be physically incapable but with just a court to instruct the jury came very close to that problem the only instruction the court gave defining the physically capable element well to tell the jury that quote a person need not be physically helpless to be physically incapable of declining participation or communicating a willingness to engage in a sexual act i've tried hard to think of a hypothetical situation where a person could be physically incapable of out of context where the context in james james is very clear that this term physically helpless was being used by the district court in that case in a manner that was specifically not given its ordinary or common sense meaning and james and charge the jury so you know i was thinking about something like that that's for you to decide ladies and gentlemen i'm just i'm not saying that this is the exact language whether because away or are or whether she was capable in some other way of communicating that she didn't want him to do it now i think that had you had you made such a request they're not have the sanctioning explicit sanction of this court and that's what troubles me about your argument it's not so much that you object but this charges that you didn't give  iraq i agree that you know there are we there could have been a different follow up instruction that would have clarified this instruction but asked your honest question about whether there a follow up instruction was necessary i do not believe it is because james talked about cloverfield terms and then the courts all add up with it with a standard that essentially told the jury you know this is only does not actually require as strict an application as you might have thought just here in the elements of the charge and the follow up instruction came extent to which your metabolism reduces the blood alcohol and and and and so if you're just leaving out the fact that she had slept well for whatever talking about a half hour forty five minutes it's not entirely clear how long her colleagues were were away they say i think there was some indication that all of this occurred and she wasn't speaking coherently but then she went to bed and she slept and it seems to me that the question then becomes at the time that she was awake what her condition wa know that the charge wasn't clear enough to the jury that it should have essentially communicated that whether she was sufficiently impacts of david or was part of the greed of intoxication was such that she couldn't physically resist or communicate verbal or unwillingness to do it to have them do to us that's a real issue here that's right and i think the most powerful evidence on that or is that about a conversation with her friends obviously before she went to sleep and before they left her in the room she was talking and she was talking of what could be described as not in a coherent way not  and it would have been point of facts like her ability to walk with assistance the fact that she someone else was able to brush your teeth and she could go the bathroom while someone else was helping her but the federal standard the physically incapable standard which james probably rejects helpless  that a victim specific inability to do two things her inability to decline or community annoyance so i think the role of the jury instruction is that it helpfully as james said spelled out the difference between mean the jury heard evidence that she wasn't able to speak at all in the moments afterwards i mean the jury also is hearing all this evidence of her extreme physical impairment inability to walk our dress herself and that's also a very strong indication of her inability to point and station with a little earlier temporarily the jury also sees the video of her slumped over with her eyes going back in her head that's what screenshot it a page forty five of the record it's obviously a little temporarily earlier but i think that's very current and hopefully hopefully you don't have a lot of case where if you do think about when you look at the next time you propose an instruction mark that i actually don't disagree that there