d whether they caught whether claim one seat with insufficient about the jury instruction with says that the intent has to be shown beyond a reasonable doubt at the time of entry or when unlawful possession commences but the problem is just before that the court instructed the jury that the definition of remaining included but implied  revocation of consent therefore allowing the jury to by the governments of the state's theory which was merely committing assault is a unlawful remaining in constance a burglary that is not the law of oregon that's true on the other hand when a burglar breaks into a house and steals a computer the jury can certainly conclude that he intended to steal when he broke in the house by the fact that he took computer and hear what the jury has sufficient evidence to conclude that when these men were told to leave they had the intent to assault jones because they did immediately  leave they have the intent to beat him up then that's not correct what they did the court is using the word day mr sterritt attacked him then yes some time later i while later was no evidence of intent at that point to commit the assault how much later in time did the assault occur because the record reflect well i mean the evidence is that mr st jobs i don't know how much time it's not in the record but we do know that it took some time for mr sterritt to attack him and some time occurred before then mr decker apparently joined in put should the instruction have remaining was when mr jones told them to leave so the intent had to exist then and by allowing the jury to find some imply the ten just merely by assault that's not oregon law that's incorrect and misled the jury and the jury should have been correctly instructed that oregon law requires since one nine hundred seventy when the statue was an acted and you read the legislative history which the cases rely on it requires the intent at the time the interest revoked and if the jury had been properly instructed the state's the state's argument is is would have been rejected because it was incorrect but brief that page three there is no evidence whatsoever there's no direct evidence of any statement by the defendant decker that jones at the moment the jones that you have to leave yes yes then you should have gotten a real twenty nine acquittal he should have yes if his attorney knew what he was doing and asked for the correct instructions and provided the correct well yes at that but i think there's two three different things going on here on the one hand you can say there was not there's insufficient evidence but i thought this case was all about the instruction was improper i think the stress the instruction is that's correct instruction was improper because instruction allowed the jury to just find a assault commits that shortly before that it gives the the burglary instruction ok and then you know bad allows the state to argue that that just committing an assault which they did is is burglary and that's that's incorrect but i'm looking at excerpts of record two thirty six the instruction was to go through the burglary elements and since fifth at the time of entering or remaining unlawfully david decker had the intent to commit the crime of assault there in yes and well i don't think i don't think that's an issue here i think that's a lot of the case this court remanded solely on the issue of whether the instructions were correct i can only interpret that as this court previously found that the claim was proper and the issue is solely the first time around so i wanted to address was really more on this point that there has to be an instruction as to the exact moment when the intent as i read the instruction is i was asking for that but when i read the instruction i says that and then you admit he cited page three of your brief you admit that there's no evidence at all as to what the intent was as to mr decker at the moment when he or his license was withdrawn but what we said at page three of our brief is that there was no direct i'll have to go back and see if you say so direct evidence but it seemed to say that was no evidence produced at trial that would tend to prove mr decker formulated the intent to commit assault at the time mr jones seems like that's what oregon law says the problem here from what i can tell at this point but i want to give you an opportunity to set me straight is the states further compounded this  is that right correct on that issue those that those those cases both post date the trial and post addiction proceedings and it's important that as a separate issue from the one that petitioner raises really in argue the question of whether intent needs to coincide with the unlawful remaining is a separate question from what kind of conduct can constitute unlawful remaining and in my view those cases only answer just the latter question but it seems here what is at issue is whether the intent was contemporaneous at the time that the authorization to remain was rescinded or revoked and that law from my view of what was presented i'm not sure a jury or his his assault itself could cook could constitute an unlawful in a way that conduct was the one that needs to coincide with the intent but to me that's a separate issue that merely stating that the intent  formed at the time of unlawful remaining i'm not sure is sufficient if the jury was under a misunderstanding of when the unlawful remaining occurred what's your response to that so i think my response is if there's a concert if if if the claim is the trial counsel failed to ensure the jury was adequately instructed on the question of intent then you would need to raise a different claim to say the jury was not properly instructed as to what conduct in situ constitutes unlawful remaining to need those are separate issues they're related what it seems we have and it seems like this is what the issue is that separated and what we have before us now is one scene and the whole issue was whether or not the lawyer the trial lawyer was deficient in not adequately requesting an instruction that would have clarified the contemporary brainiest nature of the intent that needed to be formed at the time by the petitioner you know in this underlying offense so why wasn't the that we have also this procedural default which is to say post conviction counsel also didn't perform unreasonably but let's say that was incorrect on the affirmative defense being is there any reason that we have to still maintain that that is true that the pursuing of the affirmative defense was a reasonable trials strategy it seems after looking at the affidavit of trial counsel it's not clear that  understanding of what burglary and the elements of burglary meant i don't know if you saw trials counsel's affidavit and read it differently but i couldn't make sense of what he said and why he didn't pursue it seems like our case law requires that that be an important decision where he rejects where if he doesn't or is able not able to show that he rejected successful let alone an adequate defense that