determined that the statutory phrase force or coersion includes nonviolent conduct reveals that south carolina would similarly determine that the phrase force and violence for by intimidation would also include nonviolent and lastly no legal imagination required to hold that a realistic probability exists of one being charged with carjacking through nonviolent means so starting with the st point in looking at the usual customary meaning of the term intimidation includes nonviolent conduct as mentioned earlier the statute says by force and violence or by intimidation the supreme court makes clear and a comp the united states that the legislative use of or to separate clauses within a provision is a strong indicator that each clause represents an alternative element or means or free agent by physical moral or economic force mr grace if i could stop you they are a man read the brazen and you know it think you probably yet least you have a point perhaps if you look at intimidation just in isolation i'm out think we can all think of intimidation then why is that what necessarily involve either violence or the threat of it but is that iran corey or is our inquiry to look at it in the context of this statute which requires the intimidation to be to take or attempt to tank a vehicle while someone else is in it and it seems to me that narrows the circumstances or the or the reach of intimidation specifically who wrote respectfully your honor i would disagree and as this quarter considers the richardson in that case the language was slightly different was worse or corrosion as opposed to force or intimidation but in that case which was a criminal sexual conduct case the court affirmed that's nonviolent conduct would apply specifically in the case there was a defendant pastor who uses moral and economic pressure to place the isn't that a problem for you that there are any carjacking cases that have a ruled in the way that you would interpret the intimidation so encourage it can cases i would disagree the tennessee court looked to tennessee's pattern jury charges which included language that was broader yet it was broad enough to include you know your perspective on that it's that judge backers question seems to me to be geared more toward south carolina and i don't think there's any cases in south carolina where there's about carjacking you know where where the perspective you talk about has been held and almost to the contrary the exact same language force or intimidation in robbery which carjacking seems to be if anything a category of or the mitchell case says that you know a robber intimidate bathroom force now recognize that robbery and that carjacking but if it was robbery it be seems to me to be case closed and and even though it's not robbery it seems to be a challenge for you why is the mitchell case not you know we have pretty pretty difficult for you to overcome so i would ask this were considered united states the drum  because i believe that this ordinance or that question dear and in united states me drummond which is actually a south carolina case as well the does this court stated that the legislature is presumed to be aware of the common law in its deliberate use of a phrase not rooted in the common law offense indicates that just kind of play in the rain with that argument what south carolina did the language it did elect to use was the federal carjacking language which is hail which has the intimidation language and has been held to yet to to require a threat of violence so does if you don't have the common law why if your argument is you don't equate that south i didn't use the common law language and we look at what it did use its federal language that has been interpreted to include be a crime of violence so how does that add is that sure we're all know that a gray met and again i'm not suggesting this manged automatically you lose but is there a south carolina appellate decision that affirms a conviction of this statute where they are it is a not a threat of violence there is not an appellate decision your honor but i believe that's handled in this court's decision in united states  coersion you think those help you and i agree with that i think our question is do we do that or do we use other cases where intimidation has been used in in the robbery fear it used force and violence or by intimidation adverse similar force of the last point that i was going to make when this happened was there any other questions is that there are other examples in soccer want to collaborate intimidation is also used witness intimidation is an example and instead be in the court found that interpretation in that context does coercion and in both of those approaches we see that it's not violent and the only way that this court i believe  everyone has held that intimidation in that sense means a threat to use violence force in addition the text the history and the application of the sakharov carjacking statute show that intimidation in this context means that an ordinary reasonable person in the victim's position would feel a threat of bodily harm from the defendant's actions since that murder yes or has done that could you respond to opposing counsel's argument about drummond since it came up in his reply brief and i don't think the government then has yet had a chance to respond to that yes your honor i appreciate the opportunity the point is taken that the sucker out sokolov legislature in passing the carjackings ta did not incorporate these that language from the sucker on a common law robbery as it had been explained by the supreme court but what the legislature did duzen step use a very specific phrase by force and violence or by intimidation that had only been used for other places in the law and that's the four federal robbery statutes and so to the extent that the language of the statue you points you away from south carolina common mall robbery and the roseman decision they would point you to these four federal statutes and evans and mcneil but at the end of the day either of those roads takes you to the same place i mean that's to a definition of intimidation that incorporates a threat to use violent force so if i st address south robbery and so to determine the minimum level of force the south carolina courts require in order to complete a carjacking this court needs look no further than the south carolina supreme court's definition of intimidation in the context of a common law robbery in roseman the state supreme court explained of the essence of the common law robbery charges and taking by violence or by intimidation to find intimidation as whether a reasonable person would feel a threat of bodily harm from the perpetrators acts in winston it's not the government's position that these federal cases are controlling or that they dictate the outcome in this case but we do think that these cases provide very helpful context for how the south carolina courts would define imitation and that's for three different congress became the st legislative body anywhere in america to specifically enumerated the crime of car jackie south carolina just followed just a few months later and became the rd jurisdiction to adopt a carjacking offense and again incorporated the language from so i think the text and history shows south carolina intentionally modeled its karjakin statute after the federal statute if you look st at federal bank robbery again and as i mentioned rosen's definition of intimidation was taken from this court's definition of intimidation in the west out opinion where the court held that bank robbery requires intimidation to be reasonably calculated to produce a fear of bodily harm based on the acts of the defendant in simply means threat of the use of force turning to the federal carjackings deputy in essence this court built on it's holding a big needle and held a federal carjacking which again uses the same phrase by force and violence three other federal take these statutes on bank robbery controlled substance robbery and robbery in the jurisdiction of the united states all use the same phrase by force and violence are going to mitigation but they lack the specific intent element th present in the federal carjacking statute but regardless all three of those statutes have been broadly and uniformly held by other circuits to be crossed violence under various th losses and then finally i would point the court to the  here in addition to the specific tests and history of the stock on a statute application of the carjacking statute in south carolina shows that it requires a use or threatened use of force that's sufficient under johnson the cases involving a conviction for carjacking in south carolina show that the statute is used exclusively to prosecute the use or threatened use of violent physical force i cited to a number of cases on page fifteen of the government's response three each of those reflects an instance where the defendants used a weapon might be gun or a knife to overcome victims i mean in many cases threatened to kill in one case to sexually mutilated victims they didn't turn over control and find the broadest or most common definition for intimidation because you have to look at the context in which it's used and that's within the phrase by force and violence are intimidated and that's it in the context of an unlawful taking  second as to the other stuff carolina primus again i believe that this is an attempt to divorce the word intimidation from the context and defined it in the abstract the specific statutes that mr kopp has relied on don't actually prohibit completing an act by intimidation in the way to the carjacking statute does the criminal sexual conduct in the rd degree statute which was at issue in hamilton and richardson and base it on lawful to use force or coercion to accomplish the sexual battery doesn't use the word intimidation in that statute at all so even if the court were to look purely to dictionary definition the fact that the south carolina legislature has used different forms of the word intimidate or intimidation or crimes of violence i think each of those cases is distinguishable and the body of case law as a whole is in opposite here it every one of those indications there was some concrete indication in the state law there was something like pattern jury instructions in the tennessee case it was the defendant's own jury instructions or a state court decision holding that a carjacking could be committed through something other than or less than a threatened to supporters there is no such indication in the south carolina by force and violence or by intimidation which south carolina where it will i will argue to the court or so much of the court intimidation and coercion is used very much interchangeably in south carolina and coersion has been found to be a nonviolent means of achieving a criminal act richardson here in this case with mr croft the last thing i didn't get to finish my thought last time with regards to act rachel story and that's just to address my colleague's argument that there are little pieces that show the carjacking