Themis Bar Review Hangout - July 2014 Exam Forum

[Gotti]

Can someone explain to me if an underlying felony merges with the FM? I thought you can be charged with both, but can only be convicted of one or the other.

Edit: From wikipedia:
Furthermore, the merger doctrine excludes felonies that are presupposed by a murder charge. For example, nearly all murders involve some type of assault, but so do many cases of manslaughter. To count any death that occurred during the course of an assault as felony murder would obliterate a distinction carefully set by the legislature; however, merger may not apply when an assault against one person results in the death of another.

To counter the common law style interpretations of what does and does not merge with murder (and thus what does not and does qualify for felony murder), many jurisdictions in the United States explicitly list what offenses qualify. The American Law Institute's Model Penal Code lists robbery, rape or forcible deviant sexual intercourse, arson, burglary, and felonious escape. Federal law specifies additional crimes, including terrorism, kidnapping, and carjacking.

So it seems like the BARRK felony does NOT merge with FM.

For the purposes of the MBE:

BARRK felonies merge into felony murder, because you wouldn't have the requisite elements of murder without the BARRK felony.

You can be charged and tried for both FM + underlying felony but not convicted of both (only one)

Well, that's what I thought too, but see that earlier post:

Quote:
In a common-law jurisdiction, if the defendant is charged with murder and arson, he should be:
A. convicted of both offenses.

At common law, arson is the malicious burning of the dwelling of another. The defendant's act of driving his car into a gasoline tank created an obvious likelihood that a burning would ensue, thus satisfying the malice requirement of arson. The question limits the discussion to common law arson, but as the gas station was also the owner's home, even the common law definition of dwelling is satisfied. Murder is an unlawful killing of a human being committed with malice aforethought. The defendant's conduct of driving into the gas tank amounts to a reckless indifference to an unjustifiably high risk to human life (depraved heart), which satisfies the malice requirement. Additionally, arson can be the underlying felony for a felony murder conviction.

I asked my friends at Barbri they said BARRK felonies don't merge, only assault/battery....

This is how I'm reading it - if a defendant commits arson AND he unintentionally kills someone in the process, he CAN be convicted of arson OR felony murder, IF the govt chooses to bring charges of (1) arson, and (2) FELONY murder.

There are 4 mental states/ways to commit murder under common law:
(1) Intent to kill
(2) Intent to cause serious bodily injury
(3) Depraved heart (reckless indifference to human life)
(4) Felony murder

In the above case, the govt could have chosen to charge the defendant for (1) arson and (2) murder under the the felony murder theory (where arson is the underlying crime and would merge into a conviction of felony murder), OR they could charge defendant with (1) arson and (2) murder under the depraved heart theory.

Because the defendant drove his car into the gas tank & that act evinced reckless indifference to human life, the govt can get him on murder by itself (depraved heart) without needing to have an underlying felony of arson. With a depraved heart murder, there is no underlying felony so deft can be convicted of murder under depraved heart theory AND arson. Does that make sense?

[dtl]

Themis. What are you doing? Go home.

In a common-law jurisdiction, if the defendant is charged with murder and arson, he should be:
A. convicted of both offenses.

At common law, arson is the malicious burning of the dwelling of another. The defendant's act of driving his car into a gasoline tank created an obvious likelihood that a burning would ensue, thus satisfying the malice requirement of arson. The question limits the discussion to common law arson, but as the gas station was also the owner's home, even the common law definition of dwelling is satisfied. Murder is an unlawful killing of a human being committed with malice aforethought. The defendant's conduct of driving into the gas tank amounts to a reckless indifference to an unjustifiably high risk to human life (depraved heart), which satisfies the malice requirement. Additionally, arson can be the underlying felony for a felony murder conviction.

This is just the person writing the reasoning being dumb. The reason he can be charged with both murder AND arson is because the prosecution would not be relying on a felony murder theory.

1) Murder: Depraved Heart murder when he drove into the gas tank with a reckless disregard to a unjustifiably high risk of loss of life.
2) Arson: Maliciously driving into the gas tank which caused the burning of the victims dwelling.

The shit after "Additionally" was an aside that is completely divorced from the context of the question. It is true, but if it were applied here the felonies would merge.

[puttycake]

The way I thought about was the right to vote is a fundamental right triggering strict scrutiny under the DP Clause. The EP Clause would apply, but you would only apply a rational basis test due to the class of people being discriminated against (non english speakers) not being a suspect class. Therefore, although you could apply both tests, DP would be the better way to go. Where am I going wrong?

For example, if you passed a law that said non-english speakers can't be phone operators that would be EP because being a phone operator isn't a fundamental right.

If a fundamental right is denied to everyone, that is Due Process. Think of a scenario where Congress outlaws guns in the US. That's a Due Process violation.

If a fundamental right is denied to some people, that is Equal Protection. Think of Loving v. Virginia.

[kapital98]

Sometimes I'm just reading these questions, and it escalates like CRAZY.

The defendant, while eating in a restaurant, noticed that a departing customer at the next table had left a five-dollar bill as a tip for the waitress. The defendant reached over, picked up the five-dollar bill, and put it in his pocket. As he stood up to leave, another customer who had seen him take the money ran over to him and hit him in the face with her umbrella. Enraged, the defendant choked the customer to death.

Like what

This made me laugh really hard. I think bar prep is doing irrepressible damage to my brain. I'm going to go into practice as a public defender and be constantly shocked that 10 things aren't happening at once in a case.

[mmmnnn]

I know this has come up before but WHAT the hell is this question

Defendant, a shoe importer/exporter, telephoned Plaintiff, a shoe wholesaler. Defendant and Plaintiff regularly did business, both buying and selling shoes to each other. In December, the parties discussed the purchase of shoes. After the conversation, Plaintiff sent Defendant a dated confirmation slip, which included the following terms: "WE HAVE SOLD TO YOU 250,000 SHOES." The confirmation slip called for delivery the following August. Defendant's treasurer signed the slip and returned it to Plaintiff five days later. By letter dated in July, Plaintiff notified Defendant that he was awaiting instructions on how to deliver the shoes to Plaintiff. Defendant responded by letter stating that Plaintiff was mistaken, and that Defendant intended to sell shoes to Plaintiff rather than make a purchase. To cover, Plaintiff sold the shoes at a loss and brought suit against Defendant. Plaintiff moved for summary judgment, and Defendant sought admission of parol evidence to prove that the parties' intent was to purchase shoes from rather than to sell shoes to Plaintiff.

How should the court rule on Defendant's request for admission of parol evidence?
A. Deny the motion because triable issues of fact exist as to whether the confirmation slip signed by Defendant was intended to be the final expression of Defendant and Plaintiff's agreement.
B. Deny the motion because parol evidence does not bar evidence offered to show that a contract between the parties never existed.
C. Deny the motion because the confirmation slip failed to include an express indication that Defendant and Plaintiff intended the slip to be the final expression of their agreement.
D. Grant the motion because the confirmation slip was intended to be the final expression of Defendant and Plaintiff's agreement.

Answer choice D is correct. When the terms of a contract are in a writing intended by the parties to be a final expression of their agreement, the terms cannot be contradicted by extrinsic evidence of a prior agreement or a contemporaneous oral agreement. However, terms can be explained or supplemented by course of dealing or performance between the parties. Here, the essential terms of the transaction are plainly set forth in the confirmation slip. Defendant's agent signed and returned the confirmation slip signifying acceptance of these terms. Nothing in the confirmation slip suggests it was to be a memorandum of a preliminary or tentative understanding with respect to these terms. On the contrary, the slip clearly demonstrates the final expression of the parties' agreement that "WE HAVE SOLD TO YOU 250,000 SHOES." These terms cannot be contradicted by extrinsic evidence but they may be explained or supplemented by showing course of dealing or performance between the parties.

So:
1. Plaintiff sends over a form saying WE HAVE SOLD YOU 250K SHOES & then later asks Defendant when they want their shoes delivered
2. Defendant says no we meant to SELL you shoes, not buy them.
3. Plaintiff sells shoes to someone else at a loss & sues Defendant for breach
4. Plaintiff moves for summary judgment
5. Defendant wants to introduce parol evidence to show the parties' intent, i.e., D wants to show D intended the BUY shoes from P?

...and the answer is that parol evidence SHOULD be admitted because it was the full and complete agreement between the parties?

am i missing something?

I think the call of the question is incorrectly worded. The answer choices correspond to how the court should rule on the Plaintiff's summary judgment motion, not the Defendant's request for admission of PE.

[Gotti]

lol did you guys read the one where this guy had a house that kept getting broken into, and the guy is at home and he hears a window break in the other room, he rushes into the other room and sees a 10 year old girl standing there doing nothing and just runs at her and punches her in the face and breaks her nose?

I was just like....wtdta??

[Gotti]

I know this has come up before but WHAT the hell is this question

Defendant, a shoe importer/exporter, telephoned Plaintiff, a shoe wholesaler. Defendant and Plaintiff regularly did business, both buying and selling shoes to each other. In December, the parties discussed the purchase of shoes. After the conversation, Plaintiff sent Defendant a dated confirmation slip, which included the following terms: "WE HAVE SOLD TO YOU 250,000 SHOES." The confirmation slip called for delivery the following August. Defendant's treasurer signed the slip and returned it to Plaintiff five days later. By letter dated in July, Plaintiff notified Defendant that he was awaiting instructions on how to deliver the shoes to Plaintiff. Defendant responded by letter stating that Plaintiff was mistaken, and that Defendant intended to sell shoes to Plaintiff rather than make a purchase. To cover, Plaintiff sold the shoes at a loss and brought suit against Defendant. Plaintiff moved for summary judgment, and Defendant sought admission of parol evidence to prove that the parties' intent was to purchase shoes from rather than to sell shoes to Plaintiff.

How should the court rule on Defendant's request for admission of parol evidence?
A. Deny the motion because triable issues of fact exist as to whether the confirmation slip signed by Defendant was intended to be the final expression of Defendant and Plaintiff's agreement.
B. Deny the motion because parol evidence does not bar evidence offered to show that a contract between the parties never existed.
C. Deny the motion because the confirmation slip failed to include an express indication that Defendant and Plaintiff intended the slip to be the final expression of their agreement.
D. Grant the motion because the confirmation slip was intended to be the final expression of Defendant and Plaintiff's agreement.

Answer choice D is correct. When the terms of a contract are in a writing intended by the parties to be a final expression of their agreement, the terms cannot be contradicted by extrinsic evidence of a prior agreement or a contemporaneous oral agreement. However, terms can be explained or supplemented by course of dealing or performance between the parties. Here, the essential terms of the transaction are plainly set forth in the confirmation slip. Defendant's agent signed and returned the confirmation slip signifying acceptance of these terms. Nothing in the confirmation slip suggests it was to be a memorandum of a preliminary or tentative understanding with respect to these terms. On the contrary, the slip clearly demonstrates the final expression of the parties' agreement that "WE HAVE SOLD TO YOU 250,000 SHOES." These terms cannot be contradicted by extrinsic evidence but they may be explained or supplemented by showing course of dealing or performance between the parties.

So:
1. Plaintiff sends over a form saying WE HAVE SOLD YOU 250K SHOES & then later asks Defendant when they want their shoes delivered
2. Defendant says no we meant to SELL you shoes, not buy them.
3. Plaintiff sells shoes to someone else at a loss & sues Defendant for breach
4. Plaintiff moves for summary judgment
5. Defendant wants to introduce parol evidence to show the parties' intent, i.e., D wants to show D intended the BUY shoes from P?

...and the answer is that parol evidence SHOULD be admitted because it was the full and complete agreement between the parties?

am i missing something?

I think the call of the question is incorrectly worded. The answer choices correspond to how the court should rule on the Plaintiff's summary judgment motion, not the Defendant's request for admission of PE.

well yeah the question is completely off, but also, why would defendants move to introduce evidence that proves what plaintiffs are asserting?

[yips]

The way I thought about was the right to vote is a fundamental right triggering strict scrutiny under the DP Clause. The EP Clause would apply, but you would only apply a rational basis test due to the class of people being discriminated against (non english speakers) not being a suspect class. Therefore, although you could apply both tests, DP would be the better way to go. Where am I going wrong?

For example, if you passed a law that said non-english speakers can't be phone operators that would be EP because being a phone operator isn't a fundamental right.

If a fundamental right is denied to everyone, that is Due Process. Think of a scenario where Congress outlaws guns in the US. That's a Due Process violation.

If a fundamental right is denied to some people, that is Equal Protection. Think of Loving v. Virginia.

I'm not the best at con law, but I *think* that the above is incorrect. Here's what I understand:

1) If a right is denied to everyone, then it is analyzed under substantive due process read into either of the 5th or 14th Amendments. If it is a non-fundamental right, then apply rational basis scrutiny; if it is a fundamental right such as the right to marry, right to have sex with people, etc., then apply strict scrutiny.

2) If a right is denied to some people based on a classification, then it is analyzed under the equal protection clause of the 14th Amendment. Depending on the right, apply rational basis scrutiny, intermediate scrutiny, or strict scrutiny (only for a suspect classification).

3) If either the fundamental right to vote or the fundamental right to travel are denied—whether to a few people based on a classification or to everyone—then it is analyzed under the equal protection clause of the 14th Amendment. These are the only two fundamental rights that are for sure analyzed under EP regardless of whether there is a classification.

At no point are these rights analyzed under procedural due process, which I think is what answer choice C implied (though, admittedly, it did not specify that).

[SilverE2]

lol did you guys read the one where this guy had a house that kept getting broken into, and the guy is at home and he hears a window break in the other room, he rushes into the other room and sees a 10 year old girl standing there doing nothing and just runs at her and punches her in the face and breaks her nose?

I was just like....wtdta??

Haha yeah, I think that one has been my favorite so far.

[Kiwi917]

I asked my friends at Barbri they said BARRK felonies don't merge, only assault/battery....

I may be way off with this, but curious what others think...

"Merger" seems to refer to two different things with the FMR -
1. whether the underlying BARRK offense "merges" into the felony murder conviction and prevents separate punishments for each offense, or
2. whether the underlying offense is a lesser-included offense of common-law murder and cannot form the basis of a felony-murder conviction because the offense would normally merge with common-law murder (this seems to be the way the Barbri folks are talking about it).

This looks like a quick and relatively clear explanation of #2: http://www.lacba.org/Files/Main%20Folde ... Merger.pdf The way I have been thinking of it is whether the underlying felony would merge with regular murder. If so, then it can't be the basis of felony-murder, because you need an independent, inherently dangerous felony. Otherwise, just about any time someone died as a result of an assault or battery, the defendant could be convicted of felony murder. Basically, it seems like the FMR is not supposed to capture instances where the felony and the killing were the same act.

As for issue #1, whether you can be convicted of arson + felony murder, or burglary + felony murder, etc., it seems a little more complicated than we probably need to know for purposes of the MBE. Whalen v. United States goes into it in some depth for rape + felony murder and held there couldn't be consecutive punishments: 445 US 684 (http://scholar.google.com/scholar_case? ... s_sdt=2006). On the other hand, there seem to be some courts (I think I saw Michigan and Alaska, at least) that have found felony murder + felony doesn't violate the double jeopardy multiple punishments rule. It seems like it depends a lot on the particular felony-murder statute and even the legislative history, to some extent. I feel like in most instances, double jeopardy is going to prevent consecutive sentences for the BARRK felony and the felony murder, but I haven't dug into Whalen enough to sort it out for sure.

tldr - For the test, I'm planning to assume you can only be convicted of felony murder OR a BARRK felony (that those two would meet "same offense" under Blockburger and violate double jeopardy if punished for both), unless there is evidence to support a non-FMR form of murder.

[kapital98]

lol did you guys read the one where this guy had a house that kept getting broken into, and the guy is at home and he hears a window break in the other room, he rushes into the other room and sees a 10 year old girl standing there doing nothing and just runs at her and punches her in the face and breaks her nose?

I was just like....wtdta??

Yes! I actually picked the option where it was reasonable to punch her (isn't everything reasonable?). It turned out it wasn't reasonable.

[dtl]

BarBri people are straight denying that they ever merge unless by merge you mean assault/battery et al can't form the felony for felony murder.

What I am reading is that if they bring the FMR and the Underlying felony in ONE case, you can be convicted of both. If they do one, they can not do the other via double jeopardy. http://caselaw.lp.findlaw.com/scripts/g ... &invol=682

Is that right? that is the exact opposite of what themis is telling us, but that is what my 5 barbri friends are saying.


Edit: We should forward this to Themis and actually see what they say

[kapital98]

I can't believe it. I just went to do my second NY MC question set and the same bug exists. Just like in the first set, it won't let me answer "A" or "D" on almost any of the question.

At this point I'm guessing all of my NY MC Themis questions are worthless. THANKS THEMIS!

[Tanicius]

I can't believe it. I just went to do my second NY MC question set and the same bug exists. Just like in the first set, it won't let me answer "A" or "D" on almost any of the question.

At this point I'm guessing all of my NY MC Themis questions are worthless. THANKS THEMIS!

Hiring a website coder who's graduated high school would be too costly.

[Tanicius]

BarBri people are straight denying that they ever merge unless by merge you mean assault/battery et al can't form the felony for felony murder.

What I am reading is that if they bring the FMR and the Underlying felony in ONE case, you can be convicted of both. If they do one, they can not do the other via double jeopardy. http://caselaw.lp.findlaw.com/scripts/g ... &invol=682

Is that right? that is the exact opposite of what themis is telling us, but that is what my 5 barbri friends are saying.


Edit: We should forward this to Themis and actually see what they say

I'm concerned we won't hear back in time. This whole issue makes angry.

[Prime]

I have that problem from time to time where "answer D" isn't able to be picked. Happened in my mixed set today.

[Kiwi917]

BarBri people are straight denying that they ever merge unless by merge you mean assault/battery et al can't form the felony for felony murder.

What I am reading is that if they bring the FMR and the Underlying felony in ONE case, you can be convicted of both. If they do one, they can not do the other via double jeopardy. http://caselaw.lp.findlaw.com/scripts/g ... &invol=682

Is that right? that is the exact opposite of what themis is telling us, but that is what my 5 barbri friends are saying.


Edit: We should forward this to Themis and actually see what they say

I'm concerned we won't hear back in time. This whole issue makes angry.

Wondering if anyone who has done a real set of questions from the NCBE has seen this issue come up. I'd at least trust their explanation over Themis or Barbri.

[Lolek]

I have never encountered a problem where someone is convicted of both. You're either convicted of the BARRK felony or felony murder, not both. The whole point of felony murder is to elect to give you a more severe punishment for committing a violent felony by grabbing you for murder instead.

The way Gotti and someone else explained that question is correct. Under that scenario, because he committed arson and someone died, he can be convicted of felony murder instead. However, there is no need to rely on felony murder because he had the requisite maliciousness to qualify for depraved heart murder. In addition, that same intent qualifies for arson. These are two separate crimes in this instance. There's no reason to rely on escalating the arson to felony murder because that is usually reserved for a accidental deaths arising out of the arson to deter people from committing the arson. Here, he decided to act so recklessly that he can independently be convicted of both.

I have no idea why Themis included that felony murder sentence but their explanations are often quite sloppy.

[Gotti]

BarBri people are straight denying that they ever merge unless by merge you mean assault/battery et al can't form the felony for felony murder.

What I am reading is that if they bring the FMR and the Underlying felony in ONE case, you can be convicted of both. If they do one, they can not do the other via double jeopardy. http://caselaw.lp.findlaw.com/scripts/g ... &invol=682

Is that right? that is the exact opposite of what themis is telling us, but that is what my 5 barbri friends are saying.


Edit: We should forward this to Themis and actually see what they say

I'm concerned we won't hear back in time. This whole issue makes angry.

I just don't see how they can't merge. Taking them separately, if you're committing a burglary, you don't have the requisite mens rea for murder. Separately, if you unintentionally kill someone, you don't have the requisite mens rea for murder UNLESS you have an aggravating factor, which the law provides for in felony murder - the aggravating factor is that you're committing an inherently dangerous felony like burglary.

I've attacked every single question that I've come across that involves merging the underlying felony into the felony murder charge with that assumption, and i've gotten the questions right. I'm just not seeing it.

[Tanicius]

BarBri people are straight denying that they ever merge unless by merge you mean assault/battery et al can't form the felony for felony murder.

What I am reading is that if they bring the FMR and the Underlying felony in ONE case, you can be convicted of both. If they do one, they can not do the other via double jeopardy. http://caselaw.lp.findlaw.com/scripts/g ... &invol=682

Is that right? that is the exact opposite of what themis is telling us, but that is what my 5 barbri friends are saying.


Edit: We should forward this to Themis and actually see what they say

I'm concerned we won't hear back in time. This whole issue makes angry.

I just don't see how they can't merge. Taking them separately, if you're committing a burglary, you don't have the requisite mens rea for murder. Separately, if you unintentionally kill someone, you don't have the requisite mens rea for murder UNLESS you have an aggravating factor, which the law provides for in felony murder - the aggravating factor is that you're committing an inherently dangerous felony like burglary.

I've attacked every single question that I've come across that involves merging the underlying felony into the felony murder charge with that assumption, and i've gotten the questions right. I'm just not seeing it.

What's so bizarre is that all of the Kaplan and BarBri people are convinced there's no merger whatsoever. Asked the question on Reddit and got the same result.

[Gotti]

BarBri people are straight denying that they ever merge unless by merge you mean assault/battery et al can't form the felony for felony murder.

What I am reading is that if they bring the FMR and the Underlying felony in ONE case, you can be convicted of both. If they do one, they can not do the other via double jeopardy. http://caselaw.lp.findlaw.com/scripts/g ... &invol=682

Is that right? that is the exact opposite of what themis is telling us, but that is what my 5 barbri friends are saying.


Edit: We should forward this to Themis and actually see what they say

I'm concerned we won't hear back in time. This whole issue makes angry.

I just don't see how they can't merge. Taking them separately, if you're committing a burglary, you don't have the requisite mens rea for murder. Separately, if you unintentionally kill someone, you don't have the requisite mens rea for murder UNLESS you have an aggravating factor, which the law provides for in felony murder - the aggravating factor is that you're committing an inherently dangerous felony like burglary.

I've attacked every single question that I've come across that involves merging the underlying felony into the felony murder charge with that assumption, and i've gotten the questions right. I'm just not seeing it.

What's so bizarre is that all of the Kaplan and BarBri people are convinced there's no merger whatsoever. Asked the question on Reddit and got the same result.

I know, it's really weird.

I found a GA state court opinion (just by googling) that explains it pretty simply: http://caselaw.findlaw.com/ga-court-of- ... 61553.html


"The Georgia Supreme Court has stated that “t is clear that the underlying felony of a felony murder conviction is a lesser-included offense of the felony murder. And under the Blockburger test, “[f]or double jeopardy purposes, a lesser-included and a greater offense are the ‘same offense’ under the Fifth Amendment because the lesser offense requires no proof beyond that which is required for the conviction of the greater offense.  A conviction for the offense of felony murder requires proof that the victim was killed during the commission of a felony. Kidnapping with bodily injury is a felony, punishable by life imprisonment or death. A conviction for the crime of kidnapping with bodily injury requires no additional facts than those required to prove felony murder by kidnapping with bodily injury. Therefore, under a Blockburger analysis, the felony murder and kidnapping constitute the same offense."

"Even though two or more charged offenses may constitute the “same offense” under the Blockburger test, a defendant may be tried in the same proceeding for multiple offenses, including greater and lesser included offenses, because the jeopardy is simultaneous. If a defendant is found guilty of both felony murder and the underlying felony, the conviction for the underlying felony merges with the felony murder conviction."

[Tanicius]

"Even though two or more charged offenses may constitute the “same offense” under the Blockburger test, a defendant may be tried in the same proceeding for multiple offenses, including greater and lesser included offenses, because the jeopardy is simultaneous. If a defendant is found guilty of both felony murder and the underlying felony, the conviction for the underlying felony merges with the felony murder conviction."

I remember coming across this conundrum while first learning the MBE rules on Criminal Law. Maybe the distinction is that you can be convicted of both felony murder and the underlying defense, but they merge for the purposes of sentencing and Double Jeopardy.

But then, Themis's question about the robbery asks: "For which of the following offenses MAY the defendant be convicted?" And its correct answer is "Murder only" on the basis that the underlying felony and felony murder "generally merge."

Wow does this make me mad.

[plenipotentiary]

I've had the felony murder merger argument with several of my friends taking other courses and it just made me feel confused and deflated.

CPLR also makes me feel confused and deflated.

[WonkyPanda]

Man, I really don't understand the "concurrent" and "potential" distinctions for CA professional responsibility. Anybody got a digestible input?

[AIpwns]

I can't believe it. I just went to do my second NY MC question set and the same bug exists. Just like in the first set, it won't let me answer "A" or "D" on almost any of the question.

At this point I'm guessing all of my NY MC Themis questions are worthless. THANKS THEMIS!

I had the same problem and I was simply zoomed in too far on my browser.