with the purpose of terrorizing another person that's that's one element of the fans the second element is the person threatens to cause death or serious physical injury or substantial property damage to another person my argument here is that that list of three things is a list another but i contend that the math this case of the supreme court cast that decision in the doubt and i contend that that allows this panel to reconsider the decision and lot of math us and the reason that matheson does cast doubt is because at the supreme court level clarified was that no if it if it defines a list of means you're not allowed to to find it to be divisible so under the way the circuit had been operating the court in boaz could have looked at that and specific question i would say the case law is not clear on that i don't think the case law says whether they do that there are there are cases and one of them that i cited was a peep out of his versus state in which it discusses the elements and it lists both the intent terrorizing other person and then it lists all three of those options as as another element so that i think the case law does suggest that the main elements are first having record in this case in this very case the felony information under which mr meyers was charged listed all three elements and then it and then it said that he meant it then discussed how he how he how he committed the by which an element your position we look at that count six that we can we only supposed to look at the first two lines right repeating the words of the statute and not the last two lines about what he did yes your honor because again looking at the last two lines that's that's getting into the how much of a variance can you have to use a federal term i think i don't know the answer to that specific motion but i would submit that when when i prosecutor charges somebody and puts all those three things in it again the masses court has said that that's a very good indication as good an indication as any that those are merely means by which a single element can be can be accomplished another thing to look at is the state's model and jury model jury instructions that's another aspect of state law that this court can can look at and as i explained in the briefing this is one of those things that may be easier to see on paper than it is to explain in person but the model jury instructions allow for a court to instruct as to to instruct that if the jury to prove it one of those by unanimity they don't in other words end up in an elements instruction not not that i want to be on her and not from looking at the at the jury instructions themselves there's nothing in there about there's nothing in there instructing on that it again mcmillan case which i think is a recent recent decision of this court that's that's that's on point regarding a minnesota law of third degree right but it's another one it's another one of those cases that involved both threat element was was was the first was that was the first part the participating in the basically right type behavior and that and the second was causing the threat to persons or property and just just the fact that just the fact that those were both listed together and that second in the second element suggested that they were means rather than elements and i'd say that's similar to how the arkansas cases treated here and they also looked at the model jury instructions there and all of those all of those elements were listed  meyers made a threat to cause death or serious physical injury it also involves a threat to property therefore it does not qualify under the fourth cause of the armed criminal act therefore he did not have the three requisite predicate offenses predic controlling both on its face and actually mathis dealt with multiple ways to satisfy a singular locational element in a burglary statute and a further illustrate the court's thought process during mathis they discuss a hypothetical where the turned deadly weapon was used in the statute and then there were listed alternatives such as a gun a knife and a bat those being means not elements in contrast the felony statute for arkansas terroristic threat three alternative bases are crimes for conviction that are separated by the disjunctive or this is the hallmark of divisibility according to the two camps decision which has been followed by this court and multiple decisions mathis says the modified approach serves and serves solely as a tool to identify the elements of a crime of conviction when the statutes disjunctive phrasing renders one or more of them a paper that's what we have here so boaz doesn't need to be overturned and we can still look at mathis for guidance facts are according to mathis facts are mere real world things extraneous to the crimes legal requirements they neither be found by a jury nord method by a defendant elements or what a defendant plea any plea hearing now one needs merely to look at myers's judgement and the prosecutor short report of circumstances to see what he pled to it's of the defendant among other things threaten to kill his girlfriend terrorizing another person what i think that can actually benefit us just as much because it's for the purpose of terrorizing another person and similarly i don't think the lewis case cited by the appellant fits here because again it says what is prohibited is the communication of a threat with the purpose of terrorizing another person in the next sentence it says it is not necessary that the reception of the threat actually be terrorized that goes to some sort of an intent question  just a thing about a hypothetical where a the defendant's are gentlemen is taller than i if you don't do what i want you to do or i'm going to wait until you're at home and i'm going to blow up your evidence of either of either or both that's sufficient well your honor prior working for the department of justice i was the state prosecutor in arkansas and under this statute under the jury instructions you while the information charging document would list everything in the statute the two which of course being more specific the jury instructions read to the jury would only cover what the prosecutor what the state was trying to prove so you would not list everything to the jury and that was iraq i use my that's why my hypothetical it seems to me is as tricky it is tricky your honor and it's even more tricky because there's a conditional threat in there that you threw in if you do this i'm going to do this under arkansas law that would even be terroristic threatening because it's conditional so what do you agree that because you don't neither of you cite the instructions for the jury instructions do you agree that or in parentheses means you put or in the jury i do not your honor that actually said that my questions about the instructions you know in missouri there's a long set of instructions at the front that's amusing the word for two different things there's a long set of guidelines at the front of the instructions and they address what the what this means and what that means i understand you know and so if you told us about that so you're saying contrary to what he says he says the or in parentheses means you put the or in the instruction get it yes and you say not all right yes i say you choose one of the three and this was not looked at just last year in the eastern district of arkansas ok seche thought appeal that was a question i had that i didn't find that before in the monitor it doesn't appear that it is was it fine it was decided in october so i believe there's there might be a little bit of room for them to appeal that but the judge in that case obviously looked at the issue in light of the math as means test myers made the same argument that means would be more in this case was the threat made in person or was it made over the phone or was it made by e mail those would be means not elements was a threat explicit or not verbal or not quoting the adams case but again we're dealing with actual elements here the mcphee from case to defense sites out of the dish or minnesota is completely distinguishable from this case because they're looking at a crime of violence as an overbroad term that was defined elsewhere in the and you would agree then that in order to obtain a conviction there has to be unanimity on the element yes judge erickson because that's what the prosecutor would be that the only thing the prosecutor would be laying out for the juror there was a threat what was the threat to a person or piece of property but it was any one thing if you had that very odd case in which more than one of the subsections ma then there would be an instruction from the judge saying that in order to convict you'd have to unanimously reach on and judge logan's hypothetical i actually don't know that we'll go through a pretty good monkey wrench in it  because yes the jury could you know have the jury could find that it was a threat to property have to require the threat to a person and based on the fact that the prosecutor was trying to prove both in that specific case  very circuit decided just last year in the winsome decision that arkansas statute for second degree battery qualified as a violent felony post johnson post mathis the only difference in the winston case in our case is wednesday and dealt with a deadly weapon we deal with serious physical injury once you apply the modified categorical approach under winston and under existing case law you see that mr myers was charged with striking somebody in the head with such force that it caused their brain to swell and bleed i don't think anybody is going to argue that that's not a violent felony so it clearly fits under the purpose of the arm career criminal act in short yachters we have three felonies we have an uncontested drug prior felony we have this battery felony that clearly fits and then we have the only one that's a little bit in contention and that's the terroristic threat mean because of the case law that i've cited in the fax i do think that comes and and the district court made a correct decision if you will have any more questions i'll conclude thank you see that we can look at that it was that the short report of circumstance of the prosecutor short report of circumstances it's not just it's not a thing that's been that i've seen listed in any in any court discussing the modified got a whole approach and then also i would just point out that regarding that the jury instructions again i believe that the way for looking at the arkansas jury instructions i believe that mr bennett is correct that if if there's only evidence of one of those things the jury instructions do allow the court to to disregard that the court can just instruct on one of them but again i'm just i'm arguing that based on the way these are structured with that or in there and currencies it does clearly appear that you can instruct all of them therefore in judge slogans hypothetical the court will just include both of those things damage to property or death to a person or possibly even the serious physical injury and that's put all of them in there the jury does not have to agree unanimously on them and i would just point out that in other arkansas model jury instructions for example assault in the first degree whenever there are two separate crimes that are referenced those are just put in the tickles next to each other so that it's clear that you're not you're not going to instruct us about them you're just going to do one or the other and again that's model instruction third you know if the guidance at the front of the book says that i