sixteen years old when he was convicted of first degree manslaughter and the state firearm has spent the tragic death of his fifteen year old sister of the most critical issue that i believe is presented for review the excusable homicide instruction that he submitted and which was accepted by the trial court in fact made it impossible for two things to happen one for the jury to find that joshua they committed the lesser crime of degree manslaughter which defense counsel had proposed and which was before the jury and whether that same instruction also made it impossible for the jury to find that an excusable homicide had occurred at all and whether or not he could be acquitted on manslaughter one and manslaughter two because there are in fact the instruction stated that the for it to be an accident  that and we have argued quite frankly it is simply impossible for it to be a lawful act done by lawful means the accident if you are prohibited by law from possessing a gun and shooting it well i could have been more prejudicial than probative of evidence rule for all three clearly it could have been kept out from that but i think what's even more important your honour's and which frankly has been ignored by the state courts and it was ignored by the district court in this case is how this issue pertains to the lesser included offense of manslaughter in the second degree because they're the critical language in the instruction doing any lawful act by lawful means with out criminal negligence the crime of second degree manslaughter in washington is committed with the mental state here holding that i admit that for the minute what would be the prejudiced i mean it's not only a defense for why you're suggesting but it's called post the fans for second degree murder stipulation was there none the less the jury found him not guilty of second degree murder in the instruction was equally an equally afflicted will the second degree murder as it was to manslaughter so what's the prejudice i mean they went through and wait you have an instant seems to me regardless of the instruction because they didn't find him guilty of second degree murder where we come out of prejudice first of all i do want to go to your question about the mental state of it an intentional act and in this case this matter was before two days before trial fist matter was amended to include the charge of second degree murder now i specifically at the end of the state's case and cheat on two different occasions because there was a recess asked trial counsel do you have an motions you would like to bring trial after trial counsel said no both times and in fact i so the idea that this somehow was not counsel's defense i quite frankly this is a strange idea and even if it was it's the fact of the matter still remains that the jury jersey are presumed to follow their instruction ability of the defendant to get what he needed in this particular situation is also the very jury instruction the jury completely ignored in finding no second degree murder no i don't i don't to put right in front of the police well i get killer and now that confession is videotaped and he just starts talking about marijuana and playing the game of russian roulette another version all of those three versions are in front now of the jury and we're suggesting based on three different versions that the jury instruction which they didn't have i understand your point it's very hard and this is what i've been battling for six years but i think that i'm glad i finally have a chance to explain it in court the fact the matter is it's very easy to take i first blush  what's defense counsel what's mr o'mara complaining about he was like he wasn't found guilty of the most serious charge second degree murder well the fact the matter is you have to move past that because there wasn't any evidence of it he didn't move to dismiss it was tacked on two days before trial defense counsel did nothing with any that he had just missed at the end of the state's case and cheap and so then you have to look at what's really what's really the likelihood here a conviction it's either first degree manslaughter second degree it's not addressed and i think that's important because the washington screen court stated that the jury likely would have found given the as an evidence that joshua operated with the quote criminal a lot of what counsel does depends on the actions of his client and hear the actions of mr romero immediately after the death he is lying to the police hiding the gun providing this whole description also indicates that  using the term homicide in strictly forensic pathology context and began to consummate him admit that he didn't even know what the legal definition was he