this is a case where the prosecutor overreach now the state is seeking to up hold that conviction asking this court to create to expansion of case there are two issues that i will be arguing today first whether a purely grabbed her wrist and face and pushed her up against the door when the girl screamed the defendant grabbed her by the hair and pulled her out toward the back door now in that case the state so is it your position that hudson court consider this specific jury instruction and it in kind find the instruction defective in any way and it is consistent with the hol satisfy the injury happened yes and i was i p i eleven point five p c but quite so i understand what you're saying about the fact that in that case we had physical contact and that instruction is a physical contact but i'm having there is the physical contact whereas in this case there was absolutely no physical contact and in the civil context droz because that's the only case law where it's really analyzed there's a distinction drawn between purely psychological or psychological with the physical contact but it doesn't appear that the court said that you have to have that physical contact it was there the jury was instructed regarding that but i don't see law for example the civil the civil cases that i've cited there's a distinction between just purely psychological injury psychological with a physical and that's the distinction  now even if hudson allows for purely psychological injury the state did not prove that mr dorsey performed a secondary act which resulted psychologically to convict defendant on home invasion the state must prove t separate acts first is the act of entry into the home and second act intentionally causing a causing any injury to the personnel here miss baker here the injury must be to her well what are we talking about psychological so if a mother sees you know someone to enter the home and that person has physical contact with her child hidden that has some psychological nothing nothing in this favors testimony drives that conclusion either she testified that she testified that she saw the mr garcia enter the house when she saw the defend them running around caused her psychological injury or that there's that link there is missing completely most of the incident she doesn't see a clear it happened in a separate room so again there's nothing here really linking the events that took place to injury further even if there was a second that there was no intent by mr d and further the person intends to accomplish sorry the person must have a conscious objective to cause the psychological injuries here there's act in such a way that causes this kind of are so when that same application does not work in the context of the home inspection own creation statue is about a defendant intentionally causing a certain are a certain result and for that it must be mr garcia's intentional conscious objective to cause conclusion i would like to say again that this was overreaching by the prosecutor there were other lesser offenses that name may have been charged but the prosecutor chose to go with a class x offense that the evidence  so the first issue is basically a session or destruction issue of course the primary rules actually instruction is to ascertain the legislature's intent the best way to do that is the plain language of the statute here the home invasion statutory section we're looking at requires that the offender what caused any injury to any person or persons within the only place there's no requirement or language or physical contact there's no requirement or language for bodily injury  presumably that's why the supreme court in hudson held their specific holding is proof of psychological injury a promise satisfies the injury element of this section of the home invasion statute there is no qualifier there must be physical contact there having to be physical contact in that case they're holding has nothing to do with that this was a purely psychological injury in that case it's a purely psychological injury in this case the hudson co explained and i think this is important for legislative intent it's common for the law to recognize that some crimes such as those involving the violation of the same the of the home are tend to cause psychological harm the legislature was well aware of the special class of cases involving entering someone home and requiring some sort of physical contact would create an additional condition to the plain language of the statute which is the exact opposite of the cardinal rules of statutory construction the hudson court in fact you can point out that the internal language of the home invasion statute itself indicates that legislators were familiar with bodily harm because they used that exact term is that different sub home invasions that you provide one of the elements of the offense is any injury to a person while however other statutes defining criminal pictures why are either physical injury physical harm or bodily harm and using broader language to describe the type of injury under the home invasion statute and to describe the type of injury under other statutes the legislature articles obviously intended a range of injuries broader then only physical or bodily harm counsel what is your response case and of course the defendant is and is presumed to intend the natural probable consequences of his actions that's what's important in this case defendant knew this was an occupied apartment for at least part of this violent struggle in the living room there were two children in there the police officer testified that he saw the mother so presumably from the kitchen there's a viewpoint from the kitchen to the living room because the police officer saw the mother and father during the struggle and they were in the kitchen at the time more importantly probably the most dangerous thing was that the defendant got the taser gun away from the police officer and shot this dangerous weapon in the close quarters of based on this defense action defendant didn't just run into the house and run straight out to finish it out based cooperation with police officers started a physical fight police officer continued to struggle all the way into the kitchen out the window trying to get out the window and shot a dangerous weapon inside this apartment these together of course like i said this isn't direct evidence defendant didn't yell out i'm int psychologically arm miss baker however the circumstances of that intent at least looking at it in the evidence in the levels favorable to the state which required is this the strongest evidence of intent that i've ever seen argument in this case was the secondary act argument of course defendant performed multiple secondary acts to cause the psychological harm to miss faith or like i said defendant if you would have just ran in and ran discussed of course there was no jury structures in this case and that eleven point five three be the reason the hudson discussed that is because it was given in that case and i think that has been argued that it was an  the state argues that the plain language of the statute does not require this and the statute however does consider a situation where only psychological harm is present and that's  subjection one three four where if a person were to threaten or threaten harm to a person in that case that's most likely could be interpreted to be a psychological injury and in those cases the statute has recognized that a person must be armed with either a firearm or a deadly weapon so when crafting this legislation the the legislator did consider a circumstance where there is clearly psychological injury and it did require more was required by subsection two and further with regards to hudson state argument is merely that hudson allows for such a psychological harm which we don't disagree with but courts don't typically decide the on what the scope that is before so in hudson there was physical contact and so the court didn't decide on what happens when there isn't a crime this is that was not a issue that was before the cuts in court and based on their application of jury instruction they did not find that instruction the fault and therefore the instruction clearly states that physical contact and psychological harm is present with regard to the intent say talk about the totality of the circumstances and just to run through the defendant or mr dorsey enter the home his first instinct was to run to the back door to get out the door wouldn't open so he tried to find the next possible way to get out he interact with a police officer between them but his intention still was to elude the police there was no intention to cause harm to the people in the field of the record just does not support even apartment trying to flee the police and he was willing to do whatever he had to do looting psychologically injure someone to get away from the police that his intent was i'll do whatever i have to do to pay the police if that was his intent going into the car i mean the more appropriate charge would be burglary  even even with that the record doesn't support that that was his intent to cause harm