reason why there should and is now a statutory sexual assault law in the data however in this case to say that an eleven year old really no eleven year old can possibly consent to sex is not just is wrong under  law in nevada in eight year old can be charged with committing sexual assault it makes no sense to say that the let that an eight year old can form criminal intent to commit sexual assault but an eleven year old can never consen sex i disagree with that completely i mean i'm not in favor of charging eight year olds with murder or something but consent in this context is pretty much a moral thing as much as anything else isn't it and that's why i said just your argument suffici just strikes me as hopeless because a reasonable juror could say notwithstanding you know how knowledgeable about the birds and the bees this young girl seemed on the stand she can't she can't possibly kno the the full scope of the consequences of having sex with a twenty two year old and on that basis whatever ostensible consent she gave could not possibly be meaningful in the way that the law should view it and that's the end of it i don't think that we're in a position to say that no juror can make that judgment it's basically a moral right in the petitioner in the your client from south he said he didn't feel right about the relationship because of her age that he has to tell the police that he thought she was fifteen years old instead of eleven and he admitted to the fact is that he understood what he did was wrong sleeping with an eleven year old girl which takes care of one element of of the statute which is his own state of mind but it also reflects on what the jury could have not illegal and at the time in two thousand and five there was no statutory sexual assault law so while he may have felt that it was morally wrong he may have felt that it was against his religion and the jury may very well have agreed the jury is in charge of delivering a verdict based on what the law is now what they want it to be and that was the problem is this case is that the jury did exactly what the judge hoped they would do when he crafted the jury instructions to mimic what the law should be rather than what the law was at the time