there are three issues that i will be addressing today they all tied to each other and stand on their own constructive amendment of the indictment this one abuse of the court's discretion to sustain that based on my research it might be a st impression case the jury wrote a note is the charge of st degree murder contingent on the finding of guilt for robbery or armed the state should have sought a superseding indictment like they did to end the drug charge in this case they did superseding indictment but not at a charge of intentional murder they chose not to do so and now in their brief they're asking you to look the ole once again constructive manner and indict occurs when the evidence at trial goes beyond the  sting because there is no assurance that it matched the offense charge here the conviction cannot stand not only because there is no it didn't match the offense charged but because there is a  does not require the intent to kill underage tensional or indictment the nd element clearly does not require a separate felony but requires intent the jury you know teaches that the jury was confused and then it is not clear from full rich crime mr bailey was convicted as happened here the constructive amendment in friend and mr bailey's th amendment substantial right to be tried only one charge is presented in an indictment returned by grand jury in other words we we know that there are two distinct crimes that were presented to the juror the jury structure they were never instructed and the intent part of this direction because it's a completely different crime that mr bailey has not been charged with the crime here i superseding indictment if the grand jury would chosen to indict him and there moreover in its brief this speed uses the generic term st degree murder to try to cover the differences between because the charge about a document specifically said robert so that's exactly your are i think if you you you just showed us that we don't know and because we don't know when they broaden the base for the possibility of conviction we cannot guess and we are not allowed to guess the supreme court in surprise on said and specifically saying that but we are not allowed to guess charged is materially with substantially altered the trial so that it is impossible to know whether the grand jury would have indicted for the crime actually proved in this chain or in all the cases of the defendant relies on in his brief in every single one of those cases what happened here was that the jury was instructed differently from what was charged in the indictment that is not what happened in this case in this case the jury was properly instructed only on only her and they convicted him of felony  enemy mr jones that he had been paid to kill the victim by mr kneale is evidence that the defendant shot and killed no one and while that act may also establish an alternative charge of st degree intentional murder there is no requirement under only watched all alternative theories be charged just that one was charged to be proved which was beyond reasonable doubt evidence by the jury's as i was saying there is no difference between the indictment in this case and the conviction simply heard the defendant was convicted but if it was not convicted for any other crime but the crime for which he was charged moreover the use of discretion took place here unless it can be said that the trial court's ruling was arbitrary beyond full or reasonable or that no reasonable person would have taken you adopted by the trial court the court has been told in this case identity of the defendant in the weapon may be an issue overall trial theory that he was not the shooter and because a gun was never found evidence that three weeks earlier this gun was allegedly in possession of the defense was relevant to show the identity and his access to the same over my objection for it from pretrial motions and they he put up a completely different story from beginning to end and how him and mr berry where he met mr billy where he met the guy that supposedly hired mr bailey the whole thing came every day every single one else going into the nd argument because i don't have much time counsel's entitle to discuss reasonable doubt to present his view on the evidence and to suggest whether the evidence support reasonable doubt i absolutely but based business on the way we convicted mr bill and based on during those well that's why i said at the beginning you have to look at the tally each and every morning the way you can considering the separately because the in order to do something to the end and there's a there must be threshold requirement that increases the relevancy of the evidence and to ensure that it is not your sole interest there is a propensity by way of other crime and this is offered for