good morning ron are season car appearing on behalf of mr alford petition and i'm telling you this case is actually quite interesting case almost even fascinating and you may say well this is a sufficiency case and you're going up against this efficiency standard jackson v virginia standard and ed and that's usually not a good position to be in and i would i would concede that in ninety nine out of one hundred cases that's true but there are the interesting cases that come along where there is a quirk in both the law and the facts that make sufficiency a viable argument and i would submit that this is one of those cases because what we had at the core of this case is an issue of what is the mental state that is attended to assault and battery as as it connects into burglary and it's an important question because the defense in here and you can see in the motion he follow motion for a new trial in the argue to the court that his entire defense his presentation to the jury was focused on this idea that the fight started on the porch and the prosecutor in this case conceded in told the jury that a fight started on the porch if you believe his my client to testify trial in a bunch of witnesses testified in support of him if you believe the defense theory jury the prosecutor said even if you believe it alford is still guilty  first degree murder and just for the take focus here at this case is about first degree versus second degree murder let me if i can ask you a question seems like the biggest hurdle i think that you have here is  n but here it seems like and nevada has a statute that allows for felony murder when the burglary is committed and the burglary here was committed with inten to commit a battery now i understand that was the subject of much factual dispute but the jury got to decide who they wanted to believe and who they didn't want to believe and it seems like depending on who they believe there would have been sufficient facts in the normal i'm sorry i so i guess i'm trying to understand what what what you i think it's a it's a it's a it's an excellent question because it cuts right to the horse heart of the case did the jury have to make that determination and what we know in the nevada supreme court if you look at the opinion on pages thirty three thirty four the excerpt or record what they say is while i offer to present his theory of the case of the fight started on castro's porch and then move inside your initial comment the jury determine that the state's evidence was more credible wrong the jury never made that determination that is where the nevada supreme court's opinion is so i'm sorry i'm sorry but the jury never made what determine never made the determination that the fight started on the porch or started inside the house which is a critical determination in this class why is that it going to be the combination i'm sorry why is that a critical determination as i understand as i understand about a law it's burglary if he enters with intent to commit battery even if he had battered before going on if he goes in with intent to commit murder battery more again i don't know why is that not burglary it's a it's a fascinating legal question because there's two ways of looking at the intent for assault well but the jury just had to determine if a burglary was committed yet but they asked the specific question they specifically asked the legal question if which was the defense's entire presentation their defense but all that if the fight started on the porch and then move inside the house is that burglary and that critical question here is what is the answer that question the answer is most likely no and we could debate why that is i mean it's an interesting fascinating in my opinion mental state analysis because it could be if the fight started on the poor on the porch castro had the intent to batter on the porch and then the crime there's a concurrence act mental state the crime is over or it could be that the mental state for assault battery is a continuing mental state that every time you punch punch there's a mental state that goes along with it and the mental state carries when they go over the threshold but we don't have to decide that because enough at a supreme court bought the theory that if the fight started on the porch then that would be a defense to the charge they remember did you object to the object to the instructions exactly why he asked for a new trial because he said the court never answered the jury's question and the jury's question was critical if it went right to the heart of the offense and with the nevada severe and they brief this exactly on appeal the state says of the the  instructions and relevant it's extremely relevant and that's the way it was briefed to the nevada supreme court that the reason why the evidence here is insufficient is because there is this legal determination that had to be made that the jury specifically asked about if the fight started on the porch is it still burglary and the court never answered it and in fact the court if you look at the court's musings about this question the trial court was really concerned about this because the court said if we just read from to the instruction it never answers the question but in the end the court made a determination that somehow would be a directed verdict if they answered the legal hypothetical the nevada supreme court never dealt with this situation in fact they said that the jury that the jackson v virginia deference applies here that deference and so epidemics that would apply in federal court because the jury made that decision but they did not the jury wanted to know the answer to the question the court did not answer the question and it is not fair to say and this record that the jury made that determination and it's as i will say it again it's critical because that was what the trial was all about and and as i said we don't need to determine the fascinating mental state here because the investment court's opinion supposes that that defense is valid so we have a situation and the overwhelming evidence would be overwhelming overstated but the majority of the evidence was in fact that alford was hit on the porch while holding a baby carrier in his hand by castro now under severe now the government says well there's some slight evidence that it may have occurred on the threshold or in the house that's fine and that normally would carry the date if the jury had made that determination and that's what makes the jury know critical here is because we know that the jury was concerned about this but they had a legal question to it and it never was answered and what's also do you have any nevada law that says if i hit somebody on the porch and then i come into the house and hit him again once i'm in the house th theory so castro being the victim so i see have two minutes and we have a question though in the briefing it says alfre did not specifically enter the residence to commit a felony at worst  it was to commit the misdemeanor battery but then if you look at the burglary statute it says burglary includes intent to commit assault or battery so it seemed to me that that admission in the brief that he might have gone in there to commit assault when you square that with the nevada burglary statute and then go back into the  felony murder it answers the question and it's at odds with what you're arguing well i'm sorry it wasn't meant to be a concession at all i mean that the entire thrust of the defense here was that is he would not be and we're talking about the difference between first and second degree murder i mean it's clear that he would be i would concede i really can see that he does that there would be sufficient evidence of second degree murder under the nevada theory of second degree murder if someone dies while you're battering them with a deadly weapon which is statement was i was hitting him on the head and the gun went off and he died so this is about first degree versus second degree i mean i just said that that statement certainly doesn't square with the statutory construction that was my point but i won't take it at all but if you and i well as i read it i'm not saying good morning your honour's amanda stage with than about attorney general's office on behalf of the respondent apologies and that's in this matter this case is not about a quirk in the law or facts this is a simple sufficiency of the evidence claim and any discussions on whether or not the jury in this particular case was confused about the instructions or whether they were properly had their questions answered is irrelevant under jackson because the standard for jackson is not whether this jury was confused or what they thought the law was it's whether any rational j could have found murder in the first degree under the facts presented to the to the jury in this case when viewing those facts in the light most favorable to the state so again questions about how does the vow to treat burglary or case and how it was answered are really irrelevant to that objective standard here and as we've already discussed under that's a very deferential standard to the nevada supreme court's decision we have to jackson itself to the jury verdict we assume that they view the light the evidence in the light most favorable to the state we assume that if there are any conflicts in the evidence which there were here that the jury resolve those conflicts in favor of the state but they did ask a question about this the jury did they did what asking the question just was that it for forty pm they were saying well if this fight was outside would that be berkeley that doesn't mean that's what the jury concluded that just means that point in time that's the discussion they were having they could have asked that question and then still concluded based on the seventh that the fight started it indoors and that would have been a reasonable conclusion you have three state witnesses but talked about mr castro the victim here essentially tricking the defendant his brother to go outside to try and avoid a fight shutting them outside and then when he opens the door again later to allow miss simcoe to leave with her children evidence is that the defendant pushed his way and spit on mr cashel which itself is a misdemeanor battery and then fight immediately started evidence is that evidence was shown that the first punch was thrown by mr castro so this isn't even a situation where they came in there was further discussions came in and it was immediate fight started by mr castro throwing the first  that alone is sufficient to show that he entered with intent to batter mr castro in the home that constitutes a burglary under nevada law which is then sufficient to establish to satisfy the felony murder statute so it doesn't have to be a felony battery simple batteries and simple battery is sufficient there are some felonies specifically outlined in the burglary statute but as far as battery goes it's just left it general battery so felony or misdemeanor is sufficient to satisfy the other interesting thing about this case is that the c e o it was on whether there was sufficient evidence of the felony murder question this was charged as a general general murder with two alternate theory so you had felony murder you had premeditated murder the question that's not before the court is whether there was sufficient evidence on the premeditated murder and when we have those two alternate theories under a general verdict even if we found there wasn't sufficient evidence for felony murder the riddick still stands because we have this alternate theory and under griffin the supreme court said we must assume that the jury reached their verdict based on the theory that was supported by the evidence in this case i just like to briefly touch on the nevada supreme court's decision just to show that it was objective really reasonable here when you look at the nevada supreme court's decision they do address the jackson standards they do identify the correct standard they recognize that  conflicts in the evidence must be resolved in favor of the state and then they go on to acknowledge that under the law as question about a law burglary is sufficient to support the felony murder conviction they then do a  brief recitation of the facts they believe support that before concluding that there was sufficient evidence here i believe that that was an objective plea reasonable application of jackson to the facts of this matter and i would ask that you affirm if there's no further questions from the court thank you first degree burglary the prosecutor argue that's an injury relied heavily on that there he relied almost exclusively on that the felony murder theory because the evidence of deliberation particular here is very scant almost nonexistent devout a supreme court says is the reason why they deny his appeal is because the jury determined that the state's evidence was more credible than the fight and not so on the porch but the jury never had to make that determination in fact the prosecutor told them they didn't have to make that determination the process the jury didn't take the state's word for it and asked to simply ask the court is that true the court never answer the question one final point the justice court in this matter which knows the law unlike the jury listened to the same evidence and since the justice court knew the law it determined that there is insufficient evidence of burglary here because you can't have a burglary when the fight starts on the porch now if the jury had had that same legal knowledge we wouldn't be here today that they would have convicted of second degree murder and not first degree murder and that is the crux of this case thank you thank both of you for the arguments this morning alford versus neven is submitted we have two cases submitted on the briefs united states versus moda and u s bank versus f f r investments also carolina versus whitaker the case next for argument will be read versus