appellant terence davis the issue before the court this morning is whether the least culpable or minimum conduct capable of supporting mr davis conviction under alabama's first degree sexual abuse statute necessarily involves the use attempted use or threaten the use of physical force sufficient to make it a qualifying affianced under the arm career criminal acts forced cloth i should begin this morning by telling your honour's that in preparation for oral argument today in an review of many cases it appears to me that  counsel opposite and i engaged in what is probably impermissible fact finding in our briefs after review of the law it appears that that is expressway forbidden by  prosecution may prove that you have to prove beyond a reasonable doubt the element of forcible compulsion under alabama law and that is that  ability to prove forcible compulsion by relationship of the victim to the defendant in search of a position of authority or dominion in the  press that's correct judge and i think that you hit the nail on the head when you stated that the child is in a position or a child is in a position that  case i believe that she said she was not fearful of her father and so i believe that to it we cannot look to the facts of each forcible compulsion case to reasonable doubt or beyond reasonable doubt and because the it is very clear that we have to look to the least culpable conduct under the alabama law and that is it felt like she had to follow her father's instructions the spite that she met fact that she may have and probably did know that it was wrong she did what her father directed him to not say that she was fearful of him  or that she felt threatened in any way  every case to determine if there was whether it was a physical threat whether it was this whole forest whether it was a deadly weapon or whether it was simply a relationship between a daycare worker and a child or a father and a child and i think that  case that began much of this johnson in two thousand and fifteen the court stated that based on the fifth amendment or are based on the sixth amendment right to you have to amendment provides that no person shall be deprived of life liberty or property without due process and allowing the senate's in court to go behind and or after a trial court in a lower court in allowing that case to go up later the jury to determine forcible compulsion which they did in that case so there was actually the rush it was much different and i find it compelling that further to determine whether the particular category r c did fine that it did not without reviewing state law and and so i feel that we fell short of they please the court just as a correction of the record impose the testimony from the little girl was that she was afraid of her father and also a will say that  the language that the alabama supreme court used in that case was a little bit loose in describing it at the end of the opinion the court clarifies that the that that this only provides a mechanism for that that allows a jury to discern whether there was a rational fear of violence so it's clear that they were not trying to change that that they felt to sickle the problem for you counsel aren't is fair and it's natural are somehow you intellectually persuaded child to that that's a fact that's more sort of compulsory in the alabama supreme court in addition to buying into that that decision well it's that your honor i think that some of that language could be a blow a bit wider than what the court actually held some of that i would argue is dicta to the actual holding which is that's one very limited as the court itself explained so in  look at what the actual holding was and what they they said it was i thought that's my question we look at what the facts the jury could have found the facts where in that case he jury could have found that the little girl was upright we're then we look at the result conviction affirmed and that's as far as we go we don't look at the alabama supreme court said the sides fear of physical injury are playing our physical and what it says is not beholding person right i think i think you need to look at the the limits of their holdings and they did not change the definition of physical force so we simply said that under certain scenarios that the c a inquiry like this and what the state law requires or what state law permits are a conviction what's your definition of the hold i def mission of the holding area is that now now oh we've got to make a state has defined the term physical force to be it's ambiguous and i don't believe in this case that they changed physical force they simply allowed the jury to consider these types of things in determining whether there was actually an implied threat as well if a jury can determine in these kind of things and can't convict because there's an implied threat of some sort of disciplinary action not necessary only physical force but some kind of nest of disciplinary action and that indicates that the state crime includes something less than physical force does it i would argue that that's a different way of describing physical force something some cases a jury may decide some she didn't scare physical force some sort of disciplinary action i would think that you know i know that many of us if my but my parents want to somebody current whatever you would have thier no sir i'm just giving out as an example of the court is talking in general what i'm trying to do council is say when we have a state court opinion and which the facts the jury might have construe physical force but didn't necessarily have to do that in after believes a young girl about her fears how do we terminate why the physical force is required when the supreme court alabama says up armed and says things like some sort of disciplinary action but the child may submit because the child the same the conduct is acceptable there i agree that the language is not ideal in this instead that the jury instructions are the same the statutory definition is the same you know so do we have the jury instructions in as part of the record that went before the district and we don't have the jury lot more vague than the one on its face at least that we're dealing with here where they talked about just putting in fear some and so most of the court said that's this an implicit threat and so there's not really a problem you know in order to be your honor this case would be a lot simpler without natus because not as before madison my kid looking into you know really come to the conclusion that forcible compulsion is difficult you know because it's just too it's tane i don't know if your honor had an opportunity to review the alexander case but it was an ohio law of gross sexual imposition at issue whether it was a  that they fit the finding that the force need not be overt and physically brutal but can be subtle and psychological and the sixth circuit i think felt compelled if not forced to determine that very clear that he felt like the slope was becoming very slippery but at this point i would argue that you know we are where we are and that we cannot we have to look at the at the limits and not the