[00:00:00] Speaker 02:
United States versus Singer, 23-6120.

[00:00:03] Speaker 02:
Counsel, you may proceed.

[00:00:11] Speaker 01:
Good morning.

[00:00:12] Speaker 01:
May it please the court, my name is Laura Deskin.

[00:00:14] Speaker 01:
I'm an assistant federal public defender, and I represent Appellant Singer.

[00:00:19] Speaker 01:
This is a case about whether Oklahoma's A&B with a dangerous statute is a violent felony or a crime of violence.

[00:00:27] Speaker 01:
It turns on whether the term

[00:00:29] Speaker 01:
person is reserved exclusively for those who have been born alive, or whether that word's plain and ordinary meaning includes a fetus, specifically a viable fetus.

[00:00:41] Speaker 01:
Oklahoma's Court of Criminal Appeals has held three times that a viable fetus is protected from harm in the criminal context.

[00:00:49] Speaker 01:
And I'm going to explain to you why the Hughes Holding, that 1994 case,

[00:00:55] Speaker 01:
encompasses assault and battery with a dangerous weapon.

[00:00:59] Speaker 01:
Hughes was dealing with the term human being in the homicide statute, but it then expressly overruled Harbert, a case which had held that a viable fetus is not a person within the meaning of 652, the assault and battery with a deadly weapon statute.

[00:01:18] Speaker 01:
It didn't analyze that statute specifically.

[00:01:20] Speaker 01:
It just called it an assault and battery statute.

[00:01:23] Speaker 01:
And that was probably because the term person does not actually appear in the deadly statute.

[00:01:31] Speaker 01:
It is in the definition for battery.

[00:01:34] Speaker 01:
I believe they were rejecting the idea that person, in terms of the battery statute, only applies to those born alive.

[00:01:43] Speaker 01:
They were saying a battery can occur on a viable

[00:01:47] Speaker 01:
And that is the harm that statutes like assault and battery statutes are meant to protect people, including a viable fetus.

[00:01:57] Speaker 01:
And that is why they stated in green that just as a viable fetus may be the victim of assault and battery with a dangerous weapon, he or she may be a victim of child neglect.

[00:02:11] Speaker 01:
The statutes all protect people from harm, homicide, assault and battery,

[00:02:17] Speaker 01:
child neglect.

[00:02:19] Speaker 02:
And it doesn't matter... But you would agree though that 645 doesn't mention fetus, does it?

[00:02:26] Speaker 01:
645 does not mention fetus.

[00:02:29] Speaker 01:
That is correct.

[00:02:30] Speaker 02:
And I'm going to... Let me just quickly follow up.

[00:02:33] Speaker 02:
Sure.

[00:02:33] Speaker 02:
So Hughes was decided in 94 and then the legislature

[00:02:40] Speaker 02:
amended Section 652 in 2005, effectively codifying Hughes.

[00:02:46] Speaker 02:
Would you agree with that?

[00:02:48] Speaker 01:
I think that they codified Hughes, but they went further than Hughes did.

[00:02:54] Speaker 01:
And that is critical here.

[00:02:56] Speaker 01:
So that was in 1994 that Hughes happened.

[00:03:01] Speaker 01:
And then in 2005, 11 years later, the Oklahoma legislature

[00:03:07] Speaker 01:
actually went farther, and I think that was intentional.

[00:03:11] Speaker 01:
So in Hughes, they held that the plain and ordinary meeting of a person includes a viable fetus and beyond.

[00:03:18] Speaker 02:
Did they say viable in the statute?

[00:03:21] Speaker 01:
They did.

[00:03:21] Speaker 01:
They said viable repeatedly.

[00:03:23] Speaker 02:
Except for abortion and medical standards of care, correct?

[00:03:28] Speaker 02:
There was an exception in the statute?

[00:03:30] Speaker 01:
Oh, no.

[00:03:30] Speaker 01:
I'm talking about in the Court of Criminal Appeals in the cases.

[00:03:33] Speaker 01:
I'm talking about the statute.

[00:03:36] Speaker 01:
They are, and this is critical, they went further.

[00:03:39] Speaker 01:
Yes, they specifically defined, they included, they expanded the definition of person to include every stage of a development, from conception and beyond.

[00:03:51] Speaker 02:
They didn't draw the line in five?

[00:03:54] Speaker 01:
They did not draw the line in five.

[00:03:55] Speaker 01:
Well, they specifically referred to the

[00:03:57] Speaker 01:
definitional statute of unborn child in the abortion statute.

[00:04:04] Speaker 02:
All right.

[00:04:05] Speaker 02:
Then in 2006, it amended section 691.

[00:04:09] Speaker 02:
That's the homicide to cover unborn, correct?

[00:04:12] Speaker 01:
The same thing, yes.

[00:04:14] Speaker 02:
But then it amended 645, and it didn't alter it to cover

[00:04:19] Speaker 01:
Correct.

[00:04:20] Speaker 02:
And I believe that was intentional.

[00:04:23] Speaker 02:
Well, if it was intentional and they didn't amend it, then how can it cover viable or?

[00:04:30] Speaker 01:
Because the term person encompasses, in its plain and ordinary meaning under Oklahoma case law, means viable fetus and beyond.

[00:04:40] Speaker 02:
But the legislature had an opportunity to do it then and there, and they didn't do it.

[00:04:45] Speaker 02:
It seems like you're asking us to do it here, that is to amend 645 to include fetuses as victims, despite the fact that the legislature chose not to do it in 2006.

[00:04:57] Speaker 01:
I don't think that's true.

[00:04:59] Speaker 01:
And the reason is because it's the plain and ordinary meaning of person.

[00:05:03] Speaker 01:
They didn't need to amend it for the assault and battery with the dangerous statute.

[00:05:08] Speaker 01:
They were talking about instances.

[00:05:10] Speaker 02:
What do you mean they didn't need to do it?

[00:05:12] Speaker 02:
They just didn't do it.

[00:05:14] Speaker 01:
Yeah, and I think because they didn't need to, because they wanted to expand the definition.

[00:05:18] Speaker 02:
They felt a need to do so in the other two statutes, so why not make it consistent?

[00:05:24] Speaker 01:
Because in the other statutes, they wanted to include from conception and beyond.

[00:05:28] Speaker 01:
They wanted to for all homicides and for assault and battery with a deadly, which is included in that chapter.

[00:05:37] Speaker 02:
But isn't this an argument that should have been made to the legislature?

[00:05:41] Speaker 02:
Shouldn't it still be an argument that ought to be made to the legislature?

[00:05:45] Speaker 01:
I don't think so, because Oklahoma case law is clear that they believe the plain and ordinary meaning of person in this context includes a viable fetus and beyond.

[00:05:56] Speaker 01:
The legislature wanted to go beyond in those particular statutes and say, no, in those, we mean from conception and beyond.

[00:06:03] Speaker 02:
Under your interpretation, would you include exceptions?

[00:06:08] Speaker 01:
for in the assault and battery with a dangerous statute?

[00:06:11] Speaker 01:
Yes.

[00:06:12] Speaker 01:
No, I would not.

[00:06:12] Speaker 01:
I think it probably becomes in terms of that there's no assault and battery with a deadly is charged generally when you're thinking in terms of a fetus when somebody is quite pregnant.

[00:06:29] Speaker 01:
Assault and battery with a dangerous, you could have injury on a fetus, but you would have a very hard time proving that

[00:06:37] Speaker 01:
in those early stages, conception and beyond.

[00:06:40] Speaker 01:
So viable fetus and beyond makes a big difference in terms of how you would ever prove that assault and battery with the dangerous caused harm.

[00:06:50] Speaker 02:
But how do we know?

[00:06:52] Speaker 02:
We've got these other two statutes that expand it to conception.

[00:06:57] Speaker 02:
You want to have it different and have it be viable?

[00:07:02] Speaker 02:
Yes, following case law.

[00:07:03] Speaker 02:
Shouldn't that kind of line drawing be done by the legislature?

[00:07:07] Speaker 01:
Well, I think because of Oklahoma's case law and the way it's developed, I just don't believe it was necessary.

[00:07:14] Speaker 02:
But the case law was there.

[00:07:14] Speaker 02:
That was the background case law for the legislature to act upon.

[00:07:20] Speaker 02:
And they didn't do it when they amended 645.

[00:07:24] Speaker 01:
It's true.

[00:07:26] Speaker 01:
It sat there for 11 years with person, including a viable fetus and beyond, before any amendments were made.

[00:07:32] Speaker 01:
They only did it to the deadly and homicide.

[00:07:34] Speaker 01:
We also have the Green and Allen cases, which extended to criminal child neglect.

[00:07:43] Speaker 01:
That statute has not been amended.

[00:07:45] Speaker 01:
And it was also done on the plain and ordinary meaning of child in that context with reference to Hughes.

[00:07:55] Speaker 04:
Counselor, before you move on.

[00:07:58] Speaker 04:
I'm wondering what you think about certifying this question to the Oklahoma Court of Criminal Appeals, given what you just spent your time talking about.

[00:08:10] Speaker 01:
Well, I hadn't thought about that before, but I mean, I don't think there's any harm that could come from that if they want to make a... I find it hard to believe that our Oklahoma legislature would come out and say, no, our intention is not to protect

[00:08:26] Speaker 01:
a viable fetus from harm when an assault and battery is done with a dangerous weapon rather than a deadly weapon.

[00:08:34] Speaker 01:
So it is something that you could certify to the legislature to find out what it is that they truly did.

[00:08:41] Speaker 03:
Particularly with the significant sentencing consequences here, right?

[00:08:45] Speaker 03:
Correct.

[00:08:45] Speaker 03:
We can't guess.

[00:08:46] Speaker 03:
Right.

[00:08:47] Speaker 03:
I agree.

[00:08:49] Speaker 02:
Well, you almost said certify to the legislature.

[00:08:55] Speaker 02:
Seems like that's really the legislature that needs to make this decision, doesn't it?

[00:09:00] Speaker 01:
Well, I believe that decision has already been made because of this case law.

[00:09:06] Speaker 01:
By the legislature.

[00:09:08] Speaker 02:
Do you think the legislature's made the decision?

[00:09:10] Speaker 01:
I do.

[00:09:11] Speaker 01:
I think that the case law shows that in Oklahoma, the plain and ordinary meaning of a person in this context

[00:09:22] Speaker 01:
encompasses a viable fetus and beyond.

[00:09:25] Speaker 03:
When you say in this context, could you be more precise?

[00:09:28] Speaker 03:
Because there's a large body of case law.

[00:09:32] Speaker 03:
So when you say in this context, what do you mean?

[00:09:34] Speaker 01:
Right.

[00:09:34] Speaker 01:
In Hughes, they were talking about statutes that are meant to protect harm and injury to people.

[00:09:43] Speaker 01:
So that would be the homicide statutes and the salt and battery statutes is really what I'm talking about here, this type of harm.

[00:10:01] Speaker 01:
I wanted to see if there was any other points I wanted to hit.

[00:10:07] Speaker 01:
I think that's it.

[00:10:08] Speaker 01:
If there are no more questions, I'll reserve the rest of my time.

[00:10:12] Speaker 02:
Thank you.

[00:10:12] Speaker 02:
Thank you.

[00:10:17] Speaker 00:
Good morning and may it please the court, D.H.

[00:10:19] Speaker 00:
Dilbeck on behalf of the United States.

[00:10:22] Speaker 00:
Under Oklahoma law, only a person born alive and not the unborn can be a victim of assault and battery with a dangerous weapon.

[00:10:30] Speaker 00:
The felony's text and its statutory history supports that interpretation.

[00:10:34] Speaker 00:
And the Oklahoma Court of Criminal Appeals has never ruled otherwise.

[00:10:38] Speaker 00:
In fact, it's now twice adopted uniform jury instructions that follow that interpretation.

[00:10:45] Speaker 00:
It's done so most recently in March of this year after all the briefing was filed in this appeal.

[00:10:53] Speaker 00:
This offense is thus a violent crime.

[00:10:55] Speaker 02:
There was a decision in March.

[00:10:58] Speaker 00:
The revisions to the jury instructions were issued by the court in March, issued in the form, effectively, of a published opinion.

[00:11:07] Speaker 00:
That, for the court's reference, can be found in 2024 OK CR 6.

[00:11:14] Speaker 02:
I think all that might be helpful if you send those in with the 28J.

[00:11:19] Speaker 00:
Sure, I'd be happy to.

[00:11:20] Speaker 00:
And I'd be happy to discuss that now, because I think it has some bearing on

[00:11:25] Speaker 00:
how the Court of Criminal Appeals views its decisions in both the Hughes case and especially in the Green decision more recently.

[00:11:33] Speaker 00:
Just briefly by way of context on this jury instruction issue, in 2006 the Court of Criminal Appeals adopted and issued revised jury instructions that included for the first time an unborn child instruction.

[00:11:47] Speaker 00:
That instruction says, a person for certain felonies includes an unborn child and it lists which felonies it applies to.

[00:11:54] Speaker 00:
That list includes assault and battery with a deadly weapon and the homicide felonies.

[00:12:00] Speaker 00:
And in that, the instruction follows the recent revisions, Judge Matheson, that you had discussed.

[00:12:05] Speaker 00:
But in March of this year, the court adopted revised jury instructions for both the assault and battery with a dangerous weapon statute and the child neglect felony, the statute that was at issue in the Green decision.

[00:12:20] Speaker 00:
The revision to the dangerous weapon statute

[00:12:24] Speaker 00:
included a broadened definition of what counts as a dangerous weapon, and that it follows a revision to the statute itself that occurred in 2006.

[00:12:32] Speaker 00:
The revision to the child neglect statute now includes a note that explicitly references the green decision and says that the felony can apply to neglect of an unborn child.

[00:12:46] Speaker 00:
But importantly, nothing like that kind of note now exists in the revised version of the instruction

[00:12:53] Speaker 00:
for assault and battery with a dangerous weapon.

[00:12:56] Speaker 00:
I think that's important because it tells us something about what the Court of Criminal Appeals sees the reach of the Green decision especially to be.

[00:13:03] Speaker 00:
Presumably, if it thought, as the appellant has suggested, that Green squarely held that not only the child neglect felony but also the assault and battery with a dangerous weapon felony covered unborn victims, then it wouldn't have made the revisions that it did.

[00:13:20] Speaker 00:
And Judge Matheson, if I may, you asked a line of questions about the statutory history of the various violent felonies at issue here.

[00:13:30] Speaker 00:
Why I think that history is so crucially important.

[00:13:34] Speaker 00:
As you rightly noted, in 2005 and 2006, the deadly weapon felony and the homicide felony were amended to include unborn victims.

[00:13:41] Speaker 00:
Dangerous weapon felony was also amended, but not to include unborn victims.

[00:13:46] Speaker 00:
And it doesn't take any kind of wild leap of imagination to see that.

[00:13:50] Speaker 00:
as a conscious decision on the legislature's part.

[00:13:53] Speaker 00:
The legislature decided that the most serious violent felonies, the ones that posed the deadliest, the most serious life-threatening harm, should have the broadest possible reach for the widest possible protection in a way that shouldn't be true for a lesser violent felony like assault and battery with a dangerous weapon.

[00:14:12] Speaker 00:
I think the legislature has made it clear what it intends the scope and reach of these various violent felonies to be.

[00:14:21] Speaker 04:
So, counsel, why wouldn't we certify and actually ask the Oklahoma Court of Criminal Appeals to ask them to answer this question?

[00:14:30] Speaker 00:
Judge, I don't think that's necessary given the evidence before this court.

[00:14:34] Speaker 04:
And I appreciate that.

[00:14:36] Speaker 04:
I get your argument.

[00:14:36] Speaker 04:
I'm asking you, though, would there be a reason not to certify it?

[00:14:40] Speaker 00:
Yes, because I think the evidence from the text and the statutory history alongside this evidence from the jury instructions

[00:14:49] Speaker 00:
make it clear what the best interpretation of this statute is.

[00:14:52] Speaker 04:
OK, I'll rephrase it.

[00:14:53] Speaker 04:
Why wouldn't we let them make that conclusion rather than us as a federal court?

[00:14:59] Speaker 00:
I think the question for this court is, what's the best reading of the statute?

[00:15:04] Speaker 00:
And given that the Court of Criminal Appeals has never said anything contrary about this particular statute, I think this court, given the fact that the statute itself simply says person and not

[00:15:15] Speaker 00:
the unborn, like some of the other statutes.

[00:15:17] Speaker 00:
I don't think it's impinging in any improper way on the Court of Criminal Appeals and its authority to construe Oklahoma criminal law for this court to say, yes, given what the text says, what the legislature's done, and the limited scope of prior opinions, that yes, we are in a position to make a determination about the best interpretation of this statute.

[00:15:41] Speaker 00:
And it says person, and we'll read it simply as person, not to include the unborn, given how other violent felonies have been amended.

[00:15:50] Speaker 02:
Thank you.

[00:15:50] Speaker 02:
Let me just ask you why we have the cases in hues and green.

[00:15:57] Speaker 02:
We have the amendments to the homicide, the deadly force laws.

[00:16:01] Speaker 02:
We have the similarities of 645 to 652 and 843.5, which is the child neglect.

[00:16:08] Speaker 02:
You take all those together.

[00:16:10] Speaker 02:
Doesn't that at least raise some uncertainty as to whether Section 645 applies to fetuses?

[00:16:18] Speaker 02:
And if there's some uncertainty, then we run into the categorical approach calling for a clear coverage of the federal statute or the federal definition to the state statute.

[00:16:38] Speaker 02:
As long as the defense can raise some uncertainty about that, don't you have a problem under the categorical approach?

[00:16:47] Speaker 00:
I don't think there is some uncertainty because of the unique statutory history of Section 645.

[00:16:54] Speaker 00:
The child neglect felony that was at issue in the Green case, there's no comparable kind of statutory history showing a conscious decision on the part of the legislature not to amend it.

[00:17:06] Speaker 00:
to include the unborn as victims in the way that was true in 2005 and 2006 for Section 645.

[00:17:13] Speaker 04:
Can I just jump in there?

[00:17:14] Speaker 04:
So when you say conscious decision, do we have, other than the fact that the statute wasn't amended, do we have anything else to say that this was a conscious decision?

[00:17:28] Speaker 04:
What's the evidence of that?

[00:17:30] Speaker 00:
I think the clearest evidence of a conscious decision is the fact that the legislature did contemporaneously amend section 645.

[00:17:37] Speaker 04:
Right, but I guess we don't have any other reason to think that, oh, they looked at this statute and said, oh, we don't want to amend it.

[00:17:47] Speaker 04:
Do we have anything like that?

[00:17:48] Speaker 00:
I'm not aware of any kind of legislature history that would suggest there was a proposed amendment that was debated.

[00:17:55] Speaker 00:
voted down.

[00:17:56] Speaker 00:
There's no sort of legislative history of that kind.

[00:18:01] Speaker 00:
I think the consciousness is just apparent again in the contemporaneous natures of the actual amendments themselves.

[00:18:08] Speaker 03:
Council, if we're not wholly persuaded by the government's reading in response to Judge Matheson's question, if there is some lurking uncertainty here, how does that resolve in the government's favor under the categorical approach?

[00:18:21] Speaker 00:
Well, I would say that if

[00:18:23] Speaker 00:
At the end of the day, this court is not persuaded by the evidence that we've presented.

[00:18:27] Speaker 00:
And I think that brings us back to Judge Ide's question a moment ago about certifying the question.

[00:18:32] Speaker 00:
If ultimately, this court thinks that yes, despite the text, the statutory history, the jury instructions, everything else, there is still some lingering uncertainty, then I think in that situation, the prudent thing for this court to do would be to certify the question to the Court of Criminal Appeals.

[00:18:52] Speaker 00:
If at the end of the day the court has not persuaded that that's the best reading of the statute, then yes, it probably would be best for the Court of Criminal Appeals to decide this in the first instance, given that it's never squarely addressed the issue before.

[00:19:05] Speaker 04:
Can I ask you just about the jury instructions?

[00:19:10] Speaker 04:
You're apparently going to submit those to us.

[00:19:13] Speaker 04:
But what is the process of coming up with jury instructions?

[00:19:19] Speaker 00:
The amendments are initially drafted by a committee separate from the court.

[00:19:23] Speaker 00:
Then they're submitted to the court for final approval.

[00:19:27] Speaker 00:
Once the court decides to approve them, then they're issued, like I mentioned before, in the form of what is equivalently a published opinion.

[00:19:36] Speaker 00:
It's got a case number, the number I cited.

[00:19:39] Speaker 04:
Do they say anything about the instructions, or it's just the instructions?

[00:19:44] Speaker 00:
There's no meaningful commentary more often than not from the court, yes.

[00:19:48] Speaker 04:
Thank you.

[00:19:52] Speaker 02:
Well, if there are no further questions for me from the court, I've got one more question.

[00:19:58] Speaker 02:
Why isn't the reference in the last paragraph in the green opinion to dangerous weapon a problem for you?

[00:20:06] Speaker 00:
Judge Matheson, I think when you read that line in the opinion as a whole, the only fair way to understand it is that the Court of Criminal Appeals inadvertently said dangerous when it meant deadly.

[00:20:19] Speaker 00:
And I don't suggest that lightly.

[00:20:22] Speaker 00:
And I'm certain that this court wouldn't likely reach that conclusion either.

[00:20:26] Speaker 00:
But I don't see how else to make sense of it when you read the opinion as a whole.

[00:20:33] Speaker 00:
The court nowhere else discusses section 645.

[00:20:36] Speaker 00:
None of the parties briefs discussed 645.

[00:20:39] Speaker 00:
Those uniform jury instructions that were just issued as well would suggest that Green wasn't meant to hold for the first time without any analysis or explanation, without any briefing.

[00:20:52] Speaker 00:
that section 645 covers the unborn.

[00:20:57] Speaker 00:
And I'll note also, reading that in context, that line comes after an extended discussion of the Hughes case, which held that the deadly weapon and homicide statutes cover the unborn.

[00:21:08] Speaker 00:
And that line, in fact, begins in sum as if it's, in effect, summarizing Hughes and its application for the child neglect statute.

[00:21:17] Speaker 00:
I think this is one of the exceedingly rare instances in which this court can comfortably conclude that the Court of Criminal Appeals meant to say deadly and not dangerous.

[00:21:33] Speaker 02:
Thank you.

[00:21:33] Speaker 02:
Thank you, counsel.

[00:21:39] Speaker 01:
As to the courts using the term assault and battery with a dangerous weapon in Hughes, I think that that can also be explained by the fact that that statute, once again, I said at the beginning, it does not include the term person.

[00:21:57] Speaker 01:
That term person comes from the definition for battery itself, which is why in green, then, when they talk about all this again, they are

[00:22:08] Speaker 01:
It's not, they're not definitively saying this statute, this statute, this statute.

[00:22:12] Speaker 01:
It is talking about the field of assault and battery from homicide to assault and battery with a dangerous weapon.

[00:22:20] Speaker 01:
Those are the people that we're talking about here.

[00:22:22] Speaker 02:
As to the... Well, can I just, in that regard, have you done an analysis of where a person appears in other Oklahoma statutes to determine whether your interpretation

[00:22:38] Speaker 02:
of person extends to all references to person and whether that would create some problems in the understanding and application of other statutes.

[00:22:49] Speaker 02:
I mean, persons used a lot in the Oklahoma Code.

[00:22:54] Speaker 02:
And the legislature, at least in terms of the face of this history, took a provision by provision approach and left 645 alone.

[00:23:06] Speaker 02:
But there are a lot of other ones that just have person in them as well.

[00:23:10] Speaker 02:
Does that mean we have to read this definition of person that you're proposing into everything else?

[00:23:18] Speaker 01:
I don't believe into every single statute.

[00:23:21] Speaker 01:
Here in Hughes, it was important in all of these cases, they were talking about what is the plain and ordinary meaning in terms of

[00:23:30] Speaker 01:
What is the harm trying to be prevented in each of these statutes?

[00:23:33] Speaker 02:
How about the kidnapping statute?

[00:23:36] Speaker 02:
That uses the word person.

[00:23:39] Speaker 02:
Does that mean that if there's a kidnapping, would the kidnapping include the fetus?

[00:23:53] Speaker 01:
I suppose potentially, but I think that there

[00:23:58] Speaker 02:
But the legislature didn't change that either.

[00:24:03] Speaker 01:
Right.

[00:24:03] Speaker 01:
I mean, you could come up and say, yes, person includes that pregnant mother and the viable fetus within.

[00:24:11] Speaker 02:
You could, but they didn't do that.

[00:24:14] Speaker 01:
Correct.

[00:24:17] Speaker 02:
And there's probably other examples too.

[00:24:19] Speaker 02:
It just seems like you're asking us to make the amendment as this court as opposed to the legislature.

[00:24:28] Speaker 01:
What the case law is talking about are these homicide and assault and battery statutes as a whole.

[00:24:36] Speaker 01:
It's two different chapters within Title 21, and I think that's what we're talking about.

[00:24:41] Speaker 01:
How do we know that?

[00:24:43] Speaker 01:
Because of the way they analyzed it in Hughes.

[00:24:46] Speaker 02:
But those other chapters weren't involved in Hughes.

[00:24:48] Speaker 01:
And in each of these.

[00:24:49] Speaker 01:
Well, assault and battery was involved because they brought it up.

[00:24:57] Speaker 01:
They were analyzing the homicide statute, but then took the time to specifically address and say that they were overturning the ruling in Harvard, which was the A and B with the deadly statute, but what they were analyzing there was the term person within the definitional statute for battery.

[00:25:15] Speaker 01:
It's the only way they could be talking about the term person.

[00:25:17] Speaker 01:
That's where it comes from.

[00:25:25] Speaker 01:
With that, I wanted to address the Oklahoma jury statutes as well and just remind the court that jury statutes are not definitive.

[00:25:33] Speaker 02:
Well, they're not statutes, right?

[00:25:35] Speaker 01:
Correct.

[00:25:36] Speaker 01:
And when you're up there as the litigant, you can ask for whatever jury instruction you think is appropriate.

[00:25:43] Speaker 02:
And I think here, they were just- Haven't this court, though, in certain categorical approach cases looked to jury instructions for guidance in determining whether the categorical approach applies?

[00:26:00] Speaker 01:
Yes, you can certainly look to them for guidance, though they're not definitive, and that assault and battery with a deadly weapon jury instruction is still assault and battery upon another person with a deadly weapon.

[00:26:13] Speaker 01:
And there's no intent to kill required.

[00:26:15] Speaker 01:
I also wanted to bring that up.

[00:26:18] Speaker 01:
Assault and battery with a deadly started out.

[00:26:20] Speaker 01:
in its inception with an intent to kill element.

[00:26:24] Speaker 01:
And that was dropped along the line.

[00:26:27] Speaker 01:
So assault and battery with a deadly weapon is just assault and battery upon the person another with a deadly weapon.

[00:26:34] Speaker 01:
Dangerous is the same thing, but with a dangerous weapon.

[00:26:38] Speaker 01:
And so it's kind of strange that assault and battery with a deadly is in this intent to kill section.

[00:26:43] Speaker 01:
But really, there's not a huge difference between the two.

[00:26:48] Speaker 01:
And so once again, I just really, truly do find it hard to believe that the Oklahoma legislature would choose to protect an unborn child, in one instance, and not in the other, depending on what type of weapon is used.

[00:27:08] Speaker 02:
Thank you, counsel.

[00:27:09] Speaker 02:
Appreciate the argument this morning.

[00:27:11] Speaker 02:
The case will be submitted.

[00:27:13] Speaker 02:
And counsel, our excuse.