am aware that i believe there's a dispute in the circuit as to whether twenty two fifty forty one forty two a five i don't believe that this court has resolve that issue and certainly the supreme court does not resolve that issue in ice that can be looked into your honor and it's our position that he want to fight but even if this was not a twenty two fifty four d caged even if this was previously people off the district court still erring granting relief because the court failed to prosecutor in the state courts argued he was a classic example of the accomplice the getaway than the man who drives the vehicle in this case there was other evidence besides his mere driving that showed he act ts argued in the state court trial it's not credible to believe that in this small car nobody saw him putting on this i'm not talking about nobody i'm talking about the driver exact reiver is driving the car his passenger is pulling on a bandana sometimes the testimony that during the first drive by they were waving their their bandanas and showing him to the right there's no doubt that they were going there because a fight for instance where they're going to shoot somebody and what's what does that mean that sara starts car everyone in the car discussed what they were doing one of the possibilities was shooting and that during that discussion someone said we have the gun and then after that mr marsh testimony about are we going to cap can be  seen recently seen by rational jury viewing the evidence in the light most favorable of the prosecution at that are we going to cap is merely a confirmation of the prior statement and the court cannot isolate each of these pieces of evidence they must be  question is and therefore what your answer is i think is just as much theory on this part of his case yes i knew that we were going there to do something i never knew that we were going there to sort of show there was going to be a criminal activity for example criminal assault it doesn't matter the criminal activity turned out to be homicide so long as he moved and was facilitating any form of criminal activity by his dri was the prosecutor's argument focused on the knowing of the shooting not going there is merely the fifth i think that's a different question is what the law is that's a question of the prosecutor said i'm perfectly good and we know what the prosecutor said and disagreeing with  because the prosecutors argue it was proper and the jury instructions were proper there was no violation to the district judge major complaining was what the failure to clarify the jurors a little over five minutes left up to the high school slowed down immediately before the shots were fired that are fired and he immediately took off and that is consistent with us driving in a manner just to in a drive by shooting or may not testify and so on so why don't we have already set aside the verdict that is to say what if we set aside the verdict on the winship ground without regard ranger affidavit and we're now to the point where least we get a retrial now i'm on the double jeopardy question and i'm not asking whether there was enough evidence to support a verdict but i'm r determining whether it's the equivalent of acquittal the review was limited to record evidence ok thank you may and i hope we have time to discuss this double jeopardy issue as well very very recently the washington supreme court under six interest to inventory those court of appeals argument to the prosecutors in for a dime in for a dollar car so there was not an objection they had a very strenuously argued that issue at the instructional phase and at half time about what the law and state of washington was but it was was of course that whatever the prosecutor argues is not that's correct that is correct but and i think if we can have the jury agrees you know we'd be in a different position but we have the jury come in for times and saying we don't understand this we don't the first place well again i think the record in weeks is quite different than the question that they posed in that particular case if you look think that particular paragraph that the court referred to it actually didn't say that question and they just needed like they were in a library and they just couldn't find it they needed some help they didn't come back and say ok we read that but we still don't understand and that's what happened in this case three times but at some point the jury does come back with the with the verdict are we are we to assume that they that they decided that confusion we would never have confidence that the jury had resolved those preferences well i think you would be hard pressed to find circumstances that are like those present here where the prosecutor is argu do that but i think that again makes this case you know virtually unique in the cases that i've reviewed on this particular issue that is the judge wasn't in a position to give the right answer because there was such a state of confusion about what the answer wa focused attention elsewhere that's right in effect and the p r if you think that they move the goalposts on mr starr said essentially with this will drive by shooting things that in for a dime didn't mean what it said in all of these other cases and how we interpret it before i witnesses there's no inconsistency there that's just the way it is the same thing goes for this discussion about shooting that mr go show and only mr goetia discuss this we can't even place many possibilities the boys talked about in terms of the they might do to the other gang shooting came up but he's clear that no one ever that never resolved into a pla chill completely entirely equally likely possibilities something as attempt them one way or another in order for that to be a rational inference or a logical inference what the state does here is it looks good points to  there was no plan to shoot and in fact i think you have to absence observe the other point on which they're unanimous which is that in the aftermath of the shooting immediately upon that happened each one of the state's witnesses and defend the sunlight expressed what the hell are you doing why did you should they all said don't worry that wasn't the knesset who was here now they can tell the jury all we were shocked but the jury is presumed to have said you're lying if juries are presumed to find that part of their