mr charles dodge was brutally beaten and murdered around thanksgiving time in two thousand and seventeen but substantial evidence that was presented at the trial demonstrates a although mr oldmeadow did beat this man evidence  did not slit his throat which was the injury in this case that was not survivable but the jury was not given the choice to find mr owen and to find mr owen guilty for what he admitted doing it for what there was  lesser included offense instruction should have been given with regard and you have to go through a variety of tests to do that but the question is whether or not it's committing a substantial injury is always a subset or always part of a murder we have indicated that lesser included the units because i think we started off with that and as you pointed out there are some elements or steps to go through to determine whether the lesser included should have been and should have been given and of course one of them is whether it was properly requested correct and it was but but then we get to the nd step and that is whether the questions i've i've been struggling with and i want you to address has to do with whether whether an unlawful killing always involves an assault i'm interested in how broad the term assault can go so for example if someone lures someone else off a cliff intending for that person to have a fatal fall is why would that be an assault it might be murder but why would it be why would that be and so i don't necessarily know i don't necessarily think well i  you know i took a look let me give you another scenario what if what if someone who is responsible for the care of an infant neglected that infant intending that think and i don't believe that there have to be a physical touching in the sense that we that we need yet i know that there's been and i think i have yet i have struggled with this too because it's very confusing to me i know that there's been some cases that have indicated in looking at the common law assault and battery that you know perhaps poisoning somebody doesn't doesn't amount him for at least knowing a little bit that it's more a matter of common sense quite frankly rather than a mathematical and technical equation and this court decided that united states versus ben watt and the court was looking at whether applied the elements test to charges of possession of child pornography and receiving pornography and the court went beyond kind of the super superficial comparison of the elements and as a matter of logic sound that ben walk could not have been guilty every seat without also being guilty of possession and here i think it's very similar in comparing him to comparing it assault risd assault resulting i touching but but but i'm also not sure that you can be found guilty of st degree felony murder for that either well we're we're looking at the arm and the st element is causing the death rock not right and our question used is that broader th but then we go back to the common law the common law issues of assault and battery and that both the battery and assault don't require an actual physical touching and i understand  you're saying that perhaps you can cause a murder without you know causing an assault i think where what we're saying is that you can't cause serious bodily injur all it was in the st element is constant right and and so but a subset of that is also causing serious bodily injury but i understand what the court is saying that of themselves ten of those are introduced i think it's not if i'm one of those gruesome photos would have been would have been introduced but there weren't there were ten of them and these  photos absolutely and that's why the other ninety are eight i can't karen not going to get mouth and mask that's why the other eighty eight stars were ok even though they were graphic because they did so that death when these ten photo perhaps whatever happened in the house happened around thanksgiving times a week later and mr white and mr mr tahoe and somebody else who was also present attempted to do what they did no i don't think any of the pictures taken of him at that time detected him at the time of death they all were taken when mr darkness found after he had been then put in there by away your honor is the the really the issue in this case that i plan to address to spend most of my time on this morning has apparently been it sounds like conce it judge mathis in your questions went to the heart of this issue yours as well judge briscoe whether every murder necessarily includes an assault and the answer is no if i could borrow some legal nomenclature from another context assault is a means of committing murder but assault is not an element of murder the examples judge matheson and judge briscoe that you both gave really get to the heart of this that there are ways of committing a murder that do not include any definition of assault and if there is even one way of committing a murder without committing an assault then there assault is not a lesser included offense of murder and that's really the end of the analysis and i would note your honor is before i address the substance of this this discussion this morning illustrates why this issue is not even properly before the courts because below at the jury instruction conference when defense counsel objected to the failure to give a lesser included instruction on assault resulting in serious bodily injury defense counsel never argue that every murder involves an assault instead she merely argued that the evidence in this particular case supports it so in rejecting the lesser included offense instruction and this  and as i explained in the brief under federal rule of criminal procedure thirty d it's required that someone objecting to the failure of a jury instruction raise a specific objection and where that's not want a lesser included instruction it certainly means judge briscoe i want to lesser included struction but again thirty d requires a specific objection and this case is a good illustration of why let's say for the sake of argument that defense counsel actually offered a very good argument as to why every murder involves an assault and just got done that said you know what counsel i agree with you i'm giving the instruction then the instruction is given the jury considers it and we're not faced with a situation where effectively on appeal and tiredly new argument is being made which if accepted and the other requirements accepted as well would result in a reversal on a retrial of a very  difficult st degree murder case victims having to really go through everything i mean i won't belabor the point your honour's but this particular issue which the council here has acknowledged is difficult was never brought to the district court's attention and since it was never brought to the district court's attention it's not preserved under rule thirty and so therefore your honors were at play in error review and again there is no argument that mr old meant to possibly prevail on player review he's never argued that it is briefing  and even if he had he cited no authority from any court in support of the notion that assault resulting in serious bodily injury is a lesser included offense of murder it circuit authority is that favors the government assault and and the examples you gave luring someone to his death is an interesting one i could foresee an argument that if i lured someone off a cliff that even though i'm not directly using physical force or maybe the better the better way to say it is i'm not causing any sort of offensive touching offensive contact nevertheless indirectly the person is falling from a high height and smashing on the ground and indirectly i have caused the offensive touching very much as if i had shot the person the bullet is what causes the offensive touching but i'm still on the hook for so littering your honor might not be the best example however infant neglect or starvation is you brought up judge briscoe those are examples of factual circumstances where you would have a murder without an assault recall that there are thirty three dollars real ways of committing assaults now that the definition of battery is sort of this sort of st is a battery and offensive touching and then nd is an attempted battery attempting to cause an offensive touching and then finally is credibly threatening someone clearly neither of the latter two apply it's obviously possible to kill someone  without threatening or without attempting anything so the real question is is battery in the common law sense required for every bird and the answer is no if i have a child who is lying in her crib and i decide i tired of having this child and i'm going to allow her to starve to death i have not caused any offensive touching and yet at the end of the day i have murdered her or the same your honor perhaps if one were to withhold vital medication from someone who needed it or through this judge briscoe points out the bottom line is your honor there are ways of committing murder without committing assault therefore assault resulting in serious bodily injury is not a lesser included offense of murder and really your honor unless mr old man can show to the contrary the entire lesser included instruction issue fails because it's just not a lesser included offense briefly your honor i'd like to your honor as i would like to address an alternative argument which again in view of the arguments of the tension a concession here may no longer be pertinent but even if even if this court were to to ultimately decide that yes every murder involves an assault a lesser included instruction would not have been appropriate in this case because what the defendant was not actually requesting was a lesser included instruction what the defendant was requesting was an instruction on an uncharged legally and factually distinct assault so even if assault resulting in serious bodily injury were a lesser included the instruction would not have been appropriate i'd like to approach it st by mentioning judge briscoe you brought up the aiding and abetting and in fact the verdict form indicates that the jury found in the alternative is phrased as st degree murder or aiding and abetting so at least based on the verdict form it's not entirely clear which theory the jury relied on but i would point the court to the defendant's reply brief in the government's brief i made the argument that well even if the jury had decided that mr old man did not do the throat slitting it had it would have found him guilty of aiding and abetting and that was citation to this court's decision to and in response defense counsel argues that well the jury could have found that mr old man withdrew from this fate whole mob assault against the against the victim and later was killed by mr white plume in a legally separate or distinct manner but your honour's even if the jury could have rationally concluded that mr old man withdrew and the murder was entirely separate then the proper verdict would have been acquittal a proper verdict would not have been well we find th murder was entirely separate from whatever happened before nevertheless we're going to convict you of assault for what happened before that would simply be convicting the defendant of an uncharged if this i have an analogy your honor is that i think will in that fight and the defendant is charged with assault resulting in serious bodily injury and yet at trial the defense there is some evidence that the injury was not serious and the defendant says i'd like an instruction on simple assault well in that circumstance the simple assault instruction would be appropriate one of the elements of assault resulting in serious bodily injury is that the defendant's assaulted the victim resulting in serious bodily injury the elements of simple assault defendant assaulted the victim now under the rd step of the duran analysis for lesser included offenses and instruction is appropriate if the element differentiating the greater and the lesser offense is in dispute so in my example that would be that would be true there would be a dispute about whether that resulting in serious bodily injury was met and if you go to the th step of the duran analysis a jury rationally could conclude that the defendant is not guilty of assault resulting in serious bodily injury because the injury was serious but is still guilty of simple assault so now let's change the facts though to make it match with what's being argued here let's say there is no dispute that the victim in this fight suffered serious bodily injury let's say he's paralyzed and at trial the defendant's defense is now well i didn't do that someone else did that so the question is is the element differentiating the two offenses in dispute and it's not there's no dispute that the resulting in serious bodily injury happened what's in dispute is the identity of the perpetrator but the identity element is common to both assault resulting in serious bodily injury and to simple assault so the defense really is not i'm guilty of a lesser offense it's that i'm not guilty of this i may be guilty of something else that was not charged but i'm not guilty of this and that's the fundamental problem your honour's as well with mr old man's argument even assuming just for the sake of argument here that murder is equal to assault resulting in serious bodily injury resulting in death and destruction on the assault would only be appropriate if the result the instruction could only be given if the if it's the district court were convinced both that he could be convicted of a lesser charge but couldn't but could be acquitted  the greater charge so could he have been acquitted of the greater charge as to aiding and abetting because the throat slit happened after he left the basement or left left the location of the assault you want to leave the answer is yes if the jury at save the jury decides we don't believe matthew wiped out all we don't believe bernadette brown at all or at least we disbelieve certain parts of her testimony that yes as a matter of yes or no the jury could rationally have concluded assuming again what they choose to believe about those witnesses doesn't favor the defendant your honor because it's one thing to say the jury rationally could have acquitted the defendant and that is that's one thing it's yet another thing to say that the jury also could have rationally convicted of the lesser offense and the point that i'm making your honor is that let's say the jury does in fact conclude well we think mr oldmeadow withdrew and he had nothing to do with that fatal throat slitting well then he's not only innocent of murder he's innocent of every lesser included offense of murder now he may be guilty of some un charge prior assaults for striking mr dykes with the with the crowbar for example but that's not a lesser included offense of what's charged mid the condition of the body at the time today that's correct your honor so what's her own well they're relevant your honor because they're the the best evidence the government had of the condition of the body there were those pictures had a tendency to make material facts more or less likely so they certainly were relevant your honor so in the examination some of the witnesses or at least one of the witness  and also correct thank you this case is submitted we thank you both for your arguments this morning court is