specially concurring.
I am in complete accord with the holding of my brethren regarding the use of hearsay testimony at a preliminary examination, and its sufficiency to demonstrate probable cause. I do not disagree with the views of my brethren with respect to the claim of ■instructional error, but I do have some comments of my own with respect to that argument.
The trial court is required to instruct the jury only with respect to the law applicable to issues actually raised by the evidence. Hatheway v. State, Wyo., 623 P.2d 741 (1981); Benson v. State, Wyo., 571 P.2d 595 (1977); and Thomas v. State, Wyo., 562 P.2d 1287 (1977). This court is not required to deal with an interesting abstract theory which is unrelated to the issues which evolve from the facts in a particular case. In fact to do so would probably involve us in a violation of our rule that we do not furnish advisory opinions. The appellant’s argument is sophistry because it departs from the facts of this case.
The record in this case discloses evidence of forcible sexual assault particularly from the victim. The evidence and testimony of the appellant were to the effect that the victim cooperated in the sexual acts as in an adventure in which she desired to participate. The evidence in the record thus disclosed the classic opposite positions so frequently found in a sexual assault scenario. No charges were levied against the appellant other than those consistent with forcible sexual assault.
In arguing in this appeal that the language of the consent instruction shifted the charge to one under either § 6-4-302(a)(iii) or (iv), W.S.1977, the appellant assumes that the nature of those sexual assault statutes was before the jury. So far as the record discloses, the jury had no information about those particular statutory provisions. Indeed to instruct on them would have been error because they assume no force, confinement or threat is necessary for the actor to accomplish his purpose. It therefore is speculative to urge that the jury may have convicted the appellant under a theory compatible with those statutory provisions.
On this record the appellant was entitled to an instruction about the defense of consent. A' correct instruction was given with respect to this issue,.and no other instruction was required. Britton v. State, Wyo., 643 P.2d 935 (1982); Heinrich v. State, Wyo., 638 P.2d 641 (1981); and Channel v. State, Wyo., 592 P.2d 1145 (1979). The instruction which the trial court gave, the source of which apparently is § 9.601, Wyoming Pattern Jury Instructions Criminal, correctly advised the jury with respect to the defense of consent, and the second paragraph of that instruction was necessary in *1259the context of voluntariness without regard to the special crimes of sexual assault defined in § 6-4-302(a)(iii) or (iv), W.S. 1977. The logical fallacy in the appellant’s position is that it would result in a rule that a victim who is physically helpless or who through mental illness, mental deficiency or developmental disability is incapable of appraising the nature of the victim’s conduct could never be the victim of a forcible sexual assault no matter how brutal the actor’s conduct so long as the actor claimed consent. This cannot be the rule.
The instruction offered by the appellant was properly refused because it did not adequately present the issue of consent as contrasted to mere submission. See Britton v. State, supra; Brown v. State, Wyo., 581 P.2d 189 (1978); Tryon v. State, Wyo., 567 P.2d 290 (1977); and Kennedy v. State, Wyo., 470 P.2d 372, reh. denied 474 P.2d 127 (1970), cert. denied 401 U.S. 939, 91 S.Ct. 933, 28 L.Ed.2d 218 (1971). Because the proffered instruction was incorrect, the trial court was justified in refusing it. This concept, coupled with the propriety of the instruction that the court did give, resolves the issue of instructional error and results in an affirmance.