morning your honour's and may have please the court my name is michael gomez from the office of the state of the fender and i'm here on behalf of my client michael anderson yawners this case represents a scenario that place itself out all over the country high school hallways parking lots and as in this case a park this was a case about two teenage girls in a playground fight because they didn't like each other over a boy that said they didn't like each other they talked about fighting before the park to talk about fighting at park so they got into a fight now my client michael the boy they follow was convicted of aggravated battery received a four year sentence for a fight that he was not around when it started and a fight that he actually broke up and there is a video of the fight  a portion of the fight taken by rianne and fisher harlem or a friend and this video shows when michael anderson entered the fight when he ran from the football fields like the way from the basketball courts and encountered a situation where he saw a man reaching to touch his girlfriend and he didn't know what he was going to do you know if you post right he was part of fight so he goes directly and pushes him away now the state concedes five clear obvious errors in admitting improper late witness testimony regarding the events depicted in this fight now the state argues that the evidence was overwhelming but it was not state presented insufficient evidence to find michael anderson guilty under the theory of the state pursued at trial and under this theory that the theory that the state has ended up on appeal now i'd like to start off with a theory of accountability that the state pursued at trial which was michael was accountable for pushing away two bystanders and preventing specific offense then the jury or the trier of fact can find an individual accountable for the actions of the principle you restated it in a way that isn't exactly what i was asking about how it actually does use the language cell a in her commission of aggravated battery as is required to make michael legally accountable so there sounds like you're on their knowledge ing that the evidence  there's undisputed evidence that michael was only one of two individuals who wrote this fight which is the exact opposite of wanting a fight to continue now i'd like to try to court with the breakdown of the timeline in the video on the state says that michael's spent seven seconds brushing away bystanders before he broke up the fight but that is a bit of a mischaracterization of the video michael runs from across from a football field to a football field in half a running that he was not around when the fight happened he didn't know how it started he was playing basketball basketball with his friends for about half an hour he hears a commotion at the skate park and runs to find out what's happening now we have the advantage of the video of having a perfect spanish point from riyadh its camera a pretty clear video we have the benefit of replays and the comfort of our chairs to watch this video but from michael's perspective which is the perspective from which we have to determine his specific intent he's running we don't know who if anyone is standing in his way all he sees is two girls fighting on the ground with people reaching a one boy in particular with a skateboard in his hand reaching in  i there's no evidence to say what was in his way if anyone was in his way well i mean you have the video evidence yes is there anything in the video that would indicate that his children and teenagers standing all around them so i cannot say for sure that his view was not obstructed there anyway but as a video the pics he goes straight to this stranger his eyes are on the stranger who brushes detroiter pushes away the stranger and tells him don't touch my girlfriend at that point sped up eight seconds eighteen through twenty one at second twenty three is when darien davis and here's the video and then you see michael that he made an effort to me it's behind behind the fire and thrusting his chest out holding his arms like something like this apparently made three or four other people could review or determine on its own but what the video does show is that he does push away the unknown stranger he does turn around someone says something to him and he responds and one second later start pulling out a set off card so he did not have the specific intent at any point so far this commission of the battery instead he had the pacific intent to end the battery which is exactly what he did and that is insufficient to find him guilty say in this case no there is insufficient evidence to find him guilty under the solicitation theory because there is some evidence of that but it's contradictory your or it's contradictory and there's just insufficient evidence to find that he even one the the state didn't pursue that theory at trial and i think that now on appeal is trying to save this unjust conviction by relying on this other theory for which there is a lack of evidence before i trialed the state calls the video the main witness because the issue was michael pushing away the bystanders at what he actually by now the video is relegated to mere circumstantial evidence of his intent of his before the fight even began half an hour before the fight began when in the heat of argument with his ex girlfriend his girlfriend is called over and they start arguing they had been talking about fighting for two weeks earlier and finally this is the first time they saw each other so they wanted to fight and everyone there was understood evidence that the fight was mutual they talked about fighting they wanted to fight each other carly even cut her hair out so i got there we took off her shoes and was getting to be three things first is that the defendant solicited someone to commit a specific offense to that the defendant had a specific intent for that person to commit that offense and three in response to the defendant  he encouraged the fight that came after any talk by he didn't implant any criminal idea to commit this battery on an unsuspecting victim these were two girls who just want to fight and then half an hour left he leaves to play basketball nothing happens there's even some testimony from on a cell and the things kind of cooled off that carly started talking more stuff that she was to out a solution just letting things go and then finally i'll sell you want to carl i'm sorry want to fight and everyone around them was encouraging them to fight and it was only when they were standing face to face that harley threw the first punch so in that scenario i did something to not commit any better in response to it appears that one girl loses consciousness which there was no foundation for that testimony then it appears that two people tried to intervene and one person stops them from intervening now this stranger his right hand that's at that point is when michael approached the situation didn't know if he was part of the fight if he had any part in the start fighting or if he was going to escalate the situation part of the accountability at trial when the prosecution's opening statement really did refer to the fact that the fight was instigated and page eighty four mentions that the defendant  rude comments to north about how rios quote was going to beat her profanity words i assume that she was reluctant to actually see the who the words and in court and then it was asked and you say he said rude things or something to the fact that his girlfriend was going to beat her up and she replies yes like he was egging on the fight she didn't remember the exact words carly north cut in page one eighteen says he wanted his girlfriend over there so we called her over there and then in one thousand nine hundred was asked do you remember michael saying anything the commission of the offense which in this case that was the inference the reasonable inference the jury could make particularly it's like both elements of these solicitation play on each other and support each other the video showing what the defendant did when he arrive scene not breaking up the fight push him a bystander shows that he intended them to fight and the fact that well what is he doing when he's pushing away the bystanders what is his intent there well this intense sadness of circumstantially and supporting of the of what he's intent is because he initially told them to fight he said he told his girlfriend to fight north at the very beginning so that then informs the jury as to what was in the defend his mind when he rushed in start well that was never charged the state could not try to sustain the conviction on evidence of an offense that was never charged this is not an offense that wasn't charged this event this offense was charged it was aggravated battery it was and it was presented to the jury that way and argued to the jury that way and there suctions in new instructed that they could convict on that basis so it is both theories are properly for this court it's there's no basis to find forfeiture the defendant basketball and according to defend its own testimony the day argument was over before he left to play basketball but there's contrary testimony that could be believed by the jury from the prosecution these carly north said that they were still arguing and it turned physical she didn't say exactly how long that was another thing is theory and davis when he talked about the thirty minutes he said he was in a decent game of twenty one the next thing you know like i say we just heard it we ran over there we were said he was playing for a while quote enough to where all of us worked up a sweat so i mean we was there for a minute that's what he said a minute so his testimony was even self conflicting and defended also said thirty minutes in the sports not required to accept the testimony of defendant or the defense witnesses the jury can resolve the conflicts in the evidence and when there is a conflict in the evidence this court is required to accept the evidence and in it in a light most favorable to the prosecution and reaps all of those conflicts in favor of the prosecution and make the reasonable inferences that you favor the prosecution the defense theory of this case is this is just typical he was telling rios and they because she was asked by the police hours afterwards why she got so mad and her answer was that the defendant had told her that carlie was quote talking stuff but it's not just about talking her over saying that north korea's talking stuff about rios and therefore sort of implying that they should do something about it was actually a direct solicitation so in this case calling rios over and telling her to fight north is an into into a completed offense to make the defendant accountable rio's has to then pattern or cut in response to the solicitation that in response to part of this crime of accountability can be established by reasonable  e from from the prosecution's evidence so the fact that they were somehow preparing themselves taking shoes off and taking things to excess resign or whatever in order to prepare for a future will fight does not necessarily mean the defendant did not instigate this and they were not fighting in response to that indication instigation which they were fighting in response to instigation and whoever threw the first punch doesn't matter because in this situation where both parties agree to fight a mutual terms which is what situation i mean if you go see if i say that it's very clear from the jury standpoint that he acts with a specific intent to keep others from breaking up their fight the only thing here is he doesn't know the two women that are fighting doesn't know anything that preceded the fight just comes upon two women fighting and prevents five standards from breaking off and then so mary oh and based on his actions is intent to keep others from breaking up the fight is clear there's he accountable for the aggravated battery it seems like that would be proof that he ate in the commission of the crime with in well he joined in davis the second after davis started breaking up a fight however where he's doing all this pushing away this is in the several seconds where rios is claiming several blows against a defenseless north remained prone and sen testimony one forty six her claim was that they were going to do anything so he went to play basketball everyone was encouraging her and down later on in that paragraph it says and then another five minutes later she comes back and was like you want to fight so according to rios it seems like it was sufficient to convict for purposes of deciding whether double jeopardy parts of the trial so the fact that the say we could see that certain evidence was improperly admitted this late in testimony in interring video or what words meant even that on page eighteen of its brief that the evidence was closer on the issue of michael pushing the bystanders and whether he did so with the intent to aid to facilitate that crime so the city is trying to save the conviction under this new aggravated battery of pages sixty one through sixty three of volume for the report of proceedings this state defined the closing argument the state defines accountability and then says that pushing the bystanders is aiding are attempting the commission of the offense but also reference the time period whether the half hour matters and it does matter doesn't matter that it was half an hour but it matters that michael anderson left he did not know that this fight started is undisputed that he loved to play basketball it is under spirited that he was not around at all when the two girls started fighting there in davis and michael both testified there was half an hour for basketball expression that he had been there for a while and to say that this fight was orchestrated by michael ignores the undisputed evidence that carly and i certainly did not like each other they had been arms and then he spends the rest of the time pulling them apart and tell i decided to let go of harley's here and finally the the improper witness testimony regarding events depicted in the video these are five instructed the jury how to view this video which was a defenseless north two people trying to break it up and one person preventing them from doing that is not what happened your honor so yes this court to reverse michael anderson