example at the low end it says that a defendant can't commit the stocking right the intent to harass at the lower scale all the way to the intent to kill so given that you have a essential element has varying degrees of behavior we argue that the courts here it was incumbent upon the court to instruct the jury as to with respect to that this race are you said what you're talking about state of mind that you're talking with intent that statute they said if a single statute has several different ways for example the defendant can be guilty of running a red light the defendant can be guilty down without their lights on the defendant can be guilty of speeding three get back to the question of what difference does it make congress has said if any of those things happened and it the death of the victim results that really doesn't it doesn't matter  death and that next step acquires the very to look at the conduct to determine if the defendant's actions resulted in that and so here the difference is if they don't meet that fine he based on an act that we don't know mr  the least in terms of as i read it and interpret it is that the court here is saying yes we are looking at means as opposed to statutes that that that stick to different offenses the key though is that in those cases it's not the general case will it covers first amendment that we or submitting that as applied the way you look at the statute the statute essentially does not give a direct definition of what type of speech so that says go do something criminal it's actually speech that is very generic relating to the jit issues but because of that it would be not integral to criminal the visuals talking about committing an actual crime so the first amendment protection is lost i'm going to get in a case where you have someone telling someone to violate a municipal ordinance had to do with what could be sold what can't be so they're actually speaking directly about a criminal offense in a situation there is no such discussion what we have here is we do have speech we have speech by virtue of a number of different ways but no this speech if you look at it additionally the second issue but the polygraph was conducted on it in january of twenty eleven and when one looks closely at the t p r opinion there's no mention of that polygraph so to suggest that defamation issue was one of the exceptions that would have allowed a protection to my client first amendment speech rights to be removed is ineffective because of that reason there was no actual legitimate fin exceptions even if it wasn't the fremen story and it's questionable if it can't be but let's say if it in this particular case at least if there was a appellate finding that he does qualifies integral to a criminal conduct that mother to again put out information about whether or not there was in fact abuse throughout the course of the trial the defense disclose the names of the experts that we determined that we were not going to call an expert in terms of that particular polygraph as a course of the trial went on when it came time for the defense case we determined that what would be appropriate for us to do is to do the government claim that you  mother were questions that they were being restricted to certain questions that were they were responding about some other claims that they had made the government's position was that these claims  were somehow these these questions were crafted to obviate another issue or another claim the entire polygraph therefore was called into question when you look at the record where it was clearly just take them one at a time starting with the nudity argument that the defendants have made it's it's the government's position that the primary legal principle is that a jury just needs to unanimous on each element of the offense but not the means by which the offense is committed put differently unless the element itself creates two different offenses the specific  different x you're saying there they're the same offense well what i'm saying is that the what the jury seen any sign your honor is that the victim experiences one of those particular harms but it doesn't happen statute but it's still the government's position that nevertheless that doesn't create two separate offenses whether the victim suffered reasonable fear of death were substantial emotional distress and i would note that if that were the case it would of conspiracy guilty everyone's caught up in it ok they're all guilty i'm just you haven't if you can help me say that when it comes to an elite provision that is specific to the person who beery really operates with a situation like this with a separate penalty provision that addresses each person who who committed the crime well i think your honor that under the theories that the court proceeded on those were theories that flow from established a supreme court precedent case and i between any can solve and her father which were kept there her house they were reflected in letters that said things like we can't take much more getting slapped in the face and kicked in the teeth i think it's about her turn for him to christian golf or for  next day to attempt to remove the girls and execute the final object of the conspiracy the government believes that the jury with could have sufficiently found under either theory that she was made him want to kill her and he did it instead of the stop sign it became a trigger point and that trigger point led to all this increased stalking activity in the weeks and months after the t p r order came down i would note for th underlined by the parties showing this was are going to the jury that this was really the catalyst for we're alternately walking christian gulf and small be specific on that are you talking about finding that there was has indicated a concern with the language so i'm identifying for the court why the language is was important another piece of evidence that you have to read them together and then to understand why again the language was critical  a moment in time in the trial when the government was trying to jury and say this is why they killed her is that you're saying that she p r was actively used by the government the language of the t p r during the trial so what i'm saying is judge the government used the t p r precisely how the court indicated and when we put that exhibit in front of the jury what we said to the jury was we were not to consider the t p r in terms services has let them down is not listening to that they call an expert witness in the case jillian blair to come in and tell the jury that dollar family services wet them down didn't follow their protocols should it be investigated misled into believing that this is some big mistake that he's out there just continuing to get someone to listen to help this child when the reality is this issue was that raised decided and it wasn't being used as instruction that the judge gave on this as i understand it he gave it more than once or he gave it more than one try he gave it when the evidence was admitted during can rawson's testimony and then he provided the order again at the the government hall all of the witnesses testified at the cheek you are hearing at this trial so the jury was able to decide for itself whether this singular issue of sexual abuse had occurred  not the government put on overwhelming evidence that the child was not used to she testified about this herself her medical providers both her pediatrician and the now health provider came in and talked about  litigation we had discovery deadlines we had expert deadlines in this case the government complied defend it in solace initially indicated that she intended to call a polygraph expert and with drew that  the government then proceeded through trial closed its case and it wasn't until over three weeks into this trial the night before we were headed back into quirk that we found out that defendant in solace had conducted a secret polygraph of a polygraph the government because the polygraph would be conducted in secret and wait had no opportunity to participate in the part in the process it would have created a mini trial the defense could not overcome the supreme court case court would then he went to the floor corners of the indictment when it is assessing better whether or not either an over breath challenge as appropriate or whether an as applied challenge is appropriate we think that impact on the victim probably because you need all those three to satisfy all those three problems it's not the case that you're going to sweep up a rod of if any protected speech and on me as applied for the government would no in the harassment campaign so i see that my time's up rogers there is no question so i will sit down there you counsel to stipulate that should be part of the words analysis now of the government and its argument said that the language was the trigger pretrial it said the act the fact that his rights were terminated was the trigger allegations and rejected them but you do not need findings that speak to his character the government said that we called witnesses they did because every single witness that was at the t p r family court he feel quickly in as much as this is a consolidated appeal with respect to the team pure the one thing i would ask the court to consider well the government did call witnesses they didn't call the three judge what was critical about that ship yard was the conclusion