of lawyers that are going to argue with step up and identify yourself record here is that a rational jury could of found that that wasn't the case she that the state essentially presented two conflicting versions of the half of it was based on kid statement which of course the state only and that she simply pointed it in the direction as she was running along byrne and the physical evidence as far as the cylinder opening up and the bullet struck into the ground the fact that the bullets were found was kind of dispersed among a that the bullets were in fact out on the street absolutely and that when the gun was recovered there were no bullets yes yes because there was five of them that were recovered and fired bullets right on the street sure i mean right again i guess the question at with with respect to whether or not the greater described with sufficiency that the lesser what either one of them or collectively that they would certainly i think one weapon so i don't think there's much dispute there of course the other part of the question is something we started to address here let's evidentially whether or not the evidence supports a fighting on the lesser and acquit on the greater  and of course we maintain that that it is basically the evidence of intent to kill here it was a classic he said she said he only happened it's of the intent to kill as to whether or not he actually pulled the trigger came from johnson himself that none of his partner saw what took place on burnham and the other part that the she said was she just simply said i would i turned the corner i ran because i thought i was going to be searched so i took off i turned the seventy eight seventeen there was some war on the thirty eight and then i think there was two on the other side of the dragon but in any case the physical evidence certainly supports a fact that some of the of the good is he hoping also it's highly questionable as to whether or not why  so of course that turned out to be bullets so it it and i think another important thing is that certainly the state or the state charged with aggravated assault ok so it seems kind of a consistent for them to say now that no rational jury would have found him found her guilty of aggravated assault where the evidence certainly bears that out well that charge was dismissed before the or the whether it's of aggravated assault ok and i think as far as i think the court made something mention of the fact that it was somehow by sheer luck that officer was shot and that sick well it also could have been just by the fact that she didn't tend to kill the bigger question is that that this is a jury question this should have been put to the jury because there was enough here there  there with this with the with her statement and with the officer testimony that he said she said nature of it this was a classic case of a question that should have been a jury should have been able to decide so a it from basically pull of such a close range then to be thrown over the car and to do it again as she as she's getting up on the ground two or three more times i mean that's just at the very least it's highly questionable and i think that's what's disturbing about not allowing the jury to to consider that so i think it's just a classic case of another important theory that the jury should have had before that so i think it up it also affects the defendant's ability to present is present a defense i mean that's what defense counsel is trying to do by asking for this  n and the court just kind of basically it is ability to do that so i think that's an important that's an important factor so unless the court has any other questions ok just but she would've been acquitted over time murder and she also doesn't address your accounts open back that there was another option for this jury is stamped though the standard i don't believe that the case is say the defendant has to show they would have benefited from the structure i thought the instruction is or the law is that if there is some evidence to support the giving of the instruction the defendant gets it happens or they would have gotten an acquittal they don't have to show they would have succeeded do they know they don't and mark my point is only that the fact that he's never argued that and also the device that they argued they don't have to show what route they have to show there is some evidence to support the struck right and they've also plus fifteen years correct there's a big difference but the evidence never supported an edited assault instruction well what if you take her statement is true first of all you know we don't have to we don't after johnson testified he didn't even know there was a gun until it was pressed against his chest and he heard he felt something against his chest and he heard a click so he had post click apprehension so there was no time to have a reasonable apprehension of receiving a battery even ish what we would she says is true but she turned what happened to circumstantial evidence and inferences that can be inferred from the testimony we can infer that he that he saw the gun when she turned because he didn't testify that he and structure it's not we don't decide how much to believe or whether we should believe it's whether there's evidence to justify giving that instruction we don't really look at it credibility lands correct correct but even with  is the truth what he said must be accepted and what she said we don't care about that that's not the law as far as you know it is not whether we were here to say what so you know this isn't a credibility thing it's about is there some evidence song to support that given that that's really the way i understand it not about how he necessarily help but is there some evidence to support the giving of it intent to scare ok that's the term it's an intent to scare and rossum krueger and i disagree with what counsel just stated krueger that defendant actually fired a gun at a police officer's home and the police officers in the window but he's not firing it out and that's the actual officers firing at the house they're saying that's like an intent to scare same with ross the defendant turned up police officers forty five feet away and but you but you look at that so that's who's three different categories there's really no gun ok there's krueger which is i'm not pointing it at you but i am firing at intent to scare and then there's the cases i cited jefferson walker and campbell which are all pointing the gun at you at the victim and firing back on in the direction of the victims so there's that in the direction of that person not at their house or are like that this is actually a new category because it's pointing a gun and pulling the trigger and defendant according to the your according to the officer which the jury the jury believes and because of his experience and the knowledge of hearing a click of a trigger was reaction of hearing that's and pushing her over the car which i should point out just to purchase found right at the durango where he says he pushed her up against the durango ok to purchase there he pushes her over  thank you and there's two more found over there so the only way those two guys that were the better side of that durango is they were still in the gun when she pushed her over meaning rabbo revolver tell and she's so diminutive and so tiny and how could this be this is so ridiculous she had an intent to kill because she knew this gun was loaded she when she first received it she's running from the police chest and then he said two to three more times after he pushed her over the the durango ok so this repeatedly why are you pulling the trigger if you don't have any time to call her there is no reason and there's nothing to indicate she stopped at any point she's been a lot more quicker with this trigger than officer johnson who but for the grace of god these boys have been falling out and it was a shot that night so to to categorize it as bullet on the street where they ran his two boats by the durango where he pushed her up against that car and two on the other side and then let's not stop there he's now got his service weapon out and he's he shoots are and she will found around the strangle she says that the police officer johnson runs into a car and that she keeps going down the street so it actually but the that evidence that was found doesn't support what she was saying because  again and she's finally drops at nothing to give up back on and then what does she say to she says understating that she tells the police officer johnson she's sorry and also said when he officer so i think the evidence in the lakers favorable to the prosecution definitely proved her guilty beyond a reasonable doubt and also the trial court correctly again though if in her version she doesn't say pull the trigger so if if she has lost says you decide whether there's some evidence you don't look at who's telling the instruction correct and as i stated earlier the evidence doesn't support even going by her statement that there was any reason why apprehension of perceiving a battery by officer johnson nor does she show that she has this intent to scare because she according to her she's just kind of running and turns and happens to have that gun in her hand so there's not even that intent to scare that the courts have used i think the sentencing has it yes you're right question under this sentence obviously to consider all the aggravation of mitigation repeatedly the defendant argued about her young age her small size her family being supportive and that there's nothing to indicate the trial court did not consider that in sentencing and also repeatedly stated the severity of the crime the fact that officer johnson johnson was lucky to have his life and also the evidence presented by the state of the prior felony and the incident that  contrast to intent to kill because in those cases the defendant was only given a time under instruction not an ag assault aggravated assault so i believe that it was just a kind of distinguish but i agree i mean the state is not required to prove an intent to scare it's just the reason apprehension of receiving a battery but my my reading of the case was just to kind of contrast it with an intent to kill to show hey this was not it this could be  defendant has to say i intend to scare you or that there has to be a charge to that effect i mean aggravated assault putting a weapon at someone is classic aggravated assault that's a very definition i mean if anything that is the element of reason why prevention i mean that's that's that's aggravated assault i don't know what much  there some of it's light and here i mean there's unquestionably slight i don't know how there's no the formula for it i mean her testimony or her say what i say which again that's a big part of the state's case it was that they basically talking about a subjective belief are we talking about an objective for reasonable person i don't know it sounds like the state's saying he has to be the one so in another words it's a subjective belief that he has i don't know if that's really  physical evidence how do you explain that away that the bullets are found on either side of that car well i think the bigger point is that first the three of them were found further north ok i think i got the actress written down here seventy  one which is where he caught up with her ok which is where he she supposedly turned around and pushed this something this gun to get up against his chest and pull the trigger twice ok the apprehension of course it would be shown by the jury to conclude was by virtue the fact that he as well whether or not it was just by sheer luck or by by purchase back that it was too drunk or viper to the fact that it was a bad shot who cares the point is that this for the jury to decide it still slight evidence a jury could have found that the is necessarily have to say hey officer i put you in reason why prevention ai and i intend to scare you there's no requirement that the point is whether or not there was that slight evidence that there was enough there to put before the jury and our position is that there certainly was i mean certainly reasonable doubt in who's telling the truth more and all that stuff that begs the issue the point is whether or not there was enough here and certainly just by virtue of the competing stories that he said she said nature of it i mean i think that's classic i mean that there that the jury should have been that question should have been for the jury to decide