satisfy the dangerous weapon element of armed robbery but not the category three weapon elements of armed violence defendant concedes that point and country defend its position that does settle the matter the identical crimes with exactly identical elements and different penalties they necessarily have and set the penalty of one of those times in order it's a very if the elements of those crimes are defined differently in any way than there is a e this would be true even if the object in this case could satisfy both the dangerous weapon only and a category three weapon element but as it happens this case demonstrates the difference is in the definition of these two elements because the two incentives at issue here satisfy the dangerous weapons element of armed robbery and not the category three weapon only of arm share a whole lot in common when it comes of physical characteristics the comic character these enumerated weapons is that their principal purpose is to inflict harm when someone strikes a victim and so for example sound gloves or waited element there that is a tool its purpose is to cut these principally metal and not to strike another person and increase the harm you do when doing self it was yours are you saying that the manner in which l an object or instrument is used makes the difference when deciding what type of weapon it is knowing arms in the manner its purpose whether so we're just talking of the category three weapon element of violence the common characteristic that an object that's not enumerated could also satisfy that element is its purpose being principally it's used to strike another victim if the use of an object in a specific case were relevant to that inquiry then it would obliterate the doctrine of a used of generics which this court relied on in davis because so many objects clash asked for a heavy flashlight a dictionary can be used to strike someone which is why they satisfy the dangerous weapon don't have armed robbery but their purpose is not to increase the harmonic victim when striking them and therefore they don't satisfy the category three weapon element of armed violence if they did it would have rendered the general assembly's efforts to find that element i enumerated certain objects essentially meaningless one of the  case and i think if you broke off a piece of wood more piece of metal and then used that as a bludgeon or a billy club then then that could satisfy the category three weapon element  the fines that category of weapons that the general assembly has to find a mate an element of the armed violence statute i'm in contrast common law dangerous weapon element which can include  and if it if entering which it uses specific case is taken into consideration then it would blow the category of into such a large of potential group of objects that it would essentially have rendered the general assembly's efforts to define the element so that's a compelling legal rationale i believe the us interests would be the the people doctrine that would would be the rationale behind threshold question is really want to statutory interpretation as aggression or how to define a category three weapon absolutely right we if we accept your definition then then it really isn't a constitutional question it's a question of because then then by definition legal definition it would not be considered same as an absolute honor the identical weapon i assembly that's how the court appointed lewis in charlotte when the court discussed on the ongoing use of the identical elements tast explained that the reasoning was that when two crimes are given exactly identical elements by the general assembly and different penalties than one of those penalties is necessarily not set in accordance with the severity of the crime so it's not fact specific or the specific it necessarily  is determined by the elements as defined by the general assembly and that's why again in conceding that these two elements were defined differently by the general assembly defendant has conceded that his claim fails under the raising the arguments it makes here the state never asserted below that incentives satisfy the category three weapon element of armed violence in fact it dropped on violence charges in recognition of the fact that they from using the word live in in the information and it would be strange indeed if the facial constitutionality of the statute could be decided by the state's attorney's choice of count as a weapon of like character to it watch and just as harm are asked the question about a baseball bat and i think intuitively a baseball bat and you could think would we be saying hum ten steps if we had a question to say which doesn't belong in this list as you often see in different exams i mean what can we throw out ten sn weapon of life care and that that's my point i mean there has to be a weapon of like character right so you'd look at the specific list and then whatever you're going to end out of like character there must be some characteristic of what's named to what is a right i understand your point and i think that there is some you know there are going to hear some intuitive feel to what to say but i would do you do you disagree or do agree i mean you could harm someone with almost any object i mean it's right if you speak up your laptop computer and hear someone in the head with a you do some harm right certainly not a a baseball bat a golf club is literally a club the croquet mallet is a club it looks it shares the relevant physical properties of a club of blood all those things that are list and i guess that's that's my point is that you have to look at it's not any old thing it's not anything that can be used as a weapon and cause harm that we count as a category three weapon mr fisher before you get started it seems that in prior years the state has tried to expand the definition of bludgeon in connection with various crimes including armed violence seems what you're arguing here is we should would not the if we agree with your position and reverse the holding of before court would we not be limiting in the future the type of crimes that could be charged as armed violence a type of weapons your honor you would be limiting the type of weapons acme charges gun violence but in a way more so than the general assembly has already done and generally speaking the state that actually brings me to one of the points i want to make which is in discussing the statutes defense counsel skipped over section thirty three a one to a certain degree and that has to mean  something the fact that the general assembly defined category three weapon and in section thirty three a one would be rendered meaningless if in fact all that mattered is is that they used the word dangerous weapon in section thirty three they have to find the elements here and they've defined it differently than are robbery and if the fact that these elements are not identical is not enough to demonstrate that there is no violation of the identical i will miss test if all that matters is that the elements are not mutually exclusive it would blow the identical elements test up to the point where it would be invalidating all kinds of savages the you know property element of burglary and the residence element of residential burglary or not mutually exclusive elements doesn't mean that of his brief and he's done it their argument today concedes that these elements are not the final plea and that under the identical elements has is the end of the matter addressing the question the state had you know and as different cases initially charged both felony and intentional murder and then decided that the facts of the case didn't support tholen murder because there wasn't an independent for any purpose that would render an eventual intentional murder conviction  no unconstitutional because they had once considered a charge that wasn't supported by the facts and the use of the word bludgeon was irrelevant to the armed robbery charge they don't have to prove a bludgeon from various of a dangerous