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Court Proceeding — Tyler Robinson Defense Raises Doubts in Charlie Kirk Killing
Court proceeding — State of Utah v. Tyler James Robinson (Case 251403576, 4th Judicial Dist. Ct., Utah County). Transcript is the YouTube auto-caption track of the Court TV feed (https://www.youtube.com/watch?v=p1iauMjSglk) — verbatim ASR, not a certified court transcript.
Thank you, your honor. Um, as I stated before, we're going to split this up a little bit, the defense presentation, and kind of focus on um, three potential areas depending on the court's questions. So, if the court does have questions about the aggravator specifically, I would be the one to ask those questions, too. Um, as I stated before, Mr. Bert is available to answer questions about the forensic evidence should the court have questions about that. and then Mr. Novak will comment upon upon count 67 and the enhancement issues there at the end. Um I want to start out by stating your honor that my focus is primarily on the legal framework and the constitutional issue that's been presented. I will at times discuss the state's evidence. Of course, um these are not concessions of facts. This is the evidence that's before the court. We do understand we're in a probable cause hearing. We understand what the standard is. We understand the law. Um we're all on the same page about that there. And I do want to address briefly um the error that I made in the briefing about uh crystal ball and uh not citing the additional law that came after it. I do want to provide a little context to the court about that uh case in particular that is cited by other cases. It's really just that one sentence that was overruled and I absolutely should have put that into the brief and I apologize to the court for that mistake. Um these cases deal with the standard of review and reviewing a jury verdict for sufficiency of the evidence on direct appeal. It is a different scenario. Um, and the discussion of speculation in Crystal Ball is still endorsed by uh the Supreme Court and State v. Prisbee in particular. They do not cite to that specific sentence to be very clear. Um, but the rest of it is still good law and it's still cited by Prisb. So with that clarification, I'm going to address um one more issue before I get into this too much and that is the state's effort in the briefing and here now an oral argument to add to the evidence. In the reply brief, for example, the state sites to standards like safety standards of a Provo shooting range, that wasn't evidence at the prelim. The state had five days to present evidence. The state had ample opportunity to present evidence about guns, gun safety, specifics, about physics, about probabilities, about whatever it wanted to admit. It did not. It cannot now add to that both in argument and in its briefing. So we would ask the court to stick to the evidence in making its determination. So turning to the aggravator, um there is a tendency when we talk about the aggravator to kind of use synonyms and maybe get caught up in semantics. So, I'm going to start with the standard and I'm going to end with the standard. And the standard is the actor knowingly created a great risk of death to another individual other than the deceased individual. Here, Mr. Kirk and the actor. The question before the court is whether Utah's aggravator as interpreted by the Utah Supreme Court applies to the circumstances as presented to the state. And as we've argued in our brief, it does not. So I'm going to address this in three kind of bleeding into four parts. Uh the first is the constitutional framework that is a fundamental issue here that's going to follow this case. Frankly, discussing how Utah has defined the aggravator and how the state is trying to shoehorn this case into that aggravator. uh by discussing some of the evidence that it relies on particularly as to knowledge. So the constitutional base that we're talking about here is going back to the cases we cited in our brief Greg and Profit. These cases looked at the statutory schemes in Georgia and Florida to determine if they met the requirements to be constitutional after Ferman. And they look specifically at the aggravator knowingly created great risk of death to more than one person. And in Greg, the United States Supreme Court said explicitly, while such a phrase ma might be susceptible of an overly broad interpretation, the Supreme Court of Georgia has not so construed it. So the state's claim in its brief that the legislature narrowed the circumstances adequately just by adding knowing to this aggravator is simply not true. This is a phrase that is susceptible to overly broad interpretations and we know that because the state is trying to apply it here. Similarly, in profit, the United States Supreme Court found the Florida Supreme Court pro properly construed the aggravator narrowly. That statute also had a knowing requirement. It was still reviewed and it wasn't upheld based off of the knowing requirement. It was based off of how the courts construed it narrowly. So, that's the foundation. That's the floor for the aggravator. Now, we look at how the Utah courts have applied it. And there are three cases that are really on point here that we have to look at. We look at Pierre, we look at Johnson, and we look at Sosa Herertado. And in these cases, there is discussion of three factors. Those are well spelled out in the brief, but I will again state them here. This is from paragraph two which is where the court will find the actual finding ruling from Sosa Herertado. The temporal relationship between the murderous act and any acts endangering a third person. The spatial relationship between the third party, the murder victim and the defendant at the time of the acts constituting the murder. and whether and to what extent the third party was actually threatened by the asalent. These are the three factors that inform the question that was identified in So, examining these three factors here, they're clearly not met. There is no temporal relationship for this court to evaluate because there is one act, there is one shot, there is one bullet, there is one victim. There is no temporal relationship for this court to evaluate. This factor is not met. There were no actual threats by the asalent to the third party. There was no evidence that would suggest that anyone else was threatened. In the other cases talking about threats to the third party, we're looking at multiple gunshots. We're looking at verbal threats. We're looking at pointing a firearm at someone. We're looking at using a device that is more likely to cause injury to multiple people. Um, for example, in Florida, there was a case involving a saw off shotgun that was found to be more likely to cause injury to people in surrounding areas. bombs. Those are the types of weapons that would cause injury to more people than the actual victim. And I will acknowledge, we acknowledge that the Sosa Herado court was careful to say that these are not a checklist, right? These are factors for this court to consider in deciding whether or not the conduct here falls within the statute. And the fact that maybe one of these factors is met but the other two are not should be something that this court weighs. It's interesting in um Sosa Herertado when I was rereading it in preparation um they describe Johnson itself, the Johnson case as like a single act case. So although most of the cases talk about this series of events and the issue in Sosa Herertado was essentially whether or not um Johnson overruled Pierre. Um that's one of the issues that it raised and and the court explicitly found no because Johnson was a single act case. So the court looked closely at those factors in examining whether in that single act case And that's also why we spent quite a bit of time in the briefing talking about the cases that were relied upon in the Johnson decision. Um these cases are Chenalt v state a Georgia case. This is a case of a mass shooting in a church. State v. Mcmmerry in Arizona. Multiple shots fired in a bar full of patrons. State v Sonier, Louisiana. Victims made to lie down side by side on the ground and shot them rapid fire with a rifle. State v. Doss, Arizona. Defendant fired multiple shots into a crowded auditorium, killing the victim and hitting another. State v. Price. A case relied on heavily by the court in Johnson. The defendant unloaded six rounds of his Colt 38 revolver at the intended murder victim while the other person was sitting close to the victim on the couch. Several of the bullets struck the victim on the side next to which the other person was sitting. Um the Utah Supreme Court and Johnson emphasized the language from state v. Price and Price is an interesting case because it actually grapples with the constitutional question, right, of how do we construe this aggravator? And they state the facts must include a knowing or purpose purposeful state of mind visa via the creation of great risk of death and that there be a likelihood or high probability of great risk of death created, not just a mere possibility. and that there be at least one person within the zone of danger created by the defendant's conduct. Price goes on to talk about the various circumstances under which this may apply and it specifically states certainly constitutional concern would arise where the aggravating factor construed to apply where only one person the murder victim is murdered. And that's what we have here. That's the to conduct involving one person, the murder victim. And no other conduct is alleged endangering anyone. And that's why the court cannot adopt the state's interpretation without running a foul of the Constitution. And what's interesting about the state's position on this is [sighs and clears throat] if the state really believed that Sosa Herertado was enough, if these factors were enough, it wouldn't need to pull case law from another jurisdiction and ask this court to adopt language that no Utah court has Um the anyone near argument similarly relies only on one factor right spatial proximity. Now we can get into the nitty-gritty of the spatial proximity issue. um here the state didn't really provide a lot of evidence about the spatial proximity issue and I don't want to get into this tit for tat about feet about measurements that don't exist in the record. I think the videos speak for themselves. I think the state's reliance on some videos over other videos is a little misleading. For example, the state's emphasis on exhibit 8, which is a camera angle pointed downward, is perhaps not appropriate when calculating distance or estimating dis distance for the purpose, excuse me, of a probable But the idea, the fundamental idea that the state is propounding here is that But if the court adopts that reasoning, the court is unconstitutionally expanding the aggravator. This is how we run into the eth amendment in Utah I do want to briefly mention the issues in the evidence about the state speculating. Um the state asks the court to draw inferences from evidence that appear to have been admitted primarily for the purpose of establishing identity but is now trying to construe it in such a way that it shows knowledge. For example, the screwdriver on the roof. The screwdriver on the roof, according to the state's evidence, has a DNA that is similar to Mr. Robinson's. I would imagine that is intended to show that it was allegedly Mr. Robinson on the roof. Now, we're going to deal with that evidence in the future. We're going to have hearings about the DNA evidence for sure. But the state goes on to ask this court to infer that the rifle was taken apart and put put back together with the screwdriver. The state didn't show actually how that would happen with the screwdriver. The rifle wasn't even here. Um, this is just speculation. But on top of that speculation, the state is also asking the court to speculate that with this configuration of gun, that would impact the reliability of the shot, the accuracy of the shot, [clears throat] and then speculate that this individual, the shooter, knew about that. These are not inferences. This is speculation. This is a prime example of speculation. The same is true of the targets. The state provided very about the targets other than they were found in Mr. Robinson's shared apartment in a closet on the first floor. They provided evidence through testimony that the um perforations in the targets are from a gun. They didn't say what kind of gun. We don't know when those were shot. We don't know who shot them. And we don't know the conditions under which those were shot at. They are just targets. The state didn't provide any other evidence from this court to draw an inference. Anything else is just speculation. The four bullets in the gun is an interesting argument um that I think ultimately cuts against the state's position because we know this was a bolt-action rifle. In order to reload it, the spent cartridge had to be removed and it wasn't. So it actually cuts against this idea that maybe other people were endangered, that there was an intent or knowledge that other people might be killed. There is zero evidence that there was any action taken towards other people. When we talk about the um spatial I think it's important to look at what that means in other contexts. For example, the state v Price case where it talks about how this individual was next to the victim on the couch and the bullets were fired on the same side. So when the court evaluates the evidence here, examining who was present in the presence of Mr. Kirk when he was shot, the court should pay attention to that. This bullet entered the left side of the neck at a downward angle. That's what The only other individual you really see is the individual to Mr. Kirk's right. Not the same side. But even if spatial proximity, even if presence is established, again, that is simply not enough. Because enveloping all of these factors, all of this analysis that we see from the Utah Supreme Court is the issue of intent. the other acts committed by the defendant in the course of committing the murder inform knowledge. So like in Sosa Herertado, the court found it was strong evidence of intent of knowledge that the individual shot at the other prior to shooting at the victim. We don't have any other acts to inform knowledge. That's why the state is pulling is grasping at these facts, asking the court to speculate about pieces of evidence it just picked because there's nothing from the facts to inform this knowledge question. And that's where we come back to this issue knowingly creating a great risk of death to another. The state has not met its burden as to the aggravator here. We are asking the court to strike the aggravator. The facts at their c at their core are that the shooter shot a high-powered rifle from a roof at a downward angle, hitting the victim in the left side of the neck at a distance of 415 ft. The angle is 415 ft. It's not 410 ft. It had a telescopic scope on it. The shooter did not fire any more shots and in fact did not even reload. The shooter is not alleged to have engaged with anyone else, is not alleged to have pointed the rifle at anyone else, threatened anyone else, or done anything other than shoot that gun and run away. There was no ricochet. The only other individual under the tent, excuse me, with Mr. Kirk, like I described, was on the opposite side of him. This was an open air environment. This was not an enclosed space. And contrary to the screenshots that the state pulled from exhibit 9, no one was behind the tent when Mr. Kirk was shot. even assuming that the shooter might have some knowledge about that, which I think is a real stretch because it's not like the tent was see-through. No one was behind Mr. Kirk when that shot was fired. And Mr. Kirk was seated in an elevated position. This is clearly visible in So, there's nothing in this evidence showing that there was a great risk that someone else was going to be killed, let alone that the shooter would have knowledge of that risk. It's not just the shot fired, it's what happened around it. That's what we know from Pierre Johnson and Sosa Herado. And my final comment, your honor, is we did spill much ink in our briefing about other cases describing the circumstances. We did discuss in some depth the Pennsylvania cases upon which the state relied. And we did that for a reason. We did that to show the court that the court first of all shouldn't be adopting standards from another jurisdiction that hasn't already been adopted by the Utah Supreme Court, but also that that standard in that state is fuzzy. It's not clear based off of their own case law. And there are a plenery of jurisdictions that have interpreted this aggravator the way that Utah does considering these factors. So this court isn't doing something revolutionary. Striking the aggravator is the only conclusion supported by Utah law and by the constitution. Does the court have any questions for me? [clears throat] Judge, with the court's permission, I'm going to be narrowly focused on the comments that were made in the uh state's pleading and just by Mr. McBride about the uh forensic evidence in the case and specifically the DNA and firearms evidence. And the pleadings say very little about either one of those topics. There's a sentence that [snorts] about the firearm evidence and there's I think one or two sentences about the DNA reports. Nothing is said about the testimony of the three experts who testified here in front of the court. And that focus, I think, is consistent with the state's position throughout this hearing, which is that the court shouldn't look underneath the reports that the state chose to put in front of you, the expert reports, and specifically exhibits 30 through 34. And their position, as they argued to you during the hearing, was that uh by law, those reports constitute reliable hearsay evidence that this court must credit. And pursuant to that theory, they attempted throughout the preliminary examination to cut off any questions about the reliability of the evidence that was offered through those reports. And as the court knows, the uh the court rejected that theory uh in its ruling on our challenge to the admissibility of the uh hearsay evidence in the case. And I want to just remind the court of what the court said uh in in its ruling. This is a document 631, the court's ruling on the admissibility of the hearsay challenge that we brought. And I'm quoting here, the presumption of reliability is confined to the presumption that the hearsay evidence is admissible. The presumption does not require the magistrate to find the evidence credible or that it supports a finding improbable cause. The magistrate still retains the ultimate decision-making authority on whether probable cause has been established. Admissibility and evidentary weight remain distinct concepts. Although article 1 section 12 and rule 1102 permit the admission of reliable hearsay, they do not require the magistrate to accept that evidence as credible or sufficient to establish probable cause. And that's the court's ruling and that's the law of this case. And so when the when the state in its pleading and here before you uh gets up and argues that uh the defendant's DNA was all over the weapon. Uh, I think it ignores the court's ruling on this issue because the court has to consider not just the report which they're relying on to make those assertions, but it also has to consider the evidence that uh the defense was able to elicit over the over the government's or the state's objection that the court shouldn't even consider that. And if the court looks at the totality of the evidence uh that was submitted from the DNA experts and the ballistic experts, uh I I think the the court will and should conclude that the state's reliance on the DNA evidence and the ballistic evidence is not well taken. Uh Mr. McBride in his argument said the de the defendant's DNA was all over the weapon, but the weapon was tested by Miss Oliver from the ATF. And in her report, uh, if you just look at the report and not her testimony, what the report says, and this is exhibit 30, her ultimate conclusion was based on this calculation, there is evidentary support for the inclusion of Tyler Robinson as a possible contributor. And I want to emphas and end quote and that's it states exhibit 30 a possible contributor and she as well as Miss Baker uh from the FBI went out of their way to explain to the court that based on the current state of the science there is no basis to conclude that based on the DNA testing that was done in this case that a particular piece of DNA can be traced back to a source um based on any of the testing that was done in this case. And uh that uh point is made not only in the testimony but in the exhibits that were submitted to the court. specifically uh Carer I'm sorry uh Oliver exhibit number four which is the DNA uh policy by the Department of Justice stating that an analyst shall not make a source attribution as to any piece of DNA and also in uh Miss Baker's There's exhibit seven, uh, the DOJ policy again stating the same thing. Um, and the, uh, the long and short of it, I think, was summed up by Miss Oliver when she was asked, this is at page 51 of her testimony. question. So, from a scientific standpoint, you couldn't read the paragraph that sets out the likelihood ratio in your report, whatever the number, and then blast a headline in the media, quote, "Mr. Robinson is Mr. Robinson's DNA is found on this item." End quote. That's a source attribution, is it not? Answer: Correct. Yes. and that would not be scientifically defensible, would it answer correct? And she was consistent throughout her testimony on that point, as was Miss Baker from the FBI. So, the state is overreading the DNA evidence in this case when it when it asserts to the court that uh Mr. Robinson's DNA was found all over the weapon. What Miss Oliver and Miss Baker said was that it was a pos Mr. uh Robinson was a possible contributor to the DNA, not that he was a contributor. And there's a good quote from a Utah case, State versus Rogers 202 Utah app 778. And in paragraph 35, the court says, "The fact that something is possible does not make it probable. It's a simple common sense proposition." Mr. McBride urge you to apply common sense. And here's a good common sense uh proposition. The fact that something is possible does not make it probable. The standard is probable cause, not possible cause. And the DNA evidence in this case uh goes to the issue of pos possibilities, not probabilities. And both experts were consistent in saying to the court that they couldn't reach a source attribution opinion. It was consistent in stating that that they could not state with any reasonable degree of scientific certainty that Mr. D that Mr. Robinson's DNA or anybody else's DNA was found on any of the items they tested. Um, and so it it simply is not the case that the court can leap to the conclusion based on the evidence as opposed to speculation that Mr. Robinson's DNA was all over the weapon or the screwdriver or anything else. Again, the experts spoke of possibilities, not probabilities, and certainly not in any way saying that they could identify DNA as coming from anybody. Mr. Robinson or anybody else in this case in terms of firearm and Dremel testing. Mr. McBride said that the determination was made that the Dremel tool made markings on the cartridge case. Again, he's attempting a source attribution there. And it's true that Miss Carner's report reads that way, but it also says that the conclusions she's reaching were made in compliance with the DOJ policy uh which in her case was in Carner exhibit number 11. And that policy like the policy DOJ's policy on DNA evidence says that an examiner based on the science cannot identify a tool mark as having made a particular mark or a cartridge case as coming from a particular weapon and she was clear that she subscribed to that policy and was doing so in this case. Um he also said that Mr. McBride that the uh bullet was consistent with the cartridge was consistent with the rifle that they are trying to connect to Mr. Robinson. And actually what Miss Carner testified and this is at page 177, there were several different 30 caliber class firearms that could have fired this bullet. And at page 47 of exhibit carer number six, she lists a dozen or more firearms, including rifles and pistols that she says could have fired this bullet. So again, the state is overreading that evidence when they say to the court that um the ballistics evidence in this case shows that uh the the bullet was fired from the rifle that they want to connect to Mr. Robinson. There is no such evidence. So um unless court has any questions about the forensic evidence, that's all I had to say. >> Thank you, Mr. B. Mr. Novak, Your honor, as uh Miss Visser previewed, count six. I'm going to address count seven and I'm going to address the two alleged enhancements. I know the court has read our briefing on this uh and so I'm going to highlight the factual and legal principles that we think compelled this court um to find that the um state has not produced sufficient evidence to bind Mr. Robinson over on those two counts. um and um that the enhancements also to um proceed in this prosecution. I want to And I'm going to be very, if I may, um, focused on the text because the the the allegation itself is is really what we have to compare to the evidence. Count six charges Mr. Robinson with the felony offense of tampering with a witness. The information specifically says that the conduct he engaged in that constitutes tampering with a witness was now I'm quoting to wit directing his roommate to stay silent if police questioned the roommate. Now Mr. McBride sort of very um casually suggests that what Mr. Robinson was doing in that was trying to protect himself and not trying to protect Mr. twigs from what the state is now accusing Mr. Robinson of having done. And we need to look very very specifically at the statement attributed to Mr. Robinson that forms the basis for that specific allegation again to it directing his roommate to stay silent if police question the roommate. is what uh the state presents as text messages between Mr. Robinson and Lance Twigs. And if the court looks at exhibit 16.1, it is a series of screenshots of text messages. The testimony was that Lance Twigs was showing law enforcement these screen the text messages and law enforcement officers took screenshots of the phone that Lance Twigs was holding when showing law enforcement officers these text messages. the specific words that the information alleges constitute are and now I'm quoting from exhibit 16.1 if any police ask you questions ask for a lawyer and stay silent make sure the police follow the right procedures proper warrants and stuff, So, the first thing I want to point out is that this text message occurred, This is on page 18 of 18 of exhibit 16.1. is on page 10, which says yesterday So that would have been the day before Mr. Twigs was speaking with law enforcement. But at 5:55 p.m., if the court looks at the text messages that come just before it, what the court sees is somebody who the state alleges is Mr. Robinson saying to uh Mr. Twigs, quote, "I'm going to turn myself in willingly. One of my neighbors And then the text message goes on. Why is that important? That is important because what this court knows from the preliminary hearing testimony is that the person that the state says is Mr. Oram, had returned all the way to St. George. And the court knows this through Mr. Mitchell's 1102 had spoken with Mr. Robinson's father and had arranged for Mr. Mitchell to help Mr. Robinson surrender to the Washington County Sheriff. That has already occurred when Mr. Robinson, according to Mr. if any police ask you questions ask for a lawyer and stay silent. Just before that he says you are all I So the case law which we present basically requires this court to determine whether Mr. Robinson's statements to Mr. Twigs were intended to obstruct justice or were altruistic. What is more clear in terms of altruism than having already decided to surrender and saying you are all I worry about love. If any police ask you questions, ask for a lawyer and stay silent. That is actually a demonstration of altruism. That is a demonstration of caring for another person. That is a demonstration of what Mr. Robinson said to Mr. Twigs. You are all I worry about love. But he also tells him, "Make sure that the police follow the right procedures, proper warrants and stuff. Be polite and respectful, of course." So, I don't see how the court can accept Mr. McBride's suggestion that this is an effort to obstruct an investigation. There is a separate charge concerning what the state refers to as destruction of evidence. That's not what this charge is about. This charge is to directing his roommate to stay silent if police question the roommate. Now, Mr. McBride tries to say that, oh, it's not a Fifth Amendment issue because Mr. Robinson's the only person who has any Fifth Amendment issues. And that actually ignores this concept in the law that was embodied in Miranda versus Arizona. I think everybody in this courtroom who has a law degree knows that Miranda versus Arizona says that every person in this country has the right to remain silent and the right to ask for an attorney. And it's not just the fifth amendment, it's also the Sixth Amendment. That's the essence of that Supreme Court decision. So, not only is Mr. McBride misstating the law, but he's misapplying it. What Mr. Robinson is saying to Mr. twigs is you don't have to answer any questions. You have the right to ask for an attorney. You are all I worry about love. We cannot allow the state to make that statement in this context a criminal offense because it completely undermines wellestablished constitutional law that applies here [snorts] and everywhere else. Again, it's after Mr. Robinson has said to Mr. Twigs, "I'm going to turn myself in willingly." Mr. Twigs asks, Before Mr. Robinson said that, "Is there any way you don't go to prison?" Mr. Robinson doesn't say, "Well, as long as you keep your mouth shut, I won't go to prison." He says, "I highly doubt it. You are all I worry about, love. So, I think it's clear that this c court needs to strike count six because what Mr. Robinson said to his roommate was not for the purpose of obstructing an investigation or a proceeding. It was, as the case law says, altruistic. Altruistic. I now would like to move on to count seven which is alleges a misdemeanor subject to the enhancement but it alleges initially a a misdemeanor um committing the charged homicide in the presence in the physical presence of a child younger than 14 with knowledge that a child was present and may have seen or heard the commission of the the evidence. Now, I'm going to echo what Ms. Visser said, the evidence that was actually presented at the preliminary hearing and not the evidence that Mr. McBride tried to testify about today, um, which wasn't presented at the hearing. Um, and and and has some inferential problems as well, which I address, was a single video taken by a single woman. We have her 1102 in evidence showing that her child was present. That is not evidence upon which this court can reasonably infer that Mr. Robinson knew that that child or any other child was present. Mr. McBride's comments about ORM and UVU welcoming children and being the the center of families, that's nice, but that's not evidence. And it's certainly not evidence that Mr. Robinson, if he was the shooter, knew that there were children present at this rally. What Mr. McBride showed this court was his careful analysis of photographs that had been previously introduced into evidence. And we don't know how long it took Mr. bride, but he eventually found and was able to circle for this court the um three children that he could find in a photograph that he studied in his office as he was preparing his opening statement. The evidence presented at the preliminary hearing was that the shooter was on the edge of that roof from 30 to 43 seconds. So, one cannot take Mr. McBride's careful analysis of photographs after the fact and import that into what somebody on the edge of the roof saw. The fact that somebody saw Mr. Robinson wandering around the campus before the rally occurred doesn't mean that Mr. Robinson knew that there were children present at the time of what the state says he did, which was to fire um his weapon from the has to be treated as a reasonable inference by the court just because the state says you can infer. That's not the same as reasonable inferences weighed against the defendant or in favor of the state's case. This court needs to decide what inferences are or not reasonable. And I think that the state is stretching considerably um the difference between evidence and inferences. So I think that count seven suffers from the same problem. And of course that would therefore apply to all of the victim targeting I'm sorry not the victim targeting enhancements but the in the presence of the child enhancements. The argument that this court doesn't need to determine whether or not there's any evidence let alone probable cause to support enhancements because they don't increase the punishment is actually not true. The there is a difference in the language between apprendy and what the Utah statute says but the effect is the same. What the Utah statute says is if you prove a certain fact the court shall consider that an aggravating circumstance. That means that the court shall create um on the scales as to whether or not there should be an enhanced sentence an aggravator. It's proven. The court is now told here's an aggravator and if there are no mitigators then the sentence is enhanced. So I don't think um it's as clear-cut as Mr. Mr. McBride would like the court to conclude and I think that this court needs to determine whether or not there's probable cause as to that enhancement and then the last enhancement which which I will address and and that of course is whether or not Mr. Kirk was targeted because of his political expressions from Mr. the question here really which the state can't answer with reasonable inferences from evidence is there's no evidence as to really what was in Mr. Robinson's mind, if in fact he was the shooter about Charlie Kirk, because we have no testimony that Mr. Robinson had ever spoken about Charlie Kirk, that he'd ever heard anything he'd said, that he'd ever discussed anything. Mr. Twigs was asked during his recorded interview whether he'd ever discussed Mr. Kirk with Mr. Robinson. The answer was no. There is no evidence of Mr. Robinson having heard or seen anything specific from Mr. Kirk or having expressed any Mr. Kirk until the statement which basically says um some hatred can't be negotiated out. So what is it? Is it political expression? Which political expression? It is true that Mr. Kirk spoke hatefully of certain groups of people. He spoke hatefully of people who don't have traditional normcon conforming gender identities. He spoke hatefully of people who are not strictly heterosexual. He spoke hatefully of people who have sexual relationships out of marriage. And yes, it is true that the evidence from Mr. Twigs is that um he identified in a non-gender conforming way to his friends and that he was in a romantic relationship with Mr. Robinson. But that doesn't mean that those personal choices by Mr. Twigs and by Mr. Robinson equate with the hate that at least Mr. Robinson says he had toward Mr. Kirk. So, we don't know what that is. We don't know. There's a gap between what it is that Mr. uh Kirk said and stood for, the the phrase in the statute is political expression, and what it is that Mr. Robinson felt about him. And it's a significant gap because what it allows the state to do is to make it up. Oh, it must be about this relationship. It must be. It can't be about foreign policy. It can't be about immigration. It can't be about taxation or economics. It must be about this because look at these two young people and the way they live. And that's an inference without evidence. And it's a very inflammatory inference. And what makes it even more inflammatory is that the state chose to to wrap it in religion because now we can't now we can't really talk about it because we can't criticize somebody's religious views. But the the real problem is that there's this gap between this the way in which Mr. Robinson and Lance Twigs have a relationship and what it is about Mr. Kirk's political expression. And we don't really understand the the state didn't present any evidence as to what They are memes. They are something that comes from some digital games. There's some slightly immature expressions, but none of that really is explained by I mean like as Ms. Vister said, the state had a week to put on any evidence they wanted. The court didn't exclude any profered witness to explain what those things mean and how they may link up between something Mr. Kirk had said and something in Mr. Robinson's state of mind. And I think they didn't do it. And so I think that um the state has utterly failed to prove that there's a particular political expression that Mr. Robinson took issue with. We all know because of we live in the real world the kinds of things that Mr. Kirk said which some people find hateful. But that's not the same as the state producing evidence about what Mr. Robinson thought because it's about Mr. Robinson's state of mind as to the political expression. So I'm going to conclude by saying that both enhancements and count six and count 7 cannot go forward in this case because in addition to what Miss Visser has argued and what Mr. Bird has argued with respect to the aggravator because the state has failed to produce sufficient evidence. Thank