simms get out of the car and opened fire on mr it regardless of whether he knew what mr simms was going to do and regardless whether you have this plan or had any intent whatsoever the state argued that for right that is correct or are the instruction was correct but that the gist of this argument is that despite that jury instruction being correct yeah yeah five point zero three the prosecutor in this case completely turned that jury instruction on its head exactly what he said that conduct can be considered but the state still has to prove the intent before or prior to and during the offense it's not enough simply to prove this knowledge attempt factor after the murder is over so if the prosecutor got up and said yes you can consider this as a factor when you're ultimately determining whether this we have proven the intent factor prior to or during the fence that we've been perfectly ok but the prosecutor didn't do that prosecutors  and waited and crept up some more which would indicate a state of mind of awareness of what was going on and at the zire to stay with the defendant while i'll be crime was being commit however that does not reflect on the blanket statement state which seems to discount that aspect but only the fact that the flight the elements of accountability all that those statements appearances is that we don't have to worry about the state of mind before the crying was committed the commission affects so that you don't have to worry about his whether he was aware of the intent when the crime started out but during the commission of a crime he says he stuck around mean another words not which which is a statement that doesn't work locals the fact that the defendant during the commission of the crime was then aware of what was happening and made a decision even if he had made the decision before hand to assist in the entire country then he made the decision during the course of the crime to assist in the commission of the crime once he we don't there is nothing in here that says that when he made his decision to stick around that he shouldn't have time and we don't know what th involved taking the gun aiming it shooting it and at what point the driver becomes aware of what the passenger is doing is open but if he not he makes this decision to stick around not where the crime is in the course of its commission that would be sufficient to render him a calm again you're right i think because if i'm correct and fact of this i bet the crime can be acquiesced to during  the position of the judge in his reluctance to respond now ah becomes something at the very least understandable if not be the proper murder that's the whole point exactly what the defense is suggesting here in this particular instruction is that there was no way that the judge could give him a proper instruction on accountability without finding the  to know what jury man in the context of the instruction they had received they were and what we say ask you is how would you make it clearer to the jury what the law was why agree the judge isn't a really when morning indicated if they had come to a resolution of that which was basically when the fans and day and when they asked about the language what was the significance of the language the wording after being omitted from the instruction argue in this case that the defendant with accountable for the shooting merely because he drove him that the sugar away after he had fans in this case and the record is filled with examples of arguments both in the people's opening closing argument and rebuttal do you get the impression that the defendant is the least has a point with respect to the fog surrounding our supreme court opinions on this issue of how the trial judge has to respond if your question the court in this case was thoroughly familiar with what he considered to be a properly so i think a controlling case people events and so he gave the denizens structure given the context of the question asked by the jurors the dentist way when the judge turned them down five times that they don't have to deflate about what the elements were or were they simply resolved to finish their deliberation without any help from the court you know because i think judge sustain the object sheets of the prosecutor's characterization of the elements and i asked that in conjunction with another question if the judge point could have been spun in various conflicting directions and wouldn't that have contributed to of the confusion of the injury on the when you see the arc of the very margins of the law the people still reiterated to the jury not only the instructions that were given to them but also have the facts in this case hidden in even one further after arguing that  what they the what they needed to find in order to find him accountable and that his actions in the defendant's actions in waiting not only driving him there because there was evidence faso that he was told the power of the car that he was told with first that the trial judge committed no error because he followed the supreme court and because he it to give any other answer would have dealt into the facts of this case the jury was repeatedly floated the word during the war prior to or during the event and they wanted to know what degree meant that's exactly right when the jury asked said no it's not the same thing this is any different from missouri that sends out what the question that says what's a reasonable doubt if you look at this op in terms of its physical image you know it's not a complicated issue for the jury to know what state of mind that knowledge or intent prior to her during the offense that the state has that murder they can't just by making this closing argument by saying don't worry about that we can we can look at what happens as very were asking the judge anything like that so it's pretty clear based on the seven there was that the jury was was confused about this this one thing whether the definition of their own could have helped i don't know because as justice gordon said that the instruction for the elements of murderers was pretty straightforward as well as i think the common knowledge and understanding what before the event happens and what burden means and then the question becomes when you went to the murder and that's really